Extracts from Report of Commons Report Stage

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Sexual Offences Bill [Lords]

As amended in the Standing Committee, considered.

 

* * *

Column 614

 

Mrs. Brooke: I beg to move amendment No. 187, in page 3, line 15 [Clause 4], at end insert—

 

'(c) a person aged below 18 years at the time of the offence shall be assessed by a multidisciplinary team and be eligible for treatment, even if he does not subsequently become subject to notification requirements.'.

 

Mr. Speaker: With this it will be convenient to discuss the following:
Amendment No. 116, in page 5, line 34 [Clause 13], leave out '9' and insert '10'.
Amendment No. 144, in page 5, line 34 [Clause 13], leave out '9 to' and insert '11 and'.
Amendment No. 117, in page 5, line 34 [Clause 13], at end insert—

) A person under 18 (A) commits an offence if—

 

(a) he intentionally touches another person B,

 

(b) the touching is sexual,

 

(c) B is under 13 or B is over 13 but does not consent to the activity and A does not reasonably believe that B consents.'.
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Amendment No. 145, in page 5, line 34 [Clause 13], at end insert—

 

'(1A) A person under 18 commits an offence if he does anything which would be an offence under sections 9 and 10 if he were aged 18 save that conduct by a person (A) with another person (B) which would otherwise be an offence under this section shall not be an offence if:

 

(a) B is aged between 13 and 16 and A is no more than 2 years older than B,

 

(b) B has the capacity to consent to that conduct,

 

(c) B does consent to that conduct,

 

(d) The conduct does not involve penetration,

 

(1B) B will be regarded as having the capacity to consent to conduct by A only if B is capable of understanding the nature and implications and reasonably foreseeable consequences of such conduct.'.

Amendment No. 192, in page 5, line 34 [Clause 13], at end insert—

 

'( ) A person under the age of 18 does not commit an offence if the sexual activity is consensual and with someone of similar age and is initiated by the participating parties. Exempted sexual activity does not include penetration of the vagina, of the anus or of the mouth by a penis.'.
Amendment No. 193, in page 5, line 39 [Clause 13], at end insert—

 

'(3) In respect of consensual sexual activity any decision about prosecution would be based upon consideration of the best interests of any child involved.'.
Amendment No. 196, in page 5, line 39 [Clause 13], at end insert—

 

'(3) Any decision about prosecution would be based upon consideration of the best interests of any child involved.'.

 

Mrs. Brooke: In Committee, I welcomed the amendments tabled by the Government to the effect that young people under 18 who had committed what might be regarded as more minor offences would not necessarily be put on the sexual offenders register. However, the Minister commented in Committee that as a result not all individuals would be eligible for a multi-agency assessment and subsequent treatment. On Second Reading, I mentioned a case in my constituency of a boy who committed an offence at the age of 14 and received a fine of £10 but no treatment. At the age of 19, he committed a serious offence and 13 years later he is still in prison. I feel passionately that we must ensure that young offenders, even those who receive only a caution, receive assessment and treatment. That is when it is most needed. I know that the Minister does not want such a provision in the Bill, but I am very concerned that it will slip through the net unless we make the point to him over and over again. I hope that the Government will appreciate that I do so with the greatest sincerity and from my experience of the tragedy experienced not only by the victim and their family, but by the family of the offender.
I come to the most important issue that we will discuss tonight. It was unresolved in Committee, even though we all tried to find a solution. At this late stage we still have a responsibility to try to reach that solution. This is a 21st century Bill, but it must be a matter for great concern that it will criminalise normal teenage behaviour. My colleagues and I do not propose that the age of consent should be lowered and we made that clear in Committee; however we have to find a solution to this issue.

