Orders of the Day — Sexual Offences (Amendment) Bill

House of Commons, 1 March 1999.

DEFENCES AVAILABLE TO PERSONS WHO ARE UNDER AGE

Paul Boateng (Labour, Brent South)

I beg to move, That the clause be read a Second time.

Betty Boothroyd (Speaker, West Bromwich West)

With this, it will be convenient to discuss the following: new clause 2—Defence against charges under Sexual Offences Act 1956— '( ) Where a person ("A") is charged with an offence under section 12 or 13 of the Sexual Offences Act 1956 with another person ("B"), it shall be a defence for A to prove that, at the time of the activity, he did not know, and could not reasonably have been expected to know, that B was under 16.'. New clause 3—Defence against charges of homosexual activity (Northern Ireland)— '( ) In Article 3 of the Homosexual Offences (Northern Ireland) Order 1982 (homosexual acts in private), at the end there shall be inserted— ( ) A man (A) is not guilty of an offence of doing a homosexual act with another man (B) where B is under the age of 17, if A is under the age of 25 and has not previously been charged with a like offence, and he believes B to be of the age of 17 or over and has reasonable cause for the belief.".'. Government amendment No. 9.

Paul Boateng (Labour, Brent South)

The new clause will have the effect that, in England and Wales, it will not be an offence for a person under 16 to engage in buggery or for a male under 16 to commit an act of gross indecency with a male aged 16 or over or be a party to, or procure the commission of, an act of gross indecency with a male aged 16 or over. The new clause does not affect the liability of a person over the age of 16 who engages in such activities with a person under 16. Our whole purpose is to ensure that such people are liable in the criminal law. Both parties will also continue to remain liable in the criminal law if they are both under the age of 16. To do otherwise would be to negate the age of consent entirely, and that clearly would not be acceptable. Furthermore, it might allow a 15-year-old to escape any liability for engaging in predatory activity with a younger child, which would clearly be an undesirable consequence. Similar changes are also made to the law in Scotland and Northern Ireland to decriminalise a male under the age of consent—that is 16 in Scotland and 17 in Northern Ireland—who engages in homosexual activities with someone over that age. An amendment to provide for the decriminalisation of the younger partner was moved in Committee of the whole House by the hon. Member for Oxford, West and Abingdon (Dr. Harris), supported by a number of hon. Members, and received widespread support. We undertook to consider the principle behind that amendment, with which we had great sympathy, and to table an acceptable and technically competent amendment that met the will of the Committee if we were satisfied that the change could properly be made in the Bill. That is what we have done through the new clause. That has also entailed a minor change to the long title of the Bill to cover the circumstances in which behaviour is not criminal, not merely the age. We were unable to accept the amendment moved by the hon. Member for Oxford, West and Abingdon because it referred to no proceedings being taken against a person under the age of consent who engages in buggery or homosexual acts with a person over the age of consent. Our new clause makes it clear that no offence is committed in the first place because the problem does not relate only to instituting criminal proceedings, as I know the hon. Gentleman now recognises. The measure is necessary in the interests of protecting children. That issue united both sides of the Standing Committee, and I am grateful to the hon. Member for Hertsmere (Mr. Clappison), who speaks for the Opposition, for the constructive approach that he adopted to the amendment. We undertook to consult those who are engaged, day to day, in the protection and support of children. They include the National Society for the Prevention of Cruelty to Children, the Children's Society and NCH Action for Children, all of which have made it clear that they support the measure. That will be of concern to hon. Members on all sides of the House. At present, in the case of buggery and male homosexual acts where the older partner is above the age of consent, the law criminalises the younger partner—both boys and girls. Not only does that mean that, in most cases, young homosexual males are treated in a way that young heterosexuals are not, but, most importantly, it does nothing to protect children. It allows adults to threaten what may be naive young boys and girls with the prospect of being brought into the criminal justice system if they complain to another adult about the activities in which they have been involved. That may serve to encourage and facilitate predatory conduct by older men. The Standing Committee was concerned to discourage such conduct and there was universal agreement on the matter.

John Bercow (Conservative, Buckingham)

I recognise the rationale behind the new clause, but, so that we can take a view on its likely practical significance, will the Minister tell us how many boys under the age of 16 were prosecuted for buggery in 1998?

Paul Boateng (Labour, Brent South)

I shall write to the hon. Gentleman in due course about the number of young men under the age of 16 prosecuted for buggery in 1998. If he remains in his place for the duration of the debate, although he has not always graced the Opposition Benches on previous occasions, I will—

John Bercow (Conservative, Buckingham)

I am always in the Chamber.

Paul Boateng (Labour, Brent South)

I know that the hon. Gentleman is an assiduous attender of the House, but he has not always been present during previous debates on the Bill. If he remains in his place for some time longer, I promise him that, before the end of today's proceedings, I will let him have the figure. I suspect that the number of prosecutions, if any, is small, but our concern is to make sure that the measure does not tell against the interest of young people, who might be dissuaded from bringing action against older predatory males for fear of prosecution. As we know, in these matters, fear of prosecution, as much as any actual prosecution, tells on the minds of the young people involved. That concerned the hon. Member for Hertsmere, me and other members of the Committee. The new clause would stop the continued use of the criminal law as a means of coercion to be used against those whom we in this House wish to protect the most—young children. That is something that we all take very seriously indeed. We have made it clear, however, that other attempts to deal with the undoubted anomalies and inconsistencies in sexual offences legislation, including the way that the criminal law treats heterosexual and homosexual activity, must wait for the review of sexual offences and penalties. I understand the thinking of the hon. Members for Oxford, West and Abingdon and for Sheffield, Hallam (Mr. Allan), and the hard work that they have put in, but I fear that their amendments are likely to fall foul of our concern that the review that we have instituted should be in a position to take an overview and to tackle the undoubted anomalies and inconsistencies in the course of its work. Making further ad hoc changes to the law on sexual offences and penalties through the Bill would only add to the inconsistencies in the law. However, we believe that the case for decriminalising the younger partner is so overwhelming that there are no good reasons against doing so now. The other issues raised during the consideration of the Bill about the inconsistencies in the law on sexual offences require a view to be taken of the law as a whole, if we are ever to achieve a rational basis for our law in this area. The new clause does not require that, and it can be adopted without creating any new inconsistencies. It might be helpful at this stage to deal with the Government's response to new clauses 2 and 3, which stand in the name of the hon. Member for Oxford, West and Abingdon, among others. He will take the House through the effect of his new clauses but, for us, they raise important questions of principle. They concern the defence of reasonable belief on the part of the person committing an offence against a person under the age of consent and go far beyond the changes that we propose in the Bill. The issues raised affect heterosexual offences and homosexual offences. Our approach to the age of consent has been for Parliament to decide on the simple, straightforward issue of the equalisation of the age of consent. With one exception—the decriminalisation of the younger partner—we have made it clear that other attempts to deal with the undoubted anomalies and inconsistencies in the sexual offences legislation, including the way that the criminal law treats heterosexual and homosexual activity, must wait for the review of sexual offences and penalties. That will disappoint the hon. Member for Oxford, West and Abingdon, but I hope that he understands that we are at least disappointing him consistently. Making further ad hoc changes to the law on sexual offences and penalties through the Bill would only add to the inconsistencies in the law. We therefore do not intend to go down that road. The main focus of the sexual offences review will to be ensure that the law provides the best possible protection for children and more effective punishment of abusers. It is however necessary to consider the issue that the hon. Gentleman raises as part of that process, and the review will do so. 4.30 pm We have also made it clear that the review must ensure that the law is fair and non-discriminatory, in accordance with the European convention on human rights and the Human Rights Act 1998. The Northern Ireland Office is working alongside the Home Office on the review of sexual offences and will respond to its recommendations in due course. As the hon. Member for Oxford, West and Abingdon will appreciate, the new clause raises a number of technical issues. I do not intend to go into them at this stage but, if he would like me to deal with them later, I should be only too happy to do so. We cannot accept the new clauses, which are properly matters to be considered by the review and go far beyond the purposes of the Bill. The policy on such offences needs careful examination in the light of the need to protect children. We have serious concerns that, as they stand, either of those defences might make prosecuting sexual offences substantially more difficult—and we are not having that. A similar defence to that contained in new clause 3 for Northern Ireland was proposed by hon. Members in Committee. It would have provided a defence for those under 25 in relation to a first charge for such an offence. We consulted a number of children's charities about that, and they believe that even such a limited measure would have serious implications for child protection. We are simply not prepared to accept that. That argument applies even more to a broad defence along the lines of new clause 2, which makes the proposition even more unacceptable to us. The matter will, however, be examined in the course of the review. I hope that, in the light of that assurance, the hon. Gentleman will not press his two new clauses. On that basis, I commend Government new clause 4 and amendment No. 9.

