Clause 14 - Child sex offences committed by children or young persons

Sexual Offences Bill [Lords] – in a Public Bill Committee am 3:45 pm ar 11 Medi 2003.

Danfonwch hysbysiad imi am ddadleuon fel hyn

Photo of Mr Hilton Dawson Mr Hilton Dawson Llafur, Lancaster and Wyre 3:45, 11 Medi 2003

I beg to move amendment No. 11, in

clause 14, page 5, line 33, at end insert

', unless such actions could be considered by a reasonable person to constitute ordinary, consensual adolescent behaviour.'.

We have had an excellent debate, which seems to have lasted for a very long time. Frankly, my overwhelming feeling at the moment is one of relief that my own daughters are now well into their 20s. I am grateful to the three other members of the Committee who have put their names to the amendment and for the words of support for it that I have received from officials of the National Society for the Prevention of Cruelty to Children; from Rachel Hodgkin, who wrote the briefing from the Family Planning Association; and from officials of the Children's Rights Alliance for England.

This is developing into an excellent Bill. It makes a very strong statement about the importance that the Government and hon. Members of all parties attach to the issues. In that context, I strongly support the retention of the age of consent at 16. One of the best things that the Government have done was to equalise the age of consent at 16. Also, as I said earlier, I am very pleased with the concept that children under 13 are incapable of consenting to any sexual activity.

I am also pleased by the introduction of the offence of touching that is sexual, and I am happy with the definitions that are given in the Bill. The sexual abuse of children by other children is a very serious problem that was discussed earlier today. I do not believe that anyone is terribly clear about this, but the figures indicate that perhaps as much as 40 per cent. of sexual offences against children are committed by their peers. We must deal with that sorry statistic with openness and through education and the effective treatment of disturbed children, whether they are victims, offenders

or both, and we must have good services that are backed up by sound law.

In a broader context, I am concerned that too many children are losing out on their childhood. The pressure on children to engage in mock-adult behaviour and behaviour that is way beyond their years is immense and growing, and the current age of consent is under threat. How can it not be, when it is reliably reported in The Lancet and other places that 30 per cent. of men and 26 per cent. of women say that their first experience of intercourse occurred before the age of 16? Every Member of Parliament is concerned about the teenage pregnancy rate in this country.

Clause 14 effectively outlaws kissing for under-16s on pain of five years imprisonment. That is how young people see it, but I do not know about other hon. Members. I attended a spirited debate at the annual assembly of the United Kingdom youth parliament in July when young people were well informed and aghast at the implications of the clause. I am extremely concerned that it is deeply flawed and that it will bring the age of consent of 16 into total disrepute and undermine it. The young people to whom I talked at the youth parliament and those from my constituency who visited Parliament earlier this week could not believe that such a provision was even being considered by anyone in this House.

I am concerned that the clause will prevent young people who are involved in consensual relationships from seeking advice on contraception, how to handle those relationships and the emotional implications of deep relationships before the age of 16. I am also concerned that it will leave some young people more vulnerable to abuse because of the need for secrecy. Who could fail to recognise the potential for emotional blackmail of a vulnerable child who is emotionally attached to a domineering partner of a similar age and who cannot tell what is going on because she would not want him to go to prison for five years? We want openness, education, sound advice, counselling and support, and that should be based on effective law that is rooted in the reality of children's experience. Touching may be coercive, but it may be mutually agreed, experimental and normal. Young people develop in maturity and understanding at different rates and the response of parents, family and professionals to the challenges of young people's sexuality should be proportionate, supportive, sympathetic and helpful.

Some of the amendments that we have discussed today are complicated. The Home Secretary said that the conundrum is so difficult that he is prepared to offer a magnum of champagne to anyone who can solve it. I think that we have made it too complicated by trying to allow for the vast range of possible situations in the Bill. That is impossible and the Home Secretary's champagne is completely safe.

The amendment is not perfect, but it is on the right lines. It would introduce an appeal to the common sense and reason not only of the police and the Crown Prosecution Service, but of every parent of every teenage child, every teacher of every teenage child and

anyone who has contact with adolescents and is concerned about them. The amendment would not decriminalise anything. It would retain the backing of the serious sanction if and when it is needed, but it would set the matter out in a form that is understandable and explicable. It tries to strike the necessary balance between protection and allowing children to grow. If we over-protect children, we render them vulnerable.

My proposal would be understandable and explicable to young people and I think that we could make it acceptable to them. We need something clear and straightforward in the Bill. We need effective legislation to underpin a change of culture in this country. We need greater openness, understanding and sympathy for young people. We need a realistic point from which to promote a culture that says, ''Until you're ready, it's quite all right for you to say no.'' Amendment No. 11 would help to create that.

Photo of Vera Baird Vera Baird Llafur, Redcar 4:00, 11 Medi 2003

I hope that I did not jump up too quickly; I thought that my hon. Friend was going to end his peroration. Although I sympathise with the reasons why the amendment was tabled, clause 14 applies clause 10, which is intended to include penetration, to under-18s. Despite his support for the age of consent staying at 16, if his amendment were made, it would appear to give a defence to somebody who penetrated an under-16. Did he intend the amendment to clash with the age of consent?

