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Baroness Young: My Lords, I thank the noble Baroness for giving way. I am sorry to interrupt, but I really must correct the point about the poll. It is not true that it showed that 66 per cent. of people supported an age of consent of 16. It showed only that 54 per cent. of 66 per cent. did so. That is quite a different proposition. An untruth does not become true by constant repetition, and I think it should stop.
Baroness Gould of Potternewton: My Lords, I believe that perhaps the noble Baroness was not listening. What I actually said was that 54 per cent. of the 66 per cent. believed that the age should be 16 years. I did not say what she suggested.
Perhaps I may return to the question of the Government's action in consulting widely with children's organisations and others to find the most appropriate way of responding to the many justified concerns about the abuse of trust and the need to safeguard vulnerable young people.
The new offence on abuse of positions of trust, which has been incorporated into the Bill, is a major and important step, particularly for those children being looked after away from home who lack immediate adult support from their families. Crucially, this Bill, for the first time, provides equal protection for young men and young women against adults who may use their position of authority to gain sexual advantage. I noted the comments of my noble friend Lord Williams of Mostyn on this new offence. However, I should welcome assurances from him that there will be means to extend this protection to other areas of care if it is felt to be too restrictive.
On those grounds, I believe that to vote against the Bill tonight will destroy any form of protection for any vulnerable young children. I, for one, cannot do that. I want to stand up for what I believe is right; that is, protecting all young children as much as we can.
The Home Office report, Sex offending against children, concludes that 60 to 70 per cent. of child molesters target only girls. However, irrespective of the fact that the majority of child abuse is committed by heterosexual men against girls, there are still some noble Lords who have argued today, as during the previous debate, that young men require greater protection from unwanted sexual advances than young women; that, somehow or other, young women are less affected by sexual abuse. That is a ridiculous double standard and one in which I am not alone in finding a little offensive.
The sexual abuse or rape of a young girl--I have to say to the noble Earl, Lord Ferrers, that sometimes rape does include buggery--is likely to have a traumatic effect on her for the rest of her life. She is faced with the possibility of becoming pregnant, of experiencing parental displeasure, possible forced marriage, perhaps an abortion or the misery of early separation through
adoption. These were all consequences identified by the Royal College of Psychiatrists as far back as 1976 in their evidence to the Criminal Law Review.The law has to recognise, as it will when the Bill is passed, that unwarranted sexual attentions are unacceptable whether the victim is male or female, gay or not. The Bill gives us the opportunity to provide protection against abuse for all vulnerable young people and, at the same time, to remove the intolerance and prejudice which can seriously affect their lives.
In conclusion, perhaps I may return to the letter from which I quoted earlier. It concludes:
- "Please vote for equal justice for my gay son and for all gay people. We are not asking for special privileges, only equal justice--surely that is what everyone has the right to expect".
6.30 p.m.
Lord Quinton: My Lords, in rising to support the Bill, I suspect that I am likely to find myself in a minority in this part of your Lordships' House. The foundation of this position is quite simple. I accept the Wolfenden principle that homosexuality is not a crime; in fact I do not regard it as a sin. It is an abnormality, but a statistical abnormality like left-handedness, red hair or a taste for Pernod. In particular, it is not something that is chosen.
Why I particularly welcome the Bill is for the protection it intends to afford young people against older sexual predators, for which there has been no protection in the past. What is more, it offers that protection equally to young men and young women. I have noticed a tendency among some previous speakers to look at this subject entirely from the point of view of the male homosexual. Admittedly, one of the more argued elements of the Bill is the reduction of the male age of consent to 16, but the emphasis has all been on the male homosexual. As well as the Wolfenden principle I accept in this connection some sort of principle of equality. All principles of equality can be pushed to absurdity but, on the whole, where there is no strong reason to depart from equality, one might as well adopt it.
I was moved for a moment by the statement of my noble friend Lord Cope when he said that if we are in favour of equality for the two orientations, then homosexual marriages ought to be endorsed as well as heterosexual ones. I have to say that I was moved by that argument principally due to a sense of the ridiculous--the throwing of confetti, the orange blossom and so forth. But behind that lies a serious argument. The entering into a contract between a male and female who set up a loving relationship of some sort is done with the likelihood of producing children for whom they are going to be responsible. A homosexual couple--two males or two females--will not do that, unless we move off into the subject which I do not propose to enter into of adoption of children by homosexual couples. So there is a perfectly good reason for not having such marriages; that is, there is no particular need to contractually tie the two partners together in the interests of innocent third parties who come into existence as a result of their relationship.
I said that my main reason for being in favour of the Bill is the protection element it contains. I also like the feature that the protection is accorded equally to both young men and young women. It might be felt that protection is not quite as necessary as it used to be. Most of us are pretty elderly and when thinking about young men and women we probably imagine them as we were. There is no question but that we were much more innocent and ignorant in sexual matters than they are today, for a very good reason. Great tides of erotic muck are poured over young people every day by television companies, including, alas, the BBC, in the detestable ratings battle polluting the culture. So it is not surprising that they know a great deal. No doubt Martin Clunes, in "Men Behaving Badly", offers himself as a role model for a lot of silly young people and it is a pity that that sort of thing appears. But it is a fact of life. Young people are informed. They are not innocent, but clearly sophisticated.
