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House resumed.

Sexual Offences (Northern Ireland) Order 2008

7.33 pm

Lord Rooker rose to move, That the draft order laid before the House on 30 April be approved.

The noble Lord said: My Lords, I apologise in advance for the length of my speech during what is dinner break business.

The order was laid before the House on 30 April. While the main focus of my opening speech will be on this order, I am pleased that we can also debate the Sexual Offences (Northern Ireland Consequential Amendments) Order 2008 at the same time. As we move towards the devolution of policing and justice powers in Northern Ireland, I certainly hope that this will be the last time that this House is asked to consider major criminal justice legislation for Northern Ireland through the Order in Council procedure. In future, that will quite rightly be a job for the Northern Ireland Assembly. In the mean time, as we have always said, business should continue in the interests of the people of Northern Ireland, so I make no apology for bringing forward the order. The order has already been considered in the other place.

The draft Sexual Offences (Northern Ireland) Order 2008 is the result of the first ever fundamental reform and consolidation of the law on sexual offences in Northern Ireland. Many of the current statutes governing Northern Ireland date not from the last century but

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from the 19th century and are difficult to apply to current circumstances. For some time we have recognised the growing need for a strengthened, modernised and harmonised body of law based on the Sexual Offences Act 2003.

The draft legislation was preceded by a comprehensive review of the law. The Government sought views from key stakeholders and others in Northern Ireland on how the law should distinguish for the 21st century between acceptable sexual behaviour and criminal activity. The review took as its starting point the extensive research and findings of the fundamental review of the law on sexual offences that was carried out in England and Wales, as well as the parliamentary scrutiny of the 2003 Act. Essentially, we took the view that unless there was a good reason, the law in Northern Ireland should, as far as possible, match that in England and Wales. That is a common theme throughout many of the changes in the legislation.

The proposed order will update the law. All offences will be gender neutral and, in the main, consensual sexual activity between adults in private will not fall within the criminal law. The order will strengthen and modernise sexual offences, primarily to ensure that all non-consensual sexual activity and sexual activity involving children and other vulnerable people is criminalised and will attract appropriately robust sanctions.

It will provide for clearly defined offences, which should ensure that anyone who engages in non-consensual or unacceptable sexual activity will face justice and appropriate punishment. More importantly, children and young people are at the centre of the proposals, with new offences designed to protect the most vulnerable and to punish severely any perpetrator of child sexual abuse.

The consultation on the order has been thorough. A policy consultation was carried out in 2006. A proposed draft sexual offences order was prepared and consulted on from November 2007 until February 2008. Altogether there were 369 responses to the legislative proposals, including 29 from organisations, political parties and elected representatives. The remaining number were from individuals responding in a personal capacity, and they focused mainly on one aspect, the proposal to change the age of consent from 17 to 16.

The Northern Ireland Assembly established an ad hoc committee of all of the main Northern Ireland political parties to consider the draft order. My honourable friend the Minister for Criminal Justice in Northern Ireland has already recorded, as I do tonight, his gratitude to the members of that committee for their careful scrutiny.

While the age of consent issue has provided some difference of opinion, there has been strong support for the order as a whole. The Northern Ireland Assembly not only affirmed its support for the sweep of the legislation, but welcomed the increased sentences and the move to gender neutrality. The Northern Ireland Commissioner for Children and Young People and the Police Service of Northern Ireland welcomed the contents of the order. The major children’s organisations, such as the National Society for the Prevention of Cruelty to Children and Barnardo’s, were also generally supportive, along with Brook and the Family Planning Association.

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It may help noble Lords if I briefly run through what is proposed in the legislation. There is a clear focus on five different themes: non-consensual offences, offences against children, offences against those with a mental disorder, prostitution and other unacceptable sexual behaviour. The core offences that rely on the absence of consent are set out in Part 2. They include a new statutory offence of rape to replace the common-law offence, and new serious offences of assault by penetration and causing a person to engage in sexual activity without consent.

The new offence of rape has been expanded to include oral penetration, and the offence of assault by penetration carries a maximum life sentence for behaviour that under the current law would be classed as indecent assault with a maximum sentence of only 10 years. We propose the same statutory definition of consent as exists in England and Wales, with a number of evidential presumptions that consent was absent unless evidence is provided to the contrary. For example, if violence was used or threatened, there would be a presumption that consent had not been given.