Photo of Mr Hilton Dawson Mr Hilton Dawson Llafur, Lancaster and Wyre

Actually, it is what I intended. It is far too difficult for us to define different forms of sexual experience. We do not prosecute under-16s who become pregnant. If we are effectively to help young people who are involved in consensual sexual relationships, we must treat them decently. The response to any form of sexual experience for under-16s should not be condemnation, which is implied by clause 14.

We should understand the position of under-16s. We should try to help, understand and assist them—we desperately want to protect them—but they must know that such behaviour is illegal. Such behaviour should remain illegal, and the age of consent should remain at 16. Unless we give the age of consent credibility, which is the purpose of the amendment, we will lose all the under-16s who are engaged in sexual relations. They should see that the Bill is a great attempt to protect them from sexual exploitation, and the implications of clause 14 are preposterous and potentially extremely damaging.

Photo of Dominic Grieve Dominic Grieve Ceidwadwyr, Beaconsfield

I fully understand the hon. Gentleman's intention. Indeed, the intention is similar, albeit differently worded, to that of the amendment moved by the hon. Member for Romsey (Sandra Gidley) this morning and amendment No. 132, which was my attempt. The amendment is, of course, cast in a different way because it preserves the offence while leaving a saving provision to a jury that concludes that, despite the facts, there is no need to convict. Indeed, a jury would have the option not to convict because it is completely happy with what has been going on.

I remember having a discussion at the Bar—not the Bar downstairs—with a barrister about criminal law. We were arguing that it might be possible to get rid of the criminal law entirely, so that people could do whatever they liked, but that if the prosecutor thought that what somebody was doing was wrong they could prosecute them and go in front of a jury, which would have three possible verdicts—that the activity was in order, out of order or totally out of order—and the person would then be dealt with accordingly.

The problem with the amendment tabled by the hon. Member for Lancaster and Wyre is that it raises the obvious possibility that the definitions are so loose that somebody who does some heavy petting in Lancaster might appear in front of a Lancaster jury and see it decide that the activity is in order, while a defendant in Norwich might appear in front of another jury for doing the same thing and, because of the flexibility, see that jury decide that the activity is out of order. I hope that the hon. Gentleman recognises that the degree of uncertainty that that would produce in relation to people's behaviour and conduct is such that the administration of justice would become very difficult. People would legitimately complain that they had a reasonable expectation that what they were doing was in order. They would ask why, suddenly, when they had read in the paper that the activity was held to be in order somewhere else, it was held to be out of order now that they were doing it. However, that is the flexibility that is envisaged.

I will listen carefully to what the Minister has to say on the subject, but I fear that, despite its attractiveness, the amendment would lead to enormous problems. We must either provide a definition of what is acceptable and what is not, or we must stick to what the Minister has proposed, which is that this entire category is unacceptable, without the saving provision.

Under the Minister's proposals, the protection to a defendant is twofold. The first is that the prosecution does not prosecute because it exercises its discretion not to do so. The second, which has always been present, is that even after conviction the judge gives an absolute discharge and says that he regrets that the prosecution brought the case and that he hopes that such a case never gets brought again, which builds a volume of case law on which the prosecutors subsequently exercise their discretion.

I hesitate over the hon. Gentleman's proposal, because it might not work.

Photo of Mr Hilton Dawson Mr Hilton Dawson Llafur, Lancaster and Wyre

Part of my argument is that the reality of the situation is that, hopefully, there are many stages at which these issues can be dealt with long before they ever reach the police or the Crown Prosecution Service. Is it not every parent's experience that they are faced with the challenge of their young person saying, ''I want to do this because Fred's or Frieda's parents down the road allow them to do it''? Is not what we are facing adolescent sexuality, which is being challenged and subject to change?

Photo of Dominic Grieve Dominic Grieve Ceidwadwyr, Beaconsfield

I accept that, but I am not convinced that the proposal should be incorporated into law,

with the consequences that would flow from that for a person who gets things wrong. Somebody might be convicted even though they claim that they thought about the matter and they were absolutely convinced that what they were doing came within the category of ''ordinary, consensual adolescent behaviour.'' That is a difficult principle of law, and I do not know whether we should start going down that route. Law must have greater certainty than that.

Photo of Chris Bryant Chris Bryant Llafur, Rhondda

I think that I agree with the hon. Gentleman. Does he not think that there might be a thoroughly reasonable or fundamentalist Christian who believed that it was extremely extraordinary for two young people of 15 to be kissing, or even holding hands, whereas two liberal-minded people living in Hampstead or Highgate might hold completely different views on that? If the law is unable to be specific enough, it will be difficult to direct a jury.

Photo of Dominic Grieve Dominic Grieve Ceidwadwyr, Beaconsfield

Indeed, I think it would not be possible to direct a jury at all. On the basis of the amendment, the judge would simply have to ask the members of the jury if they as reasonable people thought the case was all about ordinary, consensual adolescent behaviour. That is a complete defence, and one would have to leave it to them.

The proposal is attractive, but there will be people who rejoice because they get acquitted, and people who get convicted, who will feel upset and aggrieved because they will not understand it in the light of what they have done. I do not know what mechanism of appeal there could be. It would simply be a matter of the jury's view. I am wary of it. That is all I want to say on the subject.

