MOTION MOVED ON CONSIDERATION OF COMMONS AMENDMENT No. 14

HL Deb 22 July 1998 vol 592 cc936-76

14A That this House do disagree with the Commons in their Amendment No. 14.

6.45 p.m.

Baroness Young

My Lords, I beg to move that this House do disagree with the Commons in their Amendment No. 14. At the same time I wish to speak to Amendments Nos. 98, 107, 108, 140 and 237.

The issue before the House is not party-political. Noble Lords from all parts of the House have been good enough to indicate support for me, for which I am extremely grateful. Many would have signed this amendment had that been allowed. Nor is this some religious Right-Wing plot, as has been suggested to me. I speak as an Anglican. However, I know that I have the support of Roman Catholics and members of the Welsh nonconformist Church. I was very grateful that the noble Lord, Lord Jakobovits, indicated his support for me. I have been approached twice by the secretary-general of the Moslem Council of Great Britain, representing 600 mosques, to say that the council is entirely in support of this proposal. And of course there are many others who have no religious convictions at all who also support what I am doing.

I think we all greatly welcome the firm statement from the most reverend Primate of all England, the Archbishop of Canterbury, that he cannot support the reduction in the age of consent to 16 and the fact that he set that out so clearly in his article in this morning's Times.

There are two issues before the House today. The first is a constitutional issue, the other an issue of substance. Your Lordships will recall that the Crime and Disorder Bill began in this House. It then went to the House of Commons, but not until Third Reading was this amendment to lower the age of consent introduced. It makes an important social change, and one that is contentious, though not on party-political lines. Interestingly, the amendment that preceded it, again at the last possible opportunity, was on football hooliganism, which is of quite a different character and is an issue on which there is wide agreement that something needs to be done.

The amendment before us today was tabled in another place on 11th June and debated on 22nd June. It was debated for only three hours. Whether or not it is true, as one Labour Member of Parliament told me, that the debate was deliberately fixed by Mr. Mandelson to coincide with the World Cup and in particular the England versus Argentina match, I cannot say. But what is undoubtedly true is that the amendment was never considered either in Committee or on Report in either House of Parliament. So there has been no opportunity at all for detailed consideration of this change in the law and of the issues involved.

So rushed has this whole business been that the Long Title of the Bill had to be amended in order to make it possible for this amendment to be tabled at all. Many would think that the amendment has nothing to do with the main purposes of the Crime and Disorder Bill. I regret to say that that has come from a Government who tell us regularly that they are committed to transparency and openness.

What is the consequence of all this? Noble Lords will be aware that two amendments to the Commons amendment are tabled for debate in this House this evening. That suggests that the amendment as it stands, even if one supported the principle of lowering the age to 16, is not satisfactory.

Secondly, a very important amendment was moved in another place by Mr. Joe Ashton. Perhaps I may remind the House of what his amendment said. The amendment proposed that instead of "sixteen" there should be inserted: sixteen years (except when one party is in a position of authority, influence or trust in relation to the other, in which case both parties must have attained the age of eighteen years)".—[Official Report, Commons, 22/6/98; col. 755] That amendment in the other place was lost by only 40 votes. That seems to show that very many of those Members of Parliament who voted to lower the age of consent to 16 were concerned as to the consequences for vulnerable boys and girls who were being looked after away from home. The figures quoted by Mr. Ashton were taken from the Utting Report, published last November, which indicated that there are some 200,000 children living away from their parents. It sets out those groups which are probably most vulnerable and most at risk, including those in children's homes and foster care, and of course particularly in penal institutions and remand homes, as well as children in schools, and hospitals, and disabled children.

Replying to the debate, the Home Office Minister, Mr. Alun Michael, had this to say, particularly on the amendment proposed by Mr. Joe Ashton: It is particularly important to protect those who are vulnerable, and those who are in care … Even before [Mr. Ashton] tabled his amendments, we had acknowledged the need for changes in the law … Our priority is to protect the vulnerable and to reinforce the duty of professional care. We are looking carefully at what needs to be done but we must get it right. I have discussed the issue with my right hon. Friends the Secretaries of State for Education and Employment and for Health, and we have made it a matter of priority. We have set up an interdepartmental working group to identify the additional safeguards needed to prevent those who are unsuitable to do so from working with children. That group will also identify the measures necessary to protect 16 and 17-year-olds who may be vulnerable to abuse by those in positions of trust".—[Official Report, Commons, 22/6/98; col. 787.] That statement has been reinforced by a very helpful letter sent to me by the noble Lord, Lord Williams, for which I am most grateful. I was also most grateful for the discussion we had some two weeks ago. Perhaps I may quote from his letter: I very much share your concerns on the issue of protection for this vulnerable age group, both boys and girls. This is something the Government take extremely seriously. You may be aware of the new interdepartmental working group". The letter goes on to say: It will be looking at the problem of abuse of trust, which has been the focus of much concern in the debate over lowering the age of consent and also more widely at safeguards to prevent unsuitable people from working with children. It holds its first meeting on 30th July and has been tasked to report by the end of the year". Not only do we have the amendment proposed by Mr. Joe Ashton, we also have the response by Government Ministers.

I do not doubt for one moment the sincerity of the noble Lord, Lord Williams, or of the Government Minsters who have spoken on this matter and their concern for this group of young people. What I do find extraordinary is that the Government have accepted an amendment, passed by the House of Commons, to lower the age of consent to 16 and have at the same time immediately recognised that it is seriously flawed and that it is necessary to set up a working party to deal with those young people most at risk. I ask myself, as a simple person: how can they allow this provision to go forward on to the statute book in this unsatisfactory state?

Perhaps I may look at what it seems to me would be the timetable of the interdepartmental committee. The committee will report at the end of the year, in December, presumably. Its report must then be considered. Legislation will have to follow, no doubt not in the next session of Parliament but in the one after. That means that for at least two years those vulnerable young people—those are not my words but the Government's words—will be at risk. I look to those who intend to vote today to lower the age of consent to 16. They will be voting for a piece of legislation which, on the admission of all those who have studied it closely, is flawed.

Perhaps I may say to the noble Lord, Lord Williams, that I recognise that the Crime and Disorder Bill is a very important Bill for the Government. I recognise, too, that it has a great deal of cross-party support. I say to him in all sincerity that no one hopes more than I do that it will be successful in dealing with juvenile crime. I believe I speak for everyone in the House on that matter. But we are not talking about the whole Bill; we are talking about one amendment tacked on to the end of it, which the Government admit contains a serious flaw.

I should therefore like to suggest to the Government that they should take the amendment back and bring forward their own Bill to reduce the age of consent to 16 in the next session of Parliament, or whenever they feel it to be appropriate; or, if they prefer not to do that, that they should invite a Member to sponsor it and allow it government time. That would have the advantage that it would deal with the problems which are to be resolved by the interdepartmental working party. It would therefore give everyone an opportunity to look in detail at the consequences of this piece of legislation, because we should have a Bill before us which would have a Committee and a Report stage. I profoundly believe that that would be the best way forward. It would give us an opportunity to get the legislation in the right form and a form which—I hesitate to say this in the presence of so many Law Lords—would perhaps be more easily interpreted and workable.

I turn now to the issue of substance. The fact is that the public at large do not want the age of consent lowered to 16. Polls show that over 70 per cent. of the population are against it. I have been deluged with letters. In my entire public life I never before remember having to spend over an hour each day simply opening letters, 98 per cent. of which support my view. They come from teachers and from doctors. I have even had letters from homosexuals supporting my view. But mostly they come from parents. It would not be an exaggeration to say that parents are very worried about this matter, to the extent that some are quite fearful about what is happening. One of the most tragic letters I have received was from a father whose young son went off to America, contracted AIDS and died in unpleasant circumstances, including going blind.

I believe that this is the thin end of the wedge. I know that many homosexual organisations say that they are not in favour of lowering the age of consent to 14, but some are. It will lead to a demand for gay and lesbian marriages and for the right for such couples to adopt children.

I understand that the Government are already considering repealing Clause 28, which prevents local authorities promoting homosexuality in schools. As it is, we see the most dreadful leaflets being distributed outside school gates. Parents are very concerned about this. I speak as a mother and a grandmother; we are family people. Parents mind very much indeed the prospect of their children being taught about homosexuality. They do not think that it is something which should be taught in schools. If we really have regard for public opinion, that is something we must take into account.

It is said that this whole issue is one of equality. I do not myself believe that there is a moral equivalence between heterosexual and homosexual relationships. Furthermore, I think that boys and girls are not equal in emotional development. I believe it is a very doubtful argument to bring equality into this issue at all. In many respects it simply does not apply; we are not talking about equal things.

If we did want equality, in an ideal world, I would be quite consistent and say that we should raise the age of consent for girls to 18. We are not in that world, so it does not work as a proposition, but I would not wish it to be thought that I am in any sense being inconsistent.

There are many things I could say to your Lordships today, but I shall conclude now. I have put down this Motion to disagree with the Commons amendment because I believe that it is wrong in principle. I have been reinforced in that view by the letters I have had and by people stopping me wherever I go and saying: "You are standing for something. You must stand up for what people think and for what good parents want for their children".

The amendment as it stands is, in my opinion, flawed. It would at this stage be quite wrong for your Lordships' House—even for anyone who believes in lowering the age of consent—to vote for what is bad legislation. It is clearly not wanted by the public at large, who are fearful about what is happening to society. We know perfectly well that homosexual practices carry great health risks to young people.

I hope tonight that the overwhelming majority of your Lordships will support me in the Division Lobbies. We shall be exercising our constitutional right to ask the other place to think again on this matter. There is much to think about.

Moved, That this House do disagree with the Commons in their Amendment No. 14.—(Baroness Young.)

7 p.m.

Baroness Mallalieu

My Lords, perhaps I may declare an interest at the outset. I am the mother of two young teenagers. In my work as a criminal barrister I have encountered more sexually abused children of both sexes than I care to contemplate. I strongly support the Commons amendment and disagree with what the noble Baroness, Lady Young, puts forward.

Those who oppose the change of law say that the present law is necessary to protect young people. But I believe that it does precisely the opposite. Homosexual activity involving teenagers is a fact of life. There is no law which can stop consensual acts carried out in private. Even if every policeman in the land were put on the task, accompanied by torchlight vigilantes led by the noble Baroness and her supporters, that could not be done; it could not be policed or prevented.

The effect of the criminalisation of these acts for those who are male, homosexual and aged between 16 and 18 is to drive them to secrecy within the homosexual community; to isolate them; to cut them off from seeking advice, guidance and help from family and friends, from doctors and, on occasions when sexual attentions are or have become unwelcome, to cut them off from the protection of the police and the authorities. All sexual activity is a health hazard. Young people need to be encouraged, not discouraged, from seeking information and help when they need it. The present law effectively puts a section of the community—young, gay men—beyond the pale and, far from protecting them, it denies them the protection which the rest of us enjoy.

Within a short distance of this Chamber, tonight and every night for those who care to look, the failure of our present law to protect the young from sexual exploitation can be seen in the numbers of very young prostitutes of both sexes for sale on our streets. The law has done little to help them.

The reality is this. Regardless of the law, homosexual experimentation between young men has always taken place and always will. Those who fall in love or fancy that they have done so, whatever their sex, will express their love as they feel right and not necessarily as the law permits. The present law does not prevent them from doing it or protect them; instead, it makes them into criminals.

The view I have just expressed is shared by the majority of the organisations who are most directly concerned with the young—the NSPCC, the British Medical Association, the National Association of Probation Officers, Barnardo's and Save the Children to name but a few. When all the evidence suggests that sexual orientation is fixed in both sexes by the age of 16, what an extraordinary law we have which says to young people, "You are sufficiently mature to take a sexual partner of one sex, but not of the other".

I understand the concerns expressed by the noble Baroness for the vulnerable. As a parent, of course I understand them and feel them myself. For that reason I am pleased that the Government are exploring ways to prevent unwelcome sexual attentions which are equally offensive, whether the victim is a man, a woman, a boy or a girl and, indeed, protection for those in positions of trust. If the law needs to be strengthened, that must be done. But that is a separate matter from the matter we are discussing tonight.

