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Mr. John Bercow (Buckingham): I recognise the rationale behind the new clause, but, so that we can take a view on its likely practical significance, will the Minister tell us how many boys under the age of 16 were prosecuted for buggery in 1998?
Mr. Boateng: I shall write to the hon. Gentleman in due course about the number of young men under the age of 16 prosecuted for buggery in 1998. If he remains in his place for the duration of the debate, although he has not always graced the Opposition Benches on previous occasions, I will--
Mr. Bercow: I am always in the Chamber.
Mr. Boateng: I know that the hon. Gentleman is an assiduous attender of the House, but he has not always been present during previous debates on the Bill. If he remains in his place for some time longer, I promise him that, before the end of today's proceedings, I will let him have the figure.
I suspect that the number of prosecutions, if any, is small, but our concern is to make sure that the measure does not tell against the interest of young people, who might be dissuaded from bringing action against older predatory males for fear of prosecution. As we know, in these matters, fear of prosecution, as much as any actual prosecution, tells on the minds of the young people involved. That concerned the hon. Member for Hertsmere, me and other members of the Committee.
The new clause would stop the continued use of the criminal law as a means of coercion to be used against those whom we in this House wish to protect the most--young children. That is something that we all take very seriously indeed. We have made it clear, however, that other attempts to deal with the undoubted anomalies and inconsistencies in sexual offences legislation, including
the way that the criminal law treats heterosexual and homosexual activity, must wait for the review of sexual offences and penalties.
I understand the thinking of the hon. Members for Oxford, West and Abingdon and for Sheffield, Hallam (Mr. Allan), and the hard work that they have put in, but I fear that their amendments are likely to fall foul of our concern that the review that we have instituted should be in a position to take an overview and to tackle the undoubted anomalies and inconsistencies in the course of its work.
Making further ad hoc changes to the law on sexual offences and penalties through the Bill would only add to the inconsistencies in the law. However, we believe that the case for decriminalising the younger partner is so overwhelming that there are no good reasons against doing so now. The other issues raised during the consideration of the Bill about the inconsistencies in the law on sexual offences require a view to be taken of the law as a whole, if we are ever to achieve a rational basis for our law in this area. The new clause does not require that, and it can be adopted without creating any new inconsistencies.
It might be helpful at this stage to deal with the Government's response to new clauses 2 and 3, which stand in the name of the hon. Member for Oxford, West and Abingdon, among others. He will take the House through the effect of his new clauses but, for us, they raise important questions of principle. They concern the defence of reasonable belief on the part of the person committing an offence against a person under the age of consent and go far beyond the changes that we propose in the Bill. The issues raised affect heterosexual offences and homosexual offences.
Our approach to the age of consent has been for Parliament to decide on the simple, straightforward issue of the equalisation of the age of consent. With one exception--the decriminalisation of the younger partner--we have made it clear that other attempts to deal with the undoubted anomalies and inconsistencies in the sexual offences legislation, including the way that the criminal law treats heterosexual and homosexual activity, must wait for the review of sexual offences and penalties. That will disappoint the hon. Member for Oxford, West and Abingdon, but I hope that he understands that we are at least disappointing him consistently.
We have also made it clear that the review must ensure that the law is fair and non-discriminatory, in accordance with the European convention on human rights and the Human Rights Act 1998. The Northern Ireland Office is working alongside the Home Office on the review of sexual offences and will respond to its recommendations in due course. As the hon. Member for Oxford, West and Abingdon will appreciate, the new clause raises a number
of technical issues. I do not intend to go into them at this stage but, if he would like me to deal with them later, I should be only too happy to do so.
We cannot accept the new clauses, which are properly matters to be considered by the review and go far beyond the purposes of the Bill. The policy on such offences needs careful examination in the light of the need to protect children. We have serious concerns that, as they stand, either of those defences might make prosecuting sexual offences substantially more difficult--and we are not having that.