Photo of Julie Morgan Julie Morgan Llafur, Gogledd Caerdydd 4:15, 11 Medi 2003

I support the amendment tabled by my hon. Friend the Member for Lancaster and Wyre. I put my name to it because I support the spirit behind it. I accept that there may be a problem with what is ''ordinary, consensual adolescent behaviour.'' We all know what my hon. Friend means and where he is trying to get to. Although the amendment is not perfect, I support the spirit in which it was drafted.

The message we give to young people is important and we must remember the high teenage pregnancy rate in this country. We must not give a punitive message to those young people who have become pregnant at an early age, and who we know engage in sex at an early age. The law as it stands clearly fails, because so many young people under 16 are pregnant. It is important that we give a message that we want to concentrate on young abusers in the Bill, and there is a significant number of them, as has already been said. They cause terrible anxiety and problems. In order to do that, we need to get rid of the concept that we are widening the net and drawing in behaviour that we know is ordinary and part of growing up.

Photo of Chris Bryant Chris Bryant Llafur, Rhondda

I sympathise with the point that my hon. Friend is making. My difficulty is with the word ''ordinary'' that she has just used. Another word for ''ordinary'' is ''normal''. It is very difficult to use those words without attracting value judgments, which, unless we are prepared to include them in the Bill,

would make it almost impossible for people to gain justice.

Photo of Julie Morgan Julie Morgan Llafur, Gogledd Caerdydd

I accept my hon. Friend's point. The clause needs to be more specific. The spirit behind the amendment is something that my hon. Friend the Member for Lancaster and Wyre has put forward clearly. We need to reach out to young people. The words in the Bill must be understood by young people. I have had the sort of experience that my hon. Friend said that he had when he spoke to young people in the youth parliament. Their concern about this sort of development in the Bill is a worry. We ought to bear that in mind, and it is in that spirit that I put my name to the amendment.

Photo of Annette Brooke Annette Brooke Shadow Spokesperson (Home Affairs)

I attempted to obviate the need for clause 14. When I was knocked down over that, I thought, ''Oh well, it is probably better to go down the simpler route.'' I now feel rather disillusioned.

To return to the main principles, I think that clause 14 is very damaging as far as the way in which young people interact with society is concerned. We have to accept the culture of young people. I do not mean agony aunt columns in magazines, but the sort of magazines that they read, what they read about, the films that they are seeing and the books that they are reading. The clause does not match that at all and we owe it to young people not to give signals that everything that they do is wrong. I find it very worrying that we have had some exceedingly useful discussion and at times edged closer to a solution, but then the lawyers stand up. With all the struggles that we are having, I keep coming back to the point that we are reassured because not many cases will come before the courts if matters are left as they are, but every time we try to change them, a huge problem emerges about cases coming before the courts and how the law will be interpreted.

I would really like to find a solution to that problem. I wish that I had the skills, which I obviously do not, to find it. I just hope that we can keep working on it. We all had a mailing from a Mr. Bennion, which we did not have time to discuss and examine, so I do not know if there is anything in that that the civil servants will be able to consider. I support wholeheartedly every sentiment in the amendment, and I wish that we could find the way through.

Photo of Neil Gerrard Neil Gerrard Llafur, Walthamstow

My hon. Friend the Member for Lancaster and Wyre and other hon. Members who have spoken are absolutely right to point to the clause as currently drafted as a real problem. In his amendment, my hon. Friend has tried to take a common-sense approach by looking at what actually happens. It fits in with the tone of a lot of the debate that we have had on this part. I agree with what he said on that sort of approach. I find difficulties with every one of the other solutions that have been suggested. For example, on the suggestion that involved three-year periods, we can think of 15-year-olds who could easily pass for 19 and 13-year-olds who we would not think were 10. There is only a two-year age gap there, but an enormous difference in maturity.

The question is whether this common-sense amendment is legally workable. I understand what the hon. Member for Mid-Dorset and North Poole said about the lawyers getting hold of matters. On a previous Committee that I served on, I referred to the speech made to Jack Cade in Shakespeare's ''Henry VI'', which no doubt some hon. Members will be familiar with, which starts:

''The first thing we do, let's kill all the lawyers.''

Sometimes, one wonders whether that is the approach that we should take.

Photo of Chris Bryant Chris Bryant Llafur, Rhondda

That is not an offence under this Bill.

Photo of Neil Gerrard Neil Gerrard Llafur, Walthamstow

The hon. Member for Beaconsfield mentioned the interpretation that juries might put on the law. I am sure that that happens anyway with other parts of the criminal law. East London juries might be rather different from juries in Lancaster. I recall an hon. Member telling me that when he started to practise as a barrister his colleagues expressed astonishment that he had managed to get one of his clients convicted at a particular court in London. However, this is not just about how juries interpret. It is a question of what prosecutors look at when deciding whether to charge.

I took the opportunity of the lunch break to look at the current CPS guidelines, which were mentioned this morning, to see what happens under the law now and how that would relate to the clause. What they say highlights the problem. We are in a situation, which we will still be in when the Bill is enacted, in which, as a matter of law, someone under the age of 16 cannot consent to an act that is otherwise an assault. However, they can consent as a matter of fact. That is the problem: matching together a matter of law in terms of consent and the matter of fact that someone has consented.

What is clearly in the guidelines now is that, if the victim consented, that would be relevant when considering the public interest in whether to prosecute. Factors such as the age of the defendant in relation to the victim, emotional maturity, any element of seduction, the relationship between the parties, a duty of care and breach of trust are, rightly, taken into consideration now. They are exactly the sort of factors that one would want to be taken into consideration. Ideally, we would somehow be able to bring the guidelines into the Bill, but I still have great difficulty in seeing how we could do that and produce a legally workable clause.