A new generation today has a very different attitude towards homosexuality from ours or that of our parents. It is no longer a subject which cannot be spoken of openly. It is no longer seen as a matter of choice any more than being right or left-handed is a matter of choice. A cold shower, a good beating or a spell of hard labour in Reading Gaol are no longer seen as the answer. This modest change in the law does no more than give effect to reality, common sense, equality and tolerance. "Tolerance" does not mean permitting things of which one approves; it means accepting the right of others to choose to do things of which one disapproves.

To those who have been saying, as they have in the past few weeks, that the Commons amendment would send the wrong message or signal from this Parliament, I ask this question: who do they believe will listen to that message? I doubt that a single young person will either embark on or postpone sexual activity as a result of this debate or its outcome. Nor, I am bound to say, do I believe that predatory older men, bent on seducing their juniors will be changing their invitation from the traditional, "Come and see my etchings" to "Come and read my copy of the Crime and Disorder Act".

We are talking to one another in this House, but outside the world has already moved on. And so should the law. We claim to have equality before the law; we do not have it. This amendment merely brings it a small step nearer.

Lord Quirk

My Lords, what we are talking about is widely billed in the media as only to do with lowering the age of homosexual consent. Those are the very words in the current issue of our own House Magazine. But that is not so, at any rate for me.

The issue is whether, for young boys and young girls alike, we should legitimise anal intercourse. In my view, the Commons amendment that we are discussing was hasty and irresponsible; based on spurious sound bites about personal freedom and sexual equality. In fact, of course, on the issue of equality, we have had sexual equality since 1994 when it became legal for men and women to indulge in anal intercourse from the age of 18. The Commons amendment to the Crime and Disorder Bill does not introduce a new sexual equality; it merely extends the 1994 equality down from 18 to 16. The equality argument therefore goes out of the window. The issue for me is whether we protect 16 year-olds from a dangerous practice, just as we try to protect them from, say, alcohol with the 18-year rule or from tobacco with widely publicised health warnings.

If, by law, we protect motorcyclists from head injury, we must give thought to protecting the sexually active from anal injury, and the dangers are very real. A book published last year by Jeffrey Satinover—a doctor of medicine and a health science expert—spells out those dangers and I make no apology for his explicitness. He says, Anal intercourse … traumatises the soft tissue of the rectal lining [which is] nowhere near as sturdy as vaginal tissue … Even in the absence of major trauma, minor or microscopic tears in the rectal lining allow for immediate contamination. The body has a strong barrier between bloodstream and the extraordinarily toxic and infectious content of the bowel. Anal intercourse creates a breach in this barrier for the receptive partner"— who might, given the Commons amendment, be a girl of 16— whether or not the insertive partner is wearing a condom". Dr. Satinover goes on to quote another medical expert's book on sexually transmitted viral hepatitis, which I shall spare your Lordships from hearing about. He specifies another dozen terrifying diseases—including cancer induced by anal warts—to which practitioners of anal intercourse are put at what this Dr. F.N. Judson calls "particularly high risk".

Whether those who voted for the amendment in the Commons were aware of these terrible risks, we in this House must certainly not ignore them. It is bad enough that young men and women of 18 already face these risks, with what degree of easily available information I know not. But what possible justification do we have in July 1998 for hurriedly extending exposure to such risks of 16 and 17 year-old girls and boys, teenagers at their most sexually inquisitive and exploratory?

By all means let us encourage youngsters to take full responsibility for their behaviour: but first—at the very least—let us be sure they understand what such responsibility entails. Have the Department for Education and Employment and the Department of Health instilled such understanding?

The Lord Bishop of Winchester

My Lords, I rise to speak in support of the amendment of the noble Baroness, Lady Young. I represent the statements of the House of Bishops of the Church of England published on 21st June and, as the noble Baroness, Lady Young, mentioned, many of your Lordships will have seen the Archbishop of Canterbury's article in The Times today, which she accurately quoted. I am sure the House will understand his decision that he needs to stay in Canterbury today with the Lambeth Conference and so cannot be here himself.

I want to draw your Lordships' attention to two aspects of the context in which all in Britain today discuss, and in which some of us have to consider, legislation on matters such as those before us in this clause. First, and pervasively, there are strong pressures upon people of every age—and not only upon young people—towards and deeper into sexual activity really as a mark of maturity, of being a fully human person, almost as a human right. Very powerful voices combine to rule out restraint, chastity and saying "no" as undesirable—even unnatural. Secondly, the assumption is widespread—it is almost axiomatic—that homosexual activity in general is as appropriate and as desirable as heterosexual activity. It is for anyone to choose between them as equal options, as it were, on a supermarket shelf.

As the House of Bishops said in its statement a month ago: Pressures are at work to legitimise any and every lifestyle irrespective of any difference of value and quality between them". That, with all respect to the noble Baroness, Lady Mallalieu, is the kind of wrong message which I judge it is right to oppose. The statement of the House of Bishops continued: Our Christian faith teaches that sex is a gift of God for the enriching of our lives within the context of marriage. Rightly used, it has a sacramental quality which speaks of the abiding, permanent and sacrificial love of God for us. It ought not to be treated casually and outside a strong framework of moral values". I believe that Parliament should be very wary indeed about deserting the wisdom in these matters not only of the Christian faith but of the other major faiths too, of which the noble Baroness, Lady Young, has already made brief mention, and from representatives of which we may hear later in the debate. I believe that we should not take a step which, along with others, will have the effect of further undermining the position of marriage in our society and that we should not collude with, still less approve of, the climate to which I have pointed by voting in a way which will be reported as "Lords back gay sex at 16". The sub-editors will for once be right; and who would want to back sex at 16 for anyone?

Then there are two particular arguments, in addition to those more general ones, for not lowering the age of homosexual consent to 16. First, and especially in relation to subsection (1) of the clause inserted in the other place—the previous speaker referred to this at much greater length and in much greater detail than I intend to do—the medical risks and the risks to physical health of at any rate a substantial proportion of homosexual sexual activities are significantly greater than those for heterosexuals. Notwithstanding the advice of many professional bodies—I respect both their professionalism and the particular aspects of care to which they draw attention—I, with many others, am not convinced that even today all or even most young people are so clear by 16 about their orientation that there is no risk of their opting prematurely, encouraged by the sexual supermarket to which I referred, into practices and into a culture from which they may later find it difficult to emerge.

I believe that these are strong and clear grounds for rejecting the notion that the reduction to 16 of the age of homosexual consent is simply an issue of justice and that, overall, for the reasons I have adduced, the discrimination that offends some—and understandably when that word is used—in holding the age of consent at 18 is justified.

Lastly, I believe that we shall both care more for young gay people and care more for young people in general by holding the age of consent at 18 than by reducing it to 16, with all the risks to those still younger that I believe will follow such a reduction.

7.15 p.m.

Lord Dholakia

My Lords, I am delighted to contribute to the debate from the Liberal Democrat Benches, although I wish to make it clear that my contribution is made in an individual capacity and in no way reflects the collective views of my noble friends.

I welcome the debate and I congratulate the noble Baroness, Lady Young, on giving us this opportunity by raising her concern about the inclusion by the Commons of this amendment. I say straightaway that I value the noble Baroness's contribution, but I do not subscribe to her point of view. I know she made a constitutional point that the amendment was not part of the Crime and Disorder Bill when it was introduced in your Lordships' House. I see nothing procedurally wrong in that. In fact, the joy of working in this House is to use every available opportunity to confront the Government and others; and we do so without giving advance notice about supplementaries which often follow Starred Questions. I should add that had I thought of it at the time—I regret that I did not—I would have introduced an amendment similar to the Commons amendment at the appropriate time when the Bill was before the House. I shall explain my reasons why.

I appreciate that your Lordships' House has a great tradition of instigating debates of real concern. This is one such debate. We may fundamentally disagree with colleagues but we value their contributions. Their contributions are no less valid than others. But, having said that, perhaps I may add that I value the Commons amendment. It is timely and deserves the support of your Lordships' House.

Of course there are moral, religious and other grounds which may be cited, and are being cited, as reasons for not lowering the age of consent to 16. I shall listen to this argument very carefully, as I have done in the past. I do not profess to be an authority on this subject, but although I have been less than one year in your Lordships' House, I do know about discrimination; I do know about equality; I do know about crime; and I do know about criminality. These are the points on which I wish to build my case in support of the Commons amendment.

The noble Baroness, Lady Young, talked about public opinion. I ask noble Lords this question: who in 1965–35 years ago—would have ever believed that this country would have three separate pieces of race relations legislation if one had simply decided to act on public opinion? In the past four decades who would have believed that we would have legislation about gender equality, the termination of pregnancy and about homosexual practices in private between consenting persons? Is it that we follow public opinion or do we lead it? These are the debates of the past which made us the envy of the civilised world. Today's debate is another such opportunity where we need to take that particular lead.

We may reduce burglary, but we do not get rid of burglars because we have anti-theft laws. Equally, we do not lock up old ladies to stop mugging in the streets. To use the power of the law to impose our own values on others will not necessarily work. No law can command respect if it discriminates between homosexual and heterosexual partners in a consenting relationship. The law must be an unequivocal statement of public policy. It brings the law into disrepute if it discriminates between sexuality and sexual preferences based on consent.

On the one hand we say that we accept heterosexual relationships by consent for those who are 16 years and over. We do that because we all feel comfortable with it. But then we say that we do not accept homosexual relationships by consent of the same age group. When a law discriminates between different groups of people on the grounds of their sexuality, then it is indeed a bad law. Laws will be obeyed if people feel comfortable with them: bad laws will be difficult to enforce.

To deny equality in law to those whose sexuality is not a norm to many of us does not lend credibility to our case against the age of consent. No one can dispute that we have an unequal age of consent. The Commons amendment is a measure to ensure that discriminatory legislation, which puts male homosexuals in the United Kingdom at risk of becoming prisoners of conscience, is removed and our legislation is brought in line with international human rights standards.

Can we genuinely put our hands on our heart and say that the present legislation has prevented consenting homosexual relationships between 16 and 18 year-olds? Do we really wish to criminalise this group of people? Already many of the provisions—whichever way they are dressed up in the Crime and Disorder Bill—will result in many more youngsters in a custodial situation. Do we really want to add to that number by criminalising some of our young people because they have had consenting relationships with their partners? Do we genuinely believe that young people will not indulge in sexual relationships until they are 18 years of age?

Perhaps I may quote the British Medical Association. The average age at which homosexual men have their first homosexual encounter has been found to be 15.7 years and changing the current law is unlikely to affect this". The BMA goes on to add: There is no convincing medical reason against reducing the age of consent for male homosexuals to 16 years and, in fact to do so may yield some positive health benefits. Young men will be enabled to seek help and advice without fear of prosecution; and support groups and organisations for homosexual men will be able to provide younger men with support and free education". Earlier I mentioned my fear of criminalising young people. Homophobia arouses some of the worst reactions in some human beings. I have in the past served as a member of the board of visitors for a prison for many years. I have visited many prisons and also institutions where young people are detained. One of the least known facts is about male rape in prisons. Homophobia is rampant and the treatment meted out to those whose sexuality is suspect is extremely harsh. Sexual bullying of the worst kind often goes unnoticed. I have seen the plight of many who fear to complain. If we deny equality in the age of consent, then we may either create martyrs who will make a public stand against a law of which they disapprove or else we may lead them on the slippery path of a criminal conviction and all that goes with it. The present law is impractical to enforce and this is clearly borne out by the low level of prosecutions brought in the courts.

So what sort of message are we sending out today? On one hand we are saying that heterosexuality is the norm and the law should be used somehow to discourage homosexuality. We subscribe to the principle of equality. We avoid discrimination on the grounds of race, sex, or sexual orientation, but when we examine the policies of our various institutions and their ideals, what do we find? We find again and again that we are prepared to discriminate against homosexual relationships based on consent between 16 and 18 year-olds. That is sheer hypocrisy.

