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Lord Quirk: My Lords, what we are talking about is widely billed in the media as only to do with lowering

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the age of homosexual consent. Those are the very words in the current issue of our own House Magazine. But that is not so, at any rate for me.

The issue is whether, for young boys and young girls alike, we should legitimise anal intercourse. In my view, the Commons amendment that we are discussing was hasty and irresponsible; based on spurious sound bites about personal freedom and sexual equality. In fact, of course, on the issue of equality, we have had sexual equality since 1994 when it became legal for men and women to indulge in anal intercourse from the age of 18. The Commons amendment to the Crime and Disorder Bill does not introduce a new sexual equality; it merely extends the 1994 equality down from 18 to 16. The equality argument therefore goes out of the window. The issue for me is whether we protect 16 year-olds from a dangerous practice, just as we try to protect them from, say, alcohol with the 18-year rule or from tobacco with widely publicised health warnings.

If, by law, we protect motorcyclists from head injury, we must give thought to protecting the sexually active from anal injury, and the dangers are very real. A book published last year by Jeffrey Satinover--a doctor of medicine and a health science expert--spells out those dangers and I make no apology for his explicitness. He says,

    "Anal intercourse ... traumatises the soft tissue of the rectal lining [which is] nowhere near as sturdy as vaginal tissue ... Even in the absence of major trauma, minor or microscopic tears in the rectal lining allow for immediate contamination. The body has a strong barrier between bloodstream and the extraordinarily toxic and infectious content of the bowel. Anal intercourse creates a breach in this barrier for the receptive partner"--

who might, given the Commons amendment, be a girl of 16--

    "whether or not the insertive partner is wearing a condom".

Dr. Satinover goes on to quote another medical expert's book on sexually transmitted viral hepatitis, which I shall spare your Lordships from hearing about. He specifies another dozen terrifying diseases--including cancer induced by anal warts--to which practitioners of anal intercourse are put at what this Dr. F.N. Judson calls "particularly high risk".

Whether those who voted for the amendment in the Commons were aware of these terrible risks, we in this House must certainly not ignore them. It is bad enough that young men and women of 18 already face these risks, with what degree of easily available information I know not. But what possible justification do we have in July 1998 for hurriedly extending exposure to such risks of 16 and 17 year-old girls and boys, teenagers at their most sexually inquisitive and exploratory?

By all means let us encourage youngsters to take full responsibility for their behaviour: but first--at the very least--let us be sure they understand what such responsibility entails. Have the Department for Education and Employment and the Department of Health instilled such understanding?

The Lord Bishop of Winchester: My Lords, I rise to speak in support of the amendment of the noble Baroness, Lady Young. I represent the statements of the House of Bishops of the Church of England published

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on 21st June and, as the noble Baroness, Lady Young, mentioned, many of your Lordships will have seen the Archbishop of Canterbury's article in The Times today, which she accurately quoted. I am sure the House will understand his decision that he needs to stay in Canterbury today with the Lambeth Conference and so cannot be here himself.

I want to draw your Lordships' attention to two aspects of the context in which all in Britain today discuss, and in which some of us have to consider, legislation on matters such as those before us in this clause. First, and pervasively, there are strong pressures upon people of every age--and not only upon young people--towards and deeper into sexual activity really as a mark of maturity, of being a fully human person, almost as a human right. Very powerful voices combine to rule out restraint, chastity and saying "no" as undesirable--even unnatural. Secondly, the assumption is widespread--it is almost axiomatic--that homosexual activity in general is as appropriate and as desirable as heterosexual activity. It is for anyone to choose between them as equal options, as it were, on a supermarket shelf.

As the House of Bishops said in its statement a month ago:

    "Pressures are at work to legitimise any and every lifestyle irrespective of any difference of value and quality between them".