I sympathise entirely with what my hon. Friend the Member for Lancaster and Wyre says in the amendment. That is what we are all basically thinking. We need a common-sense approach, so that people are not prosecuted for what we would regard as consensual adolescent behaviour and not a problem. How one defines that may be the difficulty. This is the nearest to being an amendment with which I fully agree. I want to hear the view of the Minister and his officials as to how legally workable it might be, whether there are real problems and, if so, what they

are and what approaches we might be able to take to improve the amendment so that it works.

Photo of Humfrey Malins Humfrey Malins Ceidwadwyr, Woking

This is a difficult clause. It is not a happy clause and I have a great deal of sympathy with the approach taken by the hon. Member for Lancaster and Wyre. Let us consider what the clause says. It will make it an offence punishable by up to five years imprisonment for a young person of 13, 14 or 15 to engage in any sexual activity with a person of similar age, even if it is consensual and/or relatively minor. It bears repeating that it would be an offence for a boy and girl aged 15 not only to have sexual intercourse, but to indulge in heavy petting, to fondle one another sexually or even to kiss mouth to mouth.

I mentioned earlier that I had been in contact with Professor John Spencer of Selwyn college, Cambridge. I shall share some of his thoughts on the clause and the amendment, because he is as distinguished an academic as one could find and what he says may be of some help to the Government. I hope that they will take on board what he says. Professor Spencer says of the clause:

''I share the view of many speakers in Parliamentary debates who have said that this is ridiculous. The reason was well put in respect of the existing law by Professor Brian Hogan, who took the case of 'a 14 or 15 year-old schoolboy being familiar with a schoolgirl of similar age.'''

He said in ''On modernising the law of sexual offences'', which appeared in ''Reshaping the Criminal Law'' of 1978:

''Such conduct is a crime for him, and a crime for her if she responds in kind. No doubt prosecutions in such cases as these are almost unheard of, but that such conduct is even technically an offence I find wholly repugnant. As all . . . research shows this makes criminals of a sizeable proportion of the population. And it is wholly wrong that conduct which has been a part (and surely not a detrimental part) of the sexual growth of nearly all of us should be stigmatised as criminal. The reformer who explained to fourth, fifth and sixth formers at any school that much of their consensual sexual conduct is criminal and ought to remain so in a modern criminal code would be deservedly laughed out of the class.''

How can I distance myself from those observations?

Professor Spencer states:

''It is no answer . . . for people to say 'It's not a change—the present law makes it illegal too.' The Bill is supposed to create a modernised, rationalised law of sexual offences, fit for the 21st Century. Nor is it any answer to say''—

as some do—

'''It's not possible to exclude harmless consensual behaviour between teenagers whilst enabling the law to protect children against sexual exploitation.'

French law managed to find a sensible solution when its new Criminal Code was enacted in 1994. This contains in Article 227–25 a general offence of sexual behaviour with persons who are under 15: but (unlike the earlier law) it can only be committed by adults (i.e. people who have reached the age of 18).''

The professor thinks that

''the solution for us would be simply to delete Clause 14, without replacement. The sort of predatory minor whom we might want to prosecute, or at least threaten with prosecution, would still be guilty of a whole range of serious offences if he turned his attention to a child under the age of 13, or did any sexual act to or with a child over 13 to which the other participant did not freely consent (in the sense in which clause 75 defines it).''

He adds that he cannot

''think of much behaviour by minors that we would want to prosecute which would not be caught by one of the other offences in the Bill, or some other part of the criminal law. Perhaps there might be a problem with the over-sexed youth who continually pesters other children for sex: like the 15-year-old defendant in R v B (A Minor) [2000] AC 428, who repeatedly pestered a 13-year-old girl on a bus by asking her for oral sex.''

The professor believes that such a scenario could be covered by a prosecution of

''an offence under the Public Order Act—and presumably would be the case if the girl he had pestered had been over 16 (or indeed if this sort of thing were done by one adult to another).''

He concludes:

''If this were thought to be insufficient, then I suppose we could leave Clause 14 in, but limit its effect to some of the offences only (e.g. the incitement offence in Clause 11). I think a respectable case could be made for saying that the criminal law needs to extend to catch a minor who pesters unwilling children for sex, whilst not making consensual sex acts criminal when they are done by consenting minors over the age of 13.''

The Government and the Minister should listen carefully to Professor Spencer's views. I do not dissent from anything the professor says. He is a top academic. I do not know what discussions officials have with top academics. Have they run such matters right past the top professors at all the universities in the country? If not, why not? Professor Spencer has been most helpful to me. The last thing he said to me was, ''Have you read 'The Secret Diary of Adrian Mole Aged 13Ž3?/?4?'?'', to which I replied, ''I think so.'' He said, ''Listen chum, look at the page that describes his adventures with Pandora, when he says, 'Pandora let me touch her bust today, but I couldn't feel much through her anorak.''' I think that the telephone call then came to an end. We must not forget what Professor Spencer said.

