| Sexual Offences Bill [Lords]
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Mr. Malins: Is the hon. Lady giving way, or has she concluded? Mrs. Brooke: I am giving way. Mr. Malins: On the question of the Crown Prosecution Service and guidelines, is it not worth stressing that quite a lot of damage could be done to the child in question by having to go through a process that resulted in the CPS saying that, given the circumstances, it would not prosecute? The time leading up to the decision would be difficult, even without a prosecution. Mrs. Brooke: I thank the hon. Gentleman for that intervention. As well as trying to make sensible amendments, my line of thought is that we need a pre-prosecution stage—a new system that acts like a sieve that allows innocent people to fall out of the system at an early stage. The sieve might stay in place a little longer if treatment were needed, and we could include the treatment. If we had such a hierarchy, we could sift cases out and then ensure that the terrible cases that we saw in yesterday's presentation can be tackled. Miss Kirkbride: I understand why the hon. Lady talks about some form of sift, but I wonder whether she shares my concern. She said how upset we would feel if 12-year-olds were made to feel dirty for having done something that they thought was quite innocent, but the idea of some kind of process becoming part of their lives, and of being arraigned before a court or some other institution, fills me with horror. It is something about which we should be able to say, ''Well, little Johnny, you should not do that at the moment—later on, perhaps, but for the time being just leave her alone.'' That seems quite enough at that age. Mrs. Brooke: That is what I meant about using a simple filter—I call the sift a filter. Normal behaviour must be treated quite separately, but we have to have some protection for the most awful cases. That is what we are struggling with, but the innocent will be caught up in it because of the age of criminal responsibility. Mr. Dawson: I share the hon. Lady's views on the need to increase the age of criminal responsibility. Column Number: 118 Does she think that ensuring that children cannot give consent under the age of 13 would be a useful weapon to use against the Home Office in the battle to increase the age of criminal responsibility? Is she not watering that campaign tool down by trying to introduce the issue of under-13s' consent with the amendment?Mrs. Brooke: There is a certain logic, and if I thought that the age of criminal responsibility were likely to be changed within the next year, I might agree with the hon. Gentleman. However, as it would take a brave Government and many years to do that, we should look for an interim solution. I commend our amendment as the interim solution. Mr. Grieve: I have been struck by today's debate, which has been a reflection of the way that times have moved on. There has been only a tentative suggestion that one purpose of criminal law is to reinforce a social message, but for the prohibition of sexual activity for those under 13, that is exactly one background intention of past and, I suspect, current legislation. We have spoken about how bad it would be for a 12-year-old to feel that as a result of some playground activity, they had sullied themselves and left themselves open to great criticism. That is one anxiety, but the reverse is also true. Picking up on what my hon. Friend the Member for Bromsgrove said, one reason for having a blanket prohibition is to enable parents to say to their children that something is not allowed and that they will just have to wait until later to do it. The Minister may say that I am wrong, but I believe that that is one intention behind the Bill. It has not been mentioned, because it has become a somewhat unfashionable concept, but it is not one that we should completely shirk. Things happen, and picking up on what the hon. Member for Lancaster and Wyre has just said, if they do happen, we should not make a big fuss about them. However, the truth is that human experience has suggested that it is not a particularly good idea for them to happen. Two 12-year-olds spending all their time behind the bike sheds may have other ways in which to spend their time more profitably. We know that sexual experiences stir up passions and emotions of all kinds, which young people find it difficult to handle. That is why I cannot support the Liberal Democrat amendment, although I appreciate the intention behind it. I understand the thinking behind the first exception—that
but the provision is woolly. It would be an absolute nightmare to disentangle in court, and it could sanction a physical relationship between two children who had become highly sexualised for whatever reason—perhaps because they had been abused in some other context—even if the relationship were extremely counter-productive to their own interests. Only the parental sanction would be left, and it is sometimes difficult to enforce. Therefore, I am unable to support the amendment, despite appreciating the intention. Once we get beyond the age of 13, we could apply different criteria. However, again picking up on the Column Number: 119 comments of the hon. Member for Lancaster and Wyre, we should just accept that there is a blanket prohibition under 13. Our children do not carry microchips that register in the police station every time that they go behind the bike sheds. We must be realistic. It is unlikely that there will be persecution of 11-year-olds for behind-the-bike-shed activities. That does not happen at present, although it could, under the laws of indecent assault, so perhaps we should not get too twitchy. However, guidelines that the public could see would be desirable.Paul Goggins: You have been very tolerant of our consideration of the amendments, Mr. Griffiths, and I will press you for a little more forbearance. The hon. Member for Woking said that he would make some comments that went wider than the amendments. In articulating the Government's approach to the amendments, I must make some wider points, too.