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We need co-operation from the Department of Health and the Department for Education and Skills on the guidelines for the Bill. We need to introduce information about relationships between young people to sex and relationship education—including at parenting classes. It is vital to get this right. A young teacher asked me at the weekend whether the Bill would mean that teachers should stop 12 and 13-year-olds kissing at school discos. I do not make that point lightly. If the Bill criminalises that sort of activity, what are teachers supposed to do, given the positions that they hold? That comment gave me a good reason for carrying on with the amendment.
8.30 pm
Our amendments resulted from a great deal of thought, if not a great deal of legal input—in fact, none since we simply reflected on all that had been said in Committee. As all our complex arguments, complicated amendments and even common-sense amendments—more of which we offer now—were turned down, it seemed that we should try to achieve the bare minimum tonight. It was clear in Committee that we needed to detach clause 9 from clause 13—they were clauses 10 and 14 in Committee, but I shall stick now to the new numbers. I thought that I would try to go no further than that this evening, even though I am pretty concerned about some of the Bill's criminalisation of normal activities. In that way, I thought, I might at least tackle this basic problem about kissing and affection.
Amendment No. 116 would simply detach clause 9 from the all-embracing clause 13. Having done that, I then seek to add to clause 13 to provide for child protection—a point I ask Members to consider closely. If the amendment were accepted by itself, it would require follow-up work on clause 9, which would then not be compatible with clause 13. It would be possible to make the two clauses compatible simply by adding a fourth point to the effect that A would have to be more than two years older than B. I was reluctant to do that because I do not find offensive the idea that a 17-year-old and a 14-year-old should kiss. However, making the difference three years would trigger the need for consequential amendments to clause 9, and that, as I am neither a lawyer nor a draftsman, is not my job.
The basic approach of detaching clause 9 from clause 13 and putting all possible safeguards into the Bill—more could be added in the way that I have suggested, for example, A could be more than two years older than B or more than three years older; or more could be added on the test for consent—offers a solution to our problem, although I cannot pretend that it is a perfect one. It took me hours of thought and determination to reach that point, although the House may not think so given my rather ragged amendment. I hope that the amendment will not simply be knocked out of court because it is not complete. I can see a way through that problem.
I will be minded to press for a vote on the amendment if the Minister does not say something that addresses the problem. I should be happy to support other amendments, but I am convinced that we must show the world and young people that we care about them and do not want to criminalise them for normal behaviour.

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Mrs. Curtis-Thomas: I appreciate what the hon. Lady is saying, but according to the police, one reason why there are so few prosecutions in this area is that the law simply is not specific or clear. I have gained the impression that the hon. Lady seeks to introduce a series of caveats to clauses that seem to me to be very straightforward. That would not bring any progress or any more convictions than occur at present because of the lack of clarity.
Mrs. Brooke: That was an important intervention, allowing me to say categorically that I am here because I do not want 14-year-olds or 15-year-olds to be convicted for kissing. I have not attempted to remove from the Bill anything involving penetration or any of the other things that obviously go on, given what we hear about the number of teenagers who engage in sexual activity. I have not attempted anything as ambitious as that, but I feel that we need to tackle the problem in clause 13, which really is most offensive. It has been brilliant working on the Bill, but I have a huge commitment to trying to obtain something sensible on this point and to give a better message to young people. They receive enough bad messages from us, and this one will buzz around all sorts of youth groups—"Now they are doing this to us". That is the message that is being sent out, and we need to send a better message and to put common sense back into the Bill in this area, alongside all the good proposals that it contains elsewhere.
I am minded to push for a vote on amendment No. 116 to establish the principle that the Government, with all the expertise at their disposal, should do all that they can to come up with a technical answer.
Mr. Dawson: I sympathise with the case made by the hon. Member for Mid-Dorset and North Poole (Mrs. Brooke). I want to speak only to amendment No. 196. I beg the forgiveness of the House if there has been any confusion—amendment No. 193 was a mistake. I handed in the wrong piece of paper—mea culpa.
Amendment No. 196 would add to clause 13 the provision:
"Any decision about prosecution would be based upon consideration of the best interests of any child involved."
I agree that the clause is the most unsatisfactory provision in what is, on the whole, an extremely fine Bill. The clause is appropriately named, but if it is not amended I foresee the day when youth groups throughout the country will produce shock-horror videos about it.
I do not believe that clause 13 will lead to young people being prosecuted or being put into youth custody for kissing or touching each other. The Government have assured us that that will not happen and that the regulations will operate in such a way as to prevent it. I accept their good intentions.
I also accept and share the Government's concern to protect children from sexual offences committed by other children. It is an extraordinary and disturbing fact that as many as 40 per cent. of offences against children are committed by their peers. I share, too, the Government's commitment to an equalised age of consent at 16 and to the principle, reinforced throughout the Bill, that a child aged under 13 is not capable of giving legally significant consent. Those are