James Clappison (Conservative, Hertsmere)

I wish to make two matters clear. First and most importantly, these issues will be the subject of a free vote, if there is a vote, and any views that I express are personal—my colleagues may take a different view. Secondly, if it is convenient, I should like to deal with the amendments and new clauses in this group together. I welcome Government new clause 4. I listened carefully to the Minister's speech. He adopted many of the points that we made when the matter first came before the House. There is merit in the approach taken in the new clause, as that will serve to protect the younger party, which should be the law's main priority in this area. Thus, there will be a defence for the under-age person where the other party is over age. That is clearly in the interests of bringing the older party to justice. Removing the disincentive to the younger party to report the offence should help to bring older people who enter into inappropriate sexual relationships to justice. I agree with the form in which the new clause is tabled. When the original amendment was before us, we observed that it would merely have prevented proceedings from being brought, whereas the new clause clarifies that no offence will be committed. That brings the law into line with the existing law on under-age sex with a heterosexual girl. I therefore welcome the new clause, which reflects the arguments that we made earlier in our proceedings. New clause 2 is important and requires careful consideration. Indeed, it was considered carefully in Committee. It will make available a defence in cases where an older person is charged with an offence under section 12 or 13 of the Sexual Offences Act 1956. It is sometimes referred to as a statutory defence or a defence of mistake of age. It is important to note that a defence of mistake of age is available in the case of unlawful sexual intercourse with a girl under 16. That is, in some ways, the equivalent heterosexual offence. That defence is sometimes called the young man's defence. If a charge is made relating to under-age sex with a girl under the age of consent, it is a defence for a person under 24 who has not previously been charged with a similar offence if he believed the girl to be 16 or over and had reasonable cause for the belief. That has long been available as a defence in England and Wales for offences of unlawful sexual intercourse with a girl—it goes back many years. It is worth noting that a similar defence is available in Scotland in the case of both heterosexual and homosexual acts. I listened with interest to the Minister's comments about new clause 3, which would create a defence in the case of offences in Northern Ireland. He referred to consultations that had taken place and said that, in the interests of protecting children, we should not accept the new clause, but it would create an almost identical—if not identical—defence to the one that currently applies in Scotland. That is an interesting point. I think that the only difference would be that the age of consent would be slightly higher in Northern Ireland—the age of consent being 17, whereas in Scotland it is 16; otherwise, the defence would be the same in Northern Ireland as in Scotland. In Scotland, in the case of both under-age heterosexual sex and under-age homosexual sex, there is a defence if the defendant has not previously been charged with such an offence, is under 24 and had reasonable cause to believe that the other party was over the age of consent. After thinking carefully about it and reflecting on the debates in Committee, I find it hard to see why the same defence should not be available for people aged under 24 in respect of homosexual acts in England and Wales as is available already in Scotland and, in the case of heterosexual sex, in England and Wales. Age is important. Different considerations apply where people are older. Someone who is in his late 20s, 30s or 40s should not be able to avail himself of such a defence—as he cannot now do in the case of heterosexual sex—but, where young people are in the same general age bracket, we have to think of the interests of justice and ask: do we want to bring within the ambit of the criminal law a young person who had homosexual relations with an under-age person when he genuinely believed that the under-aged person was over the age of consent and had reasonable grounds for such a belief? Do we really want such a young person to be guilty of a criminal offence, as the law now stands, and to face a possible maximum sentence of life imprisonment? It is important and salient that the availability of that defence be strictly limited.

Edward Leigh (Conservative, Gainsborough)

Is my hon. Friend erecting a new maxim—that the law for heterosexual offences should generally be the same as that for homosexual offences?

James Clappison (Conservative, Hertsmere)

No, I am not erecting a new maxim and was carefully trying not to do so. I was trying to act in the interests of justice and fairness all round, but without necessarily erecting such a principle.

Desmond Swayne (Conservative, New Forest West)

On the question of justice and fairness, given the enthusiasm that my hon. Friend has expressed for new clause 4, would it not be proper that an offender under new clause 4 should be reasonably—

Michael Martin (Deputy Speaker, Glasgow Springburn)

Order. [Interruption.] My apologies. I thought that the hon. Gentleman was outwith the scope of the new clause. He may carry on.

Desmond Swayne (Conservative, New Forest West)

If one of the partners to an act under the terms of new clause 4 claimed as a defence that he thought the other was over 17, would not that defence be perfectly reasonable?

James Clappison (Conservative, Hertsmere)

The defendant would have to establish the ingredients of the defence. Others may disagree with my view, but this is not a legal novelty. As I have said, in heterosexual cases, it has been available as a defence since 1922, and I believe a form of it was introduced in 1885—so it may be a case of returning to Victorian values. As I have said on other occasions when we have debated the Bill, I am now speaking on the basis of my personal view, nor do I seek to equalise the law in every respect. I shall not be presenting a checklist of ways in which the law should be made identical; I am trying to establish a way of acting fairly and in the interests of justice in individual cases. It should be borne in mind that the availability of the defence is strictly limited by age, and that the onus is on the defendant to establish that he believed that the other party was over the age of consent and had reasonable grounds for that belief. If defendants are still to be given the chance of trial by jury—I hope that they will, in these and in other cases—it will be for an English court and an English jury to use their good sense in deciding the matter. A defendant will not escape liability by saying that he thought the other party was over the age of consent; he will also have to establish that he had reasonable grounds for that belief, and establish it to the satisfaction of the court. I believe that the defence that is available in heterosexual cases in England and Wales, and in both heterosexual and homosexual cases in Scotland, should be available in cases such as this in England and Wales. That would be in the interests of justice and fairness all round. I have already commented on new clause 3; new clause 2, however, goes wider than the existing defence for heterosexual sex in a number of important respects. I note that the new clause refers to knowledge of someone's age, rather than belief, as the basis for a defence. The availability of such a defence is not restricted to those who have previously been charged with similar offences, as in the case of heterosexual sex; and, more important, it is not restricted to those under 24. That is a big difference, in my view: I regard age as an important consideration.

Evan Harris (Liberal Democrat, Oxford West and Abingdon)

The hon. Gentleman may be about to deal with this. He is aware from discussions that we have had outside the Chamber that it is extremely unlikely that new clause 2 would have been selected if it had been tabled in exactly the same form as the form in which it was tabled in Committee—which was right, because we do not want to repeat those arguments now. The principle is the same, however, and the new clause is phrased in exactly the same way as the statutory defence available in the case of an abuse of trust which can be found in clause 2. Perhaps the hon. Gentleman was about to make that point, but I should have liked him to do so at the outset. I should like to see an amendment providing for a statutory defence directly comparable with the defence that exists for heterosexuals.

James Clappison (Conservative, Hertsmere)

I shall, in fact, deal with that point now. By reason of the distinctions that I am making, I am not minded to support new clause 2, which the hon. Gentleman tabled. I do not consider it satisfactory. Much of the blame for that, however, arises from the attempt to use the defence supplied by the Government, about which I shall say more shortly. As the hon. Gentleman has said, the defence in new clause 2 bears a striking similarity to the breach-of-trust defence involving 16 and 17-year-olds in clause 2(2)(a). It may well be—as the hon. Gentleman has perhaps conceded—that those who tabled new clause 2 were trying to avoid inconsistency between the defence provided in their amendments and that provided in the Bill. The defence provided in the Bill is surprising, to say the least. It is also not the only example in the Bill of bad drafting and bad judgment. 4.45 pm The defence provided in clause 2(2)(a) deals with people in a position of trust. Those who are in a position of trust include those who look after, and are regularly involved in caring for, a younger person. However, unlike those whose sexual activities arise out of other social contexts, surely those who are in a position of trust and are regularly involved in caring for a younger person could reasonably be expected to have some knowledge of the other party's age, and to know whether the other party was under 18. In breaches of trust involving 16 and 17-year-olds, the Government's proposed defence of mistake of age is not limited by age. A man of 42 and a young man of 18 could therefore rely equally on the defence. The Government's proposed defence is therefore very strange.

Teresa Gorman (Conservative, Billericay)

Does my hon. Friend have a view on the activity of television producers who, in their programmes, advocate sexual intercourse with people under 15? A week or so go, a programme was broadcast in which that act was not only physically demonstrated, but advocated and then glorified. Does he think that the programme's producer should be subject to such provisions on prosecution?

James Clappison (Conservative, Hertsmere)

My hon. Friend makes a very important point. Those who produce and broadcast programmes should be aware of their wider responsibilities. The general scenario that she described was thoroughly unattractive. One would think that responsible broadcasters would seek to avoid such scenarios, and not to give in to the temptation of sensationalism. It really will not do for the Minister to say, in reply to new clauses 2 and 3, "We can't possibly consider the amendments. We don't want to go beyond changing the law on consent and taking the younger party out of liability, as we are doing in new clause 4. We want to confine ourselves to those issues, and leave everything else to the review." Ministers cannot say that when they themselves are creating a new form of defence in the Bill. The defence that the Government are proposing in the Bill is vastly inferior to the long-established defence of mistaken belief, which is available already in the Sexual Offences Act. The Government have made a grave mistake in offering their form of defence, which will widen considerably the current one. The Bill will certainly make the defence of mistaken belief available to much older men—in their 30s, 40s or 50s—whereas the current one is already, rightly, limited to young men under 24, who are therefore in the same general age bracket as the younger person concerned. The Government are making a mistake in proposing their defence. Moreover, those who tabled new clause 2 may have been attempting to use the Government's proposed defence in their new clause—the passage of which would be a mistake and should be avoided. In my personal view, in the interests of justice and fairness—bearing in mind the state of the law in England and in Scotland, and in cases involving heterosexual and homosexual sex—a similar form of the defence available in cases involving heterosexual sex should be made available in those involving homosexual sex. However, it should be made available only without watering-down the very strict requirements that must be established—specifically of age and of the person concerned not having been charged previously with the same offence—and with the strict necessity of establishing reasonable belief. I believe that that form of defence is satisfactory and is in the interests of justice, unlike the form of defence proposed by the Government for cases of abuse of trust involving 16 and 17-year-olds.

David Borrow (Labour, South Ribble)

I referred on Second Reading to the criminalisation of young gay men under the age of consent. The hon. Member for Oxford, West and Abingdon (Dr. Harris) and I tabled an amendment on that in Committee. I am grateful to my hon. Friend the Minister for having thought about the issue and introduced a new clause on it. I welcome the new clause, but, as my hon. Friend has said, it still leaves many anomalies. I recognise that they cannot all be dealt with in the Bill, but I should like some clarification on the speed with which the review will take place and how quickly some of the issues can be dealt with. Some relevant issues are raised in other amendments that we shall come to. The speed with which they are dealt with by the review will have a bearing on how I vote this afternoon.