We have, of course, a few priorities to balance and I thank the noble Baroness, Lady Young, for that. The first is the duty of the state to offer protection to those who are being abused sexually. We must have a legal remedy available to those who suffer unwelcome or inappropriate attention. I am grateful to the noble Lord, Lord Williams of Mostyn, who has already indicated about setting up an inter-departmental working group to look at this issue. I am satisfied with this arrangement.

I conclude by saying that it is often necessary to look out of the window and to discover how society has moved on over the past few decades. I do not always subscribe to the views expressed in the Daily Telegraph. But let me pick up one sentence that I would like to put in defence of my case: No society can legislate out of existence sexual behaviour of which the majority disapproves". Of course, I am selective in the quote I have used but this practice cannot be unfamiliar to the Daily Telegraph. Moral values forced on others by law can be counter-productive. I look upon the Bishops' Bench to provide the leadership, which recognises a loving, caring relationship. We do not want to condemn those whose sexuality is different.

The Churches and other religious establishments cannot remain immune from the everyday realities of sexual behaviour in our young people. We require a programme of public education based on recognition of homosexual and heterosexual relationships; a programme based on a safe, loving, caring and responsible attitude to sex. We may argue about the key decision as to the age at which people can be responsible for their sexual behaviour, but evidence clearly demonstrates that we are right in setting this at 16.

7.30 p.m.

Lord Mishcon

My Lords, the year was 1954. The Home Secretary was David Maxwell Fyfe who eventually graced the Woolsack in your Lordships' House. I received a letter—I have yet to become reconciled to its terms—from the Home Secretary, I then being a rather young chairman of the London County Council. The letter read, "I am thinking of setting up a departmental committee to inquire into the law relating to homosexual offences and prostitution. I can think of no one better than yourself to serve on such a committee". I replied, obviously, saying that I was honoured by that invitation. Your Lordships may remember that that committee became known as the Wolfenden Committee. We reported a couple of years later. I think that your Lordships will agree that that committee does not deserve the description "reactionary" because we led the way in a statute which, for the very first time, made homosexual acts between consenting adults in private legal, as against illegal.

I think that I owe it to the fellow members of that committee, since I believe that I am the only surviving member, to quote at least a couple of paragraphs from that report—I know that I shall have your Lordships' consent—and then sit down. The first quotation relates to our discussion of what the criminal law was all about. Your Lordships will appreciate that we are not talking in terms of morals at the moment; we are talking in terms of the criminal law. We said—I think that this quotation is apposite: To define it as 'an act which is punished by the State' does not answer the question: What acts ought to be punished by the State? We have therefore worked with our own formulation of the function of the criminal law so far as it concerns the subject of this enquiry. In this held, its function, as we see it, is to preserve public order and decency, to protect the citizen from what is offensive or injurious, and to provide sufficient safeguards against exploitation and corruption of others, particularly those who are specially vulnerable because they are young, weak in body or mind, inexperienced, or in a state of special physical, official or economic dependence". Having come to the conclusion that our recommendation ought to be what I summarised a moment ago, we then discussed the question of the age of consent. That is the second and last quotation with which I intend to bother your Lordships. We stated: There must obviously be an element of arbitrariness in any decision on this point; but all things considered the legal age of contractual responsibility seems to us to afford the best criterion for the definition of adulthood in this respect. While there are some grounds for fixing the age as low as sixteen, it is obvious that however 'mature' a boy of that age may be as regards physical development or psycho-sexual make-up, and whatever analogies may be drawn from the law relating to offences against young girls, a boy is incapable, at the age of sixteen of forming a mature judgment about actions of a kind which might have the effect of setting him apart from the rest of society". Perhaps I may pause in that quotation for a moment. In discussions about equality, one has to recognise—this is factual; it does not mean that one is unsympathetic or intolerant—the difference between normal and abnormal; and there is no equality between normal and abnormal. We continued: The young man between eighteen and twenty-one may be expected to be rather more mature in this respect. We have, however, encountered several cases in which young men have been induced by means of gifts of money or hospitality to indulge in homosexual behaviour with older men, and we have felt obliged to have regard to the large numbers of young men who leave their homes at or about the age of eighteen and, either for their employment or their education or to fulfil their national service obligations, are then for the first time launched into the world in circumstances which render them particularly vulnerable to advances of this sort". The report goes on to say that, on balance, we came to the conclusion that the contractual age—the age at which one should be able to understand agreements and other relationships—which was then 21, was the correct age. Obviously, since that date, the age of majority has been reduced from 21 to 18. That is now the age at which an adult can enter into contractual relationships. I think that it should end there.

Baroness Trumpington

My Lords, as the widow of a public school headmaster—as such, I well remember the Wolfenden Report and was deeply appreciative of the quotations given from that report by the noble Lord, Lord Mishcon—I should like to support my noble friend Lady Young and to disagree with the noble Baroness, Lady Mallalieu. It is true that my husband was headmaster of a single-sex school, but what I am about to say applies equally to mixed-sex schools.

The head of a boarding school—or, indeed, of any school—is responsible in every way for the children under his or her care—and children are what we are talking about this evening. Sixteen is a really difficult age, bringing new ideas, new feelings and perhaps the urge to experiment. All these are normal and natural. I know that my husband took a liberal view when coping with the many difficulties faced by the adolescents under his care. Of course, he took appropriate action at the rare times when he knew that there was danger of serious corruption, but to have the age of homosexual consent lowered from 18 to 16 for both sexes would have caused my husband and, I venture to say, heads of boarding schools today, endless difficulties.

As for the pupils, whereas a single, possibly experimental incident can most certainly occur, on the whole it is not the beginning of a lasting orientation. Lowering the age of homosexual consent would, I believe, thoroughly confuse children of both sexes.

I need only touch on the thoroughly unpleasant thought of a 16 year-old who is sexually approached by a master to make my point—and that intolerable situation could have far more lasting results from every point of view. I simply cannot understand the reasoning behind what I consider to be a thoroughly retrograde step.

Perhaps I may finish by quoting from one of the many letters that I have received on this subject: If your father or teacher smacks you, that is child abuse. But on the other hand if anyone teaches you that buggery is perfectly normal, they are only helping you to develop and discover your own sexuality". In my view, the writer gets to the very nub of the question and, as a mother and a grandmother, I agree with what he says.

Lord Jakobovits

My Lords, I face a dilemma. While I strongly object to lowering the age of consent, I cannot agree to retaining 18 as the age of consent as if after 18 such conduct is legitimate and morally acceptable. But I do agree that under the age of 18 the moral and physical dangers are far greater. Perhaps we have already conceded too much under pressure from the gay lobby. Public opinion is being manipulated by insistent use or misuse of euphemisms. One speaks about "gays". I like to think of myself as a gay fellow. I enjoy gayness. I object to others appropriating that term. Similarly, "lifestyle" is being abused these days. Even the word "partner" which once had a very innocent meaning is abused. The word is now understood in a very different sense. The word "homophobia" is an addition to our vocabulary which is intended to shape new attitudes and uproot existing moral order.

These are all terms to whitewash what is morally unacceptable to the vast majority of the citizens of this country and elsewhere. We should not aid and abet this abuse of language. Until recently the language to describe such behaviour evoked abhorrence, for instance, by associating such practices with the depravities of the biblical city of Sodom or the pagan Greek island of Lesbos. Today clothing is used to reveal and language to conceal or obfuscate. It used to be the other way around: language was meant to reveal and clothing to conceal. Legislators should not fall into the trap of deception by the misuse of words.

More fundamentally, legislation now threatens to become both inconsistent and undemocratic. To explain, if it is argued, as it has been this evening, that acts between consenting adults should not be branded as wrong or criminal, why retain bigamy or incest as actionable offences, as they still are? Homosexuals demand their civil liberties alongside all other citizens. I am the first to concede that demand so long as it does not harm others. But a tiny dissident minority of under 5 per cent.—perhaps under 1 per cent. according to the latest studies—cannot demand that the other 95 per cent. or 99 per cent. must accept and treat as equal violations of the moral code which, after all, has distinguished civilised life for millennia.

The present Government in particular claim to pursue moral policies, even in foreign affairs. Shall moral standards be demanded in Sierra Leone or other parts of Africa while our own country and in our schools it is no longer the fashion to live by a moral code? In these turbulent times of rising crime and divorce rates, overflowing prisons and the unspeakable misery in millions of broken homes, do we really want to raise youngsters who care only to have a fling, seek no enduring lifetime loyalties, and recognise no moral code and, in the end, no legal code? Britain already has the highest divorce rate in Europe. Add to that the toll of death from AIDS and other debilitating diseases spread mainly by loose living. Do we want to open the floodgates of suffering even further?

I have no illusions about our capacity to reverse history. For the time being, we shall not revoke the Wolfenden Report of 1956 to which reference has been made; nor shall we alter the Sexual Offences Act 1966 which legitimised homosexual and other unnatural acts among consenting adults. I say that those trends shall not be reversed for the time being but I am convinced that such violations of the laws of God and nature cannot endure in the long run. I profoundly believe that human progress in the long run is inexorable. Maybe sooner rather than later the moral progress of humanity at large will once again be resumed and what is good and decent will prevail.

7.45 p.m.

Lord Lester of Herne Hill

My Lords, I so completely agree with the speech of the noble Baroness, Lady Mallalieu, which combined compassion, common sense and humanity, that I wonder how I can say anything further to assist the House in deciding the great question now before noble Lords. The question before us is whether we should disagree with the democratically elected Chamber of Parliament on a question of basic rights and freedoms.

Speaking as one Jew to another, I say with great respect to the noble Lord, Lord Jakobovits, that it is extremely dangerous for any minority to speak in the language of majoritarianism. In particular the Jewish Members of this House should perhaps remember that Hitler and the Nazis persecuted not only the Jews and gypsies but also homosexuals. No doubt the Nazis who did so represented a strong majority in Nazi Germany. No doubt it is also true that at the moment those who propose to disagree with the Commons consider that they have a moral majority in the country at large based on opinion polls. I do not believe that basic rights and freedoms should be decided on the basis of majoritarianism or the outcome of opinion polls.

There is one matter that I should draw to your Lordships' attention. No one else has done so. We will not be debating this matter and deciding the question entirely within the confines of this Chamber. What we say and do this evening will be read and studied with interest by the European Court of Human Rights when it comes to decide the pending case of Evan Sutherland. We are as bound in international law by the European Human Rights Convention as is another place, our courts and the Government. If we decide to disagree with the Commons amendment—which seems an entirely plain, simple and workable amendment, restoring equality and nothing more—we shall disable the Government from being able to comply with our international treaty obligations. It will be virtually certain that we shall once more be condemned by the European Court of Human Rights. By a commanding majority, the European Commission of Human Rights has looked at all the arguments and has found that there is no objective or reasonable justification for maintaining a higher minimum age of consent to male homosexual than to heterosexual acts. There is discriminatory treatment in the enjoyment of the applicant's right to respect for his private life. The case has gone to the European Court; it is being delayed by the determination and outcome of this vote in your Lordships' House. Unless the Commons amendment is passed into law, it is a virtual certainty that the court will uphold the European Commission's opinion.

Perhaps I may tell your Lordships what that opinion was. The Commission observed that current medical opinion is to the effect that sexual orientation is fixed for both sexes by the age of 16. Men aged 16 to 21 are not in need of special protection because of the risk of their being recruited into homosexuality. The commission noted that the British Medical Association had found that the risk posed by predatory older men would appear to be as serious whether the victim is a man or a woman and did not justify the differential age of consent.

The Commission observed that even if there may be some young men who, after the age of 16, may require protection, it is not a proportionate response to the need for protection to expose to criminal sanctions not only the older men who engage in homosexual acts with a person under the age of 18, but the young man himself who is claimed to be in need of protection.

As for society's claimed entitlement to indicate disapproval of homosexual conduct and its preference for a heterosexual lifestyle, the Commission found that that did not constitute an objective and reasonable justification for inequality of treatment in the criminal law.

Those are the findings of the great majority in the Commission. I have no doubt that they will be followed in the court. Every word that your Lordships say this evening will be taken into account by both sides.

Lord Mishcon

My Lords, the noble Lord has a specialised knowledge of the procedure in the European Court of Human Rights. He knows that it would not be the first time that a court of human rights has differed from the preliminary findings of the Commission. He will also know that the Commission will largely be going out of existence very shortly and a new court formed at the end of this year, which may take an entirely different view.