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vital, protective measures that will help children to resist peer pressure to take part in sexual activity before they feel that they are ready.
I share all the Government's intentions for the protection of children, and my main concern about clause 13 is that it will undermine those efforts. Young people have already greeted with complete incredulity the fact that we could even consider such provisions. I have spoken to young people from the UK Youth Parliament and from my constituency and they feel that politicians who could even consider implementing such a clause are wholly out of touch and are certainly out of sympathy with the lives of young people.
All our positive efforts in the Bill will be dismissed if we do not amend the clause. All the messages that the Government are trying to get over and all the positive work that they are doing to try to help young people will be dismissed out of hand and forgotten. The clause will undermine all that work.
We are told that a third of all men and a quarter of all women claim to have had sexual intercourse before the age of 16. The bald statements in the clause will undermine the serious efforts that are being made to address teenage pregnancy and sexually transmitted diseases. Clause 13 sends out conflicting messages to young people who need good information and responsible help.
The clause could compound the problems of a young person who is being pressured into a sexual relationship. They could be told that, after all, they consented, or that they, as well as the person who is pressurising them, could be put into custody. That is the sort of message that could be given to young people and it will undermine the rest of the Bill.
At present, clause 13 is a hostage to fortune—or to the misfortune of vulnerable young people. It leaves the Government in the position of saying, "Yes that is what the Bill says, but it is not what we really mean". That cannot be right; it cannot be an appropriate message to give young people.
Clause 13 offers nothing to young people who have actually committed serious sexual offences. Their problems would be compounded by a period in custody, yet their dangerous and damaging behaviour could be addressed by appropriate treatment.
Amendment No. 196 is the most modest amendment of all. It would introduce no radical new principle, but it would incorporate the paramount principle of the Children Act 1989. It would not preclude the consideration of other factors, such as the public interest, in deciding whether to prosecute, but it would give appropriate prominence to the best interests of the child. In addressing itself to the best interests of any child involved, it would allow an opportunity to consider the merits of treatment for those who have committed offences before, or possibly in preference to the case for prosecution. I hope that it would reinforce the message that although we do not condone sexual activity between under-16s, we do not prefer condemnation to sympathy, understanding and care.
I have had the opportunity to have a preview of what my hon. Friend the Minister might possibly say in response to amendment No. 196, because he wrote to me last Thursday in response to letter in which I raised the issue. I am grateful to have this opportunity to get my