A similar defence to that contained in new clause 3 for Northern Ireland was proposed by hon. Members in Committee. It would have provided a defence for those under 25 in relation to a first charge for such an offence. We consulted a number of children's charities about that, and they believe that even such a limited measure would have serious implications for child protection. We are simply not prepared to accept that. That argument applies even more to a broad defence along the lines of new clause 2, which makes the proposition even more unacceptable to us. The matter will, however, be examined in the course of the review.
I hope that, in the light of that assurance, the hon. Gentleman will not press his two new clauses. On that basis, I commend Government new clause 4 and amendment No. 9.
Mr. James Clappison (Hertsmere):
I wish to make two matters clear. First and most importantly, these issues will be the subject of a free vote, if there is a vote, and any views that I express are personal--my colleagues may take a different view. Secondly, if it is convenient, I should like to deal with the amendments and new clauses in this group together.
I welcome Government new clause 4. I listened carefully to the Minister's speech. He adopted many of the points that we made when the matter first came before the House. There is merit in the approach taken in the new clause, as that will serve to protect the younger party, which should be the law's main priority in this area. Thus, there will be a defence for the under-age person where the other party is over age. That is clearly in the interests of bringing the older party to justice. Removing the disincentive to the younger party to report the offence should help to bring older people who enter into inappropriate sexual relationships to justice.
I agree with the form in which the new clause is tabled. When the original amendment was before us, we observed that it would merely have prevented proceedings from being brought, whereas the new clause clarifies that no offence will be committed. That brings the law into line with the existing law on under-age sex with a heterosexual girl. I therefore welcome the new clause, which reflects the arguments that we made earlier in our proceedings.
New clause 2 is important and requires careful consideration. Indeed, it was considered carefully in Committee. It will make available a defence in cases where an older person is charged with an offence under section 12 or 13 of the Sexual Offences Act 1956. It is sometimes referred to as a statutory defence or a defence of mistake of age.
It is important to note that a defence of mistake of age is available in the case of unlawful sexual intercourse with a girl under 16. That is, in some ways, the equivalent heterosexual offence. That defence is sometimes called the young man's defence.
If a charge is made relating to under-age sex with a girl under the age of consent, it is a defence for a person under 24 who has not previously been charged with a similar offence if he believed the girl to be 16 or over and had reasonable cause for the belief. That has long been available as a defence in England and Wales for offences of unlawful sexual intercourse with a girl--it goes back many years.
It is worth noting that a similar defence is available in Scotland in the case of both heterosexual and homosexual acts. I listened with interest to the Minister's comments about new clause 3, which would create a defence in the case of offences in Northern Ireland. He referred to consultations that had taken place and said that, in the interests of protecting children, we should not accept the new clause, but it would create an almost identical--if not identical--defence to the one that currently applies in Scotland.
That is an interesting point. I think that the only difference would be that the age of consent would be slightly higher in Northern Ireland--the age of consent being 17, whereas in Scotland it is 16; otherwise, the defence would be the same in Northern Ireland as in Scotland.
In Scotland, in the case of both under-age heterosexual sex and under-age homosexual sex, there is a defence if the defendant has not previously been charged with such an offence, is under 24 and had reasonable cause to believe that the other party was over the age of consent. After thinking carefully about it and reflecting on the debates in Committee, I find it hard to see why the same defence should not be available for people aged under 24 in respect of homosexual acts in England and Wales as is available already in Scotland and, in the case of heterosexual sex, in England and Wales.
Age is important. Different considerations apply where people are older. Someone who is in his late 20s, 30s or 40s should not be able to avail himself of such a defence--as he cannot now do in the case of heterosexual sex--but, where young people are in the same general age bracket, we have to think of the interests of justice and ask: do we want to bring within the ambit of the criminal law a young person who had homosexual relations with an under-age person when he genuinely believed that the under-aged person was over the age of consent and had reasonable grounds for such a belief? Do we really want such a young person to be guilty of a criminal offence, as the law now stands, and to face a possible maximum sentence of life imprisonment?
It is important and salient that the availability of that defence be strictly limited.
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