Lord Lester of Herne

My Lords, both points made by the noble Lord are correct. He is perfectly right that one cannot say with certainty that the court will follow the Commission. It is also right that there are 40 new judges of whom 20 come from the old court and the Commission. I am simply giving my forecast based upon the reasoning of the Commission. It is worth no more nor less than that.

The matter has been best summed up by someone of great political experience in a speech in another place. He said: Let us be clear about the issue before us tonight. It is not at what age we wish young people to have sex. It is whether the criminal law should discriminate between heterosexual and homosexual sex. It is therefore an issue not of age, but of equality. By supporting equality, no one is advocating or urging gay sex at 16 any more than those who would maintain the age of consent for heterosexual sex advocate that girls or boys of 16 should have sex. It is simply a question of whether there are grounds for discrimination. At present, the law discriminates. There is no doubt about the personal misery that such discrimination brings to young people frightened to admit their own sexuality and of the fear of imprisonment and to any man who is homosexual and who knows that the criminal law treats that in a different and more incriminating way".—[Official Report, Commons, 21/2/94; cols. 97–98.] Those are the words of the former leader of the Opposition, now the Prime Minister, Mr. Blair. I cannot improve upon them.

8 p.m.

The Lord Bishop of Bath and Wells

My Lords, I speak as one of a minority amongst my colleagues on these Benches. Having listened to the speeches, it is important that it can be seen and understood that not all religious people feel the same way. I understand and respect the conclusions of the majority of my colleagues. I agree with much that the most reverend Primate the Archbishop of Canterbury wrote in his article this morning. I particularly appreciate his encouragement that those who hold different views according to conscience should be able to speak.

This matter is tremendously important. It affects an often marginalised minority. Homophobia may be a new word but it is not a new experience; it is deep-rooted and long-lasting. It affects young people in particular. As always, we need to exercise special attention because of the power of the majority—special attention to justice and the avoidance of discrimination, as with all minorities.

I speak after many years of talking with homosexual people about these issues and, within the limitations of my own understanding, acting as a counsellor to many. I have studied the Bible for 40 years and I have a deep reverence for the teachings of Jesus Christ. It is the model for my life, like many in your Lordships' House.

This amendment poses us a serious moral difficulty. It reduces the age of consent for anal intercourse, which is quite unacceptable. I agree that it is often both dangerous and demeaning for both heterosexual and homosexual people. At the same time the amendment offers an important, overdue and much-needed opportunity to reduce the threatening and unjust discrimination against gay people. They may be a minority; they are very rarely heard in the gatherings where such decisions are made; they may not be heard but perceived.

Although I am chairman of the Children's Society, I do not speak on its behalf this evening. But that society is committed to being non-discriminatory in its work. I have had the opportunity to speak to the society staff who are working specifically with young gay people and they have influenced my thinking. People who wish the age to be kept at 18 talk about protecting young people during the maturing process. One of my regrets about the whole debate is that no image is given to homosexual young people as to how they might constructively lead their lives. The concentration is always upon anal intercourse.

Of course there are people who are ambivalent and uncertain in their teenage years. Some people are ambivalent and uncertain throughout their lives. Those uncertainties about identity can be just as strong for young heterosexual people. It is amazing how often in the debate one can say, "And this would be the same for heterosexual people." We load on to that minority a burden of moral responsibility, a burden of pressure from society, yet hardly seem to pay attention to the immoralities of heterosexual people, the abuse of children by heterosexual people and the abuse in families by heterosexual people of young children. I cannot help but feel that there is a scapegoating procedure going on here which is not new in history and not new in our society.

I share with my colleagues concern over the way in which sexual intercourse, for so many vulnerable young people, has been detached in their minds, it seems, from commitment, mutuality and understanding. For such young people there is a degree of protection at law under the child protection provisions if they are used as they could be. Perhaps after the working party they will be strengthened in that regard.

It is my hope that the child protection procedures will be used, as has happened in several projects around the country, in the defence of child prostitutes and that the pimps and clients will be prosecuted for their behaviour and not those young people who have often become what they are because they have themselves been victims of abuse.

As well as those who are ambivalent about their sexual identity, who are undecided about it, there are many older boys—are they really young men?—who by the time they are 16 are convinced they are gay. The workers to whom I have talked in the Children's Society say that because of the difficulty and uncertainty involved in accepting that they are gay, most homosexual young people have often been made to think much more deeply about their identity than their friends who are heterosexual. Few people I have met have chosen to be gay, but rather accept it as a difficult journey.

A young person who suspects that he is gay will often disguise his feelings for fear of ridicule and because he himself cannot accept the fact. It is not so difficult to know if one is attracted to one sex or the other. We have mentioned public schools. We must recognise that the segregation of the sexes has played a part in history in those misunderstandings. For the person involved, it is a daily fact of life as to whether they are attracted to their own or the opposite sex.

At the moment, the 16 or 17 year-old gay has to deal with the problem of prejudice and criminalisation. That is not a small matter. It is a fear that spreads, not in a preventive or helpful way but into every corner of his self-respect and the attitudes of others. We should encourage young people who perceive themselves to be gay to establish a realistic, loving ethic. They need to be able to talk about it free of fear as do those who are still ambivalent. They need education and discussion without prejudice and without fear of punishment.

As long as we give them no support or recognition, they will find it difficult to set about their lives, to make faithful relationships. The option of marriage, so blithely suggested, is not an option for someone who understands himself to be gay. Indeed, many marriages have fallen foul of that precise idea because people have come to understand their orientation in later life.

We leave those people in an unchaste world, without a recognised ethic to live by or aim for, except chastity. It is wrong that in the amendment what might be expected of intimacy between two homosexual people is defined so often as anal intercourse which I continue to believe to be wrong, physically damaging, and all the other things that have been mentioned.

The homosexual sub-culture is caused partly by the experience of ghettoisation, reinforced by legal sanctions. In our efforts to prevent people from becoming gay, we often end up by endorsing the prejudices and the risks they run by criminalising them. The moral dilemma remains for me in the amendment. Do we vote to take an important step to tackle inequality and discrimination? That would be voting in favour of a moral implication of which I cannot approve. We are presented with an imperfect package: to accept it or to reject it involves a wrong action. It is doubtful whether it has been well constructed and well made.

The Earl of Longford

My Lords, Sir Winston Churchill was asked a good many years ago, "Which side were you on in the Spanish Civil War?" He replied, "Both sides." That roughly applies to the position I have taken in homosexual debates over the past half century. I was interested to hear from my dear friend Lord Mishcon that he is the last surviving member of the Wolfenden Committee. I was the only person who was ready to touch the report when it came out. I opened a debate in this House in favour of it. Other than those who spoke in the debates in both Houses, no one was anxious to be associated with the report. So, as one might say, I have a few ancient medals. Professor Rowse once said to me that my trouble was that I had had no homosexual experience. I do not know how far that applies to other Members of the House. Looking around, I do not know. All my best friends at Eton are dead, so they would not be here!

I have no prejudice against homosexuals except in the sense that I am profoundly grateful that none of my eight children, 26 grandchildren and 13 great-grandchildren has shown homosexual tendencies so far as I am aware. If they had shown them, I should have loved them just the same but felt an extra compassion because I regard homosexuality—it is the concept that annoys them most of all—as a sickness. A sickness is a great handicap in life. One does not blame people for a sickness, so I do not blame them.

However, when it comes to practice, that is another matter. Of course I was profoundly moved by the last speech, when someone has worked so hard on behalf of these unfortunate people. But, from a Christian point of view, homosexual practice is sinful. No one can doubt that, surely. We know that adultery is sinful. All sex outside marriage is sinful in Christian teaching. In that sense, homosexual conduct is sinful.

We then come to the law. I still agree that I did the right thing in opening the debate in favour of the Wolfenden Report. I cannot agree with the noble Lord, Lord Jakobovits, although I have a tremendous respect for what he said on the subject. Somehow or other one has to strike a balance between the freedom to develop ourselves and vulnerability. We need to protect certain people.

To put it crudely, if someone seduced my daughter it would be damaging and horrifying but not fatal. She would recover, marry and have lots of children (as some such people do). On the other hand, if some elderly, or not so elderly, schoolmaster seduced one of my sons and taught him to be a homosexual, he would ruin him for life. That is the fundamental distinction. I must repeat my conviction: as regards rent boys (about which I know, not from first-hand but second-hand experience) one can ruin a person for life by treating him as a homosexual object when he is in his teens.

I draw a distinction. There is no doubt about that distinction. I am sorry if the feminists—I always call myself a feminist—say there is no distinction. There must be a distinction because of the point I made. A girl is not ruined for life by being seduced. A young fellow is. That is the distinction. I support the amendment.

8.15 p.m.

Lord Habgood

My Lords, I am sorry that noble Lords have to hear yet another voice from the Church of England, even if I am now on the other Benches. I have spent much of time as a bishop trying to mediate between opposing positions. The fact that your Lordships have heard two very different accounts from the Church of England is not dishonourable; it is mature. I do not think that anyone can enter fully into this debate without realising that we are debating an agonising subject in which there is no clear right decision. If we feel that it is entirely clear cut, I think that we have not understood the argument.

I was delighted when the noble Lord, Lord Mishcon, mentioned the Wolfenden Committee. It is probably not known generally that, prior to that commission, the Church of England produced an unpublished report on homosexuality. It was that report which recommended that the homosexuality between consenting adults should no longer be a criminal offence and gave the green light to the government of the day. So the Church of England has long been involved in this and does not have the anti-homosexual stance which is nowadays sometimes pinned on it.

We have surely no wish to victimise homosexuals, still less to criminalise them. Yet despite that, I have an unease about lowering the age of consent still further. There are too many examples in the past of well-meaning legislation which has had undesirable and unexpected effects. We may accept that we lower the age of consent to 16 now, but in practice it gives the green light to 14 year-olds; and we are going down a slippery slope.

The reason why I believe we should be cautious—we may not agree to this amendment but to some of the others—is that none of the reasons given for a change seems strong. The first reason we were given with great eloquence is that young people are practising it anyway. That does not seem to me a good reason for changing the law. Indeed, I do not see how a Government could follow that argument when they are trying to do exactly the opposite as regards smoking.

The second reason given is what one might call the medical advice argument: that only if homosexuality at 16 is made legal will young boys be prepared to talk to their doctors. I think that that reason is inconsistent. That inconsistency is often indicated quite blatantly. For example, are 16 year-old boys generally firm in their sexual identity, or are they not? If they are firm in their sexual identity, it seems to me that there should be no problem about discussing the matter with some wise adviser at any age, without having to indulge in particular sexual activities in order to discover that they are homosexual.

On the other hand, if they are not firm in their sexual identity at the age of 16, many people have warned that that fluidity of identity might be put under pressure if the law were to be changed. One of the arguments has always been that boys mature later than girls. But there is a fluidity. One cannot be certain at the age of 16, and therefore one does not want to encourage anyone to get involved in a homosexual lifestyle at that age. But one cannot have it both ways. Either they are mature, or they are not.

The third argument which has been discussed considerably in this debate is about equality. Equality is of enormous importance. I refer to equality between girls and boys, and between homosexuals and heterosexuals, all of whom are equal as persons, and all of whom have equal rights in large areas of life. But, in terms of sexual activity, boys and girls, and homosexuals and heterosexuals are not equal. That is the whole point. They are different. To treat them as though they were equal is, I believe, to open a door to changes further down the line which could be highly undesirable. If the equality argument works, there is no reason for saying that homosexual partnerships should not be able to adopt children, or be treated in all respects as marriages. We need to ask ourselves whether that is the kind of recognition that we want to give. There are deep differences.

Finally, I believe that the argument about discrimination contains a large element of logical muddle. There are circumstances in life when we need to discriminate. The key question is: when is discrimination wrong and when is it necessary? Perhaps I may dare to take an example from your Lordships' House in the appointment of life Peers. How is that difficult decision made by whoever makes it? We might properly say that there should be no discrimination on grounds of race, sex, colour, sexual orientation or anything of that kind, because those are not relevant to the duties of a Peer. But there ought to be discrimination on the basis of ability, experience, public service and so on because those qualities are relevant.