Evan Harris (Liberal Democrat, Oxford West and Abingdon)

I share the pleasure of the hon. Member for South Ribble (Mr. Borrow) that the Government have accepted the principle of the amendment that we tabled in Committee and brought it forward in legally watertight terms that they can support with all their might on a free vote. My hon. Friend the Member for Sheffield, Hallam (Mr. Allan) has urged me to be gracious in victory. It is against my nature in my early career in this place to be gracious and it appears to be against the nature of the Liberal Democrats in Parliament to be victorious. This is not a party political issue, but I pay tribute to the Minister for his willingness to take it on. The Minister emphasised the need to protect younger people. I hope that the new clause is also motivated by the desire to end discrimination against gay people—in this case those under 16. From the late 19th century, there has been no equivalent offence of unlawful sexual intercourse for girls under 16 and they cannot even be charged through the Tyrell case law with aiding and abetting. The Minister did not mention the fact that the new clause gets rid of discrimination against homosexuals in criminal law, but I hope that that was part of the reason why the Government brought it forward. The hon. Member for Hertsmere (Mr. Clappison) referred obliquely to that, while claiming credit—which is in some part due—for supporting the proposal that the hon. Member for South Ribble and I made in Committee. The new clause has other significant implications that have not yet been mentioned. Today was the first time that I have understood—let alone seen the point of—an intervention by the hon. Member for New Forest, West (Mr. Swayne), who pointed out with the perspicacity that only he can muster that, if there were a statutory defence, two 16-year-olds could argue that each thought that the other was over 16, resulting in both of them getting off the charge, because the new clause decriminalises the younger party involved in an act with an older party. For reasons that the Minister made clear in Committee—probably in response to another point by the hon. Member for New Forest, West—it does not decriminalise behaviour between two people under 16, because that would effectively lower the age of consent for homosexual acts below 16. We can be clear that new clause 4 does not lower the age of consent in those cases. As there is no such statutory defence in reverse, the hon. Member for New Forest, West can be reassured, in his terms, that that defence does not exist and that, in certain circumstances, there will be the continued prosecution of consensual offences where, because of the Government's attitude to new clause 2, a genuine mistake has been made as to age in a matter involving an older man and a male under 16. Although the proposal makes progress, the law in this area is still not the same for heterosexuals and homosexuals. I believe that the law should be made identical, as far as anatomy allows, because we are considering the equality of people's interests. I know that views have been expressed by independent bodies that there should be equal consideration before the law, and I will refer to that in a moment. New clause 4 has another significant implication, to which the Minister drew attention—there will no longer be a deterrent for males under 16 to report age of consent offences. Members on both sides of the House will recognise how important it is that, where clearly exploitative offences have taken place, there should be no deterrent for the victim, such as that, person's criminalisation, to prevent him—as it does not prevent her, in cases involving women—from bringing those offences to the attention of the authorities. If there is not the same defence in law for young male heterosexuals and homosexuals—as proposed by new clause 2, and by its predecessor amendment—significant dangers will be created by the Government's correct action in new clause 4. It is important to recognise that the Government, in proposing new clause 4, have gone beyond merely bringing forward the decision on the age of consent on a free vote, to which they were committed by the settlement made following the Sutherland case at the European Court of Human Rights. The Minister will be aware that the Commission, in its early judgment, made it clear that the criminalisation of under-16-year-olds could mean that the Government find themselves outside the European convention on human rights because the offence that criminalises the person under 16 is also that which makes him a victim. The Government are going no further than they are forced to do by the European convention on human rights, by the Sutherland judgment. In their terminology—they say that the measure is designed for the protection of the young, but not that it equalises what is currently discriminatory—the Government are being less than fulsome in their commitment to ending discrimination wherever it exists. The Government's attitude to new clause 2 shows that they have drawn a line—the Minister has consistently disappointed me in this regard—and said that they will go no further than they are forced to by the European convention on human rights. When the hon. Member for Hertsmere can argue as he just has—from the Conservative Front Bench, although not for the Conservatives because the issue will be decided on a free vote—one must ask what is stopping the Government making the change now, subject to the review. As the hon. Gentleman made clear—and as I made clear earlier—the Government have made provision for a statutory defence in clauses 2 to 4, dealing with the abuse of trust and the creation of that new offence. In Committee, we understood that sentencing provisions and other provisions relating to the new offence concerning abuse of trust would be considered in the review, along with everything else. Merely stating that such a review is to be conducted does not mean that the Government could not propose legislation on matters touched on by new clause 2. In terms of new clause 2, I wish to thank its supporters from all parties—particularly the hon. Member for Birmingham, Selly Oak (Dr. Jones), who, at short notice, had the matter drawn to her attention and signed early-day motion 319, along with many other hon. Members who support the principle contained in it. The original new clause in all its glory, which we discussed in Committee, had the age limit and the "two strikes and you're out" provision, making it applicable only to people not previously charged with a like offence, and was almost entirely identical to the current provisions for heterosexuals. Although we had a free vote, that new clause was defeated in Committee by a phalanx of Government Back Benchers voting against a move to end discrimination. I do not believe that there was good reason for that, and that is why I was keen to table more new clauses that could, in principle, be voted on. 5 pm I wonder whether Labour Members believe that there should be a vote, even though we may lose it, as the hon. Member for Hertsmere has said that, because the new clause is not the original one that we discussed in Committee, he may not support it. The Bill will be considered by the other place, and the Lords will have an opportunity to say that there should be equality in the statutory defence. The Government's undertaking to take the matter to a review is insufficient to make me drop the campaign for equality. New clause 4 creates dangers of blackmail and of differential prosecution, conviction and imprisonment for young gay men as against heterosexuals. There is a danger of blackmail for homosexuals, whether for consensual sex above the age of consent or for sex below that age—it will now be 16—which is, rightly, in itself a criminal offence unless there is a defence that is acceptable to the court. We know from the history of homosexuality and its interaction with the criminal law in this country that there has been much discrimination and blackmail and that lives have been ruined but, at present, a protection exists for young gay men against mischievous or malicious reporting of consensual sex, entrapment and blackmail, because mischievous or malicious persons, who may be young persons acting at the behest of older persons, are constrained from going to the law when they have misled an older person about their age and engaged in sexual activity because they would be committing an offence and be liable to prosecution. Such activity need not be buggery, as gross indecency covers a range of activities that in heterosexual settings are often not thought to be especially sexual but that the police have brought prosecutions on because a policeman considered them grossly indecent between two men. The Government are right to remove that offence, but the field is being left open for pimps to use the young people whom they exploit to entrap older people, not necessarily to the point of prosecution, but to the point of blackmail. People may swear that they are above 16 or 18. Indeed, by entering certain clubs or bars they imply that they are over 18 or 21, so they have already misled the proprietors and staff. The proprietor is liable, and therefore must deem anyone in the premises to be above the legal drinking age. There is no defence for the older person in that circumstance of being misled or entrapped, and there is no defence against blackmail.

Julian Lewis (Conservative, New Forest East)

The hon. Gentleman makes some thoughtful points about the dangers of blackmail. I put it to him that a countervailing aspect of new clause 2 is that, by decriminalising the offence for the younger party, the hon. Gentleman removes the ability of the younger man to say to the older man, who is urging him into a homosexual relationship, "I mustn't do that, because it is against the law." Is the hon. Gentleman concerned about that aspect?

Evan Harris (Liberal Democrat, Oxford West and Abingdon)