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retaliation in first. The purpose of the amendment is to be sceptical about the merits of prosecution, but it would not reduce the protection afforded to young people. In fact, as I have argued, it could increase that protection.
Amendment No. 196 would in no way weaken the age of consent or introduce any element of decriminalisation. Despite the fact that, so far, there has been no consensus about the ways in which clause 13 could be changed, there would be a consensus about the desirability of incorporating the paramount and well-accepted principle of the Children Act 1989.
This issue is extremely difficult and the Government have an extremely difficult balancing act to perform. In giving way to the best interests of the child, amendment No. 196 would achieve a better balance—a balance more in keeping with the commitment in the long title of the Bill to protect children from harm than with clause 13, and I hope that amendment No. 196 will be supported.
Lynne Jones (Birmingham, Selly Oak): I very much share the sentiments expressed by the hon. Member for Mid-Dorset and North Poole (Mrs. Brooke) and my hon. Friend the Member for Lancaster and Wyre (Mr. Dawson). Although I wish to speak to amendment No. 192, which I tabled, I realise that since it was devised the hon. Lady has tabled amendments that are more clearly drafted and suit the purpose of dealing with teenage sexual activity more effectively.
Members of the parliamentary Labour party have received a briefing note on the Bill today that states:
"The age of consent for all sexual activity is 16. This is well known, well respected and well understood".
Well, I disagree. I think that most people believe that the age of consent relates to penetrative sexual activity, not to the sort of thing that many young people get up to as part of their normal activity—the sort of kissing and cuddling or even heavy petting in which young people engage, and in which I suspect many hon. Members engaged when they were younger. Many people would be shocked to discover that we are introducing laws that will criminalise such activity.
The Minister told me in a letter that "under the existing law, children are not prosecuted for engaging in harmless sexual activity and" the Government "do not expect this Bill to make any difference".
He added that the Government would introduce guidance to ensure that that was the case. Of course, he repeated those assurances in Committee. Although the Government state that their aim is not to criminalise young people, that is exactly what the Bill will do. The reason why nothing serious happens at the moment is that, as I have said, the law is not understood or is ignored.
I am very concerned that the new offence replaces old terms, such as "indecency", with the much broader and more easily proved term, "sexual activity". As other Members have said, these measures will do nothing to enhance the reputation of parliamentarians with young people, who will be alarmed that we are considering criminalising the sort of activity that many of us will have engaged in when we were young. Even if the

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guidance makes criminal charges unlikely, a new law sends strong messages even when not enforced—the obvious example is section 28, which had a blighting effect on education about homosexuality for a whole generation of children.
8.45 pm
Finally, will my hon. Friend tell me how complaints to police using the literal wording of the legislation will be avoided? Is he not concerned that third parties could easily bring forward complaints under this legislation as it stands, causing distress to young people involved and wasting police time? I hope that the Government will consider introducing amendments that have the effect of ensuring that young people are safeguarded from inappropriate sexual advances, while at the same time not criminalising normal sexual activity in which young people engage, in the way that the Bill currently proposes.
Mr. Grieve: I have a great deal of sympathy with the points made on both sides of the House about the problems that this part of the Bill has presented. On Second Reading, I said to the Home Secretary, in response to his challenge, that I hoped that one of us—I hoped that it might be me—might obtain the magnum of champagne that he had promised to anyone who solved the conundrum of how to deal with providing protection for those aged between 13 and 16 while not overtly criminalising activities that everybody regards as perfectly normal. Amendment No. 145 is my last attempt at doing that. It is similar to the proposal of the hon. Member for Birmingham, Selly Oak (Lynne Jones), and seeks, with an age difference of two years, to permit sexual touching that does not involve penetration. It is a simple amendment, and if it were accepted by the Government, it would meet that problem.
I cannot escape the fact that, as we debated this matter in Committee, it became clear to me that if my amendment were accepted, it would decriminalise activities between a 16-year-old and a 14-year-old or a 17-year-old and a 15-year-old that many might regard as extremely undesirable. The question that I asked the Minister in Committee was: notwithstanding that, might it be proper to say that however undesirable it was, it was not a matter on which the criminal law should be invoked if it were to happen? Other sanctions might have to be applied—or other disciplinary regulations imposed—if it were in a school setting where it should not take place.
I accept that this is a big problem. I can see that the Minister has a point, which he made perfectly properly in Committee. There will be occasions when the nature of the relationship, and the anxiety about the relative absence of proper consent because of a dominance by one party over the other, gives cause for serious concern.
I must therefore say reluctantly that the Minister has persuaded me at least to the extent that I am not willing to press my amendment to a vote this evening if it does not meet with the Government's approval. I am not saying that I am happy with the situation: I remain as concerned about the matter as I was when I first raised it on Second Reading. Having said that, I accept that the Government's approach to this matter has been

