The Minister of State, Northern Ireland Office (Paul Goggins): I beg to move,

The Chairman: With this it will be convenient to consider the draft Sexual Offences (Northern Ireland Consequential Amendments) Order 2008.

Paul Goggins: It is very good to see you in the Chair, Mr. Atkinson.

The orders were laid before the House on 30 April. While the main focus of my opening speech will be on the lead order, I am pleased that we can debate both orders at the same time. As we move towards the devolution of policing and justice powers in Northern Ireland, it is my profound hope that this will be the very last time that a Committee of this House is asked to approve major criminal justice legislation for Northern Ireland through the Order-in-Council procedure. In future, that will quite rightly be a job for the Northern Ireland Assembly.

The draft Sexual Offences (Northern Ireland) Order 2008 is the result of the first ever fundamental reform and consolidation of the law on sexual offences in Northern Ireland. Many of the current statutes date from the 19th century and are difficult to apply to current circumstances. For some time we have recognised the growing need for a strengthened, modernised and harmonised body of law based on the Sexual Offences Act 2003.

In passing, I should mention that the 2003 Act was the first major Act for which I was the lead Minister when I was in the Home Office. Looking around the Committee, I see the hon. Member for Rhondda and other colleagues who served on that Committee. When the then Home Secretary, my right hon. Friend the Member for Sheffield, Brightside (Mr. Blunkett), gave me responsibility for that Act, he said that a Minister is given the opportunity to legislate on sexual offences only once in every 50 years. Well, here we are again just five years later.

The draft legislation was preceded by a comprehensive review of the law. The Government sought views from key stakeholders and others in Northern Ireland on how the law should distinguish for the 21st century between acceptable sexual behaviour and criminal activity. The review took as its starting point the extensive research and findings of the fundamental review of the law on sexual offences that was carried out in England and Wales, as well as the parliamentary scrutiny of the 2003 Act. Essentially, we took the view that unless there was a good reason, the law in Northern Ireland should as far as possible match that in England and Wales.

The proposed order will update the law to suit the 21st century. All offences will be gender neutral and, in the main, consensual sexual activity between adults in private will not fall within criminal law. The order will strengthen and modernise sexual offences, primarily to ensure that all non-consensual sexual activity and sexual activity involving children and other vulnerable people is criminalised and will attract appropriately robust sanctions. It will provide for clearly defined offences, which should ensure that anyone who engages in non-consensual or unacceptable sexual activity will face justice and appropriate punishment. Perhaps most importantly, children and young people are at the centre of the proposals, with new offences designed to protect the most vulnerable and to punish severely any perpetrator of child sexual abuse.

The consultation on the order has been thorough. A policy consultation was carried out in 2006 and a proposed draft sexual offences order was prepared and consulted on from November 2007 until February 2008. Altogether there were 369 responses to the legislative proposals, including 29 from organisations, political parties and elected representatives. The remaining 340 were from individuals responding in a personal capacity, and they focused mainly on the proposal to reduce the age of consent from 17 to 16.

The Northern Ireland Assembly established an ad hoc Committee of all of the main Northern Ireland political parties to consider the draft order. I am grateful to the members of that Committee for their careful scrutiny. While the age of consent issue has provided some difference of opinion, there has been strong support for the order as a whole. The Northern Ireland Assembly not only affirmed its support for the sweep of the legislation, but welcomed the increased sentences and the move to gender neutrality. The Northern Ireland Commissioner for Children and Young People and the Police Service of Northern Ireland welcomed the contents of the order. The major children’s organisations, such as the National Society for the Prevention of Cruelty to Children and Barnardo’s, were also generally supportive, along with Brook and the Family Planning Association.

It might help the Committee if I briefly run through what is proposed in the legislation. The order clarifies the law, creates new offences, strengthens sentences and stops discrimination. There is a clear focus on five different themes: non-consensual offences, offences against children, offences against those with a mental disorder, prostitution and other unacceptable sexual behaviour. The core offences that cover the absence of consent are set out in part 2. They include a new statutory offence of rape to replace the common-law offence, and new serious offences of assault by penetration and causing a person to engage in sexual activity without consent.

The new offence of rape has been expanded to include oral penetration, and the offence of assault by penetration carries a maximum life sentence for behaviour that under the current law would be classed as indecent assault with a maximum sentence of only 10 years. We propose the same statutory definition of consent as exists in England and Wales, with a number of evidential presumptions that consent was absent unless evidence is provided to the contrary. For example, if violence was used or threatened, there would be a presumption that consent had not been given.

The second major element of the legislation is the new framework of offences against children, which are set out in part 3. The most important issue in that regard is that where an offence is committed against a child under the age of 13, there is no requirement to address the issue of consent. That follows the Sexual Offences Act and makes it clear that there can be no question about the capacity of a child under the age of 13 to agree to sexual activity. Penetration of a child aged 12 or under will always be classified as rape.