That is a separate point from the one that I wished to make, and the hon. Gentleman might care to ask the Minister to comment. I reiterate that I support new clause 2, because I tabled an amendment along similar lines in Committee. It is of paramount importance to protect the young from any question of committing an offence. Criminalising the victim as a way of preventing him from being victimised is a unique concept, if not in the hon. Gentleman's mind then certainly in British law. The European Commission of Human Rights pointed out that the criminalisation of the young person is inappropriate, whether it is in order to try to deter a criminal from victimising that younger person or because the act in question is viewed as an abomination, which is the origin of the law. Without new clause 2, homosexuals would not have a defence that they were misled about the age of the younger person, but heterosexuals would. Young females do not generally blackmail their older partners in cases in which they have reasonable cause to believe that the older person is above the age of consent and can prove that to a jury. The hon. Member for Hertsmere believes that the age of consent will soon be equal—although he does not support equalisation himself—and he called for more prosecutions. He drew attention to what he believed was a fall in the number of prosecutions for age of consent offences and said that he believed that that was related to the lowering of the age of consent for homosexuals in 1994. There is no evidence to support that conclusion but, fortunately, there have been few prosecutions for consenting sex with a person aged under 16 if it does not involve explicit abuse or exploitation. The Minister said that he was sympathetic to the argument that there had been too few prosecutions. If we are to have more prosecutions, but no statutory defence is available to the hundreds of young gay men who might be brought before the courts after a clampdown and more raids on gay venues—where people pretend to be above the age of 16, and 18—the Bill will mean that many more gay men are prosecuted than heterosexual men. By definition, there will also be more convictions because, once the facts about the ages and the act are established, homosexuals will have no defence, except in Scotland. Therefore, new clause 2 should be welcomed, because it will protect young people and end discrimination. If it is not included in the Bill, we will see increased and discriminatory prosecution, conviction and imprisonment of young gay men compared to young heterosexual men. If it is acceptable for heterosexuals to have that defence, and acceptable for homosexuals in Scotland—the Government seem to think it acceptable to allow a broader defence in cases of abuse of trust, in circumstances in which it could be argued that the defence should be narrower—why cannot the Minister accept new clause 2? It is not too late, because the Bill could be amended in the other place to give protection, until the review reports, to homosexuals, as exists for heterosexuals, who have been misled about the age of their partners. That would offer protection against blackmail. The onus is on the Government to show why they will not accept such a change to the Bill. Whenever the Government are pressed on a matter that they feel may have some validity but about which they consider that it would not be politically expedient to pronounce, they set up a review without a commitment to legislation. They say that any suggestions for legislation should go into that review. The problem with the review is that the outcome is out of the Government's control; if legislation is introduced, it may be under a different Government with a different view. The general case is that putting a matter to review is not an excuse not to legislate, especially when the discrimination involved has existed for more than 100 years. The review is welcome. It was announced during consideration of the Crime and Disorder Bill, in response to my suggestions and those from hon. Members of all parties, when an amendment was tabled to tackle the discriminatory privacy provision. At the Dispatch Box, the Minister's predecessor, now the Secretary of State for Wales, said that a review would be needed to deal with all the issues. However, there is no timetable for when the review must report to the Government, nor for when the Government will introduce legislation. We have heard that the review will take a year, and that it will involve the widest possible consultation, which is envisaged to last at least a year. Even if the Government last the maximum five years, we will then be running up to the next general election. Therefore, I think that the Minister will concede that he envisages no chance of legislation before the next election. I do not doubt the review's ability to come up with non-discriminatory measures, but I have set out why I believe that the Government will not introduce legislation where there is a clear danger that it will worsen the problem of blackmail. My second concern about the review is that the Minister does not accept that there is gross discrimination in the existing law. I have listened attentively to his contributions, both on the Floor and in Committee. He has said that there are undoubted anomalies and inconsistencies in the law, and that they relate to the area between heterosexuals and homosexuals. However, he has not said that there is discrimination in the law, other than in one small area. Yet that discrimination exists, in sentencing, statutory defence, and other matters. Will the review be independent? The review of the abuse of trust provisions contained an interesting paragraph. As I recall, it stated that the review group was minded not to include a particular group in the provisions, but that, after discussions with Ministers, it was recommending that group's inclusion. To me, that seems to mean that Ministers told the Home Office review group that they must recommend that inclusion in the provisions, which I believe had to do with educational institutions. If this current review group is similar, what is to prevent Ministers from saying that it is not independent in terms of what it can produce? The Government will not want it to make recommendations that they do not find politically expedient. There are no votes in the reform of sexual offences law, and certainly not in measures to eradicate discrimination. That is in part why the words of the hon. Member for Hertsmere were so welcome. My final concern about the review, as an excuse for not legislating on this matter, is that there is nothing to stop the Minister putting any of the provisions in the Bill forward for consideration. He has said already that sentencing provisions—discussed in Committee and to be discussed again today—and other matters will be subject to the review, even though there has already been a wide review of sexual offences and measures covering registers of sexual offenders for legislation that has been introduced to date. There is nothing to stop the Minister accepting an amendment such as new clause 2—or the similar but better-worded amendment that I tabled in Committee, with such changes as the Minister considers appropriate—and then putting in into the review. When he responds to the debate, he cannot rely on the review to excuse him from the need to act against the discrimination that exists in the law, or against the danger of blackmail, which is present already and which would be made worse by the provisions of new clause 4. If a suitable case can be found, the European Court of Human Rights will find—yet again—against a United Kingdom Government. I should like the Government to be proactive on homosexual rights and in seeking an end to discrimination, without waiting for the European Court of Human Rights to force action. 5.15 pm It is vital that the Government should accept that the current law is discriminatory. They made a manifesto commitment to tackle unjustified discrimination wherever it existed. It clearly exists in the criminal law relating to homosexuals. The Government must accept that the law is already discriminatory, and must allow the review fully to end discrimination through its recommendations, without any interference from Ministers. I hope that the Minister will give me that assurance today. The Minister wants a climate in which there is less tolerance of age-of-consent offences—a wish that is widely shared in the House. However, until there is equality in terms of statutory defences, then a tightening of the law and an increase in prosecutions will mean differential prosecution, conviction and imprisonment of homosexuals. We would be back to where we were before 1967. I commend new clause 2 to the House, and I urge the Minister to respond positively to my points, and to give a commitment that we will not go down the path towards blackmail and discrimination.

Desmond Swayne (Conservative, New Forest West)

I acknowledge that the Minister believes that there are overwhelming reasons why we should accept new clause 4. However, I suspect, as I have suspected for some time, that I live on a different planet from the Minister. I believe that there are overwhelming reasons why new clause 4 should be rejected. First, it provides every incentive for the active homosexual under the age of 16 to ensure that he avoids any difficulty over the age of consent by selecting as his partner someone who is over 16. It is a monstrous absurdity that someone under 16 should not commit an offence by having consenting sexual relations with another homosexual who is over 16, while someone who selects as his partner someone more equal in age should indeed commit that offence. That offends against any concept of justice. I am not reassured, as the hon. Member for Oxford, West and Abingdon (Dr. Harris) suggested that I should be, about the age of consent. The age of consent is being abolished by the Bill. There is no age of consent for the young man under 16 so long as he acquires partners who are over 16.

Richard Allan (Liberal Democrat, Sheffield, Hallam)

Has the hon. Gentleman had any experience of young girls of 15 who go out to seek older partners? They are in exactly the same situation under the current law regarding unlawful sexual intercourse.

Desmond Swayne (Conservative, New Forest West)

I shall answer that point. It is my estimate that it is in the nature of women to seek older men. It has always been the case in sexual relationships that younger women tend to marry and to seek older men. The answer I should make to both the hon. Members for Sheffield, Hallam (Mr. Allan) and for Oxford, West and Abingdon is that the two matters are not at all the same thing. There should be no equality between a normal sexual relationship and an unnatural sexual relationship. The argument that we should accept new clauses 4, 2 and 3 because they provide an equality between the law applying to heterosexual and homosexual relationships is, as far as I am concerned, an argument for rejecting the new clauses. It is important to maintain within the law a proper discrimination between the two.

Evan Harris (Liberal Democrat, Oxford West and Abingdon)

Clearly, the hon. Gentleman is in difficulties. His pronouncement on the sexual preferences of young girls is interesting and I give way to his, perhaps, superior knowledge—he may have researched it. If he thinks that the distinction is one based on unnatural acts, would he criminalise 15-year-old girls if, as part of unlawful sexual intercourse, they engaged in buggery? Perhaps he would. Therefore, he would not restrict the provision to boys—[Interruption] I think that the Minister says that I am encouraging him—but wants to expand it. He is in a weak position.

Desmond Swayne (Conservative, New Forest West)

I will not go down that road because it strikes me as being out of order. I have not researched such matters. My comment was merely an observation of life. That issue is not relevant to the debate, but equality before the law is. The two situations should not be treated equally. On the blackmailer's charter, I have here a copy of The Pink Paper dated 19 February, which quotes the hon. Member for Oxford, West and Abingdon. It states: He told Pink Paper: 'A young man who wanted to get the better of, say, a teacher or social worker could engage in a sexual act in the knowledge that he is immune from prosecution … Then there would be nothing to stop him reporting it to the police.' I do not know what sort of circles the hon. Gentleman mixes in, but it is absurd to think that teachers and social workers would be game for such a device. We have not descended to that level yet, thankfully. The principle of the point is sound. New clause 4 would provide every incentive for opportunities for blackmail. Consequently, the simple remedy is to reject it. The Chairman of Ways and Means was wise in his selection of amendments and, in particular, in grouping new clause 4 with new clauses 2 and 3. Those clauses taken together show the absurdity and enormity of the Bill. In new clause 4, we are expected to accept that a young man under the age of 16 having consensual homosexual relations with someone over the age of 16 has the defence that he was under age. The person over that age would have no defence on the ground that he did not know his partner's age. It would give rise to the equally absurd situation that a young man who stands to be prosecuted under the age of 16—namely, the consenting partner of another young man under 16—has no defence on the ground that he did not know that his partner was under 16. He cannot say that he suspected that his partner was over 16 and therefore he would not have committed an offence. If a defence should be provided—as under new clauses 2 and 3—to the unfortunate who finds that, although he suspected his partner to be over 16, he is not, equally, such a defence should be provided to the under 16-year-old who thought that he was in bed with another under 16-year-old. The mere relation of those facts underlines the absurdity and the unnatural nature of the new clauses. Consequently, I urge the House to reject them.

Richard Allan (Liberal Democrat, Sheffield, Hallam)

Again, there will be a free vote on this issue on the Liberal Democrat Benches, although the majority of Liberal Democrats support the general thrust of the Bill, which will increase protection for young people in some circumstances by decriminalising them. As I told the Minister, I have an interest in the review of sexual offences, both in respect of the issues that we are discussing and others. Perhaps he could answer some specific questions. First, has he an idea of the timetable that the Government have in mind for introducing legislation? I understand that there are no commitments, but an idea might be helpful. Secondly, will he categorically confirm that statutory defences in age-of-consent offences will be considered in the review? Thirdly, is the Government's approach, if not on the philosophical ground of equality at least on the rational ground of justice, to seek to equalise statute offences? Can he see any reason why the statutory defences should not be the same across the range of offences, irrespective of sexuality? Some response to those points would help me and my colleagues.

