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Baroness Walmsley moved Amendment No. 9:

Page 2, line 2, after "person" insert "aged 16 or over"

The noble Baroness said: In moving this amendment, I shall speak also to Amendments Nos. 20, 31 and 47.

We turn to a group of amendments relating to very young people. The purpose of these amendments is to prevent the prosecution of boys under the age of consent or 16 years old who participate in sexual activity of any kind with a girl under 13 with her consent. The amendments are not intended to prevent the prosecution of children under the age of 16 where they have committed rape, sexual assault or any other sexual offence in which the victim did not consent because those offences are dealt with under Clauses 1, 3, 5 and 7 and because the age of neither offender nor victim is specified in those clauses.

The amendments are about bringing some common sense, humanity and justice to this important new law, which is designed to protect children from abuse. The Home Secretary said in the White Paper that the existing law was,

"archaic and incoherent—it is also discriminatory".

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Without the amendments, the law may remain all of those things. It could produce appalling injustices. For example, a boy of 12 who had sexual intercourse initiated by a girl of the same age would be automatically guilty of rape and liable to a life sentence. It also poses risks to children's health and welfare. One can easily imagine that girls under the age of 13 might avoid approaching doctors because they know that all sexual activity is defined as serious child abuse when those who are under 13 are involved and that the doctor must report to social services; it is also, of course, a criminal offence. Their boyfriend may get into serious trouble and they would fail to get contraceptive and other health advice. I am sure that that is not what the Government intend.

The Government should follow the example of Finland. In 1998, the Finnish Government decided to update their penal law on sexual offences. As in England, 16 was set as the age of consent. However, Section 6(2) of Chapter 20 of the new Finnish penal code provided that sex with an under-16 year-old,

"shall not be deemed sexual abuse of a child, if there is no great difference in the ages or the mental and physical maturity of the persons involved".

Germany and other countries also followed that course. In countries where the age of criminal responsibility is high—15 to 17 years, unlike 10 years in our country—under-age sex is automatically decriminalised for that age group. Many European countries, such as Sweden and Norway, fall into that category. Surely the Finnish approach shows an appropriate modernisation of the law. We may not like young adolescents having sex but it happens, and it does not involve the criminal child abuse that the Bill is supposed to be tackling.

The noble and learned Lord the Minister may say that if we have an age of consent we must stick to it. However, it should be noted that the Bill already allows a defence of consent if someone is charged with raping 13 to 15 year-olds and they are also under the age of consent. So it would not introduce a legal anomaly to say that for under-16s who are charged with raping under-13s, a defence of consent may also be available.

I hope that the Minister will accept that it is inappropriate to use the full weight of the criminal law in cases where young people who are close in age are experimenting. Educational and health advice—and, in some cases, the child protection system—are much more appropriate ways of addressing that issue. I beg to move.

Baroness Noakes: I shall briefly clarify the position of those on these Benches. We will consider the broad issue again in relation to child sex offences, when we will debate in particular whether we should criminalise that activity or whether the dominant issue is one of social and medical support.

Let me be clear about our approach to those who are under 13. We believe that a cut-off age of 13 is appropriate and practical. The issue of consent should not be relevant in relation to such young children. We believe that regardless of the age of the defendant. To

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have anything less on the statute book would involve a broad assumption that there are circumstances in which it is appropriate or acceptable for a young child to be involved in sexual activity. We do not believe that and therefore accept that the offence should exist in law. I do not suppose that every 14 or 15 year-old who has sexual intercourse with a 12 year-old will be prosecuted but I do not believe that it is right to remove that possibility from the statute book in all circumstances.

Lord Falconer of Thoroton: As the noble Baroness, Lady Noakes, stated, a fundamental justification for the under-13 offence is the age and vulnerability of the victim. We do not think it is right that where the victim is 12 or under the question of consent should arise. There will be many cases where it would be utterly invidious for a 12 year-old or under to have to give evidence in relation to consent. We therefore think that there needs to be a cut-off period. We think we have got the cut-off period right.

The amendments proposed by the noble Baroness, Lady Walmsley, seek to provide that it would not be possible to charge a defendant aged under 16 at the time of the alleged offences with any of the under-13 child sex offences. The noble Baroness prays in aid the Finnish experience in relation to that. The amendments would mean that where the evidence did not support charges for any of the under-13 non-generic offences—that is, rape, sexual assault and so forth—the defendant would have to be charged with a child sex offence which, as the noble Baroness knows, makes no distinction as to the age of the victim.

I recognise, as stated by the noble Baronesses, Lady Walmsley and Lady Noakes, that children under 13 engage in mutually agreed sex. I have listened to those who argue with real conviction that it is completely unfair for the law to make it possible for a boy aged 14, for example, to be charged with raping a 12 year-old girl following mutually agreed sexual intercourse. It is worth pointing out that prosecution is certainly not the inevitable outcome where two minors of the ages I have described engage in sexual activity. In those cases where sexual activity between minors is truly mutually agreed and there is nothing to suggest that the activity is in any way exploitative, we would not expect and would not want the full weight of the criminal law to be used against them. Our overriding concern is to protect children, not to punish them unnecessarily.

Where sexual relationships between minors are not abusive, prosecuting either or both children is highly unlikely to be in the public interest; nor would it be in the best interests of the children involved. In such cases, protection will normally best be achieved by educating the children and providing them and their families with counselling services. Even where the sexual activity is abusive, the Crown Prosecution Service may consider that it was not in the public interest to prosecute someone under 16 if other courses of action were likely to be more effective. The CPS has a discretion about whether or not to prosecute in such cases. We would expect it to continue to use that discretion wisely.

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I fully understand the legitimate concerns raised by the noble Baroness as regards agencies giving advice to children in those circumstances, and her profound and deeply held desire, shared by many, that that should not raise the risk of criminalisation. As the noble Baroness will know, we will propose an amendment later in these proceedings which seeks to deal with that issue. Perhaps we may deal with that more fully at that point.

Having said all that, if the law is to be effective, there will be cases in which under 16 year-olds commit such crimes where prosecution is appropriate. We must remember that not only children aged 12 and 14 but also children very much younger will be protected by this provision against teenagers of 16 and under. That is where we need the clarity and protection of the criminal law. That is why we believe it would be wrong to accede to the amendment and to say that a person under 16 could not be prosecuted for one of these offences. As we have been told by the agencies dealing with this issue, there are cases in which prosecution of children is appropriate.

I hope I have dealt with the particular concerns raised by the noble Baroness. We believe that this should be covered by criminal law but we recognise that a whole range of alternatives may be more appropriate in particular cases.

Baroness Jay of Paddington: My noble and learned friend has helpfully tabled Amendment No. 74 in Clause 15 which would exempt health professionals and others from liability to prosecution under the Bill in the way he described. As he said, we shall discuss that later. However, does he not feel that perhaps in practice there will be difficulties for people working in such agencies who are exempt from prosecution under Amendment No. 74 if the criminal offence he described remains on the statute book as it could prevent people being open in their dealings with young children who they may feel they are advising but who, as he rightly says, may be liable for prosecution in extreme cases?

Lord Falconer of Thoroton: The provision in Amendment No. 74 is designed to try to remove as much as possible any fears by health professionals in that regard. It goes beyond health professionals and includes anyone seeking to give advice, including a parent. Will the position nevertheless cause the child or young person not to be full and frank because of fear of the law? We believe that probably it will not. In many respects this reflects the current law in the sense that there is still criminal sanction in relation to a whole variety of sexual activity covered by the new law. We do not believe that that leads to inhibition when there should be frankness.

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