On the second major element of the legislation, the new framework of offences against children is set out in Part 3. The most important issue in that regard is that where an offence is committed against a child under the age of 13, there is no requirement to address the issue of consent. That follows the Sexual Offences Act 2003 and makes it clear that there can be no question about the capacity of a child under the age of 13 to agree to sexual activity. Penetration of a child aged 12 or under will always be classified as rape.

The next group of offences concern children under 16 and criminalises all sexual activity with children and young people under that age. The maximum sentence for that group of offences is 14 years, although where the offence is committed by someone under 18, the maximum sentence is reduced to five years. By comparison, the current offence in Northern Ireland of unlawful carnal knowledge criminalises only sexual intercourse, and the maximum sentence for unlawful sexual intercourse with a girl aged 14 to 17, regardless of the age of the other party, is only two years. Indeed, there is no specific offence by which it is unlawful for a girl or woman to have sexual intercourse with a boy under 17.

The third group of offences applies to young people under 18. The aim is to provide a safety net against exploitation and abuse. For example, it will continue to be unlawful to have sexual activity with a young person under the age of 18 for anyone in a specified position of trust or in a specified family relationship. It will be unlawful to pay for the sexual services of a child under 18, or to cause, incite or arrange for a young person to become involved in prostitution or pornography and to control that person. Finally, the age under which it will be illegal to make, take, possess or distribute indecent photographs of children will be increased to 18.

Part 4 of the order, relating to offences against other vulnerable groups, sets out the circumstances in which it will be illegal to engage in sexual activity with a person who has a mental disorder. There are three clear aspects to those offences. The first relates to

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those with more severe disabilities and will penalise any sexual activity with someone who lacks the capacity to choose because of a mental disorder, or who is unable to communicate such a choice. The second deals with the procuring of sexual activity with a person with a mental disorder by inducement, threat or deception. The third simply outlaws any sexual activity by a care worker with a person with a mental disorder. These offences increase the range of offending behaviour against this particularly vulnerable group, while still acknowledging the rights of many such individuals to a consensual and non-exploitative sexual relationship.

Part 5 contains provisions to address the problems of kerb crawling and soliciting for prostitution, which occur to some degree in all of our major cities, Belfast being no exception. The police have pressed for these provisions. We are also sending a further message to those engaged in commercial sexual exploitation, with sentences of seven years for causing, inciting and controlling prostitution and for keeping a brothel.

Lord Tebbit: My Lords, I wonder whether the Minister can help me. As I read it, Part 5, like the rest of the order, is in gender-neutral terms. Yet at page 22 of the Explanatory Memorandum, it is stated:

Am I reading the order wrongly, or is the Explanatory Memorandum slightly misleading?

Lord Rooker: My Lords, that is a very fair question because, obviously, it can be the other way round. I will get an answer before the evening is over, because it is intended to be gender-neutral as regards the practicalities of the law. However, the idea that there cannot be prostitution the other way is completely nonsense. I will get an answer to the noble Lord and I am grateful for the question.

Part 6 contains a miscellaneous but important group of offences. It criminalises acts where the clear intention is to commit a sexual offence; for example, giving someone so-called date rape drugs. It also criminalises sex with an adult relative, and it lists other behaviours considered unacceptable; namely, exposure, voyeurism, intercourse with an animal, sexual penetration of a corpse and sexual activity in a public toilet.

Part 7 makes further important provisions. It allows offences committed overseas against children to be pursued by the courts in Northern Ireland, whether or not they are offences in that other country. It also removes offences against children committed by other children or young persons from the reporting requirements of the Criminal Law Act 1967, although the Government have agreed not to commence that provision until new safeguarding legislation is enacted—we hope in 2009.

As I said earlier, there was an impressive and largely supportive response to the Government’s consultation on the order. The Government set out their response to the issues raised in a statement, which contained a summary of the representations that accompanied the order when it was laid before Parliament. A further document contained a summary of the changes made to the order; for example, the Government have agreed

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to look further at the possible inclusion of sports coaches within the positions of trust listed in Article 28. We will ask the Minister for Culture, Arts and Leisure to consult sports bodies in Northern Ireland on that suggestion. We have also agreed to consult on guidance and to look at ways to engage with children and young people on the introduction of the new law.