Applying that argument, when should we discriminate on the issue of homosexuality? We should not discriminate in employment and in terms of a whole raft of human rights in society, but we should discriminate precisely on the issue of sexual activity because that is most relevant to this particular distinction.

To claim non-discrimination in this context is to beg the whole question. In fact, it is to argue in a circle. It is like saying that we must not be discriminatory about somebody's record of public service when inviting them to become a public servant; or that we must not discriminate on grounds of sexual orientation when we are discussing homosexual practice. The argument is viciously circular.

Such matters cannot be decided on the basis of some general principle of non-discrimination. They have to be decided on the basis of moral argument and on the weight of the evidence, not on some blanket appeal. It seems to me that the evidence in this case is not clear-cut. That is why I believe it is wise to be cautious and to make sure that this discussion is not the end of the process but the initiation of a process which will produce more balanced legislation in the slightly longer run.

Earl Russell

My Lords—

Lord Elton

My Lords—

The Lord Privy Seal (Lord Richard)

My Lords, I am always reluctant to interrupt your Lordships when your Lordships are in full cry. We have spent one hour and 40 minutes on this debate. It is a very important matter and it is right that the House should have a full discussion on it. I suggest with some timidity that we take two more speakers and then move to the Front Bench. I do not know whether the House as a whole might feel that that is a proper way of proceeding.

Noble Lords

Hear, hear!

Lord Richard

My Lords, I am happy to say that it is not for me to choose who the two should be.

Lord Elton

My Lords, as I have my name to amendments in the same group, your Lordships will wish to know that I do not wish to vitiate or prolong the debate by speaking to them. I have given notice that I have removed them from the group, as the Standing Orders provide. I do so because I wish to give every possible opportunity for the amendment of my noble friend Lady Young to succeed and not to cloud the argument on it.

Your Lordships have heard the moral arguments on both sides. The conflict which they have aroused seems to me to point to a simple fact which may help your Lordships to conclude matters quickly. Contrary to what the noble Lord, Lord Lester, said earlier, we are not faced with an entirely plain, simple and workable proposal from the elected House of Commons properly proposed. It is not entirely plain, simple and workable because your Lordships have fallen into confusion over it. The Government have stated that it is not and have backed that up by undertaking to appoint a committee to remedy the dangers which this flawed proposal will throw up. The noble Lord, Lord Williams of Mostyn, will demolish my argument in his winding-up speech which, it is hoped, will be quite soon, so your Lordships will not be left in suspense as to why I am wrong. I shall be interested to hear because I believe that I am right.

The decision of another place was made after a debate introduced at Third Reading without any of the normal preceding discussion in that place. It was introduced, denying a voice to the proposal to protect the victims of sexual assault while leaving the perpetrators of sexual assault of a certain age protected. That would have made this a much better amendment by the House of Commons, but it was not discussed.

I believe that what we have here has accurately been described by my noble friend as a defective amendment which your Lordships were prevented from discussing in Committee and returning to points again and again, over perhaps a day or a day-and-a-half, as we would expect on an issue of this kind—

Lord Lester of Herne Hill

My Lords—

Lord Elton

My Lords, I thought that we were trying to hurry up, but if the noble Lord is brief I shall give way.

Lord Lester of Herne Hill

My Lords, I am grateful. Since I have been named by the noble Lord, will he be good enough to explain in what respect the amendment is defective if it seeks to secure equal treatment? What is wrong with the amendment?

Lord Elton

My Lords, what is wrong with the amendment is that it will expose, for instance, girls of 16 to buggery without the act of so treating them being illegal. It will expose boys of 16 to exploitation by older men without those men being the subject of the criminal law. I hear what the noble Baroness, Lady Mallalieu, says so forcefully on that and I also hear what the right reverend Prelate the Bishop of Bath and Wells so movingly says. I, too, am on the rack; I see the difficulty. Together with the right reverend Prelate the Bishop of Winchester, I believe that the balance goes in favour of the law as it is, unless we can achieve something better. We cannot achieve something better by the process in which we are now engaged. It is clear that we must have either something which many of us believe to be dangerous and defective or we must stick with the present law. The only way out of the difficulty is another measure in another Session, properly introduced in one House, going through all its stages in that House, then brought to the next House and going through all its stages there. That is what Parliament is designed for; that is what it should do; and that is what my noble friend is giving it an opportunity to do. I ask your Lordships to support her.

Earl Russell

My Lords—

Lord Stoddart of Swindon

My Lords—

Baroness Masham of Ilton

My Lords—

Lord Annan

My Lords—

Lord Richard

My Lords, perhaps I should not have spoken earlier. I understand that the noble Baroness wishes to ask my noble friend Lord Williams of Mostyn a question. I do not believe that that will take long. The two protagonists—the noble Earl, Lord Russell, and the noble Lord, Lord Annan—

Noble Lords

There are three!

Lord Richard

My Lords, I understand. I was going to suggest that we heard only two, but I think that we should now hear only one.

Baroness Masham of Ilton

My Lords, I thank the Minister, the noble Lord, Lord Williams of Mostyn, for his letter in relation to protecting 16 and 17 year-olds from abuse of trust. I am pleased that the Government are taking seriously the issue of vulnerability and the need to ensure that the young are adequately protected.

The Minister's answer may show some of your Lordships how to vote. We know that young boys and girls can be very vulnerable in care homes, boarding schools and even prisons. Can the Minister say when the group's recommendations will be enshrined in legislation? There is a worrying situation with the increase in prostitution among young boys and girls; indeed, the age range is getting younger and younger. HIV and AIDS still constitute a great danger in the younger age group of homosexuals. I feel that teachers should be able to give advice to children on these difficult and sensitive issues. Would it not be wise to try to get the safeguards in place first so that a safer message goes out from this House?

Earl Russell

My Lords—

Lord Annan

My Lords—

Lord Stoddart of Swindon

My Lords—

Noble Lords

Order!

8.30 p.m.

Lord Richard

My Lords, with the greatest respect, the situation has become impossible. I think that we should hear the noble Lord, Lord Annan, followed by the noble Earl, Lord Russell, and then we should proceed as I suggested.

Lord Annan

My Lords, I am grateful to the noble Lord the Leader of the House. Indeed, it is very good of him to allow me to take part in the debate. There is one reason why we should not overturn the Commons amendment, which I do not believe has been mentioned. We all tend to be much older than those in the other place. Moreover, the other place also has another advantage; namely, it now has a large number of women in it. Over the years, I have noticed that women are much more understanding and less shockable about sexual affairs than men very often are.

On the question of whether 16 year-olds are mature, I think that, in some ways, they are not so self-sufficient as my generation was; they have too many labour-saving devices. But, at the same time, can we really doubt that boys and girls are much more mature physiologically and mentally than they were at the time, for example, of the Wolfenden Report—safe sex, seduction and homosexuality are openly discussed in schools and in public life. Indeed, television programmes, newspaper reports, magazine articles and the Internet pullulate with descriptions of courtship and foreplay, and sexual activity is analysed interminably. That simply means that people are better informed.

That brings me to my second point. Of course, I am delighted with the Government's response to Mr. Joe Ashton's proposed amendment. However, it is important for us to remember that, while we have all been appalled by the recent revelations of abuse of children and by the distressing plight of those who leave home, live on the streets and have to rely on their wits, none of that will be altered or made better by agreeing to the Motion standing in the name of the noble Baroness, Lady Young: the same evils will continue to flourish however we vote tonight. Therefore, let us not confuse paedophilia with the age of consent. The monsters who abuse their trust as wardens of children's homes would have done so, whatever the age of consent may have been.

I am puzzled by the speech made by the noble Lord, Lord Quirk. I recognise that the issue of anal intercourse arouses extremely strong feelings of revulsion; indeed, people are horrified to appear to condone such acts. However, I am bound to say that sociologists of sexual behaviour declare in their researches that such acts are practised between married couples as well as between homosexual partners. He seemed to suggest that anal intercourse should again be made illegal for everyone of whatever age.

When discussing a Bill in 1994, the noble Baroness, Lady Mallalieu, reminded us that such acts between men and women are often threatened to be brought out in court in order to secure a higher settlement in a divorce case; in other words, if you accuse your partner of such an act, he will shun the publicity and agree to pay more. However, I hope that the House will bear with me if I conclude my remarks by describing what happened in 1967 about this particular problem. At one stage of the Bill's proceedings the late Lord Dilhorne taunted the then Archbishop of Canterbury by asking him whether he favoured legalising the act of buggery. On Third Reading he still persisted and moved that the act of sodomy should be removed from the Bill. He brought upon himself this retort from the late Lady Wootton: I ask myself what are the opponents of this Bill afraid of? They cannot be afraid that these disgusting practices will be thrown upon their attention because these acts are legalised only if they are performed in private…I can only suppose that the opponents of the Bill will be tormented by visions of what would be going on elsewhere. Surely, if that is so, that is their own private misfortune, and no reason for imposing their personal standard of taste and morality on the minority of their fellow citizens". I congratulate the noble Baroness, Lady Young, on the powerful speech with which she introduced the debate. I also admire her as a former Leader of the House as regards the skilful way in which she has marshalled a great body of support behind her. However, I ask myself whether in fact in the end—not, of course, today—the late Lady Wootton's view of such matters will not prevail.

Lord Stoddart of Swindon

My Lords—

Earl Russell

My Lords—

Noble Lords

Earl Russell!

Lord Richard

My Lords, again, with the greatest of respect, I do not think it helps anyone if noble Lords just shout across the Floor of the House. If my noble friend Lord Stoddart feels that his contribution to this debate is as essential as he seems to suggest, no doubt the House will be polite enough to listen to it after we have heard from the noble Earl, Lord Russell.

Earl Russell

My Lords, when the noble Lord, Lord Habgood, asked on what grounds it is proper to discriminate, he went to the very heart of this debate. I was reminded of a passage in Lord Baden-Powell's Scouting for Boys which I first read when I was 13. A Japanese applicant for the Army was turned down because of his bad teeth and he reported thereafter that one was nowadays expected not only to kill the enemy but also to eat him. Of course, Lord Baden-Powell, explained afterwards that good teeth were relevant to fitness to be a soldier and that cradling a rifle against one's teeth when one had an abscess was not always reliable.

Therefore, we have to ask what forms of discrimination are proper to the nature and purpose of the criminal law. Here we come to the questions raised by the noble Lord, Lord Mishcon—the Finality Jack of this debate, if I may so describe him. As I understand it, the criminal law is designed to protect us against injuries inflicted upon us by others. I accept the legal maxim volenti non fit injuria (to a willing person there is no injury done), but it is not the purpose of the criminal law simply to say, "I'm going to prohibit it because I dislike it". It is not even the purpose of the criminal law to say, "I prohibit it because I disapprove of it".

There is practically no one of us in this Chamber who does not take part in one activity or another which some of our fellow subjects would like to ban. I speak as a smoker. I concede against my own interest that those who would wish to ban my activity have a much stronger case to make than the case made by the noble Baroness, Lady Young. However, before the House goes down that road, I shall ask noble Lords to consider what they will feel about those who would wish, as many of us have in years past, to ban the consumption of alcohol in any form whatever. As soon as one says, "I'm going to ban it because I think it is wrong", one is on a very slippery slope. The only valid ground for banning things is because they inflict harm on other people who do not wish it done to them.

I hope the noble Baroness, Lady Mallalieu, will forgive me for saying that I listened to her speech with a certain pride. My first attempt to argue the case for non-discrimination was over the admission of women to the Oxford Union. Your Lordships may not now believe that that created quite as much moral outrage as this proposal has done. I remember Mr. Brian Walden, when he was president, being asked what reasons there were against the admission of women. He replied, "There were no reasons; there are prejudices". I do not ascribe my success in getting that through to my own oratory, nor even to Paul Foot's discovery of his gift for satire, which was the high point of the debates, but for their realisation that they would have to debate it every year until they agreed to it. They thought at first it was a fate worse than death. If having the noble Baroness in the presidential chair is a fate worse than death, then death is a great deal less alarming than I supposed! Talking to a good many of your Lordships, I have noticed that there is some confusion about the concept of a sexual orientation. There is a sense of people being able to choose. I do not think they remember what St. Augustine of Hippo said; namely, that sexual feelings are not under the control of the will.

