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Baroness Noakes: My Lords, the Minister has not answered my points. As to Clause 10, he said that Clause 8 would normally be used but if there were some kind of mistake, 14 years was all right. Where the child was under 13, there should never be the possibility of a lesser penalty than the one in Clause 8.

I invite the Minister to examine the relationship between Clauses 12 and 13 and Clauses 35 and 36, which deal with mentally disordered persons who lack the capacity to refuse. In the case of under-13s, we are effectively dealing with the same situation because the issue of consent is wholly irrelevant. A range of behaviours can cause a charge to be brought under Clauses 35 and 36 in relation to mentally disordered persons, with a set penalty. With children, there is the option of a lesser penalty. I do not understand that provision in respect of under-13s.

I hope that the Minister will think again. I will not press the amendment but will return to the issue on Report. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 50 not moved.]

Clause 11 [Inciting a child to engage in sexual activity]:

[Amendments Nos. 51 and 52 not moved.]

Lord Falconer of Thoroton moved Amendment No. 53:

On Question, amendment agreed to.

Clause 12 [Engaging in sexual activity in the presence of a child]:

[Amendment No. 54 not moved.]

Clause 13 [Causing a child to watch a sexual act]:

[Amendment No. 55 not moved.]

Clause 14 [Child sex offences committed by children or young persons]:

Baroness Walmsley moved Amendment No. 56:

    Leave out Clause 14.

The noble Baroness said: My Lords, the result of this amendment would be that under-18s could not commit the relatively minor offences set out in Clauses 9 to 13—the sexual touching of a child; causing, inciting or engaging in sex in the presence of a child; or causing a child age 13 to 15 to watch sexual activity.

The amendment focuses on the Bill's most ridiculous aspect. Where the activity is consensual, the normal behaviour of probably half the adolescent population is being criminalised. The penalties in Clause 14(2) are neither necessary, justified nor

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proportionate. One of the problems with Clauses 14 and 9 is that they take no account of consent. Whether or not there is consent, their provisions are not the best way of dealing with sexual activity between young people.

During the passage of the Bill through your Lordships' House, I have pressed for children to be treated differently, for two reasons. One is the matter of culpability for their actions. Children's moral values are not yet fully formed. They experiment. That is a normal part of growing up. Children are very much influenced by adults and what they see around them. Their attitudes and behaviour are almost always strongly influenced by the opinions of adults and the way that adults behave towards them.

Children who commit offences such as sexual touching without the consent of their child victim are damaged children themselves. Many have suffered sexual abuse. A large majority have suffered physical and emotional violence and neglect.

The second reason is that children respond even better to treatment and counselling than adults, partly because their attitudes are not yet fixed. A large amount of research has shown how well children respond to counselling, which is why it is so important to provide it. Counselling can transform the lives of young offenders and, most important, protect other children who might otherwise be abused by them in the future. It is all about child protection.

I draw your Lordships' attention to the Long Title:

    "A Bill . . . to make new provision about sexual offences, their prevention and the protection of children from harm from other sexual acts, and for connected purposes".

It seems strange that all my attempts to put into the Bill measures to ensure that children who commit sexual offences are entitled to treatment rather than penalties—albeit lower than those for adults—have failed. I have been told that such measures are beyond the scope of the Bill. They are not. The Bill is about effective prevention and the protection of children and their potential victims.

We all know the truth of the old saying that one cannot fit a square peg into a round hole. If one can, either the peg or the hole is the wrong shape. The Government, in drafting the Bill so narrowly, have crafted the wrong-shaped hole, into which I and others are vainly trying to squeeze something that is absolutely vital—the proper treatment of young sex offenders.