As regards the subject of the noble Lord’s amendment, however, the Government have not been persuaded to raise the age from 16 to 17 for the purposes of the offence of sexual activity with a child, more commonly referred to as the “age of consent”. Our policy position remains that we have not seen any compelling evidence to suggest that the criminal law in Northern Ireland should continue to be at variance with the rest of the United Kingdom on this issue.

Much of the argument against the move to harmonise the law has come from a basic misunderstanding of what the term “age of consent” means. It does not set in law the age at which it is deemed appropriate to start sexual activity. We are setting out the circumstances in which it is an offence to engage in sexual activity with a young person, even though that young person gives their consent. If that young person is 14 or 15, it remains an offence for another person to engage in sexual activity with them. We say that at 16, a young person has a right to take responsibility for their decisions and the other person should not be criminalised as a result. It is important to underline that the focus for the criminal law is not the conduct of the person below the age of consent; it is the conduct of the other person.

We believe that a majority of young people from the age of 16 will make sensible decisions, supported particularly by parental guidance, as well as by sex education in schools and the work of statutory and voluntary organisations that influence young people. Sixteen is the age throughout the whole of the United Kingdom at which, with parental consent, marriage can take place. That is not affected. I understand that is the position in the Republic, even though the age of consent is 17. There is a history about why the age of 17 was chosen which other noble Lords are far better qualified to know the detail about than I.

We are supported in the view we have taken by all the major children’s organisations: the NSPCC, Barnardo’s, the Children’s Law Centre and the Northern Ireland Commissioner for Children and Young People, by numerous representatives of social care trusts and by MLAs, including the chairman of the Assembly’s ad hoc committee that considered the order in detail. I fully accept that the committee was not unanimous, but that is not the point. The chairman, Dr Stephen Farry, said in the debate in the Assembly:

The focus of my speech has been the main order. I shall briefly address aspects of the other order. The draft Sexual Offences (Northern Ireland Consequential Amendments) Order is, by and large, a short, technical piece that allows the main order and the Sexual Offences Act 2003 to work together in a UK context. It also

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amends the list of offences that attract the sex offender notification requirements of Part 2 of the Sexual Offences Act 2003 and adds the new offences to the Criminal Justice Act 2003 for the purposes of sentences for public protection.

The answer to the question asked by the noble Lord, Lord Tebbit, is that the Explanatory Memorandum is seeking only to give an example. The offence is gender neutral and would apply equally to male prostitutes. I assumed that that would be the case, but sometimes the his and the her and the he and the she make it look as if it is not gender neutral, but it is.

I am pleased to bring before the House this fundamental reform of the criminal law on sexual offences in Northern Ireland. I make no apology. This has been in being for a considerable number of years. We see no reason to delay the implementation of the many new offences and penalties I have spelt out while awaiting the further devolution that we fully expect to take place. Then it will be up to the Northern Ireland Assembly. The new framework of sexual offences is about better protection for all against unacceptable sexual behaviour. It will improve protection for children, young people and other vulnerable groups against sexual abuse, and it will help to tackle prostitution and commercial sexual exploitation. I commend both orders to the House.

Moved, That the order laid before the House on 30 April be approved. 19th Report from the Joint Committee on Statutory Instruments, 19th Report from the Merits Committee.—(Lord Rooker.)

Lord Morrow rose to move, as an amendment to the Motion, to leave out from “that” to the end and insert “this House declines to approve the draft order laid before the House on 30 April because of opposition in Northern Ireland to lowering the age of consent”.

The noble Lord said: My Lords, it may be wondered why a Member of this House should rise to oppose an Order in Council, an instrument normally considered non-controversial. Yet any non-controversial features of this legislation are overshadowed by one extremely contentious provision: the proposal to lower the age of consent for sexual activity in Northern Ireland from 17 to 16. The age of consent in the criminal law is a powerful expression of what a society believes is best for its young people. Northern Ireland has chosen to set that age at 17 since 1950 and today most of its politicians and the majority of its people want to keep it at 17. Noble Lords may know that the Merits Committee drew the special attention of the House to the order in its 19th report, which was published on 13 May, noting that the Assembly and other consultees were broadly in favour of the legislation but opposed the lowering of the age of sexual consent from 17 to 16.

