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Dr. Harris: I share the pleasure of the hon. Member for South Ribble (Mr. Borrow) that the Government have accepted the principle of the amendment that we tabled in Committee and brought it forward in legally watertight terms that they can support with all their might on a free vote.
My hon. Friend the Member for Sheffield, Hallam (Mr. Allan) has urged me to be gracious in victory. It is against my nature in my early career in this place to be gracious and it appears to be against the nature of the Liberal Democrats in Parliament to be victorious. This is not a party political issue, but I pay tribute to the Minister for his willingness to take it on.
The Minister emphasised the need to protect younger people. I hope that the new clause is also motivated by the desire to end discrimination against gay people--in this case those under 16. From the late 19th century, there has been no equivalent offence of unlawful sexual intercourse for girls under 16 and they cannot even be charged through the Tyrell case law with aiding and abetting. The Minister did not mention the fact that the new clause gets rid of discrimination against homosexuals in criminal law, but I hope that that was part of the reason why the Government brought it forward. The hon. Member for Hertsmere (Mr. Clappison) referred obliquely to that, while claiming credit--which is in some part due--for supporting the proposal that the hon. Member for South Ribble and I made in Committee.
The new clause has other significant implications that have not yet been mentioned. Today was the first time that I have understood--let alone seen the point of--an intervention by the hon. Member for New Forest, West (Mr. Swayne), who pointed out with the perspicacity that only he can muster that, if there were a statutory defence, two 16-year-olds could argue that each thought that the other was over 16, resulting in both of them getting off the charge, because the new clause decriminalises the younger party involved in an act with an older party. For reasons that the Minister made clear in Committee--probably in response to another point by the hon. Member for New Forest, West--it does not decriminalise behaviour between two people under 16, because that would effectively lower the age of consent for homosexual acts below 16. We can be clear that new clause 4 does not lower the age of consent in those cases. As there is no such statutory defence in reverse, the hon. Member for New Forest, West can be reassured, in his terms, that that defence does not exist and that, in certain circumstances, there will be the continued prosecution of consensual offences where, because of the Government's attitude to new clause 2, a genuine mistake has been made as to age in a matter involving an older man and a male under 16.
Although the proposal makes progress, the law in this area is still not the same for heterosexuals and homosexuals. I believe that the law should be made identical, as far as anatomy allows, because we are considering the equality of people's interests. I know that views have been expressed by independent bodies that there should be equal consideration before the law, and I will refer to that in a moment.
New clause 4 has another significant implication, to which the Minister drew attention--there will no longer be a deterrent for males under 16 to report age of consent offences. Members on both sides of the House will recognise how important it is that, where clearly exploitative offences have taken place, there should be no deterrent for the victim, such as that, person's criminalisation, to prevent him--as it does not prevent her, in cases involving women--from bringing those offences to the attention of the authorities.
If there is not the same defence in law for young male heterosexuals and homosexuals--as proposed by new clause 2, and by its predecessor amendment--significant dangers will be created by the Government's correct action in new clause 4. It is important to recognise that the Government, in proposing new clause 4, have gone
beyond merely bringing forward the decision on the age of consent on a free vote, to which they were committed by the settlement made following the Sutherland case at the European Court of Human Rights.
The Minister will be aware that the Commission, in its early judgment, made it clear that the criminalisation of under-16-year-olds could mean that the Government find themselves outside the European convention on human rights because the offence that criminalises the person under 16 is also that which makes him a victim.
The Government are going no further than they are forced to do by the European convention on human rights, by the Sutherland judgment. In their terminology--they say that the measure is designed for the protection of the young, but not that it equalises what is currently discriminatory--the Government are being less than fulsome in their commitment to ending discrimination wherever it exists. The Government's attitude to new clause 2 shows that they have drawn a line--the Minister has consistently disappointed me in this regard--and said that they will go no further than they are forced to by the European convention on human rights.
When the hon. Member for Hertsmere can argue as he just has--from the Conservative Front Bench, although not for the Conservatives because the issue will be decided on a free vote--one must ask what is stopping the Government making the change now, subject to the review. As the hon. Gentleman made clear--and as I made clear earlier--the Government have made provision for a statutory defence in clauses 2 to 4, dealing with the abuse of trust and the creation of that new offence.
In Committee, we understood that sentencing provisions and other provisions relating to the new offence concerning abuse of trust would be considered in the review, along with everything else. Merely stating that such a review is to be conducted does not mean that the Government could not propose legislation on matters touched on by new clause 2. In terms of new clause 2, I wish to thank its supporters from all parties--particularly the hon. Member for Birmingham, Selly Oak (Dr. Jones), who, at short notice, had the matter drawn to her attention and signed early-day motion 319, along with many other hon. Members who support the principle contained in it.
I wonder whether Labour Members believe that there should be a vote, even though we may lose it, as the hon. Member for Hertsmere has said that, because the new clause is not the original one that we discussed in Committee, he may not support it. The Bill will be considered by the other place, and the Lords will have an opportunity to say that there should be equality in the statutory defence.
The Government's undertaking to take the matter to a review is insufficient to make me drop the campaign for equality. New clause 4 creates dangers of blackmail and of differential prosecution, conviction and imprisonment for young gay men as against heterosexuals. There is a danger of blackmail for homosexuals, whether for consensual sex above the age of consent or for sex below that age--it will now be 16--which is, rightly, in itself a criminal offence unless there is a defence that is acceptable to the court.
We know from the history of homosexuality and its interaction with the criminal law in this country that there has been much discrimination and blackmail and that lives have been ruined but, at present, a protection exists for young gay men against mischievous or malicious reporting of consensual sex, entrapment and blackmail, because mischievous or malicious persons, who may be young persons acting at the behest of older persons, are constrained from going to the law when they have misled an older person about their age and engaged in sexual activity because they would be committing an offence and be liable to prosecution. Such activity need not be buggery, as gross indecency covers a range of activities that in heterosexual settings are often not thought to be especially sexual but that the police have brought prosecutions on because a policeman considered them grossly indecent between two men.
The Government are right to remove that offence, but the field is being left open for pimps to use the young people whom they exploit to entrap older people, not necessarily to the point of prosecution, but to the point of blackmail. People may swear that they are above 16 or 18. Indeed, by entering certain clubs or bars they imply that they are over 18 or 21, so they have already misled the proprietors and staff. The proprietor is liable, and therefore must deem anyone in the premises to be above the legal drinking age. There is no defence for the older person in that circumstance of being misled or entrapped, and there is no defence against blackmail.
Dr. Julian Lewis (New Forest, East):
The hon. Gentleman makes some thoughtful points about the dangers of blackmail. I put it to him that a countervailing aspect of new clause 2 is that, by decriminalising the offence for the younger party, the hon. Gentleman removes the ability of the younger man to say to the older man, who is urging him into a homosexual relationship, "I mustn't do that, because it is against the law." Is the hon. Gentleman concerned about that aspect?
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