Julian Lewis (Conservative, New Forest East)

I am disappointed that, in the course of his lengthy remarks, the hon. Member for Oxford, West and Abingdon (Dr. Harris) did not find time to address the point that I put to him. I shall take his advice to heart because I am an open-minded chap and can occasionally even learn something from a Liberal Democrat. I urge the Minister to address that point. Does he accept that these provisions would take away from a young man under the age of 16 who wished to protect himself from the approaches of a persuasive older homosexual male the ability to say, "No, I must not do this because it is illegal"? Would that not diminish the protection of boys under 16?

Evan Harris (Liberal Democrat, Oxford West and Abingdon)

To wind up, I want to respond to the hon. Member for New Forest, East (Dr. Lewis). His logic calls for the criminalisation of 14 and 15-year-old girls because criminalising them would make them more able to resist advances. A civilised criminal justice system should not work that way. We should not criminalise victims to add to their protection.

Michael Martin (Deputy Speaker, Glasgow Springburn)

Order: I thought that the hon. Gentleman was intervening on the hon. Member for New Forest, East (Dr. Lewis). He cannot wind up on a new clause that is not before the House.

Douglas Hogg (Conservative, Sleaford and North Hykeham)

My hon. Friend the Member for New Forest, East (Dr. Lewis) made an important point, but one that must be seen in the balance. He argues that a young person under the age of 16 will be deprived of a means of resisting a predatory male if that young person cannot say that he will be subject to the criminal law. However, there is a powerful argument that, if the young person is subject to the criminal law, he will not go to the authorities. A balance has to be struck, and, while I understand my hon. Friend, I am not in favour of exposing the young person to the full rigour of the criminal law for the reason that I gave. On the broader question, I am against the Bill. That said, we have it in front of us and are in the business of trying to make it as good as possible. I hope that he will pardon me if I disagree with him on that point.

Paul Boateng (Labour, Brent South)

We have had a good debate in which the issues have been given the airing that one would expect bearing in mind the way in which these proceedings have been conducted both on the Floor and upstairs. In response to the hon. Member for New Forest, East (Dr. Lewis), let me say that I have been through the same sort of exercise as the right hon. and learned Member for Sleaford and North Hykeham (Mr. Hogg). A balance must be struck. We believe that children and young people are better protected if they are freed from the fear of prosecution if they come forward, having been the victim of a predatory male. It is for the House to determine on a free vote its attitude to the new clause. I listened at considerable length—as did the whole House, perforce—to the hon. Member for Oxford, West and Abingdon (Dr. Harris). I fear he misunderstands the basis on which new clause 4 has been tabled and the distinction between the nature of new clause 4 and that of new clauses 2 and 3. New clause 4 has been tabled as a Government measure designed better to further and protect the interests of children; it is not designed to promote equality before the law. I hope that I have made it abundantly clear to the hon. Gentleman and to the House that the issue of equality before the law is limited in respect of the Bill. We introduced the Bill to achieve equality before the law in relation to the age of consent, and the age of consent alone. There are a range of other matters on which right hon. and hon. Members on both sides of the House have a view. That view will be rooted in their consciences, and their approach to the personal and delicate issues relating to sexual relations. People arrive at different views, depending on their approach, and we are not prescriptive as to what that view should be. The hon. Member for Oxford, West and Abingdon has a clear view that he has expressed throughout proceedings on the Bill, and every amendment and new clause that he has tabled, whether in Committee or on the Floor of the House, is designed to promote that view. We as a Government are absolutely committed both to the equalisation of the age of consent and to giving the House an opportunity to determine that matter. I have made my personal view well known, as has my right hon. Friend the Home Secretary: we support the equalisation of the age of consent and do so on the basis of equality before the law, a principle to which I adhere. However, we do not approach the Bill on any basis other than the commitment to the achievement of two separate objectives: the vote on the equalisation of the age of consent, and the measure that we introduce for consideration by the House dealing with the entirely separate issue of abuse of trust. In respect of the latter measure, I have to tell the hon. Member for Hertsmere (Mr. Clappison) that there is a crucial difference between the defence for abuse of trust and the defence for homosexual acts and buggery. In relation to abuse of trust, the older individual is expected to know the age of the person who lies in his trust. In exceptional circumstances, he might not know the age of that individual—for example, if he were a teacher in a further education college which taught students of a broad age range, and he had had no contact with the student hitherto, it is conceivable that he might not know the age of that student.

James Clappison (Conservative, Hertsmere)

rose—

Paul Boateng (Labour, Brent South)

Let me finish the point. It is our view that, in those circumstances and whatever the age of the older party—older age does not necessarily bring with it a knowledge of the age of the younger party—it would be wrong for him not to have that defence available. He has to make use of that defence and to bring himself within it, but we think it right that the defence should be available to such individuals, regardless of their age, that, in certain circumstances, the older individual would not be expected to know the age of the younger. That is the distinction, so I do not accept that we have got ourselves into the sort of difficulty that the hon. Gentleman describes—

James Clappison (Conservative, Hertsmere)

Will the Minister give way?

Paul Boateng (Labour, Brent South)

No, the hon. Gentleman has made his point and I intend to wind up the debate.

Julian Lewis (Conservative, New Forest East)

I am enjoying it.

Paul Boateng (Labour, Brent South)

I am glad. I have not finished yet, so the hon. Gentleman may enjoy it some more. In those circumstances, I do not believe that we have misdirected ourselves in relation to that defence. As to new clauses 2 and 3—which the hon. Member for Oxford, West and Abingdon urged us to accept—there is no limit to those under 25 for the first charge in England and Wales. It is a general defence, and the provisions are very wide and would make prosecution substantially more difficult. That is why we are unable to accept it. The hon. Member for Hertsmere found new clause 3 acceptable in the context of Northern Ireland. That is a matter for him, and hon. Members will make up their own minds. The reasons that we have given for opposing new clauses 2 and 3 stand. The hon. Member for Oxford, West and Abingdon urged upon us the point about equality. The review will take account of several factors, including that issue. We have deliberately constructed a review process that is about expertise and a range of experiences and views—some of which are disparate. We have done that because we do not wish to circumscribe the basis upon which the review body approaches its task. It will perform its task within the year and produce proposals. It is right that those proposals should be subject to wide debate and discussion—we make absolutely no apology for that. The hon. Member for Oxford, West and Abingdon has latched on to the notion that this is somehow an attempt by the Government to kick the issue into the long grass. That could not be further from the truth. Does he seriously expect us to conduct a rational debate about sexual offences issues—involving deeply personal and sensitive topics, including matters of conscience—without allowing proper, open consultation? That would be quite wrong, and we do not intend to go down that path. I am unable to give the hon. Gentleman, or the hon. Member for Sheffield, Hallam (Mr. Allan), any assurances about the outcome, save to say that we have made it clear that the review must take into account the need to comply with the European convention on human rights and our treaty obligations thereunder. That will inform the outcome of the review's deliberations, the wider debate and, in due course, the House.

Evan Harris (Liberal Democrat, Oxford West and Abingdon)

rose—

Paul Boateng (Labour, Brent South)

I will not give way: the hon. Gentleman has had more than enough time to explore his points. [HON. MEMBERS: "Far too much."] The hon. Gentleman has added enormously to the gaiety of nations, but I do not intend to allow him any more time to speak on this issue. As for the hon. Member for New Forest, West (Mr. Swayne), there must be something in the water. I struggled with his contribution, but I was not persuaded by it. There will be a free vote in the House on this matter, and I hope that hon. Members will agree to new clause 4 and oppose new clauses 2 and 3. In light of my remarks, I hope that the hon. Member for Oxford, West and Abingdon will not push the matter to a vote.

Evan Harris (Liberal Democrat, Oxford West and Abingdon)

rose—

Michael Martin (Deputy Speaker, Glasgow Springburn)

Order. Is the Minister giving way?

Paul Boateng (Labour, Brent South)

I have finished.

Ann Winterton (Conservative, Congleton)

On a point of order, Mr. Deputy Speaker. I seek your advice about access to the Palace of Westminster, given the new arrangements with the Bridge street underpass. When the Division was called, I was in my office in Norman Shaw North, as were many other hon. Members. We sought to get here in plenty of time for the Division. We tried to cross the road by the traffic lights, which is the quickest route. I understand that, traditionally, we are supposed to be allowed to access the Palace "without let or hindrance", but we had to wait a considerable time for the lights to change. Had we accessed the Palace elsewhere, that old-fashioned courtesy would have been extended to us. I should be grateful, Mr. Deputy Speaker, if you would look into the matter not only on my behalf, but on behalf of other hon. Members whose offices are far afield.

Michael Martin (Deputy Speaker, Glasgow Springburn)

I shall instruct the authorities of the House to look into the matter, before another Division is called.

Allan Rogers (Labour, Rhondda)

Further to that point of order, Mr. Deputy Speaker. It really is difficult to cross Bridge street if one does not catch the lights. It is all right for certain hon. Members to say that there is no problem, but it is purely a matter of coincidence and the hon. Member for Congleton (Mrs. Winterton) is quite right.

Michael Martin (Deputy Speaker, Glasgow Springburn)

Hon. Members should have access from other parts of the parliamentary estate to get to Divisions unimpeded. The matter will be looked into. It may be worth noting that I used my discretion and allowed an extra minute before the Doors were closed because it was the first Division of the evening.

