Chapter 5
Extracts from report of
Commons Second Reading
The Secretary of State for the Home Department (Mr.
David Blunkett): I
beg to move, That the Bill be now read a Second time.
. . . . .
Mr. David Hinchliffe (Wakefield): I place on record my appreciation of the
work that my right hon. Friend has done in introducing this
very important Bill, which is indeed long overdue.
. . . . .
The Family Planning Association and the Joint Committee on Human Rights have
expressed concern that the Bill could criminalise young people
of 14 or 15 for consensual petting or kissing. I would be
grateful if my right hon. Friend could clarify that, bearing
in mind that the average age of first intercourse is now 16.
Has he considered the possible implications?
Mr. Blunkett: Yes, I have. As recently as yesterday I thought about
whether there was a formulation that would change the existing
law in a way that addressed the practical issues. As the House
of Lords found, and as the Committee in this House will find,
it is extremely difficult to come up with a formulation that
not only protects young people from those over the age of
16 or 18 engaging in activity preparatory to sexual behaviour
15 Jul 2003 : Column 179 that would put them at risk
and is considered in the Bill to be unacceptable, and therefore
outside the law, but from those under 16—we have all had experience
of this in terms of school exclusions—who have taken equally
unacceptable actions against those of a similar age. Drawing
the line between penetration—we are going to be dealing with
these issues, I am afraid—and actions leading to penetration
by those intent on doing so without consent has made it impossible
to find another definition, given the well-known difficulty
of ascertaining consent in relation to youngsters.
The Under-Secretary of State for the Home Department, my hon. Friend the Member
for Wythenshawe and Sale, East (Mr. Goggins), will meet the
head of the Family Planning Association tomorrow. I repeat
what I said to several groups who raised civil liberties issues
in relation to the recommendations of the taskforce. If the
people to whom my hon. Friend the Member for Wakefield (Mr.
Hinchliffe) has been speaking are of good will—as he certainly
is—and believe that we have got it wrong, I ask only one thing
of them: that they produce a formulation that overcomes the
objections that have been raised. It is extremely difficult.
I do not want the law to be an ass. No one will be prosecuted
in the circumstances outlined by my hon. Friend—they never
have been, and they will not be—but to find a way out of a
situation that relies on the common sense of the Crown Prosecution
Service has proved impossible.
. . . . .
I need to lighten my mood because going through some of the cases is harrowing.
Some of the comments that were made could have come from ‘Round
the Horne’ and ‘Beyond Our Ken’. Let us take Lady Saltoun—or
Opposition Members can take her. Between her more offensive
comments, she came out with some gems. Her statements are
almost priceless. She suggested that oral penetration could
be considered less serious on the ground that it could be
prevented because:
‘Clenched
teeth can provide quite a good defence. Indeed, not only can
they provide a good line of defence, they can be an aggressive
form of defence because teeth can also bite.’—[Official
Report, House of Lords, 31 March 2003; Vol. 646, c. 1054.]
15 Jul
2003 : Column 182
How could one disagree with such a gem? Lady Noakes also came out with a real
classic when she described as a ‘probing amendment’ a proposal
to
‘leave
out 'genitals' and insert 'penis'.’—[Official Report, House
of Lords, 19 May 2003; Vol. 648, c. 555.]
The good news is that she withdrew it. I hope that the Committee will restrain
itself when it reaches these parts of the Bill, but these
examples demonstrate the pitfalls that we can all encounter.
These are deeply difficult areas, and it is a tribute to the
way in which the Bill has been handled that we have got this
far. I hope that the Committee will be able to continue that
process.
Mr. David Cameron (Witney): On the lighter points of the Bill, the Home
Secretary might not have read all the evidence given to the
Home Affairs Committee, on which I serve. One of the highlights
was when the head of the naturists pointed out that all naturists
had to carry a naturist passport, which led many members of
the Committee to wonder where they would keep it.
Mr. Blunkett: If the hon. Gentleman will forgive me, I shall move
quickly on from contemplating that thought—sufficient unto
the day.
Mr. Humfrey Malins (Woking): Where would they keep their identity cards?
Mr. Blunkett: The hon. Member for Woking (Mr. Malins) makes me
smile by asking that question. Perhaps the biometric data
could be placed on the person.
Clauses 1, 3, 4 and 5 provide for clarity and greater strength in dealing
with the law on consent. The definition of consent has been
a difficult and problematic issue. In the House of Lords,
we managed, through agreement and compromise, to ensure that
consent had to be freely given, and that the test of reasonableness
was accepted in terms of the genuine belief that consent existed.