Photo of John Randall John Randall Opposition Whip (Commons) 4:30, 11 Medi 2003

Perhaps I should have saved some of my earlier comments—in response to which I received glazed-over looks from members of the Committee—for this amendment because I have a great deal of sympathy with it. Had I done more homework, I might have added my name to it when it was tabled. However, having heard my hon. Friend the Member for Woking, I am interested in what the Minister has to say about clause 14 and whether it is necessary.

I am at a disadvantage because my children range in age from 13 to seven. Listening to what is being said in Committee, I worry when I think of the ''ordinary . . . adolescent behaviour'' that is to come. I have a problem with laws that may be broken—we must endeavour not to create laws that need be obeyed only in certain ways. That makes an ass of the law.

I understand the position of the legal profession and I do not want to knock it. Before I was elected, it was easy for me to say that Parliament has too many lawyers. Now, when I sit through proceedings in Committee, I say, ''Thank God for lawyers,'' because they are often the only people who understand some of the intricacies, and they are the ones who will have to deal with the laws we pass. However, it is a shame that common sense is not allowed to be part of the proceedings. I believe that it was my hon. Friend the Member for Beaconsfield who said that common sense cannot be defined in law and that it would be different in different areas, which is absolutely true. I have some

academic background for that assertion: I remember reading a treatise on different Serbian villages between the wars. One village regarded sex before marriage as perfectly acceptable, whereas a village 10 miles down the road did not. We can understand that. I live in Uxbridge, in suburbia—not the dizzy heights of Hampstead and Highgate, but a fairly ordinary sort of place.

We talked about issuing guidelines, so someone will be making a value judgment about potential prosecutions. Old-fashioned though it may be, I would prefer to rely on the 12 men or women on a jury to take a view. I understand the problems. Perhaps the lawyers on the Committee would consider it a lucrative area of practice.

Photo of Mr Hilton Dawson Mr Hilton Dawson Llafur, Lancaster and Wyre

When the hon. Gentleman's four children reach their teenage years, would he rather that they were dealt with by a jury, the police or the CPS or by their teachers, himself or other members of his family making sensible decisions based on the evidence before them?

Photo of John Randall John Randall Opposition Whip (Commons)

The answer is obvious. Incidentally, I have three, not four, children—although the change of parliamentary hours might change that.

Photo of Chris Bryant Chris Bryant Llafur, Rhondda

Too much information.

Photo of John Randall John Randall Opposition Whip (Commons)

Perhaps it is.

As hon. Members have said, we will be sending out a rather strange, albeit well intentioned, message. One of my constituents, an 11-year-old, was raped by a 13-year-old. I come from a sheltered background, and I found some of things that I heard at yesterday's presentation deeply shocking. We would be sending out a strange message if we said that although we do not expect cases to be taken to court, much normal behaviour is technically a criminal offence. I have a great problem with that.

Photo of Vera Baird Vera Baird Llafur, Redcar

I share the sentiments that motivated my hon. Friend the Member for Lancaster and Wyre to table the amendment and I do not want to spoil it, although I cannot stop being a lawyer. I thought that the hon. Member for Beaconsfield overstated the case when he talked about the range of possible findings that would emerge from reasonable juries in different geographical locations. After all, the point of having a jury is that there are 12 members and they cancel out each other's prejudices—at least, that is supposed to be the point. I do not believe that the amendment is all that unworkable, although I have other reservations about it.

Photo of Sandra Gidley Sandra Gidley Democratiaid Rhyddfrydol, Romsey

The hon. and learned Lady might be in a position to answer a question that has been vexing me. In clause 1, the Government appear to be quite happy to leave it to a jury to decide whether a behaviour was reasonable. We seem, somehow, to have a problem with giving the same responsibility to a jury in the few cases that will be brought to court under clause 14. Perhaps she would care to comment on that.

Photo of Vera Baird Vera Baird Llafur, Redcar

That thought occurred to me as I listened to the hon. Member for Beaconsfield. I suppose that he would say that what has been left for a jury to decide under amendment No. 11 is a

much wider question than whether in an individual case somebody behaved reasonably. To some extent I agree with that. One is considering what people think is reasonable consensual behaviour. Perhaps it would be better if the hon. Gentleman answered that question.

Photo of Dominic Grieve Dominic Grieve Ceidwadwyr, Beaconsfield

Yes, indeed—what is

''ordinary, consensual adolescent behaviour''?

That is the problem. It is a wide concept. Somebody with a Christian background and someone from another cultural background might have very different notions of what is appropriate. People would be uncertain about what is and is not permissible. Whether one could justify one's actions would be a lottery.

Photo of Vera Baird Vera Baird Llafur, Redcar

I thought that that was what the hon. Gentleman meant. With the greatest respect, however, there is no suggestion that the amendment is legally drafted, so it is possible that it could be tightened up, leaving the issue couched in narrower terms. I am worried that amendment No. 11 might be compared and contrasted with amendment No. 132. I am surprised, now that I reflect on it, that the hon. Member for Beaconsfield, who tabled that amendment to clause 10, did not table an identical amendment to clause 14 as well as or instead of the amendment to clause 10.

I should like to discuss amendment No. 132 in criticising amendment No. 11. I hope that I am not wandering away from the point, Mr. Griffiths. If amendment No. 132 were made, conduct that would otherwise be an offence under clause 14 would not be an offence if there were only a small age difference between the parties. I suppose the point is that the one who might object the most has the capacity to consent and does so. That might be an appropriate criterion to apply to clause 14.