ABUSE OF POSITION OF TRUST

Paul Boateng (Labour, Brent South)

I beg to move amendment No. 1, in page 2, line 31, leave out 'two' and insert 'five'. The amendment would raise the maximum penalty for the new offence of abuse of trust from two to five years. It has been tabled by my right hon. Friend the Secretary of State, the shadow Secretary of State, the Opposition spokesman, the hon. Member for Hertsmere (Mr. Clappison), and the hon. Member who deputises for the Opposition on these matters, the hon. Member for Ryedale (Mr. Greenway), so it enjoys the support of right hon. and hon. Members on both sides of the House. The amendment follows a detailed discussion in Committee on a similar amendment. We undertook to consider the position further in the light of the cogent arguments made then. Hon. Members will recall that, on Second Reading, my hon. Friend the Member for St. Helens, South (Mr. Bermingham) made two persuasive interventions to raise the issue of penalties. It is right that his name should be mentioned in relation to this amendment. We have looked at the amendment tabled in Committee and agree with the views that hon. Members expressed then that the amendment should be made. It may be helpful to explain briefly why we feel that that is so. First, we agree that analogy with the penalty for unlawful sexual intercourse with a girl between the ages of 13 and 15 is flawed. My view, for what it is worth, is that the penalty for unlawful sexual intercourse is too low. I know that a number of hon. Members on both sides of the House share that view. The Opposition spokesman on these matters certainly does. As we said in Committee, we expect the penalty for unlawful sexual intercourse to be sorted out as part of the sexual offences review. However, as we believe that it is too low, we accept that it should not determine the level of penalty for the new offence. Given that we are considering a new offence, it is right to take this opportunity to set that penalty at an appropriate level. We must not be unduly influenced by the inappropriate level of penalty that applies in relation to unlawful sexual intercourse. Thus, we are considering the matter on its merits rather than on the basis of an analogy with what we regard to be a flawed penalty. There is merit in a maximum penalty of five years for the new offence of abuse of trust. We believe that there could be cases, even of 16 or 17-year-olds with ostensibly consensual sexual relations, where a penalty of five years could be properly justified. For example, if someone in a position of trust in a detention setting had sex with a 16-year-old detainee, that would be a very serious offence, which would merit a maximum penalty of five years. It is important for hon. Members to remember that we are discussing a maximum penalty, which would be used only rarely. Nevertheless, it is right that the courts should have it at their disposal to deal with the most serious cases of abuse. I hope that that argument will commend itself to right hon. and hon. Members on both sides of the House. 6 pm It is important to view the circumstances where abuses of trust might stretch across a spectrum. At one end, there are circumstances—to which I have referred—where someone is held in detention and the maximum penalty might be appropriate. At the other, it is difficult to agree that, for example, teachers would merit such a penalty for consensual relations with a 16 or 17-year-old student where the teacher was, say, 23. In that instance, the lower end of the spectrum might be the most appropriate.

Douglas Hogg (Conservative, Sleaford and North Hykeham)

The hon. Gentleman talks about the spectrum in which abuse of trust can take place. I wonder whether he could tell the House—I do not know the answer; he may have given it in the past—why the Government have decided not to extend the penalties and obligations that flow from the clause to those who are in loco parentis within the context of the domestic home?

Paul Boateng (Labour, Brent South)

We have discussed that issue on the Floor of the House and Upstairs. I shared then with the House, and am happy to share now, the principles on which we arrived at our decisions in relation to abuse of trust. The most relevant one in terms of the situation that the right hon. and learned Gentleman describes is the availability of countervailing adult influences. Even though an au pair, for example, might be in a position where she could exercise undue influence due to a position of trust within the household, other adult influences would be brought to bear on the life of the young person that would countervail against the influence of the au pair who found herself in loco parentis.

James Clappison (Conservative, Hertsmere)

rose—

Paul Boateng (Labour, Brent South)

That would be the principle there. Where the line had to be drawn, and it is a matter of judgment in that domestic setting—a private home—it was properly drawn in such a way as to exclude the person acting as a nanny or an au pair, but the maximum penalty needs to reflect the requirement for sentences to express society' s condemnation of the most serious cases within that broad spectrum. It needs to be seen as a maximum, not as the norm. For those reasons, we share the view of members on both sides of the Committee who put forward, and supported, the proposition that we should seek a higher maximum penalty. For that reason, we hope that the House will accept without Division the proposed increase in the maximum penalty from two to five years.

James Clappison (Conservative, Hertsmere)

It would be churlish of me not to welcome the Minister's contribution. One of our amendments in Committee first proposed the increase in the maximum sentence for breach of trust from two years to five years. We thought then that we supported it with a strong and persuasive argument. We followed that up by tabling the amendment for Report. We are pleased that the Home Secretary has added his name to our amendment because we think that it does much to improve the Bill. Certainly, it is a Bill that could be much improved, and in other respects besides the maximum penalty. My right hon. and learned Friend the Member for Sleaford and North Hykeham (Mr. Hogg) made an acute point in his intervention on the Minister about the extent of the coverage of the concept of the position of trust. We are far from convinced by the doctrine that the Minister has put forward this evening and the others that he has put forward, which are slightly different, in trying to justify the Government's view of the position of trust. The Minister referred to the availability of countervailing adult influences as the reason why the Government fixed the line for the position of trust where they did, but, if they really believed in that doctrine, they would have taken many teachers out of the ambit of the clause because, when a child is at school, there are many countervailing influences besides the teachers: other teachers, parents, other adults whom the children will know—

Paul Boateng (Labour, Brent South)

rose—

James Clappison (Conservative, Hertsmere)

I shall give way to the Minister—although he did not do me the courtesy of giving way to me earlier—because I know that the Government's proposal has no justification at all.

Paul Boateng (Labour, Brent South)

The hon. Gentleman is most kind, but he knows that there are four principles, to which we have returned again and again: the individual is particularly vulnerable; the location makes the individual particularly vulnerable; the lack of access to other adults and the absence of countervailing influence—that was the one to which I referred the right hon. and learned Member for Sleaford and North Hykeham (Mr. Hogg)—and the special influence of an adult where the relationship is in loco parentis. What is so significant about a teacher's role—one does not want to labour the point—is that a teacher is specifically in loco parentis. That stands at the heart of the relationship between a teacher and a pupil. In due course, we shall come to the issue of part-time teachers, but there the other prevailing principle comes into play: the existence of a countervailing influence because of the part-time nature of the teacher 's employment.

James Clappison (Conservative, Hertsmere)

The longer the Minister's intervention went on—it went on for a little while—the more confused he became. He has clearly shifted his ground from the original point that he made to my right hon. and learned Friend the Member for Sleaford and North Hykeham, when he referred to the absence of countervailing influences. My right hon. and learned Friend raised the question of in loco parentis. The Minister then said that the key principle is the absence of countervailing adult influences, but when I put the point to the Minister that, in the case of teachers, there were other influences, he returned to in loco parentis, so the Minister uses a bit of a circular argument.

Ann Winterton (Conservative, Congleton)

rose—

James Clappison (Conservative, Hertsmere)

Before I give way to my hon. Friend, so that the House understands the argument that we are advancing, let me say that we feel strongly that protection should be given where it is needed. The concept of a position of trust should run much wider than the Government have allowed it to run in the Bill.

Ann Winterton (Conservative, Congleton)

While supporting what my hon. Friend has said, may I refer to the intervention by my right hon. and learned Friend the Member for Sleaford and North Hykeham (Mr. Hogg) and the explanation of not using in loco parentis? May I give the example that is frequently heard about: the uncle, cousin or member of the family who abuses a child? The child does not tell because that person is a member of the family, yet such an offence would not be caught by the Bill. That is an important point. There are known cases—we all know about them. It is disturbing.

James Clappison (Conservative, Hertsmere)

My hon. Friend makes an absolutely correct point. Some people in a higher position of trust may be outside the scope of the Bill, compared with some people who are inside it. Detailed examination of the Bill has revealed example after example of potential loopholes and inconsistencies not just as between people who fulfil one of the four conditions in the Bill and people in entirely different sectors, but people within the conditions in some ways. We heard from the Minister in Committee that, for some purposes, in some circumstances, supply teachers would not be caught by the Bill.

Paul Boateng (Labour, Brent South)

indicated dissent.

James Clappison (Conservative, Hertsmere)

The Minister shakes his head, but he is on record in the Hansard of the Committee proceedings as saying that, in some circumstances, supply teachers would not be caught by the Bill. However, in the amendment, which originally came from Conservative Members, we are dealing with an increase in the maximum sentence. On that, we agree with what the Minister says. We made those arguments first. I welcome the Minister's acceptance of the argument that we advanced in Committee that the maximum sentence for such an offence should be judged on its merits, not by reference to other sentences that were perhaps not entirely applicable, particularly the one on unlawful sexual intercourse, which I note the Minister now accepts is too low a maximum sentence, in his personal view. [Interruption.] Well, the Minister expressed his personal view earlier that the maximum sentence for unlawful sexual intercourse was too low. I think that he expressed something similar in Committee and in correspondence. We have been making our case on that for some considerable time, not least in view of the fact that the maximum sentence for indecent assault is now 10 years. We advanced the same argument during the passage of the Bill that became the Crime and Disorder Act 1998. It is a shame that the Government did not accept the amendment that we tabled then, which proposed the increasing of the maximum sentence for unlawful sexual intercourse. If they had accepted it, we should not be in our present anomalous position. In any event, we feel that five years is more appropriate than the two-year maximum that the Government envisaged before hearing our arguments. I agree with the Minister that the fact that we have asked for a higher maximum—and the Government now accept that there should be one—does not mean that such a sentence should be imposed in every case of a breach of trust, in which an older person in a position of trust engages in sexual activity with a 16 or 17-year-old. We are talking about a maximum. That maximum, however, must cater for every type of case, including the very worst type. The Minister cited circumstances in which a maximum sentence of five years, or approaching that length, would be appropriate, but there may well be many others. There may be many cases involving older men, perhaps in their 30s or 40s, who are in a position of substantial authority over younger people. Such a man might lead a youngster into sexual experiences—sexual experimentation—for his own gratification, with no regard for the welfare of the youngster, and possibly with permanent consequences for that youngster. There will be such cases, in which people are convicted of such offences in such circumstances, and, when those circumstances apply and when there is a gross breach of trust with permanent consequences for the youngster involved, a much longer sentence than two years is called for. That was manifestly too low a starting point. We think that the proposed sentence represents a victory for common sense, and hope that it will continue to be regarded as the maximum, even when the review of sexual offences in general takes place. A five-year maximum will give stronger protection to vulnerable 16 and 17-year-olds, and, as I said at the outset, it would be churlish of us not to welcome the fact that the Government have now accepted our arguments.