The Government claim that they always act on the advice of experts. In matters of scientific importance such as CJD, foot and mouth disease, MMR vaccination and GM crops, the Government make a big thing about doing so. During the passage of the Bill, the noble and learned Lord the Minister has listened to experts such as the noble Lords, Lord Rix and Lord Adebowale, speak about people with physical and mental disabilities. Why will the Minister not listen to the experts on children? The noble Baronesses, Lady Howarth and Lady Gould of Potternewton, the noble Earl, Lord Listowel, and many others have given us the benefit of their years of

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experience in advising young people—yet the Government are still not listening. Instead, they are trying to make a Bill for adults fit children by sticking in a few clauses with lower penalties.

Clause 14 is faulty because it will have unintended consequences for teenagers indulging in relatively harmless experimentation. Nor does it provide the most effective method of ensuring

    "prevention and the protection of children from harm".

I beg to move.

Baroness Noakes: My Lords, I have considerable sympathy with Amendment No. 56. Throughout our consideration of the Bill, I have been concerned about the way that sexual activity has been criminalised. In this instance the issue is teenage sex but elsewhere the Bill addresses sex between persons who are mentally disordered. It continues to trouble me that we must rest on prosecutorial discretion in determining which sexual activities are to be treated as criminal.

Some of your Lordships will view the amendment as undermining the age of consent but it is already undermined—day in, day out—by wholly consensual sexual intercourse involving teenagers. We cannot turn the clock back to a golden age, if one ever existed, in which teenagers saved themselves to their 16th birthday. The world has moved on and we may well reflect that in our laws.

We should remember also that while child offences include full sexual intercourse, they extend to a lot of other activities such as kissing, heavy petting and looking at dirty magazines. I wonder if there are any children under 16 who do not engage in one or more of those activities. The problem is how to reflect the realities of teenage life in our laws. We struggled to do so in Committee and are still struggling.

I am clear that we do not want to create a blanket exception for all sexual activity involving under-18s because some young people are very dangerous sexually. They can and do abuse other children and the law should be fully capable of dealing with them. I fully accept the comment by the noble Baroness, Lady Walmsley, that other interventions are likely to be the most important when dealing with such children.

The amendment does not affect the crimes under Clauses 1 to 8. Therefore sexual activity with under 13 year-olds will remain a crime, as will non-consensual activity with 13 to 15 year-olds. I am conscious that that may well involve a 13 to 15 year-old giving evidence. That has drawbacks. However, as always with the Bill, it is a question of balance. On the one side, there is the possibility of emotional trauma for a 13 to 15 year-old having to give evidence; and, on the other, that a wholly consensual and normal activity involving teenagers will be dragged within the law, possibly at the insistence of over-zealous parents. On balance, I find myself in favour of the amendment.

However, I have a problem with it. The amendment would remove the possibility of prosecution under Clause 12 or 13 where under 13 year-olds were involved. Clause 12 covers engaging in sexual activity in the presence of a child; Clause 13 covers causing a

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child to watch a sexual act. I do not think that that is right. For that reason, I am unable today to support the amendment but I certainly support the principles underlying the amendment.

7 p.m.

Baroness Howarth of Breckland: My Lords, I support the intent underlying the amendment. On the previous occasion when we discussed the issue, the Minister kindly wrote to the noble Lord, Lord Campbell, regarding a question that I raised about the treatment of young people. I cannot quote from the letter because I do not have it in front of me; the Minister will put me right. The general gist of the letter was that research at present does not indicate what we can do in order to provide treatment and, therefore, a working party was being set up to consider the implications.

I took a copy of the letter to the steering group of the Stop It Now campaign which I chair. The group includes Barnardo's, Childline, the NSPCC and the Faithfull Foundation—to name but a few. They all commented on the wide range of work. Indeed, Barnardo's already has eight projects working with young people who abuse. The NSPCC has projects. The Faithfull Foundation has led the way in some of this thinking.

It is important to recognise that treatment is the way forward for those young people, while not criminalising normal sexual developmental behaviour. I bow again to the lawyers' understanding of how to include the social care aspect in the legal framework. I hope that we shall consider the issue again. I shall submit a great deal of information to the working party. I support the amendment.

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