That, with all respect to the noble Baroness, Lady Mallalieu, is the kind of wrong message which I judge it is right to oppose. The statement of the House of Bishops continued:

    "Our Christian faith teaches that sex is a gift of God for the enriching of our lives within the context of marriage. Rightly used, it has a sacramental quality which speaks of the abiding, permanent and sacrificial love of God for us. It ought not to be treated casually and outside a strong framework of moral values".

I believe that Parliament should be very wary indeed about deserting the wisdom in these matters not only of the Christian faith but of the other major faiths too, of which the noble Baroness, Lady Young, has already made brief mention, and from representatives of which we may hear later in the debate. I believe that we should not take a step which, along with others, will have the effect of further undermining the position of marriage in our society and that we should not collude with, still less approve of, the climate to which I have pointed by voting in a way which will be reported as "Lords back gay sex at 16". The sub-editors will for once be right; and who would want to back sex at 16 for anyone?

Then there are two particular arguments, in addition to those more general ones, for not lowering the age of homosexual consent to 16. First, and especially in relation to subsection (1) of the clause inserted in the other place--the previous speaker referred to this at much greater length and in much greater detail than I intend to do--the medical risks and the risks to physical health of at any rate a substantial proportion of homosexual sexual activities are significantly greater than those for heterosexuals. Notwithstanding the advice of many professional bodies--I respect both their professionalism and the particular aspects of care to which they draw attention--I, with many others, am not convinced that even today all or even most young

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people are so clear by 16 about their orientation that there is no risk of their opting prematurely, encouraged by the sexual supermarket to which I referred, into practices and into a culture from which they may later find it difficult to emerge.

I believe that these are strong and clear grounds for rejecting the notion that the reduction to 16 of the age of homosexual consent is simply an issue of justice and that, overall, for the reasons I have adduced, the discrimination that offends some--and understandably when that word is used--in holding the age of consent at 18 is justified.

Lastly, I believe that we shall both care more for young gay people and care more for young people in general by holding the age of consent at 18 than by reducing it to 16, with all the risks to those still younger that I believe will follow such a reduction.

7.15 p.m.

Lord Dholakia: My Lords, I am delighted to contribute to the debate from the Liberal Democrat Benches, although I wish to make it clear that my contribution is made in an individual capacity and in no way reflects the collective views of my noble friends.

I welcome the debate and I congratulate the noble Baroness, Lady Young, on giving us this opportunity by raising her concern about the inclusion by the Commons of this amendment. I say straightaway that I value the noble Baroness's contribution, but I do not subscribe to her point of view. I know she made a constitutional point that the amendment was not part of the Crime and Disorder Bill when it was introduced in your Lordships' House. I see nothing procedurally wrong in that. In fact, the joy of working in this House is to use every available opportunity to confront the Government and others; and we do so without giving advance notice about supplementaries which often follow Starred Questions. I should add that had I thought of it at the time--I regret that I did not--I would have introduced an amendment similar to the Commons amendment at the appropriate time when the Bill was before the House. I shall explain my reasons why.

I appreciate that your Lordships' House has a great tradition of instigating debates of real concern. This is one such debate. We may fundamentally disagree with colleagues but we value their contributions. Their contributions are no less valid than others. But, having said that, perhaps I may add that I value the Commons amendment. It is timely and deserves the support of your Lordships' House.

Of course there are moral, religious and other grounds which may be cited, and are being cited, as reasons for not lowering the age of consent to 16. I shall listen to this argument very carefully, as I have done in the past. I do not profess to be an authority on this subject, but although I have been less than one year in your Lordships' House, I do know about discrimination; I do know about equality; I do know about crime; and I do know about criminality. These are the points on which I wish to build my case in support of the Commons amendment.

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The noble Baroness, Lady Young, talked about public opinion. I ask noble Lords this question: who in 1965--35 years ago--would have ever believed that this country would have three separate pieces of race relations legislation if one had simply decided to act on public opinion? In the past four decades who would have believed that we would have legislation about gender equality, the termination of pregnancy and about homosexual practices in private between consenting persons? Is it that we follow public opinion or do we lead it? These are the debates of the past which made us the envy of the civilised world. Today's debate is another such opportunity where we need to take that particular lead.