Probably about 10 per cent. of your Lordships who are listening to me are left-handed. Attempts have been made to make out that left-handers are unequal. If anyone doubts that, they should think of the meanings attached to the word "dexterous", and even more to the word "sinister". When I was young there were still parents who used to attempt to make their children right-handed by smacking them until they were. All they ever succeeded in doing was producing a stammer. Many people hesitate for a long time before they know whether they are right or left-handed. It does not mean they are waiting to choose. It means that the development is not yet complete and that it has not yet emerged. I believe a sexual orientation is much more like that.

The BMA states—and I agree—that a common feature of these factors that cause a sexual orientation is, that they operate at a much earlier age than 16". The noble Lord, Lord Mishcon, said there was no equality between the normal and the abnormal. Suppose he had worded that, "There is no equality between the usual and the unusual". That is a very different statement. I think the second statement would be more material to the case.

We have had an argument put forward about equal moral authority. It is difficult for all of us to concede equal moral authority to things of which we passionately disapprove. That is why parliamentary debate is so difficult. That is why the recognition of the concept of a loyal opposition in politics took nearly two centuries to learn. We have learnt in Parliament that the way to deal with profound moral disagreement is by agreement on the rules of engagement. That is the ground on which I believe the noble Baroness, Lady Young, and I are in complete agreement. That is the common ground between us on moral matters. I think that is what John Stuart Mill was groping for. I do not think we can say that things are immoral simply because we happen to disagree with them; still less can we ban them simply because we happen to disagree with them.

I say to the noble Lord, Lord Quirk, that all sexual activity carries some medical risk but that does not appear to deter most of us. My sister-in-law, who used to be assistant editor of the Lancet, assured me that the medical risks of celibacy were even greater.

Lord Quirk

My Lords, I am grateful to the noble Earl for giving way. I assure the House that I shall speak briefly. This is an argument of reductio ad absurdum. I was not arguing on the grounds of prejudice, and I was arguing not on the grounds of equal danger. I was simply quoting medical authorities that showed that anal intercourse was very much riskier than vaginal intercourse. That, I think, is undeniable.

Earl Russell

My Lords, if the noble Lord had listened carefully to me he would have observed that I did not attempt to deny it. I said that danger does not normally deter people from the only type of sexual activity to which they are drawn. I think that goes for all of us.

Much of this debate has concentrated on the amendment moved in another place by Mr. Joe Ashton. Here I think the noble Baroness, Lady Young, and I have a good deal of common ground. As my noble friend Lady Thomas of Walliswood said to me when we were discussing this matter, non-discrimination is a basic Liberal principle. Preventing the abuse of power is also a basic Liberal principle. But that is wide of the issue of this amendment because the need for protection applies to homosexuals and heterosexuals equally, as indeed Mr. Ashton conceded.

I think the noble Baroness and I agree that Mr. Ashton's amendment was too widely drafted. I must declare an interest in that view. Being married to a former pupil and after 35 years of happy marriage I am quite unable to bring myself to believe that we did anything wrong. There are two categories where I think we should concentrate the protection. One is those who are in loco parentis and the other is those who use fear or favour derived from an official position to obtain sexual favours. I think that is roughly the ground of our agreement. I hope that the noble Baroness will correct me if I am wrong.

The Government wish to tackle this within the context of a review of sexual offences. Since we have also the review of the Equal Opportunities Commission of the law on sexual harassment which must be fitted in with the rest of the jigsaw, that seems to me to make sense. We cannot do it in this Bill. Mr. Ashton's amendment criminalised sex between people who are nevertheless free to marry. One cannot leave that to be the case; it must be changed.

I believe the Government are totally sincere in the undertakings they have given not only because I believe they are honourable men and women but also because it goes along with the way the work is going, and it goes along with their own interest. I accept the assurances Mr. Michael and others have been given. But if by any chance I should be wrong, I give an assurance to the noble Baroness, Lady Young, that if the Bill on sexual offences comes before us and it does not have any such protection, if she and I can agree on the draft of an amendment on the lines which we have discussed—and I believe we can—I shall put my name to it together with hers. To that I believe the Government might listen.

It is easy to be too over-protective of the young. By sheer chance I was reading last weekend a speech made in another place which argued about a Bill to prohibit marriage in Oxford and Cambridge heads of houses. The speaker said that the mere sight of women was so exciting that young men became quite unable to study. I know that is not true. That is being over-protective. I fear we may make the same mistake again today.

Lord Stoddart of Swindon

My Lords, in spite of the fact that the noble Lord the Leader of the House was contemptuous of any contribution which I might make to this debate tonight, nevertheless I shall make it. There are some of us in the Labour Party who still believe in democratic debate and free speech. I am sorry that there were some murmurs of dissent from this side of the House. I always thought that we believed in democratic debate and free speech, and that is precisely what I intend to embark upon.

When this matter was debated in 1994, I took the view that the age of consent should be the age of majority. As the noble Lord, Lord Mishcon, pointed out, that was the view taken by the Wolfenden Committee. I have not changed my mind since then. I believe that it is perfectly legitimate for the House of Commons to insert the amendment; but it is just as legitimate for this House—since it is the only second Chamber that we have—to disagree with that amendment. It is a democratic right under our constitution to do so. So it presents no constitutional problem at all. Bearing in mind that it was the result of a Back Bench Motion in the House of Commons and not a government Motion, it is legitimate for a Back Bench Motion in this House, as moved by the noble Baroness, Lady Young, to be carried in this House.

I wish to make one or two other points. I heard Ben Bradshaw this morning on the "Today" programme implying that this was a party political issue and that we were to discuss a Tory amendment and the Tories were against the lowering of the age of homosexual consent and the Labour Party was for it. This is not a party political issue. It is a cross-party political issue. There are people of both parties, and none, who take differing views on the amendment. Let us make no mistake about that. To suggest, as Mr. Bradshaw did, that the Motion of the noble Baroness, Lady Young, is a Tory attempt to throw out the Commons amendment is incorrect. As I say, it is supported by Members of all parties, and none. Indeed, it is not sensible of him, in the face of the large majority of people in the country who are against lowering the age of consent for homosexual acts, to suggest that it is only the Conservatives who speak for that large majority. That is not sensible in party political terms. I hope that my noble friends will take note of that.

It has also been suggested that the issue is only a religious issue. It is not. It is a moral issue which concerns all of us, religious or irreligious. I am not religious. However, I believe that it would be a mistake to agree to the amendment passed by the House of Commons.

It is also suggested by those who favour lowering the age of consent that those who oppose it are homophobic. That is an insult to heterosexual people, the majority of whom do not want the Commons amendment carried. I am not homophobic in any way. I do not dislike or hate people of a different sexual orientation from the normal, so long as they are adult and know what they are doing. It is not a question of homophobia; it is a question of people having a differing view.

I believe that we should continue to protect young people between the ages of 16 and 18 from being seduced into what is undoubtedly an unnatural practice and one which may have an enormous and possibly detrimental effect on them for the rest of their lives. It is surely not unreasonable to be concerned about that. That does not mean that one is homophobic. My noble friend says, "Yes". It is not homophobic to want to protect young people between the ages of 16 and 18. I say it from my own experience. People who have a different sexual orientation from mine, if they are adult, are entitled to have that orientation and to practise it. That is my view, and it is the view of many others who support the noble Baroness, Lady Young.

Those who support the amendment say that they demand equality before the law for homosexual acts. But there is no equality between heterosexual and homosexual behaviour. One is the natural order of things; the other is not. Indeed, if nature had intended otherwise, it would undoubtedly have constructed the human body differently. It is young adolescents about whom we must be worried. We are sending them conflicting signals. On the one hand, sexual licence is being encouraged, and on the other there is increasing concern about rape, paedophilia and other sexual problems. The Commons amendment will only serve to confuse society even more, especially young people.

We must also ask: what is the next milestone? Is it to lower the age of consent to 14, or 12, or to what age? The case for lowering the age of consent for homosexual acts to 16 has not been made out beyond any shadow of doubt. Therefore, in my view the benefit of the doubt should be given to the continued protection of 16 to 18 year-olds. For that reason I shall support the amendment.

Baroness Anelay of St. Johns

My Lords, in speaking to this amendment and to the Motions of my three noble friends, I do not seek to persuade my noble friends or other noble Lords to vote in a specific manner. There is no party Whip on these Benches on this issue. It is a free vote. In that spirit, I shall not indicate my personal views.

In advance of speaking in this debate I explained my role to my three noble friends and gave them a copy of my speech. I believe that my task today is to attempt to assist your Lordships on a difficult matter of principle and practical politics. This issue makes us reach deep into our psyche. It makes us examine our views on morality and the manner in which we believe society should function.

In considering the matter before the House, we have to weigh a number of different considerations before arriving at a decision. First, there is the point of principle. At what age do we believe it right for the criminal law to provide that it is lawful for homosexual men to have consenting sex in private? At present, the age is 18, and the new clause provides for that age to be 16.

Secondly, but closely allied, do we believe that it is right to provide for a different age of consent for heterosexuals and homosexuals? The new clause would provide for the homosexual age of consent to be the same as that for heterosexuals.

Some have argued that homosexual and lesbian practices are not another and an equivalent normality; that they are practices that are not only different from heterosexual behaviour, but should also not be ranked as equal or equivalent to it. Others argue that a belief in equality on this issue does not involve the recognition that all people are equal with each other—that the clause addresses equality before the criminal law.

Thirdly, there is the question of our treaty obligations under the European Convention on Human Rights, soon to be enacted directly into British law, to which reference has been made. Our existing provisions were the subject of a report of the European Commission of Human Rights, adopted on 1st July last year, which allowed an application to the European Court of Human Rights from Euan Sutherland that the provisions were in breach of Article 8 of the convention relating to privacy when read together with Article 14 relating to discrimination. It is true that the report was fairly trenchant. It does not mean, of course, that the case would be decided that way if it came to court. Nevertheless, the Government then applied to stay all proceedings on the basis of an undertaking that they would provide for an early vote on the subject in Parliament or, failing that, that they would allow for a resolution in another place and for legislation before the end of the next session.

Fourthly, I believe that there is a wider point of legislative principle here. Should we legislate in order to try to change human behaviour, or should we legislate to try to regulate how we know—or perhaps how we think we know—that people will behave? This is the very judgment that we exercise each and every time we debate a new Bill or a new regulation in this House.

Fifthly, but closely allied to that judgment—it is a practical example of it—there is the question of public health, which many have raised tonight, in particular protecting the health of young people from sexually transmitted diseases, of which AIDS is the most deadly. Some argue that by reducing the age of consent one would encourage dangerous practices that could lead to AIDS. Others argue that, by taking homosexual practices out of the criminal law for those aged between 16 and 18, it would be possible to give further protection to young people by making it more possible to teach them how to protect themselves from sexually transmitted diseases.

Deep concerns have been expressed tonight about the situation of young people of the ages of 16 or 17 who may need protection from those who might exploit their vulnerability. My noble friend Lady Young referred in her opening speech to the fact that the Government have set up an interdepartmental group to deal with issues underlying such concerns. Can the Minster tonight give the House some details about the work of this group? For example, can he confirm that it will cover such issues as the definition of a position of trust, the scope of occupations to be covered and the definition of those who need to be protected? I look forward to the response by the Minister to the points raised by my noble friend Lady Young.

Finally, the House will be well aware of the vote in another place, which has already been mentioned. I do not believe that noble Lords are ever indifferent to what happens in another place, although they may differ in the weight that they choose to give to that vote in arriving at their decision tonight.

I began by making it clear that we on these Benches are not subject to any party Whip on this amendment. I said that I would attempt to be impartial in my review of the arguments. I hope that noble Lords will accept that I have made my best efforts to avoid partiality. In that spirit, when it comes to the vote, on this occasion I shall abstain.

