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The noble Lord said: Amendment No. 60 is grouped with Amendment No. 140. They are purely technical and make no change of substance. Instead of referring to "a" person engaging in sexual activity, the Bill will now refer to "any" person engaging in sexual activity. The amendments are intended to bring Clauses 13 and 22 into line with the parallel offences in relation to those with a mental disorder and learning disability at Clauses 37, 42 and 47.
In our earlier debates we touched on the issue that is at the heart of these amendments; that is, whether consensual sexual acts involving teenagers should be criminalised by the Bill. The issue attracted a number of comments during the Second Reading debate. Many noble Lords who spoke were concerned that the Bill was out of touch with the realities of modern day teenage life. Several of the groups that have provided briefing, notably various children's charities, support the case for amending the Bill.
We are not talking about exceptional activity whether or not Members of the Committee approve of teenage sex. It is a fact of life that it takes place. We should get the matter in context. Clauses 9 to 13 deal both with full sexual intercourse and with sexual touching, for example, kissing and all the activities that make up heavy petting, which Members of the Committee may remember from their youth.
The Bill could criminalise a game of postman's knock, or whatever it is that teenagers play nowadays. If two 15 year-olds were involved, both could be guilty of an offence under Clause 14. The offence of causing a child to watch a sexual act could catch a couple of 15 year-olds looking at a dirty magazine together, as I understand that 15 year-old boys down the ages are wont to do. If a Martian came down to Earth, I do not think that we could rationally explain why activity which is widespread and barely condemned in society is made illegal by this Bill.
The Minister will doubtless say that the Bill makes no changes to the current position where underage sex is a criminal activity. But I have to say to the Minister that we should not miss the opportunity offered by the Bill to ensure that the criminal law reflects society as we find it today and not, for example, as it might have existed when the Sexual Offences Act 1956 was passed.
I turn to my amendments. Amendments Nos. 64 and 66 do not give a blanket exemption for teenage sexual activity. They provide that a person under 18 can be charged with something that would be an offence under Clauses 9 to 13 unless the other person involvedthe child under 16has the capacity to consent and does consent. We defined capacity to consent in Amendment No. 66 as the child under 16 being capable of understanding the nature, implications and reasonably foreseeable consequences of the activity or conduct.
These amendments draw no distinction between those who are under 13 and those who are between 13 and 16. I have already said in relation to the amendments to which the noble Baroness, Lady Walmsley, spoke earlier that we accept a threshold of the age of 13. If the Minister were minded to accept the thrust of the amendment, I should be happy to see a restriction on the ability of under 13s to consent.
Although I hope that the Minister will see that the amendments are rational and in keeping with the facts of life today, I have tabled two further amendments in case he dashes my hopes. Amendment No. 67 seeks to leave out the sentencing provisions in Clause 14(2), and Amendment No. 68 seeks to delete only Clause 14(2)(a). They are probing amendments to try to find out how the Government would seek to apply the wide-ranging offences via the CPS. We have had some discussion on that today. We understand that much would be left to the CPS, which might make it difficult for such a wide range of potential teenage sexual activity to be handled. There would be no clarity for those young people as to what they could and could not do.
It is not easy to identify the extremes in relation to children. I expect that the Minister would say that consensual petting, consensual looking at pornographic magazines, and perhaps even consensual intercourse without aggravating circumstances should not be prosecuted. However, the dividing lines are important. We need a greater understanding. If the Minister is unwilling to amend the Bill, we need to press the Government to be much more specific about the kind of circumstances in which they think that the offence would be prosecuted.
My final amendment in the group is Amendment No. 71, which requires the Attorney-General to issue guidance to Crown prosecutors when considering whether to prosecute those under 18 for sexual offences. That continues the theme that, if we have to have the law as drafted in the Bill, we should be clear about what guidance is to be given to Crown prosecutors for applying that. That amendment is supported by the Law Society, various children's charities and Liberty. If the Government are wedded to the Bill as drafted, we believe it extremely important that guidance be publicly
Baroness Blatch: It grieves me to take issue with my noble friend because I know how thoughtful she has been on the subject, and that what I shall refer to is not what she would intend for the amendments. However, we have an age of consent. We argued long and hard about it, and Parliament decided that there should be one. The effect of the amendment, like previous amendments, would be to abolish it. As a Parliament, we have to think hard about simply removing the age of consent.
Amendment No. 66 effectively abolishes the age of consent where both parties are under 18. It allows the defendant to claim that his victim consented to the activity. The amendment imports the concept of the "Gillick competence" into the age of consent offences in Clauses 9 to 13. It does not affect the non-consensual penalties, but for the age of consent offences it has much the same effect as the earlier amendments tabled by the noble Baroness, Lady Walmsley. Amendment No. 71 would require the Attorney-General to issue guidance to Crown prosecutors about how to decide whether to prosecute under-18s for sexual offences.
The amendments open up the possibility of endless courtroom arguments about whether the child victim had the capacity to consent to the sexual activity and whether the child in fact consented. That would place a huge burden on the child, who would have to give evidence of her capacity and try to persuade the court that she could not or did not consent. On an earlier amendment, I said that it would be grievous to have a child in court to defend their position as to whether they gave consent.
Many prosecutions would be dropped simply because prosecutors fear getting bogged down in a defence argument that the victim was competent to consent. The whole purpose of an age of consent offence is that the law assumes that a person under the age cannot consent. If it is proved that sexual activity took place when the victim was under 16, the question of consent is irrelevant. Amendment No. 66 demolishes that.
It is true that the clauses allow the perpetrator to argue that he reasonably believed that his victim was over 16, but that is easier to resolve than questions of consent. Furthermore, the Bill, combined with government amendments, will not allow that argument to be raised where the victim is under 13.
Amendment No. 66 does not recognise the under-13 age limit. That would allow a 17-and-a-half year-old to have sex with a 12 year-old and then claim that she was "Gillick competent" and gave her consent. An 18 year-old would not have that option. The amendments have some side effects that need to be thought through.
Amendment No. 71 suggests further scope for undermining the age of consent by requiring extra guidance on prosecuting under-18s. Presumably the intention is that the guidance will indicate that prosecutors should be more lenient on under-18s.
I know the area of concern of the noble Baroness, Lady Walmsley, and my noble friend Lady Noakes, but this is free-voting territory and I believe that we speak as individuals in the Chamber. I certainly speak as an individual who fought very hard against lowering the age of consent. Having lowered it to 16, I think that we should do what we can to preserve it.
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