Richard Allan (Liberal Democrat, Sheffield, Hallam)

We will not oppose the change. The Minister gave welcome assurances in describing the broad spectrum of possible sentences, and, in a letter to my right hon. Friend the Member for Berwick-upon-Tweed (Mr. Beith), the Home Secretary wrote: I must stress that this would be a maximum penalty for use in the most extreme cases but we accept there could be rare circumstances where it could be justified. We can envisage those circumstances. The Minister referred to detention centres, but we are also thinking of residential institutions, especially institutions for those with disabilities, in which such a maximum sentence could be justified. I was pleased to hear the Minister revert to Latin in describing "in loco parentis" as an important concept. In Committee, when I expressed concern about the definition of in loco parentis in regard to the offences that we are discussing, I was told off for being old fashioned: the Government were trying to move forward and establish clear definitions, suggesting, for instance, the definition of a person regularly involved in caring for, training, supervising or being in sole charge of such persons as a pithy replacement for "in loco parentis". Our main wish is to establish that there is a difference between consensual and non-consensual offences. I hope that, when he sums up the debate, the Minister will mention indecent assault, and will tell us that the review of sexual offences will examine the way in which the prosecuting authorities deal with non-consensual offences such as indecent assault, as opposed to the offences introduced by the Bill. We feel that, in some of the circumstances that we are discussing, the coercive element in a relationship could be used as a ground to argue that consent had been overridden. In such circumstances, rather than prosecuting on the basis of an offence involving a consensual act—as provided for in the Bill—the authorities could override the consent, demonstrate that to the court and thereby act on the basis of the more serious offence of indecent assault, or similar sexual offences, on the ground that no consent had been given. We hope that the introduction of additional measures will not make us lose the will to demonstrate the lack of consent, and fall back on an offence that may be easier to prove. 6.15 pm I am pleased that the Minister has said that the matter will be for the discretion of the court. As he will know, we are opposed to mandatory sentences in general, but, in regard to sexual offences, especially the offence that we are discussing, we believe that, when issues of consent are involved and a wide range of possible circumstances exists, it is important to leave the determination of the appropriate sentences to skilled judges, advised by equally skilful lawyers. We hope that the review will bear fruit in respect of the critical issue of non-consensual indecent assault, as opposed to consensual offences, in due course, but believe that this may be the most appropriate sentence for the extreme and rare circumstances described by the Home Secretary when, in the near future, the Bill comes into force.

Douglas Hogg (Conservative, Sleaford and North Hykeham)

I want to make two points. The first relates to my intervention on the Minister's speech; I am grateful to my hon. Friend the Member for Congleton (Mrs. Winterton) for what she said in my support. I feel that there are circumstances involving abuse of trust that the Bill simply does not address. I am talking about the concept of in loco parentis. The father, the uncle and the person who employs the au pair are just three examples. I well understand why many would think that such people should be subject to the penalties prescribed in clause 2 just as much as those who exercise some other function in the prescribed institutions. The Minister may be right, but I hope that he will think again. The Bill will go to the other place, and, in any event, there is to be a review of sexual law. We should ask whether those exercising the function in loco parentis should be subject to the law that we are now applying to the groups specified in clause 2. Let me raise a different point, which comes from the opposite direction. Many abuses of trust are clearly very grave. It is serious, and a real abuse, when an older man takes advantage of either a man or a woman in a school, prison or other prescribed institution. Quite different circumstances can arise when there is a close similarity in age between the person who is under 18 and the person who is over 18. I have in mind, for instance, a young teacher who might form a relationship with a pupil of, say, 17. That teacher could be found guilty of a serious criminal offence attracting a sentence of up to five years. It is true that we would not expect the courts to subject that person to such a penalty, but I am nevertheless uneasy about the position that we are creating. Let me make a suggestion to the Minister. He may care to reflect on it before the Bill goes to the other place, where it can be amended further. My hon. Friend the Member for Hertsmere (Mr. Clappison) referred to the statutory defence applying to those under 24. The Minister might well wish to consider whether, when there is an age similarity—let us take up to 24 as an example—the consent of, say, the Attorney-General should be obtained before there can be a prosecution. There is a risk of injustice, and I am reluctant to leave the matter to the good sense of the prosecuting authorities. I hope that the Minister will contemplate a specific approach to deal with cases that will otherwise fall within the prescribed categories, involving people whose ages are close. I would be greatly reassured if he would do so, bearing in mind the possibility of making the consent of the Attorney-General a condition of prosecution.

Paul Boateng (Labour, Brent South)

I am obliged to hon. Members on both sides of the House for their contributions to a short but important debate. Let me deal first with what was said by the right hon. and learned Member for Sleaford and North Hykeham (Mr. Hogg). I accept that we should address relationships that are caught under the umbrella of abuse of trust—relationships that might develop between a 24-year-old teacher and a pupil of 17. Under the Bill as drafted, such a relationship would constitute a criminal offence. Although it is a matter of judgment, I believe that such relationships should be caught by the Bill and subject to the criminal law. On balance, as a matter of public policy, such relationships should be discouraged. Hon. Members will have a view on relationships between teachers and pupils, and may have experience of the impact on school discipline and the lives of young people if such a relationship develops. Such relationships can be highly disruptive, both of young lives and to school discipline. It is therefore right that such relationships should fall within the ambit of the criminal law. Such relationships are, however, at one end of the spectrum that we have debated today. Progress on the matter may entail determining how codes of practice, which are envisaged as part of the mechanism created by the Bill, and guidelines to the Crown Prosecution Service might provide means of ensuring that only cases that should properly be prosecuted are prosecuted. There should therefore be a combination of a code of practice—to modify and regulate conduct in the circumstances that we have discussed—and guidelines for those who bring prosecutions to clarify the basis on which prosecutions should be brought.

Douglas Hogg (Conservative, Sleaford and North Hykeham)

I am grateful to the Minister for giving a relatively sympathetic reply to my suggestion. Although he may not be going the whole way, he will doubtless think further about the suggestion. However, if we are going to go down the road of codes of practice—which is a course that Governments adopt in dealing with the type of circumstances we are debating—does he accept that it is desirable that the code of practice should take the form of a statutory instrument, so that the House can debate the code and express our views on it?

Paul Boateng (Labour, Brent South)

The Government have already, in Committee, tabled a draft code of practice for consideration. Undoubtedly, in our deliberations in the House, we shall return to that draft—which will be available also to the other place, so that it might inform debates there. I am reluctant to go down the path suggested by the right hon. and learned Member for Sleaford and North Hykeham in creating a requirement to obtain the Attorney-General's consent to a prosecution. However, I accept the thrust of the argument underpinning the suggestion—that one should apply the criminal law only in circumstances in which doing so is clearly justified. We have made it clear that there would have to be consultation and discussion with teachers' associations and unions in developing a code of practice, to ensure that we get it right. The hon. Member for Congleton (Mrs. Winterton) and the right hon. and learned Member for Sleaford and North Hykeham raised the wider issue of uncles, aunts and "dads"—who are intermittently involved in domestic life but are not the natural father and are perhaps one of a succession of man friends. Hon. Members will know that some of the most serious cases of child abuse occur in that type of family context—which, as it involves "consensual relations" and is not subject to the law of incest, currently falls outside the criminal law. There is therefore a very strong feeling—which was expressed on both sides of the Committee—that we have to re-examine the law of incest. Incest is a very complex matter, and we shall have to take advice on dealing with it. The law of incest has developed to protect the gene pool rather than to protect children. Although the Government believe that the time has come to re-examine the law of incest, we do not think of the Bill as a vehicle for changing it. However, we shall certainly expect the sexual offences review to consider the matter, to take evidence on it and to make suggestions on how Parliament might properly address that very real issue.

Douglas Hogg (Conservative, Sleaford and North Hykeham)

Will the hon. Gentleman also address the issue—not necessarily now, but in the review—of how to deal with cases involving the natural father? Although it is true that the law of incest may apply in the circumstances that he mentioned, sexual activity falling short of normal sexual intercourse and involving the father is not covered by clause 2. It is difficult to say why it should not be so covered.

Paul Boateng (Labour, Brent South)

Sexual activity between the natural father and his son also does not constitute incest—precisely because it is not linked to the possibility of procreation and consequent pollution of the gene pool. It is clearly a mischief that should properly be remedied. We shall expect the sexual offences review to do so.

Teresa Gorman (Conservative, Billericay)

Surely society's attitude towards incest long predates any concept of gene pools? Is not that attitude part of the structure, and taboos, on which our society is built? Is that not why it is viewed with such horror in our society?

Paul Boateng (Labour, Brent South)

I was not suggesting for one moment that it should not be viewed with horror. I was merely pointing out what I thought was the generally accepted view, that the taboo developed because it was thought to be genetically undesirable to make connection with one's own relative.

John Bercow (Conservative, Buckingham)

What about moral concerns?