The amendment tabled by my hon. Friend the Member for Lancaster and Wyre also says that if actions are consensual, they are not unlawful. However, in addition to the activity being consensual, under my hon. Friend's amendment the jury has to decide that it is also ''ordinary . . . adolescent behaviour.'' There are two tests in amendment No. 11 and I do not know whether the second—the more difficult of the two—is necessary.

Photo of Dominic Grieve Dominic Grieve Ceidwadwyr, Beaconsfield

I initially envisaged amending clause 14. Indeed, that could be done very easily with roughly the same wording. My reason for not doing that was that, on reflection, it seemed that clause 14 was providing for a different tariff of sentencing where an offence had taken place. That is a matter of drafting. If it is better drafting to shift my amendment to clause 14, it could be done quite easily.

Photo of Vera Baird Vera Baird Llafur, Redcar

Amendment No. 132 is more attractive. Although it achieves most of the aims, I suggest that my hon. Friend the Member for Lancaster and Wyre intends—

Photo of Chris Bryant Chris Bryant Llafur, Rhondda

I do not think that my hon. and learned Friend has read the whole of amendment No. 132. It continues over the page, where it says:

''the conduct does not involve penetration.''

Would she want to incorporate that into her version of the amendment to clause 14?

Photo of Vera Baird Vera Baird Llafur, Redcar

I was about to come to that. I would.

Photo of Humfrey Malins Humfrey Malins Ceidwadwyr, Woking 4:45, 11 Medi 2003

The hon. and learned Lady said that she was a little surprised that an amendment was not tabled to clause 14 as it was to clause 10. My hon. Friend the Member for Beaconsfield and I tabled a similar amendment to clause 14, but it was grouped with other amendments debated under clause 10—although I did not speak to it at length at that point. I am not sure it was necessary for me to have mentioned that.

Photo of Vera Baird Vera Baird Llafur, Redcar

Let me shake my head and try to grasp the import of what the hon. Gentleman has just said.

A second aspect of amendment No. 132 makes it preferable to amendment No. 11. The age of consent for sex—or penetration—should either be 16 or not. We cannot say that we agree with that age of consent but then not apply it in some circumstances. That is not practical. Either the state thinks that a girl under 16 cannot consent to sex, or it does not. It does not matter who she has sex with; the state must take a position and keep to it. The other advantage of amendment No. 132, or an amendment along similar lines, over amendment No. 11 is that it would allow consent to everything other than penetration.

Photo of John Randall John Randall Opposition Whip (Commons)

I understand what the hon. Lady is saying, and in my own small way I was thinking the same. However, if the state says that a girl under 16 should not have sex, why is it that we often do not prosecute?

Photo of Vera Baird Vera Baird Llafur, Redcar

There is the option to do that, and sometimes it occurs. I have defended several people who have had sex with girls under 16—sometimes they have been a lot older than her, and sometimes not.

Photo of John Randall John Randall Opposition Whip (Commons)

I was wondering whether there were cases in which the girl is the one who is prosecuted.

Photo of Vera Baird Vera Baird Llafur, Redcar

I am talking about girls being prosecuted. Why, often, we do not prosecute the girl is a good question. I cannot answer that, but I am sure that the Minister can.

The hon. Member for Mid-Dorset and North Poole made the point that if we make legislation that says, ''People under 16 can do everything but'', we might discourage those people from pursuing family planning. They will think, ''We are not going to do that, so we don't need to know.'' I do not know whether the situation will be made any worse. As the hon. Member for Beaconsfield said this morning in another context, we should draw a line and say, ''You should not have sex until you're 16'', but none the less provide all the sex education that is given currently. I hope that that unhappy compromise might be a reasonable answer.

As we all agree, this is a difficult area—we are all still touting like mad for the Home Secretary's

champagne. However, the Government should think again. In the spirit of what my hon. Friend the Member for Lancaster and Wyre and other hon. Members have said, all of which has confirmed my view, I would say that it might be possible to reach a formulation, such as that of amendment No. 132, that would allow the sort of petting that everyone knows goes on between teenagers preparatory to sex. There could be a formulation that did not criminalise that, as it would make consent a practical proposition. Such an amendment would say that it was against the law to have sex under age, and that would be consistent with our respect for the age of consent. I commend the Government to look again at a formulation similar to that in amendment No. 132.

Photo of Paul Goggins Paul Goggins Parliamentary Under-Secretary, Home Office

Although the hour is getting late, the quality of the debate has remained excellent and has reflected many of the concerns that have been expressed throughout the day.

During our discussions, we have focused on the difficult issues about consensual sexual activity between under-16s, which some would describe as harmless. Clause 14 is important, because it extends the provision to cover serious sexual assaults on children that are carried out by children. This morning, my hon. Friend the Member for Lancaster and Wyre noted that a third of sexual assaults on children are carried out by other children, and that is reflected in clause 14. The clause takes account of age, so the penalties are lower than those in clauses 10 to 13. The object of clause 14 is not to criminalise what some would describe as harmless activity, but to criminalise activity that is seriously harmful to children when carried out by other children.

The amendment attempts to seek clarity, but results in greater complexity. I would be the first to admit that the wording of the amendment, and the aspirations that it reflects, have been devised by very experienced, committed people inside and outside the House, who know about such issues and have been desperately searching for an answer. I support all those who have made positive comments. I echo the point made by my hon. Friend the Member for Cardiff, North (Julie Morgan), in that I recognise the spirit in which the amendment was drafted. However, we must have legislation that works.