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reasonable and measured, even though the end result remains unsatisfactory. I suspect that the Minister shares that view, but sometimes I fear that Parliament may simply be left with unsatisfactory consequences of perfectly acceptable legislation.
Paul Goggins: I am grateful to the hon. Gentleman for his remarks. I will deal with clause 13 and the amendments to it in a moment.
On amendment No. 187, I fully understand the desire to ensure that young offenders who are at risk and in need of care receive appropriate advice and protection. However, for the reasons that I outlined in Committee and that I would explain again now if we had longer, I remain unconvinced that imposing a statutory requirement would add anything to the current arrangements. I want to encourage the statutory services and voluntary organisations to continue to develop those arrangements.
Many of the amendments exemplify an issue that has focused my mind for the best part of the past six months. Since Second Reading, in Committee and through the summer, I have sought with officials, colleagues and others to try to find a solution to the problem that we face. I wish to place on record my appreciation to all those who participated in that—whether they were politicians, non-governmental organisations, officials or whoever. A genuine attempt was made to try to find a solution, but I have concluded that the solution that people were looking for is simply not available.
The Bill tries to balance concerns about innocent, consensual sexual activity between under-16s with the need to provide protection for children. My hon. Friend the Member for Lancaster and Wyre (Mr. Dawson) was right to point out the level of sexual assaults carried out on children by other children. In that context, I visited the Haven project in London, one of the sexual assault referral centres—[Interruption.] I am advised that it is in the constituency of my right hon. and learned Friend the Solicitor-General. Such is the level of concern, the centre has found it necessary to develop a specialist service for children.
I want to re-emphasise that my aim is not to criminalise children and young people, but to protect them and ensure that we do not have confusion but clarity in the law. I know that hon. Members on both sides have tried to find different ways of resolving the problem. The first was by reference to age, but we immediately hit the problem that age is not a proxy for maturity. Children and young people of a similar age may have very different levels of maturity.
The amendment of my hon. Friend the Member for Birmingham, Selly Oak (Lynne Jones) refers to people of a "similar age", but there is no definition of what we mean by "similar". Does it mean a difference of one or two years? Such issues are extraordinarily difficult. Amendment No. 117 refers to children under 13 and to children over 13, but it does not tell us what we would do with children who actually are 13. Many difficulties arise from trying to resolve the issue by reference to age.
Others have tried to resolve the problem by reference to type of activity, drawing a distinction between penetrative and non-penetrative sexual activity.

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However, there are many forms of non-penetrative sexual activity which, when undertaken by children, would be extremely serious. We cannot, as Members of the House, ignore their seriousness.
My hon. Friend the Member for Lancaster and Wyre tried to resolve the problem by referring to the welfare of the children, but whose welfare does that mean? What happens if issues of welfare conflict between the two children involved? There is also a public interest in such decisions.
Mr. Dawson: I do not find my hon. Friend's argument at all conclusive. Balancing the interests and welfare of the children concerned will be a prime consideration in any case.
Paul Goggins: It will be a consideration in relation to deciding whether to prosecute. The interests of children are taken account of at all stages in the criminal justice system. Nothing is added by my hon. Friend's amendment. The interests, welfare and background of those who commit offences when they are children are always taken into account in decisions about whether to prosecute and in the outcome in court if they are found guilty.
Lynne Jones: Would it not therefore be appropriate to enshrine such a provision in the Bill so that it sends out a clear message to young people?
Paul Goggins: I understand my hon. Friend's point but a clear message will be sent out via the guidance that will go to the prosecution service. That will make it absolutely clear that a whole series of considerations about circumstances and the children involved should be taken into account. Such guidelines currently exist for situations when sexual activity between children is illegal and there have not been prosecutions. I believe strongly that there will not be prosecutions in future.
I hope that hon. Members have observed from the Government amendments that the Government listened carefully in Committee and beyond to the many points that have been made, and we have listened just as avidly to points made today. My overall conclusion is that all the options that have been offered would have driven a hole through the age of consent. It is important for the House to send out a clear message—not least to young people—that the age of consent counts for something. Children should not feel under any pressure from the age of consent in any sense or feel that if they do consent to sex under the age of 16, there is something wrong with them.
There are no convictions at present. The guidance will be strong and I do not think that there will be prosecutions in the future for less serious consensual sexual activity between children. On that basis, and having listened carefully and agonised over the issues, I hope that hon. Members will not press their amendments to a Division because I shall certainly resist them.
Mrs. Brooke: I thank the Minister for his words and given the lateness of the hour, I shall not press amendment No. 187 to a Division. However, I shall press amendment No. 116 at the appropriate time. That

