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The Lord Chancellor: I am grateful to the noble Lord, Lord Lester of Herne Hill, for giving me notice of his question. The same point was raised by the noble and learned Lord, Lord Hobhouse of Woodborough, when the Joint Committee considered the Bill. I am sure that the noble Lord will accept that I am aware of the importance of statements of ECHR compatibility by Ministers when they introduce legislation. Ministerial statements, however, are to the effect that the legislation in question is itself compliant.
The European Court of Human Rights held in T and V v United Kingdom that the setting of a tariff by the Home Secretary, where a young person had been sentenced to be detained during Her Majesty's pleasure, contravened Article 6 of the convention, in that the Home Secretary is not an independent tribunal, as a court is. As Members of the Committee will be aware, the Government will bring forward amendments to the Criminal Justice and Court Services Bill this Session in order to rectify that breach. The European Court of Human Rights did not, however, find that the passing of the sentence by the domestic court was unlawful.
I accept that it is arguable that the setting of the tariff can be said to be an inevitable consequence of the sentence, so as to make the sentence itself objectionable. But the test to be applied when a Minister considers whether to make a statement of compatibility under Section 19 of the Human Rights Act is not that no argument can be raised about compatibility. The test is on balance, whether it is likely that the provisions of the Bill will be found by a court to comply with the convention rights. In my judgment that is the likely outcome if the matter were to be tested in the courts.
Pending the making and coming into force of those amendments, my right honourable friend the Home Secretary has announced that, on an extra-statutory basis, he will obtain and abide by the views of the court when setting tariffs in such cases. I understand that the noble and learned Lord, Lord Hobhouse, is satisfied that that will resolve the problem, obviously not permanently, but for the time being. It appears to me that if a change in the practice of the Home Secretary is sufficient to remedy the situation for the time being without any change being made to the legislation on the passing of the sentence itself, then that legislation, by itself, is not incompatible with Article 6. I do of course accept that the point raised by the noble Lord is an important one.
The Attorney-General (Lord Williams of Mostyn): My Lords, I beg to move that this Bill be now read a second time. Your Lordships will want to know the Government's position. First, as far as we are concerned, this is a free vote. If my advice is wanted, and even if it is not, I offer it. I support the principle and the detail of the Bill. I believe that it will improve our law and ensure equality before the criminal law for young homosexuals and young heterosexuals. Secondly, should the Bill be once more rejected by your Lordships, we shall use the Parliament Act procedure.
On 28th February this year, the House of Commons passed the Bill at Third Reading by 317 votes to 117, a majority of 200 votes. The House was entitled to know, from the outset, what our intention is, and I hope I have made it clear. Apart from that, when I offer my own opinion to your Lordships, for what it may be worth, I am fortified by the fact that I am in good company. I shall mention just one or two organisations: Barnardo's, NCH Action for Children, Save the Children, the Family Welfare Association, the British Medical Association, the Family Planning Association, the National Association of Probation Officers, the Royal College of Nursing, the Royal College of Psychiatrists, the National Society for the Prevention of Cruelty to Children. I again declare my former interest, having been a trustee until the date of the last election of the NSPCC. Perhaps I may say about all of those organisations--I hope without dissent--that every one of them is a deeply respected organisation absolutely committed to the welfare and well-being of young people.
Your Lordships may allow me another short list: the Prime Minister, Mr Ashdown when leader of the Liberal Democrats and Mr Charles Kennedy now all support this step towards equality. So did Mr Hague. I repeat what I said last time about Mr Hague's position. I think that it was an act of political and moral courage. What I said last time was not "cosmetics" and I repeat it now. Mr Portillo supports this position. He voted in favour of the Bill at Third Reading in the Commons. I repeat that what I said about Mr Hague applies abundantly to Mr Portillo. His has been a stance of political and moral, sometimes quite rare, courage.
It is idle to attribute bad faith to anyone. Your Lordships who have attended debates on this topic and similar topics will, I think, recognise that I have never tried to impute bad motive to anyone. I would ask your Lordships to wonder if you are entirely in tune on past history with what the young think; what they do; how they run their lives and the sweetness of heart and greatness of mind with which they view those who are different from them.
It is deeply necessary not to confuse what we may disapprove of with what must be criminalised. There is, after all, a libertarian thread that runs through our public life and, indeed, still has reflection among many of those in the Conservative Party who voted for this Bill in the other place. I have mentioned only one or two but there were others. It is one of the most attractive features of this country. It is worth remembering it and protecting it. One noble Lord said in a context not dissimilar on the continuing--I almost said "endless"--discussion about Section 28 that homosexuality is wrong; adultery is wrong and fornication is wrong. That may be so but they are not criminal offences, nor should they be in any world that aspires to be sane or civilised.
Earl Ferrers: My Lords, perhaps I may interrupt the Minister. I rather fancy, from what he said and the way that he was looking, that he was attributing those words to me. However, if he would do me the courtesy of reading Hansard correctly, he would see that I said that the Churches said that.
Lord Williams of Mostyn: My Lords, I am sure that the noble Earl was, indeed, quoting what some church leaders say. However, the consequences of those views do not produce an equivalent response in all bishops, as the noble Earl knows perfectly well. He and I have studied the way the bishops voted last time and they were not unanimously against what I am presently putting before your Lordships. Nor were they unanimous in the debate on Section 26 and its related matters.
It does not really matter who said it first or who thought of it first because I do not regard it as a flash of blinding illumination, but it is still the position in some states of the United States that some of these activities remain notionally subject to the criminal law, and if they are, it simply makes the law a nonsense.
We have examined the issues, and related ones, at great length. I do not do your Lordships any great service by adding to the tedium. The Bill does three things, which are very important. First, Clause 1 reduces the age of lawful consent for certain sexual
Secondly, Clause 2 provides that a person under the age of consent no longer commits an offence if the other party is over the age of consent. Clause 3 introduces a new offence where a person of 18 or over has sexual intercourse or engages in sexual activity with or directed towards a person under that age if he or she is in a position of trust.
Those are extremely important matters. Your Lordships know from our previous discussions that I have been, I hope, a strong protagonist of the protection presently lacking in our law in respect of the abusive misuse of a position of trust. Clause 4 defines a position of trust. It is important, as we shall see in a moment, that Clause 4(1) allows the extension of that definition by statutory instruments.
I shall be brief. We need to be clear--I say this with great respect--about what we are debating. We are not debating whether homosexuality is a good idea or a bad idea. We are not debating whether homosexuality should be lawful; it already is between consenting adults--that is 18 and over--in private. What we are debating is quite simple: should the present age of consent for buggery be reduced from 18 to 16? That relates also to male homosexual activity.
Many of the organisations which I have specified, and many others, support this reform. The arguments are well known. I do not recapitulate them. I have said that my personal stance is that I support this reform. I suggest, though this may not please all your Lordships, that an unequal age of consent is the mark of an intolerant society. This country, and this House--I believe that we can glory in some of our history--has a long tradition--
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