I am glad that we reached such a compromise because it was
important that we were able to move forward in that way.
. . . . .
Mr. Grieve: In relation to the provisions on under-18-year-olds,
the Home Secretary pointed out, in some of the final comments
in his speech, that some of the problems were related to mental
health. The Home Secretary has read the briefing available
to other Members and to those who take an interest in the
subject. The evidence is pretty overwhelming; in many cases,
paedophile behaviour starts in adolescence, in those under
the age of 18. If it could be tackled at that age, it could
be dealt with successfully, whereas the evidence shows that
although it is possible to achieve cures in adulthood, through
treatment and rehabilitation, it is much harder.
I am sympathetic to the principle that has led the Home Secretary to place
a lot of emphasis on under-age sexual behaviour, including
that which may take place between two people who are both
under age or very close in age; but the consequences are bizarre
in places.
Although the Home Secretary is right to highlight the fact that substantial
change to the principle of the law has not been proposed,
things appear in a pretty stark light when we end up with
five-year penalties for those who go behind the bicycle sheds
to engage in some French kissing—that is what it really boils
down to even with two 15-year-olds. That is a very odd state
of affairs.
Speaking as a Conservative, I have an inherent anxiety about administrative
discretion. I accept that administrative discretion may be
the only remedy in cases where the CPS will not charge. Nevertheless,
when such matters are put on to the statute book in such stark
terms, I always fear that, at some point, something will not
work properly and that we will end up with prosecutions that
cause serious problems. I admit to the Secretary of State
that I am not sure that I know the answers, and I suspect
that, if he had known the answers, he would have already put
them on the statute book.
It is an odd state of affairs - the hon. and learned Member for Redcar (Vera
Baird) also highlighted the oddity of the situation in an
earlier intervention - that it is possible for someone under
the age of 16 to consent to rape, thereby reducing it to the
alternative offence, which is a sexual act to which no consent
can be given. I think that that is how I read the Bill. So
if one has sexual intercourse with a 14-year-old, it may be
possible to escape the full penalty of the law, but there
is no possibility of that 14-year-old consenting to much lesser
behaviour, even though she may consent to the more serious
one. That is a curious state of affairs, and all I can say
to the Home Secretary is that I shall do my best, as will
my hon. Friends, to try to improve on matters, but I am by
no means certain that we will be able to do so. 15 Jul
2003 : Column 195
Mr. Blunkett: I make this generous offer: I will buy a flagon of
champagne for anyone who comes up with a satisfactory answer.
[Hon. Members: ‘A flagon?’] Not a flagon—
The Parliamentary Under-Secretary of State for the
Home Department (Paul Goggins): A magnum.
Mr. Blunkett: Well, those who come from the north of England need
civilising, don’t they? We will settle for a magnum of champagne.
The hon. Gentleman is entirely right: it is an ass, but we
have to deal with the ass by providing a carrot, rather than
a stick.
Mr. Grieve: I am grateful to the Home Secretary for the offer.
I think that a flagon would have suited me very well, but
I fear that I may not obtain it. However, he has certainly
fired me into finding out whether I can provide any improvement.
. . . . .
15 Jul 2003 : Column 200
Simon Hughes (Southwark, North and Bermondsey):
. . . . .
I shall go into detail on only one aspect
of the second tier of issues. We have to try to win the Home
Secretary’s magnum or flagon of champagne—I expected it to
be bitter. It is nonsense that we criminalise young people
between 13 and 16 for what may be minimal sexual activity
that is not of a predatory nature—when it is effectively consensual—and
is part of the natural process of an adolescent growing up.
We all have to sort that out. There are enough crimes on the
statute book and enough people criminalised without adding
to it. Let us not be prudish and old fashioned. Throughout
the history of the world, teenagers have explored themselves
and each other, and that will continue. There is all the difference
in the world between that and ensuring that activity with
under-13s is unacceptable. That is what the Bill says, which
is a good thing. There is no defence or excuse for interfering
with under-13s. We should be clear that that is understood
outside this place. That is why the event reported today,
if it is true, of an adult running away with a child who is
under 13 is serious and needs to be brought to a quick and
satisfactory conclusion.
. . . . .