Much has been said about how a court would know whether a child had rightly or lawfully engaged in sexual activity, but I ask the question, ''How would a child know?'' How would a child be able to interpret what was lawful and what was not lawful, as they were about to set out on their sexual activity? The question is relevant and should be asked.

The simple words ''reasonable'', ''ordinary'', ''consensual'' and ''adolescent'' have vast meaning. For example, when does adolescence begin and end? For some people, perhaps adolescence never ends, but the term ''adolescent'' is not defined precisely in terms of years. I think that we have covered the word ''ordinary''. My youngest son is about to start university in Lancaster, so perhaps we will find out whether there is a difference between what is ordinary in Lancaster and in Manchester. We discussed ''consensual'' earlier, and said that what may appear

to be consensual between a mature 15-year-old and an immature 13-year-old may not be so.

My hon. Friend the Member for Walthamstow asked why the amendment would not work, and I am trying to explain why it would not. Those words are so vast in their meaning that they cannot be pinned down in the Bill in the way that they should be. If each of us in the Room were to define those four words, I suspect that there would be some variation in understanding, and if we were to extend that to the wider community, it would be even more confusing. We must be precise.

Photo of Neil Gerrard Neil Gerrard Llafur, Walthamstow

I wonder whether the Minister would address the point raised by the hon. Member for Woking, who cited the opinion of an academic that if clause 14 were not in the Bill at all, people who would have been caught by it would be caught by offences in other clauses. I would like clarification of that point. If the clause were not in the Bill, what sort of activities would no longer be caught by other clauses?

Photo of Paul Goggins Paul Goggins Parliamentary Under-Secretary, Home Office

My hon. Friend asks a very good question. Clause 14 recognises the fact that in some cases the assault is carried out by another child, so it puts in place lesser penalties. Therefore, at one level it would make no difference, but at another it would, because the penalties are different. That is the substantial difference that clause 14 represents.

Photo of Neil Gerrard Neil Gerrard Llafur, Walthamstow

If that is the intention, is there a possibility of other clauses including lesser penalties dependent on age, rather than retaining clause 14?

Photo of Paul Goggins Paul Goggins Parliamentary Under-Secretary, Home Office

It is important that having had the consultation—I shall come to that later—the Government were asked to take account of the fact that children who commit such offences, heinous though they may be, deserve a lesser penalty. That is the purpose of the clause and without it children could commit the offences but would face longer prosecutions. That is the difference that the clause makes.

Photo of Vera Baird Vera Baird Llafur, Redcar

I wonder whether my hon. Friend is right about that. Clause 10 criminalises sexual touching for people aged 18 or over and clause 14 criminalises that for people aged under 18, as well as applying a lighter sentence. If clause 14 were removed, there would not be that specific criminality, although it might exist in other clauses.

Photo of Paul Goggins Paul Goggins Parliamentary Under-Secretary, Home Office

My hon. Friend the Member for Walthamstow was asking whether amendments could be made to earlier clauses to take account of the fact that children sometimes carry out those actions. That might have been possible, but would not have related to the lower penalties. My hon. and learned Friend the Member for Redcar is correct in that clause 14 reflects the fact that children can commit those offences. It is precisely to capture those offences when committed by children that the clause is in the Bill and linked to lower penalties.

Photo of Sandra Gidley Sandra Gidley Democratiaid Rhyddfrydol, Romsey

It might not be entirely clear that a long string of amendments that we tabled sought to do precisely that and would effectively have removed clause 14 but provided lesser sentences for under-18s who fell foul of other clauses. However, the

Committee decided that it did not like those amendments.

Photo of Paul Goggins Paul Goggins Parliamentary Under-Secretary, Home Office

I simply make the point that we must recognise in the Bill that such assaults are sometimes carried out by children. Either we can amend clauses 10 to 13 to reflect that—but they carry heavier penalties—or we must have clause 14. Having considered the matter and thought long about it, our judgment is that we should have clause 14, which recognises and deals with the fact that the perpetrator is sometimes a child, but relates that to more appropriate offences.

I want to press on because time is becoming short. I return to a comment made by my hon. Friend the Member for Lancaster and Wyre, who asserted strongly this afternoon the importance of the age of consent. I agree and I believe that there is general agreement in the Committee about the importance of the age of consent of 16. However, if his proposal were accepted, it would remove the age of consent for people covered by the exception that he created. There would be a two-stage age of consent instead of one clear age of consent, and one age of consent could be overridden in certain circumstances when the definition of ordinary consensual adolescent behaviour was captured.

Photo of Mr Hilton Dawson Mr Hilton Dawson Llafur, Lancaster and Wyre

Without something like that in the Bill, would not the age of consent be undermined, as it is now? The hon. Member for Uxbridge (Mr. Randall) asked a pertinent question: why are there so few prosecutions when so many young people break the law?

Photo of Paul Goggins Paul Goggins Parliamentary Under-Secretary, Home Office

My hon. Friend makes an important point. We do not know how many prosecutions occur and I shall try to find out, but they should happen when it is appropriate. I want to link that comment to another comment made by my hon. Friend. The reality is that children and young people do engage in sexual activity. I recognise that. My constituency probably has one of the highest rates of teenage pregnancy in the country. That may be true, but that is not a reason for legalising the behaviour. That is the importance of the age of consent.