11 amI am pleased that several hon. Members were up and about and listening to ''Today'' this morning; I do not mean to be facetious, but I hope that some had a few happy memories reawakened as they listened to one of its items. It addressed the fact that this difficult debate occurs in our deliberation of a Bill that is about ensuring that our children are properly protected, and that those who abuse them face stiff penalties. My hon. Friend the Member for Lancaster and Wyre made a good point: we have to face the fact that many sexual assaults on children—estimates are between a quarter and a third—are committed by other children. We should not lose sight of that. The claim is that in bringing about the degree of protection provided in the Bill, we also catch young children under 16 who are engaging in what most people would regard as fairly innocent, normal growing-up behaviour. I agree with what the hon. Member for Mid-Dorset and North Poole (Mrs. Brooke) said about young children engaging in what she described as ''innocent'' behaviour being made to feel guilty. None of us would want that. I do not believe that the Bill brings that about, and I shall explain why. The legal position is that that kind of consensual, low-level—as some might describe it—sexual activity is already illegal. That is our starting point. We are not introducing provisions that bring in a whole new set of circumstances. The proof of the truth of my arguments is that there are no prosecutions. However, it is important that we have the opportunity to investigate allegations because of the point that my hon. Friend the Member for Lancaster and Wyre raised—the fact that, in many cases, children are sexually assaulted by other children. We have a responsibility to ensure that we have the facility to carry out those investigations. Also, in the guidance there is the concept of common sense, which ensures that we do not seek to make children feel guilty and do not criminalise them for relatively harmless and normal things. I pay tribute to the tremendous efforts made since the Home Secretary issued the champagne challenge in July on Second Reading. He made it clear that he Column Number: 120 would present a magnum of champagne to anyone who produced a solution to the problem. I think that it was a genuine offer, but he is a canny Yorkshireman, and perhaps he had already worked out—he is thoughtful about such matters—that there might not be an answer to it.We entered into the discussions of the past couple of months in an open spirit. I pay tribute first to the children's organisations that have taken up the challenge in entirely the right spirit. They have worked together and with officials in the Home Office to come up with a solution to the tricky problems that we are discussing. I also pay tribute to the officials who have worked tirelessly and generously to find a way of changing what we are putting on the statute book so as to remove that innocent kind of behaviour. I pay tribute, too, to the hon. Members in this Room, who have, during the past couple of days, been trying to find ways of improving the legislation. Every time Committee members have tried to do that, we have had to conclude that in trying to bend it a little bit to open up the possibility of allowing such behaviour to be outside the law, we would reduce the important protection that should be maintained. Any attempt to amend the clause to exclude the kind of innocent behaviour that hon. Members have described would add enormous complexity to the Bill. We cannot get away from that. People say in conversation, ''Well, we will just leave out normal, low-level sexual activity.'' It is all right to say that, but to enshrine it in legislation is a far more challenging task. We would all agree that an innocent kiss is at one end of the scale and that full sexual intercourse is at the other. There is, however, a heck of a lot of behaviour in the middle that would have to be defined clearly, so that the court and juries could understand it. There is always that degree of complexity when we consider amendments such as those that are before us. If it is complex in terms of the law, how much more complex is it in the mind of a child, whom we are expecting to make rational decisions and choices about such matters? I was very taken by the comments of the hon. Member for Beaconsfield. He said that we should make it clear that such things were not allowed. The age of consent has to mean something. That is important. Of course, we accept that behaviour of the innocent development type, which has been described, goes on, but to say that it can all go on—to say that it is okay, whatever the activity or age—is a different argument. Society has a responsibility to send out a message. In the light of the review of sexual offences and our various debates, we are on quite robust ground in saying that there is solid public support for 16 to be the age of consent. There is also the danger that if we reduced the significance of 16 as the age of consent, we would send a message to children about what is expected of them. It would be damaging if the message went out that we were reducing the importance of the age of consent—that there was something like a cultural expectation that now they would engage in sexual activity before they were 16. Column Number: 121 An additional problem, if we accept that certain sexual activity can be permitted between consenting under-16s, is that proof would be required that such activity was consensual. At that age children are in a time of growth, adolescence and growing maturity and consensual activity is quite hard to prove. How do we prove that consensual sexual activity between a mature 15-year-old boy and an immature 13-year-old girl is truly consensual? How do we prove that a sexual relationship between two people in the same class, one of whom is trying massively to impress the other, is of a consensual type? If we define certain permissible sexual activities, we must also face the fact that their consensual nature must be dealt with. That produces many great difficulties. The amendment says:
It is impossible to work out what that might mean in practice. My hon. Friend the Member for Walthamstow has already described that difficulty.
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