The next group of offences concern children under 16 and criminalises all sexual activity with children and young people under that age. The maximum sentence for that group of offences is 14 years, although where the offence is committed by someone under 18, the maximum sentence is reduced to five years. By comparison, the current offence in Northern Ireland of unlawful carnal knowledge criminalises only sexual intercourse, and the maximum sentence for unlawful sexual intercourse with a girl aged 14 to 17, regardless of the age of the other party, is only two years. Indeed, there is no specific offence by which it is unlawful for a girl or woman to have sexual intercourse with a boy under 17.

The third group of offences applies to young people under 18. The aim is to provide a safety net against exploitation and abuse. For example, it will continue to be unlawful to have sexual activity with a young person under the age of 18 for anyone in a specified position of trust or in a specified family relationship. It will be unlawful to pay for the sexual services of a child under 18 or to cause, incite or arrange for a young person to become involved in prostitution or pornography and to control that person. Finally, the age under which it will be illegal to make, take, possess or distribute indecent photographs of children will be increased to 18.

Part 4 of the order sets out the circumstances in which it will be illegal to engage in sexual activity with a person who has a mental disorder. There are three clear aspects to those offences. The first relates to those with more severe disabilities and will penalise any sexual activity with someone who lacks the capacity to choose because of a mental disorder or who is unable to communicate such a choice. The second deals with the procuring of sexual activity with a person with a mental disorder by inducement, threat or deception. The third simply outlaws any sexual activity by a care worker with a person with a mental disorder. These offences increase the range of offending behaviour against this particularly vulnerable group, while still acknowledging the rights of many such individuals to a consensual and non-exploitative sexual relationship.

Part 5 contains provisions to address the problems of kerb crawling and soliciting for prostitution, which occur to some degree in all of our major cities, including Belfast. The police have pressed for these provisions, as indeed has my hon. Friend the Member for Belfast, South (Dr. McDonnell). We are also sending a further message to those engaged in commercial sexual exploitation, with sentences of seven years for causing, inciting and controlling prostitution and for keeping a brothel.

Part 6 contains a miscellaneous but important group of offences. It criminalises acts where the clear intention is to commit a sexual offence—for example, giving someone so-called date rape drugs. It criminalises sex with an adult relative and it lists other behaviours considered unacceptable: exposure, voyeurism, intercourse with an animal, sexual penetration of a corpse and sexual activity in a public toilet.

Part 7 makes further important provisions. It allows offences committed overseas against children to be pursued by the courts in Northern Ireland, whether or not they are offences in that other country. It also removes offences against children committed by other children or young persons from the reporting requirements of the Criminal Law Act 1967, although I have agreed not to commence that provision until new safeguarding legislation is enacted—hopefully in 2009.

As I said earlier, there was an impressive and largely supportive response to the Government’s consultation on the order. The Government set out their response to the issues raised in a statement, which contained a summary of the representations that accompanied the order when it was laid before Parliament. A further document contained a summary of the changes made to the order. For example, the Government have agreed to look further at the possible inclusion of sports coaches within the positions of trust listed in article 28. We will ask the Minister of Culture, Arts and Leisure to consult sports bodies in Northern Ireland on that suggestion. We have also agreed to consult on guidance and to look at ways to engage with children and young people on the introduction of the new law.

One issue on which the Government have not been persuaded concerns the changing of the age of consent to 16 from 17. Our policy position remains that we have not seen any compelling evidence to suggest that the criminal law in Northern Ireland should continue to be at variance with the rest of the United Kingdom on this issue. Much of the argument against the move to harmonise the law has come from a basic misunderstanding of what the term “age of consent” means. It does not set in law the age at which it is deemed appropriate or even necessary to start sexual activity. We are setting out the circumstances in which it is an offence to engage in sexual activity with a young person, even though that young person gives their consent. If that young person is 14 or 15, it remains an offence for another person to engage in sexual activity with them. We say that at 16, a young person has a right to take responsibility for their decisions and the other person should not be criminalised as a result. It is important to underline that the focus for the criminal law is not the conduct of the person below the age of consent—it is the conduct of the other person.

We believe that a majority of young people from the age of 16 will make sensible decisions, supported particularly by parental guidance, as well as by sex education in schools and the work of statutory and voluntary organisations that influence young people. We are supported by all the major children’s organisations: the NSPCC, Barnardo’s, the Children’s Law Centre, the Northern Ireland Commissioner for Children and Young People, and numerous representatives of social care trusts and MLAs, including the chairman of the Assembly’s ad hoc Committee that considered the order in detail, Dr. Stephen Farry, who said in the debate in the Assembly:

Chris Bryant (Rhondda) (Lab): I am sorry to delay my hon. Friend on a small point. There are obviously people who have been prosecuted in Northern Ireland for having sex at 16. If the order goes through, that will no longer be illegal. Those people have criminal records and may be on the sex offenders register. When we introduced the Sexual Offences Act 2003, we made it possible for people whose offences were no longer offences—if my hon. Friend takes my meaning—to apply to have their names withdrawn. Will that be the case in Northern Ireland?