9 p.m.

Lord Williams of Mostyn

My Lords, there is a world outside. It is inhabited by the young, and the different live there. Many of them will read what your Lordships' have said with sad incredulity. Of course, we have a free vote on this matter. It was a free vote in the House of Commons: 363 to 129. If the point is raised that Mr. Joe Ashton's amendment was lost by only 40 votes, I say, "363 to 129".

Further, to his great credit—because I recognise the difficulties that there may have been for him—Mr. Hague said on earlier occasions that he supported this proposition, as did Mr. Ashdown, and as did the Prime Minister.

I am grateful for the consideration that the noble Baroness has given me, because we have discussed these matters. I am also grateful to the most reverend Primate the Archbishop of Canterbury, who was good enough to talk about these matters, and to the noble Lord, Lord Rowallan. The noble Baroness said, "This is what good people want". Does the list of good people not include the right reverend Prelate, the Bishop of Bath and Wells, who spoke so movingly? Does it not include the noble Baroness, Lady Mallalieu, a beacon of decency in this place? Does it not include the British Medical Association, the Royal College of Psychiatrists, the Family Planning Association, the Children's Rights Development Unit, the National Association of Probation Officers, the British Association of Social Workers, the Royal College of Nursing, the National Children's Bureau, Barnardos, the NSPCC and Save the Children? Are not all those organisations, which I have taken at random from a longer list, made up of good people who care? On these occasions honourable people can honourably disagree.

Perhaps I may say a personal word. My father was the headmaster of a church school in North Wales and a lay reader in the Church in Wales. I imagine I absorbed by osmosis the beliefs and, I daresay, the prejudices of that society and that age. But I changed my mind. I thought that I should not be ruled by past prejudice.

There is a moral imperative to the law or it has no virtue and it has no place with us. The moral imperative is equality before the law. It is a matter of pure indifference to me—I mean that literally—whether it is equality for children of 16, for women, for a black man trying to get work, for a Jew or for a Moslem. If that moral imperative fails because the social equation which is contended for tonight does not allow for it, so that equality dies and falls away, the whole purpose and virtue of law is gone and we shall no longer be a civil society.

We shall all reflect on what has been said with a good deal of passion and persuasive force. We shall read these debates in five years' time. I shall give a reminder of something that many of us will recognise. I started at the Bar, not before the flood, but in 1965. At that time it was a regular experience for us to see men, dragged to court for private sexual behaviour, treated with such cruelty that I can only remember it with abiding shame.

Let us remember that not only is there a world outside but that the world changes. Try to have a discussion with an intelligent, wilful child of 16 and see whether we can prescribe for such children, and wonder whether we ought to discriminate in this way.

This is not a flawed amendment. At the same time, we take our duty to vulnerable children seriously. Perhaps I may point out the bleak, implacable proposition. The criminal law presently gives no protection to a girl between 16 and 18 who is vulnerable; who may be preyed upon by an older man. We should not forget that. The purpose of this review—I am grateful to the noble Baroness, Lady Masham, who raised it—is to see whether or not we are fulfilling our obligations. I do not believe we are. There are girls in care between 16 and 18 who are subjected to heterosexual approach. There is no protection for them from the criminal law.

Lord Elton

My Lords, I believe I am right in saying that there is protection for them from anal intercourse, otherwise known as buggery. That will be removed by this amendment.

Lord Williams of Mostyn

My Lords, if the noble Lord, Lord Elton, had caught my remark he would have heard that I said accurately that there is no protection for them from the heterosexual predator who is older. I repeat, that is a correct statement of law.

They are in care. They are in positions where trust can be abused. They are in boarding schools. There may be social workers, doctors, policemen who prey on them. That is why we believe we must look at this question distinctly. Has society a duty to provide for the protection of the vulnerable between 16 and 18 in respect of those who are in a position of trust and possible abusive authority over them? That inquiry has nothing to do with this amendment.

Because we have taken our duties seriously does not mean or imply that it is a flawed amendment. The group will report by the end of the year. Of course, I cannot say when legislation will be introduced, but there is no reason why it should not be initiated promptly. We want to define a position of trust. We want to see which occupations should be covered. We want to see who should be protected, in what circumstance and whether the protection should be more than exists at present, which is simply disciplinary sanction or dismissal; and whether or not the criminal law should have a proper part to play in that.

What are we considering? I beg your Lordships' pardon. What should we properly be considering? It is not whether or not any of us believe that homosexual activity at 16 is something we would wish for ourselves or for people we know. It is not a question of whether we want a girl of 16 years and one day to be taken out to a nightclub by someone who is wealthy and to be seduced. The criminal law gives her no protection.

I find it remarkable, sometimes rather dismal, that constantly put before your Lordships is the spectre of the older man seducing the boy. But no thought is given to the older man seducing the girl, who may be just as vulnerable in some circumstances. The fact is that all early sexual activity is going to be full of peril because it is adventurous; it is new; it is novel; there are no real parameters apart from parental instruction and religious advice which may or may not have an effect. So people are feeling out towards adulthood, towards changing experiences. Do we wish them to be criminal? To take the example of the noble Baroness, Lady Trumpington, do we want the two boys at a public school between the ages of 16 and 18 to be hauled off to court and imprisoned—criminalised? If yes, say "Yes". But not before you think carefully.

I heard someone behind me say, "Yes". Try to imagine the cruel harm that would do. I have known it at first hand, as have other noble Lords here, and my noble friend Lady Mallalieu expressed the matter much more eloquently and better than I ever could.

The noble Baroness, Lady Anelay, was good enough to indicate to me, by giving me a copy of her remarks, what she intended to say. She rightly pointed to the European Commission on Human Rights. It is more likely than not, as the noble Lord, Lord Lester, pointed out, that we shall be found to be in breach in that regard. Will it not be disappointing if the massed opinion of your Lordships' House comes to a conclusion—which is possible—that your Lordships wish to act in a way that is not consistent with the principles of human rights as enunciated in the Convention?

Noble Lords

Oh!

Lord Williams of Mostyn

My Lords, "Oh" will not make the point go away. It is very recently that your Lordships adopted the principle of incorporation which, subject to protections for the media and religious organisations, received a virtually unanimous passage. So "Oh" will not make it go away. And simply lying down, keeping the eyes firmly closed and pulling the duvet over the head will not solve this problem. We need to protect vulnerable young children and we must be imaginatively reflective and careful about how we produce the consequence we all want.

This has been—this has not been written down for me—a genuinely interesting debate; informed by passion and illuminative of some people's views, thoughts and passions. The one thing we cannot do by law, in this society or any other, is to produce a state of perfect innocence. It is too late now to try to legislate to say that the apple should not have gone to the Garden of Eden and that the serpent should have been stopped. What we are dealing with, I hope, is a series of compromises in this very difficult area which should be based on a conscientious approach where, I repeat, honourable people can honestly differ.

The question is—I think that the noble Baroness, Lady Anelay, identified it properly—whether it is right to discriminate in law, whatever one's private feelings may be—

Lord Davies of Coity

My Lords, during my noble friend's response to the debate he has referred to equality under the law. He has just made reference to the question of discrimination. I recognise that we are talking about an age of consent. I wonder whether my noble friend can help me out on this question. Is it valid and justified to argue the question of equality and discrimination when we are debating a situation where one activity is considered natural and another is considered unnatural?

Lord Williams of Mostyn

My Lords, it is indeed precisely the point that was made earlier. If one has a society which claims to be civil and civilised, one has to have regard—a proper regard—to the fact, and honour the fact, that other people may have different views about how they wish to live their lives. It is the mark of a decent society that the minority can be cared for—cared for properly—by the majority which may in its own view have a happier life. I do not know. But we must not be prescriptive about things beyond the decent limits.

The noble Baroness, Lady Anelay, rightly identified the question. Is it right to discriminate in law against young men aged 16 and 17 for engaging in homosexual activities and to criminalise them? Is it right to look to a conclusion, to which we shall soon be coming, that will be discriminatory and in breach of the European convention—our international treaty obligation, as the noble Lord, Lord Lester, pointed out? I cannot see that it can be right. If it cannot be right, I for one will not support it. I refuse to abstain. I shall vote against the amendment of the noble Baroness, Lady Young.

9.15 p.m.

Baroness Young

My Lords, I should like to start by thanking all those noble Lords who have been good enough to support me this evening. If I do not say anything about all their speeches, I hope they will forgive me. But the hour is late and I do not want to speak at too great a length.

We have had a valuable debate, but it would have been far more valuable if it could have been at the Committee stage of the Bill when we could have had more time to go into the different questions. I think that the second quotation of the noble Lord, Lord Mishcon, from the Wolfenden Report said it all. I tried to write it down but, alas, I could not get it all. However, I think the two points that stood out were that there is always an arbitrariness about ages for all kinds of things in the law; and on this. As I understood it, at the time that the Wolfenden Committee produced its report it determined that the right age was 21, the age of majority. It should now be 18, which is regarded as the age of majority. That encapsulates the argument we have had this evening.

We had a superb moral argument from the noble Lord, Lord Jakobovits, and the right reverend Prelate the Bishop of Winchester. The noble Lord, Lord Jakobovits, was quite right when he said that it is a moral code that distinguishes a civilised society and that we forget that at our peril. Was it not the psalmist who said: What is man, that thou art mindful of him? He is different from the animals; and, listening to some of these debates, I sometimes wonder whether we really recognise that point.

The right reverend Prelate the Bishop of Winchester quite properly drew our attention to the dangers in all this of downgrading marriage, which is the normal way of living; and for those who are fortunate enough to enjoy a happy marriage, the happiest way of living. It is something that parents want for their children—to grow up, to marry happily and to have children. It is not a homosexual relationship that they wish for.

We touched on this big issue of what the result of a vote tonight will say to the public at large. I always admire the speeches of the noble Baroness, Lady Mallalieu, and I can see why she is such a superb barrister. But I do not believe that the idea of sending a signal is a joke. A lot of social legislation has cumulatively sent a very bad signal to society at large. What it will say if we agree that the age of consent should be lowered to 16 is the point that has been made by its supporters: that it is just as good to have a homosexual relationship as it is to have a heterosexual one and, moreover, to have one at the age of 16, and because everybody is doing it it does not matter. I do not accept any of those arguments. It is the duty of good parents to bring up their children so that they do not have fixed homosexual relationships at 16 or, indeed, fixed heterosexual relationships at that age. It is a very young age. People can grow up a great deal and have very different views in the years that follow.

I say to the noble Lord, Lord Annan, that I have had a lot of letters from young people supporting what I am doing. To say that all young people think that the age of consent should be lowered is simply not true. No public opinion poll has been taken on the matter, but it is simply not true. No doubt opinions among young people are divided, but I can only tell the noble Lord that I have had a lot of support from young people for what I am doing.

I turn to the noble Lord, Lord Williams. He quoted a great many organisations in support of the Government. I can only say to him that not one of them, with the notable exception of the BMA, has had the courtesy to send me a brief despite the fact that I have asked for one. I would have been perfectly prepared to talk to any of them about these issues. They failed to send me a brief. My time is limited and I have not had the opportunity to telephone them all. I would respect people far more if they were prepared to discuss their views openly with their opponents instead of acting in this rather underhand way.

I also dislike very much being told that I am ruled by past prejudices. I have been called quite a lot of things over the past day. I suppose that is all part of political life. I have learnt to take it. I shall dine out on most of the stories for a good many years to come. I was slightly shocked when the noble Lord, Lord Lester, came quite close, I thought, to suggesting that we were adopting Nazi tactics. I hope that that was not his intention but if it was, I hope that he will withdraw it. We are as entitled to our point of view as anybody else.

Lord Lester of Herne Hill

My Lords, I am sure that when the noble Baroness reads what I said she will see that it is quite clear and unambiguous. Of course I was not suggesting anything of the kind. I was dealing with the argument based on majoritarianism and pointing out the dangers of an approach, especially from a member of a persecuted minority.

Baroness Young

My Lords, I will accept the apology from the noble Lord, Lord Lester.