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is not because I want to weaken child protection in any way but because I want to register in the strongest terms my opinion that the issue should have been addressed. At the very least, we must send the strongest possible message that the guidelines must be comprehensive. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 8
Causing or Inciting a Child under 13 to Engage in Sexual Activity

 

Amendments made: No. 1, in page 4, line 7, leave out from 'section,' to 'if' in line 11.—[Ms Harman.]
No. 2, in page 4, line 16, at end insert is liable, on conviction on indictment, to imprisonment for life.
( ) Unless subsection (2) applies, a person guilty of an offence under this section is liable—

 

(a) on summary conviction, to imprisonment for a term not exceeding 6 months or to a fine not exceeding the statutory maximum or both;

(b) on conviction on indictment, to imprisonment for a term not exceeding 14 years.'.—[Mr. Heppell.]
Clause 9
Sexual Activity with a Child

 

Amendments made: No. 3, in page 4, line 26, after 'section', insert

', if the touching involved—

 

(a) penetration of B's anus or vagina with a part of A's body or anything else,

 

(b) penetration of B's mouth with A's penis,

 

(c) penetration of A's anus or vagina with a part of B's body, or

 

(d) penetration of A's mouth with B's penis,'.

No. 4, in page 4, line 27, at end insert—

 

'( ) Unless subsection (2) applies, a person guilty of an offence under this section is liable—

(a) on summary conviction, to imprisonment for a term not exceeding 6 months or to a fine not exceeding the statutory maximum or both;

 

(b) on conviction on indictment, to imprisonment for a term not exceeding 14 years.'.—[Mr. Heppell.]
Clause 10
Causing or Inciting a Child to Engage in Sexual Activity

 

Amendments made: No. 5, in page 4, line 37, after 'section', insert

', if the activity caused or incited involved—

 

(a) penetration of B's anus or vagina,

 

(b) penetration of B's mouth with a person's penis,

 

(c) penetration of a person's anus or vagina with a part of B's body or by B with anything else, or

 

(d) penetration of a person's mouth with B's penis,'.
No. 6, in page 4, line 38, at end insert—

 

'( ) Unless subsection (2) applies, a person guilty of an offence under this section is liable—
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(a) on summary conviction, to imprisonment for a term not exceeding 6 months or to a fine not exceeding the statutory maximum or both;

 

(b) on conviction on indictment, to imprisonment for a term not exceeding 14 years.'.—[Mr. Heppell.]
Clause 13
Child Sex Offences Committed by Children or Young Persons

 

Amendment proposed: No. 116, in page 5, line 34, leave out '9' and insert '10'.—[Mrs. Brooke.]
Question put, That the amendment be made:—
The House divided: Ayes 40, Noes 278.
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It being after Nine o'clock, Mr. Deputy Speaker put forthwith the Questions necessary for the disposal of proceedings to be concluded at that hour, pursuant to Order [15 July].
Remaining Government amendments agreed to.
Order for Third Reading read.