I shall elaborate. According to normal consultative procedure, the legislation was scrutinised by an ad hoc committee of the Northern Ireland Assembly. After receiving written and oral evidence from interested bodies, the committee presented a report to the Assembly. The report included the statement that,

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In February, the Assembly voted unanimously to submit the report to the Secretary of State as a report of the Assembly. No Division was required. Shortly after that vote, the MLAs tabled a no day named motion calling on the Secretary of State to retain the age of consent at 17. To date, it has been signed by 57 MLAs from across the political spectrum, unionists and nationalists alike. That makes it the best supported no day named motion of the current Assembly and the only one to achieve an overall majority of Members. It is clear that the Assembly would never have passed legislation lowering the age of consent.

Stormont’s position reflects that of the Northern Ireland populace. A ComRes poll in March found that 73 per cent of Northern Ireland’s citizens, including 80 per cent of Protestants and 72 per cent of Roman Catholics, opposed any reduction in the age of consent. Such widespread opposition was reflected in public comments from church representatives, the Northern Ireland Rape Crisis centre, the Province’s biggest youth organisations, the Boys’ Brigade and the Girls’ Brigade, and Love for Life, a relationship and sexual education project that delivers programmes to more than 20,000 young people annually. The Northern Ireland Office’s analysis of the public consultation reveals a similar pattern. Of 369 responses received, only seven specifically supported the age of consent proposal; 346 responses specifically opposed it.

The Government have put forward such a controversial provision in a statutory instrument that cannot be amended, leaving us with no choice but to reject the order. I shall test the opinion of the House at the conclusion of this debate. It is right to ask the Government to think again on such an important issue. Even now, it would not be difficult to withdraw the order, amend it and relay it before Parliament. There are precedents for this House rejecting statutory instruments—for example, the Greater London Authority (Election Expenses) Order 2000 and the Gambling (Geographical Distribution of Casino Premises Licences) Order 2007.

Let me at this point respond to a question that has been raised: is there not a contradiction between an age of consent set at 17 and allowing marriage at 16? No. Marriage is clearly a special institution. This has never caused a problem in the past 58 years. When Stormont raised the age of consent to 17 in 1950, it included an exception for married couples. It is crucial that marriage at the age of 16 or 17 in Northern Ireland can take place only with parental consent. The unique status of marriage is demonstrated by the fact that several other provisions in the order—for example, the abuse of trust laws—include exceptions for married couples.

To date, the Northern Ireland Office has offered only the scantiest justification for lowering the age of consent. The only reason offered to the Stormont committee and the Merits Committee was consistency across the United Kingdom. The logic of that argument is contrary to the principle of devolution. We are left asking why the Government continue to support devolution if they believe that the laws in every part of the United Kingdom must always be the same. In laws covering, for example, abortion, employment, public order and alcohol licensing, Northern Ireland has

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long differed from the rest of the United Kingdom. Moreover, the Northern Ireland Office has not provided evidence of any legal difficulty caused by the inconsistency of the age of consent.

Ministers have attempted to justify the policy by citing the need for clarity in the minds of young people. By calling for clarity, Ministers appear to believe that there is widespread confusion among Northern Ireland’s young people because the age of consent is 16 elsewhere in the United Kingdom. The fear has also been expressed that a legal age of consent of 17 deters young people from seeking sexual health advice because they feel that they will be criminalised in some way.

8 pm

How can Northern Ireland’s young people be deterred from seeking sexual health advice under the age of 17 if they are all confused by the law and think that the age of consent is 16 anyway? In fact, any teenager from Northern Ireland or elsewhere will not have to look too far to find that the age of consent in the Province is 17. Just about every teenage website offering sexual health advice spells out the law and its implications in unmistakable terms. Moreover, the basic framework of the laws governing sexual activity is routinely spelt out in school classes in Northern Ireland.

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