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6.29 pm
Mr. Humfrey Malins (Woking): This has been an interesting and thoughtful debate, with helpful and constructive contributions from Members on both sides of the House. I join my hon. Friend the Member for Beaconsfield (Mr. Grieve) and other hon. Members in welcoming the Bill, which is a thoughtful, wide-ranging and coherent piece of law in the making. We all agree that it left the other place a much better Bill than when it arrived there. Credit for that is due in part to the Government—their approach has been helpful and
constructive throughout the passage of the Bill—but also to peers in the other place. I wish to mention in particular my noble Friend Baroness Noakes, who took a thoughtful and eminently sensible approach to controversial issues in the Bill. She, like many other Members of the Lords, offered wise and reasonable arguments and amendments. The House owes her and the other place a debt of gratitude. It also owes a debt of gratitude to the Joint Committee on Human Rights and the Select Committee on Home Affairs. I pay tribute to the work that my hon. Friend the Member for Witney (Mr. Cameron) has done on the latter Committee, including his work on this issue.We have had a good debate, with contributions from Members on both sides of the House. The hon. Members for Northampton, North (Ms Keeble) and for Walthamstow (Mr. Gerrard), who have experience in the field, both tackled the issue of traffickers and unaccompanied children, and referred to the vulnerability of young persons and their exploitation. Their contributions were helpful for the House, as indeed was the contribution of the hon. Member for Lancaster and Wyre (Mr. Dawson), who made a speech about similar issues.
We need to revise and reform the law on sexual offences, much of which was made in a different era when attitudes towards sex and personal relationships were very different. The world is also very different, especially in terms of travel and technology. However, having accepted the need to change the law, we must accept that the fundamental principles of our criminal justice system, which were right in the past, continue to be valid today. Any reform must have regard to those principles.
I shall touch on a few issues on which further debate and perhaps amendment is needed in Committee. Before I do so, I pay tribute to my hon. Friend the Member for Mole Valley (Sir Paul Beresford) for his contribution. He talked about sexual offences against children and paedophile activity on the internet. The taskforce greatly appreciated everything that he said and contributed to its work, and we look forward to his expert help as the Bill progresses through Committee. Before leaving the issue of trafficking, I thank my hon. Friend the Member for Tatton (Mr. Osborne) for his powerful speech. He, too, referred to the significance of the issue, rightly praised UNICEF and spoke about the importance of training immigration officials.
Clause 1 is a vital provision, and deals with the issue of rape, that most grievous offence. I very much agreed with the hon. and learned Member for Redcar (Vera Baird), who talked about the vital need for support for victims in this area of law and practice simply to enable more cases to come to fruition, so to speak. She was right to stress the importance of that issue, and spoke, in my respectful view, very helpfully indeed about the law on consent generally, on changes in society, and on the difficulties that we face in relation to that. She rightly referred to the Morgan case, which tells us that in a rape trial the defendant's subjective belief that the victim consented to sexual intercourse affords him a defence, even if he has no reasonable grounds for that belief, and pointed out problems arising from that.
The hon. Member for Wirral, West (Stephen Hesford), who is a barrister by background, also referred to the matter, which has been troublesome. The Bill brings before the House a change for the better—an understandable change. What was first suggested in the other place was not so good, but as the Bill has progressed, we have reached a stage where, even if we do not find clause 1 entirely satisfactory, we know that we are on the right lines, and we can discuss the clause constructively in Committee.
I wonder whether the new reasonableness test can be improved. Concern has been expressed by a number of knowledgeable groups, including the Bar Council, that the new test may not let in for consideration the defendant's particular features—his characteristics including, for example, his youth or his mental health. We may need to examine that—[Interruption.] I may have said something wrong and I could be in serious trouble, but I will press on, as I shall not be barked down by the Home Secretary's dog.
I come briefly to clauses 76 and 77 and the presumptions about the absence of belief in consent. It was pointed out in another place that there may be some gaps in the provision. It can be a little unwise to list circumstances giving rise to a particular situation, because inevitably one leaves out other circumstances that may be relevant. In the context of clauses 76 and 77, physical violence and the presumptions, we may have to consider in Committee the possibility of economic threat, which is sometimes as powerful as physical violence or more so—for example, a comment such as, "I'm not going to pay your rent any more unless . . ."—or other abuses of a relationship of power. That aspect merits sensible discussion, but I am pleased that round the House today there has been a spirit of constructive debate. There is a real prospect that we can take these matters forward.
I shall make a general point about rape. I am conscious of time, and the need to enable the Minister to have proper time to respond to the debate. It is a sad fact of life that the drug that results in many rapes and on so many occasions when informed consent may be in doubt, and the drug that causes many instances of women's lives being damaged beyond repair, is alcohol. Sadly, heavy binge drinking, in the past associated with young men only, is rapidly becoming fashionable among young women. Increasing numbers of young people of both sexes drink regularly to excess and often have little or no memory of what went on the night before. That makes for difficulties for juries, who have to make judgments about situations that were alcohol-dominated and poorly recollected. It is an issue in life that troubles me considerably and of course brings much grief to many people.
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.
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 is 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: It is alcohol that 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.
Time is against me, Madam Deputy Speaker, so I shall move past three excellent pages of my speech and turn very briefly to the latter part of it. We all agree that abusing a position of trust for the purposes of obtaining sexual gratification must be punished and taken seriously. It is right to punish such activities, as a position of trust must not be abused. A relevant parallel is theft, which is a criminal offence, but is heavily aggravated when it involves a breach or abuse of trust, as this offence should be.
Let us take a look in Committee at the list of areas of abuse of trust. Let us consider what happens to the sports teachers in the summer holiday camps and the young man who leaves his school in the summer term aged 18 and goes back in the autumn term in his gap year, still aged 18, as a part-time games teacher and starts, when he is potentially in a position of trust, a relationship with a sixth-form girl whom he has known all his life but with whom he has not previously had a relationship. That is a small Committee point, but I believe that we would do well to consider it.
My hon. Friend the Member for Beaconsfield spoke about the anonymity of the defendant in rape cases, which is an important issue, as did the hon. and learned Member for Redcar. The hon. Member for Mid-Dorset and North Poole (Mrs. Brooke) also made helpful remarks about the anonymity issue. Some, like the Bar Council, believe that the anonymity of the defendant should remain until conviction, rather than until charge. There are strong views on that and I understand that they have been expressed. It is a matter that is well worth considering further, and we shall do so in Committee.
For my part, I think this has been an enjoyable and constructive debate. I look forward to the further passage of the Bill and thank all hon. Members for their contributions.
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