We may reduce burglary, but we do not get rid of burglars because we have anti-theft laws. Equally, we do not lock up old ladies to stop mugging in the streets. To use the power of the law to impose our own values on others will not necessarily work. No law can command respect if it discriminates between homosexual and heterosexual partners in a consenting relationship. The law must be an unequivocal statement of public policy. It brings the law into disrepute if it discriminates between sexuality and sexual preferences based on consent.

On the one hand we say that we accept heterosexual relationships by consent for those who are 16 years and over. We do that because we all feel comfortable with it. But then we say that we do not accept homosexual relationships by consent of the same age group. When a law discriminates between different groups of people on the grounds of their sexuality, then it is indeed a bad law. Laws will be obeyed if people feel comfortable with them: bad laws will be difficult to enforce.

To deny equality in law to those whose sexuality is not a norm to many of us does not lend credibility to our case against the age of consent. No one can dispute that we have an unequal age of consent. The Commons amendment is a measure to ensure that discriminatory legislation, which puts male homosexuals in the United Kingdom at risk of becoming prisoners of conscience, is removed and our legislation is brought in line with international human rights standards.

Can we genuinely put our hands on our heart and say that the present legislation has prevented consenting homosexual relationships between 16 and 18 year-olds? Do we really wish to criminalise this group of people? Already many of the provisions--whichever way they are dressed up in the Crime and Disorder Bill--will result in many more youngsters in a custodial situation. Do we really want to add to that number by criminalising some of our young people because they have had consenting relationships with their partners? Do we genuinely believe that young people will not indulge in sexual relationships until they are 18 years of age?

Perhaps I may quote the British Medical Association.

    "The average age at which homosexual men have their first homosexual encounter has been found to be 15.7 years and changing the current law is unlikely to affect this".

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The BMA goes on to add:

    "There is no convincing medical reason against reducing the age of consent for male homosexuals to 16 years and, in fact to do so may yield some positive health benefits. Young men will be enabled to seek help and advice without fear of prosecution; and support groups and organisations for homosexual men will be able to provide younger men with support and free education".

Earlier I mentioned my fear of criminalising young people. Homophobia arouses some of the worst reactions in some human beings. I have in the past served as a member of the board of visitors for a prison for many years. I have visited many prisons and also institutions where young people are detained. One of the least known facts is about male rape in prisons. Homophobia is rampant and the treatment meted out to those whose sexuality is suspect is extremely harsh. Sexual bullying of the worst kind often goes unnoticed. I have seen the plight of many who fear to complain. If we deny equality in the age of consent, then we may either create martyrs who will make a public stand against a law of which they disapprove or else we may lead them on the slippery path of a criminal conviction and all that goes with it. The present law is impractical to enforce and this is clearly borne out by the low level of prosecutions brought in the courts.

So what sort of message are we sending out today? On one hand we are saying that heterosexuality is the norm and the law should be used somehow to discourage homosexuality. We subscribe to the principle of equality. We avoid discrimination on the grounds of race, sex, or sexual orientation, but when we examine the policies of our various institutions and their ideals, what do we find? We find again and again that we are prepared to discriminate against homosexual relationships based on consent between 16 and 18 year-olds. That is sheer hypocrisy.

We have, of course, a few priorities to balance and I thank the noble Baroness, Lady Young, for that. The first is the duty of the state to offer protection to those who are being abused sexually. We must have a legal remedy available to those who suffer unwelcome or inappropriate attention. I am grateful to the noble Lord, Lord Williams of Mostyn, who has already indicated about setting up an inter-departmental working group to look at this issue. I am satisfied with this arrangement.

I conclude by saying that it is often necessary to look out of the window and to discover how society has moved on over the past few decades. I do not always subscribe to the views expressed in the Daily Telegraph. But let me pick up one sentence that I would like to put in defence of my case:

    "No society can legislate out of existence sexual behaviour of which the majority disapproves".