The other point I want to emphasise bears against an argument of my noble friend Lady Young and on the other side by the noble Earl, Lord Longford, the last time these matters were discussed; that is, the argument, broadly speaking, that homosexuality is contagious. I know of no evidence for that whatever. Admittedly, there is a good deal of dispute about the causal origins of homosexuality. Some hold it to be congenital. Others, despite the mockery of the noble Lord, Lord Annan, of poor Freud, repose a little confidence in the theory that deeply emotional and over-possessive mothers combined with remote and hard-natured fathers create an emotional structure in the family which nourishes homosexuality; the growing child is turned into a kind of female and is on the mother's side against the harsh man. That theory has a certain literary attraction. But it is perfectly plain that homosexuality is not contagious. No doubt some people have been glamorised by one means or another into homosexual practice by observing the fashionable circles of Noel Coward, Jean Cocteau or whoever it might be. But in most people it is a feature of their basic constitution which they cannot get rid of--some wish they could because of the social opprobrium it brings down on them.
Those are reasons for thinking that protection may not be all that crucial. Nevertheless, sexual predation is evil. It is cruel; it is exploitative; and I therefore favour all those aspects of the Bill concerned with taking steps to bring it under some form of legal control. Indeed, if anything I would not mind if those steps moved a little further. The noble Lord, Lord Williams, suggested that some amendments may be introduced later. One area which occurs to me particularly is the area of employment. Young people may be employed with dominant older persons around them and they are pretty vulnerable. They are not as vulnerable as someone in a closed institution like a children's home where the doors are locked at night and the predators stalk the corridors. Nevertheless, it is a long working day and when people drift away at night, then the predator can get to work. It is not like purely casual contacts in a queue at the checkout at a supermarket or a cinema, which are
momentary. At work the predator returns. I should like some sort of extension of the Bill to cover predation at work as well as in the more closed institutions.Another type of predation seems to me deserving of consideration; that is, predation in relation to the appalling things that happen to young men in prison. It is not from warders--we have no reason to suppose that warders get up to it--but from their fellow prisoners. One of the worst features of imprisonment for many people is the sexual predation to which they are subject at the hands of their fellow prisoners. I believe that to be true for both male and female homosexuals.
It would be a good idea to introduce into a Bill of this kind a clause which says that no one over 25 may have sexual intercourse with anyone under 20. But that would fall foul of the arrangement of the noble Earl, Lord Russell, because it might interfere with our presence here since most of us had mothers or grandmothers who were married at 16 and who moved rapidly into the production of annual children. I realise that is altogether too sweeping, but while applauding the measures for the protection of the young embodied in the Bill, I applaud also and am hopeful about the statements of the noble Lord, Lord Williams, to the effect that even further provision of a protective kind might be envisaged in the further development of the Bill.
I have not said a great deal about the age of consent. My principle is as I stated. I am waiting for a satisfactory argument to the effect that there is some serious reason for departing from equality as between males and females in this respect. I cannot see that there is. There is an anecdotal, folk wisdom idea that males are less mature than females. Perhaps they are. That may be biological because the female is much more at risk. I was suggesting a moment ago that males are not much at risk from sexual predation other than a horrible, degrading, disgusting experience--that is, sex at the hands of a much older person with whom they would not choose to have sex, whether homosexual or heterosexual. The main argument, it seems to me, is that given a degree of less maturity on the part of males, they will then be exposed to what in my view is the totally mythical danger of contagion. As I said, it does not seem to me that homosexuality is a disease. Since I do not think it is a disease, it is not an infectious condition.
6.40 p.m.
Lord Lester of Herne Hill: My Lords, I am the 10th speaker and, having heard nine speeches on the merits of the Bill, I am afraid that there is little I can add, except to say that I entirely agree with everything that was said by my noble friend Lord Russell, by the right reverend Prelate the Bishop of Bath and Wells and by the noble Lord, Lord Williams of Mostyn, as to the overwhelming reasons in favour of giving this Bill a Second Reading and enacting it as quickly as possible.
The only useful thing I can do, which is different from anything that has been said so far, is to explain why in my considered opinion--and that is all it is, although based on 30 years of arguing cases before the
European Commission and the European Court of Human Rights--the noble Lord the Minister was right when he wrote on the face of the Bill, in accordance with Section 19 of the Human Rights Act 1998, that in his opinion this Bill is compatible with the convention rights.I would add that not only is it compatible with the convention rights, but it is required by the convention rights. One of the disadvantages of our procedures is that we do not get the Minister's reasons for his statement of compatibility until the end of the debate--unless he decides to give them in his opening speech. It seems to me that we need to understand why the European Convention on Human Rights is really important in this debate because the courts presume that both Houses of Parliament use their legislative powers in accordance with our international treaty obligations and with no intention deliberately to flout them.