Mr. Hilton Dawson (Lancaster and Wyre): Other Members have referred to the new offence
of sexual touching and the problems that could arise in relation
to mutually agreed behaviour among peers. When I attended
debates on another Bill, bottles of wine were offered as a
challenge to people to pronounce the names of Welsh constituencies
but, so far, I have not been offered large quantities of champagne
by a Secretary of State for a contribution to a Bill. It cannot
be beyond the wit of the House to come up with an amendment
along the lines that nothing in the Bill should criminalise
behaviour that, in the eyes of an ordinary, reasonable person,
would constitute normal adolescent experience. In reaffirming
the significance of 16 as the age of consent, it behoves us
all us to find a sensible way of dealing with the ordinary
experiences of adolescence and mutually agreed behaviour among
peers.
The strong prohibition
against any activity involving children aged under 13 is of
enormous significance. In legislating for children, we face
a dichotomy: they are seen as either victims or villains.
If we set such store by the age of 13, we should also consider
raising the age of criminal responsibility to that age, as
the implication of the proposals is that we would still be
criminalising the disturbed behaviour of under-13-year-olds
who abuse other children.
. . . . .
15
Jul 2003 : Column 224—continued
Sandra Gidley (Romsey): I share the concerns of the Chairman of the Select
Committee on Health and the hon. Member for Lancaster and
Wyre (Mr. Dawson), who find it deeply worrying that the Bill
appears to criminalise the sexual activities of all young
people, regardless of whether they take place with or without
consent. In my kinder moments, I wondered whether I was seeing
the dawn of a new age of joined-up government and whether
such provision was the Home Office’s contribution to reducing
the teenage pregnancy rate by saying ‘It’s simple: let’s make
it illegal’. The Health Committee’s recent report on sexual
health, however, highlighted some of the problems in the sex
education that our young people currently receive and recommended
that greater emphasis be given to relationships and sex education
so that young people feel more comfortable and can discuss
their sexuality in a non-sniggering manner. Sadly, I must
conclude that we have not seen an example of joined-up government,
as the measures in the Bill will serve only to reinforce the
attitude that teenage kissing and experimental petting are
somehow smutty and dirty and should be done behind the bike
sheds—a place that has been mentioned already—almost as an
underground activity. As adults, not everybody is comfortable
with the idea that teenagers are sexually active, but we need
to reflect on what is happening out there in the real world
and ensure that our laws do not attract ridicule. The matter
definitely needs careful review in Committee. Indeed, I thought
that that was the case even before the magnum of champagne
was offered. We do not need a law that cannot be enforced.
Other European countries
have tackled the problem by decriminalising sexual activity
between under-16s. I am not suggesting that we should necessarily
take that route, as I am not convinced that it is the right
way forward. Finland, for example, has taken a different approach.
Sex with under-16s is not deemed an offence in Finland if
there is no great difference between the ages or mental and
physical maturity of the persons involved. That strikes me
as the beginning of a pragmatic approach that we might consider.
Criminalising consensual activity between adolescents devalues
the suffering of genuine victims of child abuse. I strongly
believe that we have to find some way of differentiating the
two issues. The problem was acknowledged in Committee in the
House of Lords, as it has been today. I think that the Government
are well aware of it and I like also to think that they genuinely
do not know quite how to take it forward in a practical way.
I was slightly alarmed
that, on Third Reading, the Minister in another place proposed
safeguards against inappropriate prosecution by suggesting
that guidance would be issued by the Director of Public Prosecutions.
Such guidance would be implemented by officials, who may have
widely varying moral standpoints that will impact on their
decisions. That does not seem fair to 15-year-olds throughout
the country who are doing what 15-year-olds do naturally.
I feel that we need to deal with that matter in the Bill.
. . . . .
Mrs. Annette L. Brooke (Mid-Dorset and North Poole):
Although
I welcome the approach to protect children from abuse, there
is a danger of criminalising children for innocent activities
on their part. We know that sexual activity between the ages
of 13 and 16 is fairly common. Surveys show that it is as
high as 30 per cent. for males and 26 per cent. for females.
We must accept life as it is today, although it is of course
important that precautions are taken against unwanted pregnancy
and advice on the prevention of sexually transmitted diseases
is provided. Yes, we must be concerned if kissing and petting
become a criminal offence.
I was rather struck by the statement made by my noble Friend Baroness Walmsley
in the other place when speaking on this issue. She said that
there is a paradox: the Bill stipulates that a child under
the age of 13 cannot understand the implications of sexual
activity sufficiently to consent to it, but can simultaneously
be expected to understand its implications sufficiently to
be held criminally liable for it. There is much that we need
to consider carefully and sensitively in Committee. Along
with other Members, I hope that someone wins the champagne.