Of course, I am selective in the quote I have used but this practice cannot be unfamiliar to the Daily Telegraph. Moral values forced on others by law can be counter-productive. I look upon the Bishops' Bench to provide the leadership, which recognises a loving, caring relationship. We do not want to condemn those whose sexuality is different.

The Churches and other religious establishments cannot remain immune from the everyday realities of sexual behaviour in our young people. We require a

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programme of public education based on recognition of homosexual and heterosexual relationships; a programme based on a safe, loving, caring and responsible attitude to sex. We may argue about the key decision as to the age at which people can be responsible for their sexual behaviour, but evidence clearly demonstrates that we are right in setting this at 16.

7.30 p.m.

Lord Mishcon: My Lords, the year was 1954. The Home Secretary was David Maxwell Fyfe who eventually graced the Woolsack in your Lordships' House. I received a letter--I have yet to become reconciled to its terms--from the Home Secretary, I then being a rather young chairman of the London County Council. The letter read, "I am thinking of setting up a departmental committee to inquire into the law relating to homosexual offences and prostitution. I can think of no one better than yourself to serve on such a committee". I replied, obviously, saying that I was honoured by that invitation. Your Lordships may remember that that committee became known as the Wolfenden Committee. We reported a couple of years later. I think that your Lordships will agree that that committee does not deserve the description "reactionary" because we led the way in a statute which, for the very first time, made homosexual acts between consenting adults in private legal, as against illegal.

I think that I owe it to the fellow members of that committee, since I believe that I am the only surviving member, to quote at least a couple of paragraphs from that report--I know that I shall have your Lordships' consent--and then sit down. The first quotation relates to our discussion of what the criminal law was all about. Your Lordships will appreciate that we are not talking in terms of morals at the moment; we are talking in terms of the criminal law. We said--I think that this quotation is apposite:

    "To define it as 'an act which is punished by the State' does not answer the question: What acts ought to be punished by the State? We have therefore worked with our own formulation of the function of the criminal law so far as it concerns the subject of this enquiry. In this field, its function, as we see it, is to preserve public order and decency, to protect the citizen from what is offensive or injurious, and to provide sufficient safeguards against exploitation and corruption of others, particularly those who are specially vulnerable because they are young, weak in body or mind, inexperienced, or in a state of special physical, official or economic dependence".

Having come to the conclusion that our recommendation ought to be what I summarised a moment ago, we then discussed the question of the age of consent. That is the second and last quotation with which I intend to bother your Lordships. We stated:

    "There must obviously be an element of arbitrariness in any decision on this point; but all things considered the legal age of contractual responsibility seems to us to afford the best criterion for the definition of adulthood in this respect. While there are some grounds for fixing the age as low as sixteen, it is obvious that however 'mature' a boy of that age may be as regards physical development or psycho-sexual make-up, and whatever analogies may be drawn from the law relating to offences against young girls, a boy is incapable, at the age of sixteen of forming a mature judgment about actions of a kind which might have the effect of setting him apart from the rest of society".

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Perhaps I may pause in that quotation for a moment. In discussions about equality, one has to recognise--this is factual; it does not mean that one is unsympathetic or intolerant--the difference between normal and abnormal; and there is no equality between normal and abnormal. We continued:

    "The young man between eighteen and twenty-one may be expected to be rather more mature in this respect. We have, however, encountered several cases in which young men have been induced by means of gifts of money or hospitality to indulge in homosexual behaviour with older men, and we have felt obliged to have regard to the large numbers of young men who leave their homes at or about the age of eighteen and, either for their employment or their education or to fulfil their national service obligations, are then for the first time launched into the world in circumstances which render them particularly vulnerable to advances of this sort".

The report goes on to say that, on balance, we came to the conclusion that the contractual age--the age at which one should be able to understand agreements and other relationships--which was then 21, was the correct age. Obviously, since that date, the age of majority has been reduced from 21 to 18. That is now the age at which an adult can enter into contractual relationships. I think that it should end there.

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