So, with your Lordships' leave, I should like to spend a few minutes explaining why the decision given by the European Commission of Human Rights on 1st July 1997 in Euan Sutherland's case is virtually certain to be followed by the European Court of Human Rights if we are daft enough to throw out this Bill and put the Government into a position where they will face condemnation once more in Strasbourg by an overwhelming majority of the European Court of Human Rights.
In Mr. Sutherland's case what happened was that he complained about the very kind of discrimination which this Bill is designed to tackle: the inequality caused by the difference in the age of consent between male homosexuals and everybody else. The commission that decided the case included not merely a very large number of distinguished jurists from the rest of Europe, but also Judge Sir Nicholas Bratza, as he now is, the British judge and vice-president of the European Court of Human Rights. By a great majority, the commission, having read all the debates in the Commons and the Lords, all the evidence from the British Medical Association and a variety of other bodies, decided that there was a clear breach of the right to respect for private life guaranteed by Article 8 of the convention, read with Article 14.
I will come back to its reasons in a moment or two, but, as I understand it--the noble Lord will correct me if I am wrong--what then happened was that our Government--originally, of course, a Conservative government--had changed. The Government, having changed, asked the European Court of Human Rights whether it would adjourn the proceedings so as to enable the Government to introduce this Bill and have it duly enacted. If your Lordships use your awesome powers as the unrepresentative Chamber, to throw out this Bill, I stake my entire professional reputation on the certainty that the European Court of Human Rights will find a breach of the convention. We will then be compelled by international law to introduce a Bill and to enact it, or face further condemnation at Strasbourg.
I say that not because the court invariably follows the commission. The noble Baroness, Lady Young, is perfectly right in saying that quite often the court does
not follow the commission. In order to decide whether it is likely to follow the commission, you have to look at the quality of the commission's reasoning and whether it had regard to all the relevant factors. That is what lawyers do when they predict whether an appellate court is likely to be coming down in favour of one side or the other.To make a long opinion short, may I simply say this about the commission's opinions? It looked at the two principal arguments deployed on behalf of the previous government in favour of maintaining the status quo. Both arguments have been deployed this evening very powerfully and very eloquently by the noble Baroness and her supporters of the amendment.
The first argument was that certain young men between the ages of 16 and 18 do not have a settled sexual orientation and that the aim of the law is to protect such vulnerable young men from activities which will result in considerable social pressures and isolation, of which their lack of maturity might cause them later to repent. The commission observed:
- "it is claimed that the possibility of criminal sanctions against persons aged 16 or 17 is likely to have a deterrent effect and give the individual time to make up his mind".
As I understood it, that was a plank in the case for the amendment.
- "The Commission does not consider that either argument offers a reasonable and objective justification for maintaining a different age of consent for homosexual and heterosexual acts or that maintaining such a differential age is proportionate to any legitimate aim served thereby. As to the former argument, as was conceded in the Parliamentary debates, current medical opinion is to the effect that sexual orientation is fixed in both sexes by the age of 16 and that men aged 16-21 are not in need of special protection because of the risk of their being 'recruited' into homosexuality".
The commission further observed:
"Moreover, as noted by the BMA, the risk posed by predatory older men would appear to be as serious whether the victim is a man or woman and does not justify a differential age of consent. Even if, as claimed in the Parliamentary debate, there may be certain young men for whom homosexual experience after the age of 16 will have influential and potentially disturbing effects and who may require protection, the Commission is unable to accept that it is a proportionate response to the need for protection to expose to criminal sanctions not only the older man who engages in homosexual acts with a person under the age of 18 but the young man himself who is claimed to be in need of such protection.
"As to the second ground relied on--society's claimed entitlement to indicate disapproval of homosexual conduct and its preference for a heterosexual lifestyle"--
again, an argument relied on this afternoon--
"the Commission cannot accept that this could in any event constitute an objective or reasonable justification for inequality of treatment under the criminal law".
- "'Decriminalisation' does not imply approval, and a fear that some sectors of the population might draw misguided conclusions in this respect from reform of the legislation does not afford a good ground for maintaining it in force with all its unjustifiable features". I can find no flaw in that reasoning.
I can only say--I stake my professional reputation on this; something that advocates do not like doing--that if we were to reject this Bill and the Parliament Act were not invoked and the case went back before the European Court of Human Rights, it is as certain as anything I can imagine that the court would reach the same conclusion as the commission and we would be back here once more.
For good measure, is it really sensible for the unelected upper House to use the power it still has in its unreformed state to act in this way, showing that it really is not interested in ensuring full compliance with international human rights law? If that is the position that we are going to take, heaven help us when the Human Rights Act is in force and remedial action is needed, as a result of a declaration by our courts of incompatibility, when a government seek to introduce legislation and it is blocked by the unreformed House. That argument convinces me, if it were needed, that the sooner we can reform the House, the better.
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