Photo of Dominic Grieve Dominic Grieve Ceidwadwyr, Beaconsfield 5:00, 11 Medi 2003

If we can improve the law by sending a clear message about what is acceptable and what is not, it might help young people to determine what is acceptable and unacceptable behaviour. Allowing a 13-year-old to engage in heavy petting with someone up to three years their senior provides the benchmark for what is acceptable, whereas penetrative sexual activity is not. That might encourage the sort of improvements in sexual behaviour that the Minister and the Government seek.

Photo of Paul Goggins Paul Goggins Parliamentary Under-Secretary, Home Office

I shall respond to that and link it with the comments of my hon. and learned Friend the Member for Redcar. I almost always find her comments persuasive. The difficulty in applying amendment No. 132 here is that once we get into the mathematical formula of ages and start talking about the difference between penetrative and non-penetrative

sexual activity we enter a minefield. We can all think of non-penetrative sexual activity that is extremely serious if it is going on between children.

Photo of Chris Bryant Chris Bryant Llafur, Rhondda

I am still somewhat perplexed. As far as I can see, if we removed clause 14 a person under the age of 18 would still be liable under clauses 1, 3 and 4. The vast majority of cases involving someone under 18 are already dealt with elsewhere in the Bill. We are talking only about clauses 10 to 13, which do not relate to penetrative sexual activity. Is clause 14 strictly necessary?

Photo of Paul Goggins Paul Goggins Parliamentary Under-Secretary, Home Office

I will try to provide my hon. Friend with a persuasive answer. Where the activity is clearly non-consensual, the non-consensual offences will apply. We are talking here about cases where some doubt is raised by the defence. As I explained to my hon. and learned Friend, the extension in clause 14 is to cover the reality that far more children than we would wish are engaged in this activity.

Photo of Vera Baird Vera Baird Llafur, Redcar

My hon. Friend said that there were some predatory young people. That is right. If one introduces the defence of consent into a clause-14 type offence, someone could still be prosecuted if they had preyed on someone and there was not consent. It would not prevent that from happening. It would simply shift it into the area where consent was an issue. That is a step that my hon. Friend should consider.

Photo of Paul Goggins Paul Goggins Parliamentary Under-Secretary, Home Office

I shall consider all comments and recommendations. We are trying in these clauses to add more protection where consent is less clear than it is when one of the non-consensual offences applies. The balance is clearly a difficult one, but the objective in this part of the Bill is to add protection for children even when the activity engaged in is with other children.

I should like briefly to return to another point that is partly in response to the hon. Member for Beaconsfield. He was talking about the activities of young people and the fact that children and young people sometimes engage in sexual activity. He made a strong assertion about the need for the age of consent. While we accept that children and young people do engage in sexual activity of different kinds, we have a duty to send a message to those who do not that limits the pressure on them to feel that they are odd or not behaving normally.

The hon. Member for Woking asked me how extensively we had consulted academics and others. I am sure that he will be aware that there was extensive consultation before the Bill was drafted. The consultation involved a wide range of individuals with academic understanding of the issues, and, perhaps even more important, individuals and organisations that work, day in, day out, with children and young people who, as victims or perpetrators, fall within the concerns that we are debating.

I have tried to respond to the issues that have been raised. I say to my hon. Friend the Member for Lancaster and Wyre that I do understand. His professional background has given him great experience of such issues and he speaks in the spirit of demanding to improve the situation. However, in

his quest for greater clarity, his amendment would introduce greater complexity, and I beg him to withdraw it.

Photo of Mr Hilton Dawson Mr Hilton Dawson Llafur, Lancaster and Wyre

I am prepared to respond positively to the Minister's overtures to withdraw the amendment. As a Lancastrian, I think that he committed a great calumny on my right hon. Friend the Home Secretary. I am sure that if he approached the Home Secretary in the correct spirit and talked about the hard work that has been displayed by all members of the Committee, the Clerks and officials, the Home Secretary would provide that magnum of champagne as a consolation prize. It is worth a try, anyway.

I am sorry that the amendment has not found favour. There is a huge problem involving the law about the age of consent. Across the Room, people have expressed their support. We are talking about something that is breached so often and shrouded in so much confusion. My amendment was an attempt to include in the Bill some of the reasoning that must be employed not only by juries, the Crown Prosecution Service and police, but by parents and everyone in contact with teenagers. I hope that we can continue

discussions, perhaps outside this forum, to achieve something a great deal more satisfactory for Report. If we go ahead with the provision in its current form, it will greatly undermine the age of consent and bring the law and Members of this House into disrepute with young people, who are incredulous that, in our worthy attempts to protect them from the serious offences that are often committed by other young people, we are placing just about every single young person at risk from this legislation. I hope that there will be a debate on stand part. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Photo of Mr Win Griffiths Mr Win Griffiths Llafur, Pen-y-bont ar Ogwr

We do not need a stand part debate because the debate on this subject has lasted well over an hour and has been wide ranging.

Clause 14 ordered to stand part of the Bill.

Further consideration adjourned.—[Mr. Heppell.]

Adjourned accordingly at nine minutes past Five o'clock till Tuesday 16 September at ten minutes past Nine o'clock.