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Baroness Jay of Paddington: At Second Reading and, indeed, in the short debate on the White Paper, I was one of those who raised the question of whether we were attempting in this way to overcriminalise acts which were more appropriately dealt with by the kind of multi-agency approach referred to by the noble Earl. In both those instances the Minister replied that, indeed, he saw the force of that argument and that such an approach was desirable but that that was not the point of this piece of legislation.

I agree with the general tenor of the remarks by the noble Baroness, Lady Walmsley, concerning the difficulties which may ensue precisely because of the kind of points raised in earlier debates today about relying in this instance on, for example, the discretion or good sense of the criminal justice system, and in particular the CPS, in deciding whether or not to prosecute such cases as may come before them.

I am sure my noble friends will say that discretion will be used in such instances. However, difficulties may arise because of a disjunction between what is formally proposed and enacted and, as the noble Baroness, Lady Noakes, said in her opening remarks, the general behaviour of many young people who

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would fall into the category of criminalisation if this were carried out to the letter of the law. I remind the Committee that we are talking of a society in which the average age of sexual experience in the way we have discussed, not necessarily sexual intercourse, is now 14 for girls and 13 for boys. So, we are talking about general behaviour, not aberrant behaviour.

I believe that problems will arise in a situation where this kind of behaviour may be investigated, even if not formally prosecuted, because we will create an environment in which it would be difficult to take the kind of multi-agency approach vividly described by the noble Earl in relation to children with particular difficulties and special needs but also more generally with children who simply behave in the way their peers in 2003 may behave. As several noble Lords have said, such behaviour may not necessarily be something we congratulate on or approve of, but it is undoubtedly the case that it takes place.

I hope my noble and learned friend will not simply say that he accepts that a multi-agency approach is appropriate, but that that is not the remit of this piece of legislation. In addition, perhaps he could comment on another point raised at Second Reading, I believe originally by the noble Lord, Lord Rix, in the context of mental disability but also by me in relation to under 13 year-olds; that is, the present inquiry by the Department of Health into the legal concept of capacity—I am not sure of its formal title—which is relevant to under 13 year-olds.

Baroness Howe of Idlicote: I support the general points raised by the noble Baroness, Lady Walmsley, and my noble friend Lord Listowel, even though they are a "pretence", if I may use that word, for bringing forward such matters for discussion. I also support the amendments tabled by the noble Baroness, Lady Noakes.

We must realise that the extreme forms of behaviour which lead ultimately to the kind of centre I visited the other day with two colleagues are horrendous. By the time the 15 year-old whose case we discussed had arrived at that age, there was practically no hope for him. Without doubt, he will be one of tomorrow's sexual offenders on the sex offenders' register. Equally, the centre was struggling with a five year-old who had abused a three year-old.

Many such children are in care, and we should think of the added risks of multiplication of such offences. These are children about whom we should be particularly concerned and with whom we should be taking particular care. I believe that the suggested form of treatment has an important part to play, but not for all the offences referred to. By the time such children reach the age of 16, or 13 in the case of those who abuse under 13, the offences committed will be horrendous.

As a juvenile court chairman over many years, such children have come before me. There have been various methods of taking them into care and not dealing very effectively with them. However, I have seen the specialist at the centre I referred to as a

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professional over many years and, my goodness, she is a professional. When the children are really difficult they are brought to that centre and begin to make a relationship. Then, what happens? The local authority thinks that that costs too much and withdraws the child, thereby making the position even worse in the long term.

Whereas I disagree with some of the points made, some cases in which matters have been left for too long will have to be brought before the courts and there will have to be a criminal record. I would rather like to see followed a suggestion made by the noble Baroness, Lady Walmsley, on our tour. If that point is reached, there should be an entitlement to treatment, which may be compulsory. Before that stage is reached, at pre-court assessments, if permitted there could be an opportunity for the family and children to consent to that rather than a criminal case being brought.

There is much that can be done. I refer back to a point I made earlier. There is an increase in pornography and the extent to which paedophile material is available via the Internet, and so forth. This situation is not likely to get better. It will get worse if we do not nip in at an early stage. The noble Lord, Lord Northbourne, insisted that we get to these families at an early stage and give them the support and help they need. That is where the emphasis should be. I am glad to say that that is where the Government are beginning to put a lot of emphasis and resources. I hope that those points will be borne in mind.

6.15 p.m.

Baroness Blatch: Perhaps the noble Baroness will answer this question. As I said earlier, many sexually active young people are healthy, worldly and extremely streetwise. What would happen in the case of three to four very bright 15 year-olds, who gang rape a much younger girl? If the amendments are agreed to, the only way that child could defend herself would be by going to court to give evidence that she did not give consent. It is possible that she would be so frightened she simply would not argue with the boys who had defiled her in such a way.

It seems to me that there is no allowance. Once this is decriminalised for this age group it is decriminalised. If one is to nip in the bud such terrible, abhorrent behaviour there needs to be a mechanism through the courts to declare that the behaviour is wrong is law and then to deal with such people in the way suggested by the noble Earl. If appropriate, that could be through treatment. The courts are free to leave someone to go back into the community just for treatment or to pass a custodial sentence together with treatment. It seems to me that to decriminalise would leave many young people extremely vulnerable.

Baroness Noakes: I remind my noble friend that these amendments deal only with consensual sexual activity, and so the issue of a 15 year-old being gang-raped by some teenagers is exactly the same as far as that girl is concerned. It is taken that it is non-consensual, as is the basic offence of rape in Clause 1.

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I do not see what the problem is in relation to the points my noble friend has just put, because my amendments are about consensual sexual activity between teenagers, not non-consensual activity.

Baroness Blatch: I know what my noble friend Lady Noakes means. However, existing law deems that a child under 16 cannot give consent. Therefore, it is possible for the boys to say that they believed the person consented. In some strange cases, it could be that the girl did consent. However, if the amendments are accepted, the only way that the girl can defend her own position is to go into court and have to prove that she did not give consent, rather than consent being deemed not to have been given for being a child of that age.

Baroness Howe of Idlicote: Perhaps I may reply as the question was addressed to me. I do not believe that there is any doubt about common sense in that case. I should be glad to hear that confirmed, or otherwise, by the Minister. If there is a case of gang rape involving three young men and a woman, it is clearly a case that has to go for prosecution, as long as the girl is under 13. Over that age, with consent, maybe.

Baroness Blatch: That was my point. The case would be heard under Clause 1 conditions, and the child would have to be cross-examined in court, sometimes very aggressively. I think that a child of that age deserves the protection of the law. Consent should not be deemed to have been given at all.

The Lord Bishop of Guildford: I have some sympathy with the points that have been made about the age of consent. We should not drift into changing the law, without confronting that issue head-on and properly. We have been around that circle a number of times in this House. I have a great deal of sympathy with the noble Baroness's argument. The Minister could help by recognising that sometimes the courts can be of assistance by using their authority to summon agencies to ensure that the right services are brought to bear when children and young people have particular and special needs. The family courts are well able to do this over the placement of children. I should have thought that with the right skills and development, it would be possible to ensure that we developed services that did exactly what people have asked for; namely, using the authority of the courts to ensure that the services are provided for children in these situations. We could square the circle if the Minister would indicate how we might more effectively use the system as set out in the Bill. Sometimes the courts can help, and may rescue us from the label "criminalisation" by the way in which we as a society use them to address the issues.

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