It is essential that we try to amend the Bill to reflect the
real lives and needs of young people today. We will badly
let them down if we leave the Bill 15 Jul 2003 : Column
240 in a mess. We must ask ourselves whether it is necessary
to criminalise normal adolescent behaviour in order to achieve
our overall objectives. As my hon. Friend the Member for Romsey
pointed out, between 25 and 40 per cent. of all sex offences
against children are perpetrated by juveniles.
.
. . . .
15
Jul 2003 : Column 240—continued
Mr. Humfrey Malins (Woking): I understand the problem that clause 14
seeks to address, but is it the right way to do it? The clause,
I think—I hope I will be corrected if I am wrong—makes criminals
out of two 15-year-olds, both aware of each other’s age, who
with the consent of each other engage in sexual touching and
no more than that. If they are guilty, they are liable to
conviction on indictment to five years’ imprisonment. The
hon. Member for Lancaster and Wyre expressed concern about
that, as did the hon. Member for Romsey (Sandra Gidley) and
my hon. Friend the Member for Witney. My hon. Friend also
rightly expressed some of the concerns of naturists about
another aspect of the Bill. 15 Jul 2003 : Column 243 What
about clause 14? The Home Secretary was extremely helpful
in his opening speech. In response to an intervention from
the hon. Member for Wakefield (Mr. Hinchliffe), he may have
said that he was considering a formulation and that no one
would be prosecuted in the circumstances outlined by his hon.
Friend. He said, in effect, that he came to the matter with
good will, which I know he does, and that he was prepared
to consider the issue. [Interruption.] I am prompted to remember
that he also offered a magnum of champagne. If he adds a bottle
of gin, I shall have the answer by 10 pm.
Mr. Bryant: Alcohol is the problem.
Mr. Malins: It is a problem among young drinkers. If I qualify
as a young drinker then, as Clint Eastwood might say, ‘You’ve
made my day’. Clause 14 is troublesome. One must consider
the increasing maturity of girls and the way in which young
people experiment. One is tempted to be flippant, but I do
not want to be. Does anybody remember the back row of the
cinema, where 14 and 15-year-olds would have a little bit
of fun falling well short of an activity that might be thought
harmful? Such young people will face five years on indictment
under the clause if they are taken to court. It is a shame
that that is the case. Yes, we have some sort of duty to send
messages to teenagers about how they behave and to say that
having sex at too young an age is wrong, but youngsters are
growing up and they will experiment. I am worried that if
the clause were enforced, it would send an unhappy message
to worried teenagers and parents. Even a decision by the Crown
Prosecution Service or the police not to prosecute could be
taken only after the child had already been traumatised by
a series of questions from somebody, perhaps under caution.
That is a tough experience to put a 15-year-old through. I
feel unhappy about the clause, but I shall say no more at
the moment except that we hope to return to the matter in
Committee.
I am bound to say that clause 10 also troubles me a little. It provides that
somebody who is just over 18 commits an offence if he touches
sexually a person under 16. I am a little troubled by an aspect
of that provision. If a mature 15-year-old girl and an immature
18-year-old boy engage in some form of sexual touching, falling
short of intercourse, with mutual consent, it is odd that
they should be subject to a clause providing that the guilty
person will be guilty of an offence that carries 14 years
on indictment. There will be no prospect of being tried in
a magistrates court—it is on indictment. We need to consider
that provision, as the criminal law is not the best tool to
deal with teenagers having consensual contact falling short
of intercourse, which is part of growing up and experimentation.
. . . . .
15
Jul 2003 : Column 244—continued
The Parliamentary Under-Secretary of State for the
Home Department (Paul Goggins):
. . . . .
Now we come to the kissing question, or, as we might come to refer to it in
our further deliberations, the champagne challenge. Almost
every hon. Member commented on this issue, and concerns were
raised that the Bill would criminalise teenagers under 16
who, as part of their normal development, engage in kissing.
That is not the intention of the Bill; nor will it be its
effect in practice. Strictly speaking, sexual activity between
under-16s is already illegal, because the age of consent is
16. It would be irrelevant that both people were under 16.
There have, however, been no prosecutions simply for kissing;
nor will there be in future. I would say to the hon. Member
for Romsey that if we find no other way to deal with this
question—if we do not win the magnum of champagne—we shall
be able to trust the Crown Prosecution Service to ensure that
that intention is followed. The Bill will, however, ensure
that, when one young teenager seeks to exploit or abuse another,
we shall be able to act. The protection of children must come
before all else.