I am all in favour of the working party that the noble Lord, Lord Williams and his colleagues are setting up. I believe that that is right. The fact that it is required illustrates what is wrong with the position that the House of Commons has left us with. Of course, we must help vulnerable boys and girls. I accept all the points that have been made about children at risk. Just because people are at risk now does not mean to say that we should add to their number. That does not make the position any better.

I return to the point made by the noble Lord, Lord Elton, which is really the one that I made at the start of my remarks. I stand by my statement that I believe that this is a flawed amendment. I believe that the Government have admitted that it is. Therefore, it ought to go back to the House of Commons for its further consideration.

But this is an issue of principle. I have stood up on this issue only because I care very much for young people. I have been blessed in my life to have a happy family life—to have three daughters and five grandchildren, and to have been in the academic world where I can say that, quite literally, hundreds of young people have come through my house for one reason or another. I like and care for young people very much. Today, I feel that I would be failing in my duty if I did not say that I believe that lowering the age of consent in these circumstances without proper parliamentary scrutiny would be quite wrong—wrong constitutionally and wrong in principle. I wish to test the opinion of the House and I hope that those who support me will be in the overwhelming majority.

9.25 p.m.

On Question, Whether Motion 14A shall be agreed to?

^*Their Lordships divided: Contents, 290; Not-Contents, 122.

Division No. 4
CONTENTS
Aberdare, L.	Cowdrey of Tonbridge, L.
Aldington, L.	Craig of Radley, L.
Allenby of Megiddo, V.	Cranborne, V.
Ampthill, L.	Crickhowell, L.
Annaly, L.	Cross, V.
Arran, E.	Cumberlege, B.
Ashbourne, L.	Dacre of Glanton, L.
Astor of Hever, L.	Davies of Coity, L.
Attlee, E.	De L'Isle, V.
Baker of Dorking, L.	Dean of Beswick, L.
Baldwin of Bewdley, E.	Dean of Harptree, L.
Balfour, E.	Dearing, L.
Balfour of Inchrye, L.	Denbigh, E.
Banbury of Southam, L.	Denham, L.
Beaverbrook, L.	Diamond, L.
Belhaven and Stenton, L.	Digby, L.
Beloff, L.	Dixon, L.
Berners, B.	Dixon-Smith, L.
Blackwell, L.	Donegall, M.
Blake, L.	Donoughmore, E.
Blaker, L.	Donoughue, L.
Blatch, B.	Downshire, M.
Blease, L.	Drogheda, E.
Brabazon of Tara, L.	Dudley, E.
Bramall, L.	Dundonald, E.
Brentford, V.	Eden of Winton, L.
Bridgeman, V.	Ellenborough, L.
Brightman, L.	Elles, B.
Brooks of Tremorfa, L.	Elliott of Morpeth, L.
Brougham and Vaux, L.	Elton, L.
Bruntisfield, L.	Ely, Bp.
Burnham, L.	Evans of Parkside, L.
Burton, L.	Exmouth, V.
Butterworth, L.	Fairfax of Cameron, L.
Byford, B.	Falmouth, V.
Cadman, L.	Feldman, L.
Caldecote, V.	Ferrers, E.
Callaghan of Cardiff, L.	Fitt, L.
Carew, L.	Fookes, B.
Carnarvon, E.	Freeman, L.
Carnegy of Lour, B.	Gage, V.
Carr of Hadley, L.	Gainsborough, E.
Chadlington, L.	Gardner of Parkes, B.
Chalfont, L.	Geddes, L.
Chalker of Wallasey, B.	Gisborough, L.
Chelmsford, V.	Glenarthur, L.
Chesham, L.	Glentoran, L.
Clanwilliam, E.	Grantley, L.
Clark of Kempston, L.	Greenway, L.
Cledwyn of Penrhos, L.	Grey, E.
Clifford of Chudleigh, L.	Habgood, L.
Cocks of Hartcliffe, L.	Halsbury, E.
Coggan, L.	Hamilton of Dalzell, L.
Coleridge, L.	Hampton, L.
Cope of Berkeley, L.	Hankey, L.
Cottesloe, L.	Hanson, L.

Hardy of Wath, L.	Mowbray and Stourton, L.
Harmar-Nicholls, L.	Munster, E.
Harmsworth, L.	Murton of Lindisfarne, L.
Harris of High Cross, L.	Napier of Magdâla, L.
Harris of Peckham, L.	Neill of Bladen, L.
Haslam, L.	Nelson, E.
Hayhoe, L.	Newall, L.
Hemphill, L.	Nolan, L.
Hindlip, L.	Norfolk, D.
Holderness, L.	Northbrook, L.
HolmPatrick, L.	Norton, L.
Home, E.	O'Cathain, B.
Hunt of Wirral, L.	Onslow, E.
Hurd of Westwell, L.	Onslow of Woking, L.
Hylton, L.	Oppenheim-Barnes, B.
Hylton-Foster, B.	Orme, L.
Inchyra, L.	Palmer, L.
Ironside, L.	Park of Monmouth, B.
Islwyn, L.	Patten, L.
Jakobovits, L.	Pearson of Rannoch, L.
Jenkin of Roding, L.	Peel, E.
Jopling, L.	Pender, L.
Keith of Castleacre, L.	Perry of Southwark, B.
Kenyon, L.	Perry of Walton, L.
Kilbracken, L.	Peyton of Yeovil, L.
Killearn, L.	Pike, B.
Kimball, L.	Platt of Writtle, B.
King of Wartnaby, L.	Plumb, L.
Kingsland, L.	Plummer of St. Marylebone, L.
Kinloss, Ly.	Prior, L.
Kinnoull, E.	Quirk, L.
Kintore, E.	Radnor, E.
Kitchener, E.	Rankeillour, L.
Knight of Collingtree, B.	Rawlings, B.
Knutsford, V.	Reay, L.
Laing of Dunphail, L.	Rees, L.
Lane, L.	Rees-Mogg, L.
Lauderdale, E.	Renton, L.
Lichfield, Bp.	Renton of Mount Harry, L.
Lindsey and Abingdon, E.	Renwick, L.
Lloyd-George of Dwyfor, E.	Ripon, Bp.
Lofthouse of Pontefract, L.	Roberts of Conwy, L.
Long, V.	Robertson of Oakridge, L.
Longford, E.	Rochester, L.
Lothian, M.	Rockley, L.
Lowry, L.	Romney, E.
Lucas of Chilworth, L.	Rotherwick, L.
Luke, L.	St. John of Bletso, L.
Lyell, L.	Saltoun of Abernethy, Ly.
Lytton, E.	Seccombe, B.
McColl of Dulwich, L.	Selkirk of Douglas, L.
McFarlane of Llandaff, B.	Shannon, E.
Mackay of Ardbrecknish, L.	Sharples, B.
Mackie of Benshie, L.	Simon, V.
MacLaurin of Knebworth, L.	Simon of Glaisdale, L.
Macleod of Borve, B.	Skelmersdale, L.
Manchester, Bp.	Slim, V.
Mancroft, L.	Soulsby of Swaffham Prior, L.
Manton, L.	Southwell, Bp.
Marlesford, L.	Stallard, L. [Teller.]
Masham of Ilton, B.	Stanley of Alderley, L.
Mason of Barnsley, L.	Stevens of Ludgate, L.
Massereene and Ferrard, V.	Stewartby, L.
Middleton, L.	Stodard of Leaston, L.
Miller of Hendon, B.	Stoddart of Swindon, L.
Milner of Leeds, L.	Strange, B.
Mishcon, L.	Strathcarron, L.
Molyneaux of Killead, L.	Suffolk and Berkshire, E.
Monckton of Brenchley, V.	Swinfen, L.
Monson, L.	Swinton, E.
Montrose, D.	Taylor of Warwick, L.
Morris of Castle Morris, L.	Tebbit, L.
Mountevans, L.	Teviot, L.
Mountgarret, V.	Thatcher, B.

Thomas of Gwydir, L.	Waterford, M.
Thomas of Swynnerton, L.	Waverley, V.
Thurlow, L.	Weatherill, L.
Tollemache, L.	Weir, V.
	Westbury, L.
Tombs, L.	Wharton, B.
Torphichen, L.	Wilcox, B.
Trefgarne, L.	Willoughby de Broke, L.
Trenchard, V.	Winchester, Bp.
Trumpington, B.	Windlesham, L.
Tryon, L.	Wise, L.
Ullswater, V.	Wolfson, L.
Vinson, L.	Wrenbury, L.
Vivian, L.	Wynford, L.
Waddington, L.	Young, B. [Teller.]

NOT-CONTENTS
Addington, L.	Jay of Paddington, B.
Alli, L.	Jenkins of Hillhead, L.
Amos, B.	Judd, L.
Annan, L.	Kennedy of The Shaws, B.
Archer of Sandwell, L.	Kirkwood, L.
Ashley of Stoke, L.	Lester of Herne Hill, L.
Barnett, L.	Lincoln, Bp.
Bath and Wells, Bp.	Lockwood, B.
Beaumont of Whitley, L.	Lovell-Davis, L.
Berkeley, L.	Ludford, B.
Biffen, L.	McIntosh of Haringey, L.
Blackstone, B.	McNally, L.
Bledisloe, V.	Maddock, B.
Borrie, L.	Mallalieu, B. [Teller.]
Carlisle, E.	Mar and Kellie, E.
Carmichael of Kelvingrove, L.	Meston, L.
Carter, L.	Methuen, L.
Castle of Blackburn, B.	Molloy, L.
Clancarty, E.	Monkswell, L.
Clement-Jones, L.	Montague of Oxford, L.
Craigavon, V.	Newby, L.
Currie of Marylebone, L.	Newton of Braintree, L.
Davies of Oldham, L.	Nicholson of Winterbourne, B.
Desai, L.	Ogmore, L.
Dholakia, L,	Oxford, Bp.
Dormand of Easington, L.	Paul, L.
Dubs, L.	Peston, L.
Ewing of Kirkford, L.	Pitkeathley, B.
Falconer of Thoroton, L.	Plant of Highfield, L.
Falkland, V.	Ponsonby of Shulbrede, L.
Farrington of Ribbleton, B.	Puttnam, L.
Freyberg, L.	Ramsay of Cartvale, B.
Gilbert, L.	Randall of St. Budeaux, L.
Gordon of Strathblane, L.	Razzall, L.
Gould of Potternewton, B.	Rea, L.
Graham of Edmonton, L.	Redesdale, L.
Grenfell, L.	Rendell of Babergh, B.
Hacking, L.	Renfrew of Kaimsthorn, L.
Hamwee, B.	Richard, L. [Lord Privy Seal.]
Hardie, L.	Ridley, V.
Harris of Greenwich, L.	Rodgers of Quarry Bank, L.
Haskel, L.	Rogers of Riverside, L.
Hattersley, L.	Rowallan, L.
Hayman, B.	Russell, E. [Teller.]
Henderson of Brompton, L.	St. John of Fawsley, L.
Hilton of Eggardon, B.	Serota, B.
Hoffmann, L.	Sewel, L.
Hogg of Cumbernauld, L.	Steel of Aikwood, L.
Hollick, L.	Symons of Vernham Dean, B.
Hollis of Heigham, B.	Taylor of Blackburn, L.
Hoyle, L.	Taylor of Gryfe, L.
Hughes, L.	Thomson of Monifieth, L.
Hughes of Woodside, L.	Tope, L.
Hunt of Kings Heath, L.	Tordoff, L.
Janner of Braunstone, L.	Tugendhat, L.

Turner of Camden, B.	Wedderburn of Charlton, L.
Tweeddale, M.	Whitty, L.
Varley, L.	Williams of Mostyn, L.
Wallace of Saltaire, L.	Winchilsea and Nottingham, E.
Walpole, L.	Young of Dartington, L.
Watson of Invergowrie, L.	Young of Old Scone, B.

[^*The Tellers for the Contents reported 290 names. The Clerks recorded 289 names.]

Resolved in the affirmative, and Motion agreed to accordingly.

9.44 p.m.

Lord Carter

My Lords, I beg to move that further consideration of Commons amendments be now adjourned. In moving the Motion perhaps I may suggest that the Commons amendments be further considered not before 10.30 p.m.

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