Paul Boateng (Labour, Brent South)

The hon. Gentleman makes an interesting point. However, the moral concerns arise from concerns to preserve, so far as possible, the health of the gene pool. Although this is not the time to deal with that interesting byway, the sexual offences review will undoubtedly wish to deal with it. Our modern concern is with child abuse, and there is no doubt that child abuse has flourished in the circumstances described by the hon. Member for Congleton. The hon. Member for Sheffield, Hallam (Mr. Allan) made, as ever, some interesting and important points. He did so with great succinctness and brevity, in stark contrast to some of his fellow Liberal Democrat Members, who are sadly and inexplicably absent from the Chamber. The Government will ensure that the code of practice and the review take on board the specific circumstances and instances that he outlined in his speech. Those matters will have to fall within the ambit of the review's deliberations. I should tell the hon. Member for Hertsmere (Mr. Clappison) that, although I am only too pleased to see that it is possible to arrive at some bipartisan—or tripartisan—unanimity on the issue, I am sure that he will wish to pay tribute to my hon. Friend the Member for St. Helens, South (Mr. Bermingham), who, sadly, is not able to participate in today's debate. In the debate on Second Reading, my hon. Friend intervened in my speech no fewer than twice, precisely to gain from me the assurance that I gave that we would return to the issue of increasing the maximum sentence both in Committee and on Report. Therefore, although I am happy to see the extent to which it is possible to make common cause on the matter, I should say that the issue was raised first by my hon. Friend. He deserves credit for that, even in his absence. On that basis, I hope that it will be possible for the House to approve the amendment without a Division. Amendment agreed to.

MEANING OF "POSITION OF TRUST"

James Clappison (Conservative, Hertsmere)

I beg to move amendment No. 4, in page 3, line 22, after 'full time', insert 'or part time'.

Michael Martin (Deputy Speaker, Glasgow Springburn)

With this, it will be convenient to discuss Government amendments Nos. 6 to 8.

James Clappison (Conservative, Hertsmere)

This important issue arose in Committee. As the House will have gathered, we are concerned that the Bill does not give sufficient protection to 16 and 17-year-olds and is not drawn wide enough in respect of adults who should be in a position of trust. We should have liked additional protection for children under 16, but that has not proved possible.

Douglas Hogg (Conservative, Sleaford and North Hykeham)

I am a little anxious about the amendment, which seems to extend to evening classes, or even Sunday schools. It is not clear to me why a relationship in an evening class between an instructor and a student should give rise to a criminal offence.

James Clappison (Conservative, Hertsmere)

My right hon. and learned Friend makes a fair point. The amendment would remedy a problem in the Bill. After listening to our arguments, the Government have accepted that there is a problem. As I said in the previous debate, we have concerns about which teachers are covered by the provisions. The Minister has admitted that, in some circumstances, supply teachers are not covered. The amendment is designed to deal with what many would regard as another loophole, which we raised in Committee, affecting students who are registered as being in full-time education at one establishment, but who attend a second establishment as part of their course. We have asked whether such a student would be protected against an abuse of trust by a teacher or lecturer who worked at the second establishment and was involved in teaching, and caring for, them. To be fair, the Minister agreed to consider the issue after he heard our arguments in Committee. I understand that he accepts the force of those arguments and has tabled Government amendments Nos. 6 to 8 to cater for the situation. We welcome the fact that the Government have seen sense on this important point. It is common for many 16 and 17-year-olds to attend a second establishment as part of their course. Before the amendments, it was hard to see how the Bill would cover a teacher at a second establishment. A substantial number of A-level students in my constituency attend the local secondary school for two of their A-levels, but go to a local college of further education for another one. I was surprised to learn that there was uncertainty as to whether they would be covered by the Bill at the second establishment. If they formed a relationship with a teacher at the first establishment, the teacher would be in breach of trust because he would be in a position of trust, but the Bill would not cover a teacher or lecturer at the college of further education who formed a relationship with them. That had to be explored. I am pleased that the Government are seeking to put the situation right and are closing one of the loopholes in the Bill. I regret that many other loopholes, anomalies and inconsistencies remain and cannot be put right—but at least this one can.

Richard Allan (Liberal Democrat, Sheffield, Hallam)

In Committee, I was also testing the extent to which those involved in education would be covered by the Bill, but I came at the issue from an angle different from that of the hon. Member for Hertsmere (Mr. Clappison), because I felt that the provisions were drawn too widely. We tested whether issues such as residence or direct tuition should be requirements. We considered the difficult in loco parentis argument. There seems to be no strict definition of in loco parentis. I notice that, in becoming more modern, the Home Secretary has skipped a few centuries and gone to mediaeval French, with autrefois acquit as his latest legal jargon. In loco parentis is an important concept that requires further testing. There are still problems with the amendments. We do not support the extension proposed by the hon. Member for Hertsmere into part-time education, but we believe that there are problems with the Government's definition of full-time education, in particular the number of hours required in the definition of full-time study. A test based on the number of hours that a pupil spends at school may mean that the right people are not always caught, in terms of natural justice. For example, a pupil who spent 20 hours a week in an institution, being taught for all that time by the same teacher, would not be covered because they would not be a full-time pupil; but one who spent 30 hours a week at the institution would be covered even if they had no direct contact in school with the teacher concerned. If one of the tests is the amount of influence that the person in a position of trust is deemed to have, judging the issue on the number of hours that the pupil spends in the institution gives rise to inconsistencies. The Government amendments are sensible in that they are at least logically consistent. The Committee debates worked well on the issue. It was instructive for Opposition Members to see the Minister doing his best to argue manfully around the issue of people being part time at an FE college. The ground beneath him turned to quicksand as it became apparent that a pupil who spent Monday to Thursday at a school and spent Friday at an FE college was not covered. That is common in my constituency. The Government amendments are consistent and sensible in that respect. I hope that the Conservatives will not press their amendment to a vote, because it would extend the provisions wider than we would like. We accept that the Government are sensibly trying to be consistent, but we hope that there will be further tests in another place of what sort of relationship between a teacher and pupil would be regarded as a sufficiently serious breach of trust for an otherwise consensual sexual relationship to be criminalised.

Paul Boateng (Labour, Brent South)

The debate is a classic example of the justification of considering matters in Committee and giving them the care and attention that the Committee gave to the clause. The probing and discussion in Committee was of enormous assistance in teasing out the necessary amendments that the Government have tabled on Report. I owe a debt of gratitude to all who contributed. Even in that spirit of generosity, I am afraid that we are not able to accept amendment No. 4, moved by the hon. Member for Hertsmere (Mr. Clappison). We cannot do so because we take the view—illustrated by the right hon. and learned Member for Sleaford and North Hykeham (Mr. Hogg)—that that would capture within the ambit of the Bill the evening classes which, in our view, simply do not give rise to a relationship the nature of which ought to occasion the degree of trust which, if breached, should lead to a criminal sanction. I return to the four broad criteria that we have applied in the Bill: particular vulnerability; location; the special influence of the adult, the relationship being in loco parentis; and the lack of access to other adults and the absence of countervailing influence. In those circumstances, part-time education does not fall within those principles in a way that justifies the amendment. The Government amendments would correct the anomaly in the Bill that was teased out in Committee. They bring into the scope of the offence those educational institutions providing education to full-time pupils or students who are registered or enrolled at a different institution, but receive part of their education at a second establishment. It is important that that be made clear. Education must be covered by the offence because the relationships of trust are particularly strong. That arises from the parent entrusting a child to the care of the school or college. There may be additional factors that have the effect of making trust a significant factor whose breach ought properly to be penalised by the criminal law. However, it is right to recognise that that ought not to extend to part-time education. For that reason, we are unable to accept the Opposition amendment. The Government amendments perfect the clause in a way that I hope will cause them to find favour, without a division, in the House. On that basis, I commend them to the House.

Douglas Hogg (Conservative, Sleaford and North Hykeham)

I am glad that we have avoided the danger of making evening classes subject to the regime in the Bill. However, I am a little troubled by the definition of "full-time education" and I suspect that the Minister may wish to reflect further on it, with a view to making changes in the other place. The reason for my concern follows the observations of the hon. Member for Sheffield, Hallam (Mr. Allan). There are a number of courses in colleges of further education where the education provided is for 16, 17 or 18 hours a week. In one sense, that is not full time. In another sense, it creates the kind of relationship to which we wish to attach the obligations and criminal penalties in the Bill. I would be concerned whether higher education courses for 16, 17 or 18 hours a week meet the statutory definition in the Bill of full-time education. I rather doubt that they would, but that is a matter for reflection. If the Minister agrees, he may care to consider tabling amendments in another place.

Paul Boateng (Labour, Brent South)

We can and will reflect on that, and I will write to the right hon. and learned Gentleman as our reflection develops apace, both here and in another place. We want to get it right, and we all agree that a category and class of young people needs protection. We want to make sure that legislation is as successful in achieving that objective as possible. Young people in receipt of education fall into an area of vulnerability that does, in my view, require protection. We have to determine how best to define and identify that education, and that class or grouping of young people. We will reflect on how best to do that. At present, we have arrived at a definition and a balance that suits our purpose, and that will receive widespread support, not only from the general public—and parents in particular, who have concerns in this area—but from the teaching profession. Teachers will recognise that this measure must be embraced and welcomed—not least when it is underpinned by the codes of practice and guidance that we intend to issue to the Crown Prosecution Service—and should not cause apprehension.

James Clappison (Conservative, Hertsmere)

This has been a worthwhile debate, as was the earlier debate in Committee. We wanted to explore the issue that was identified in Committee; we thought that there ought to be additional coverage in terms of the position of trust. It would be churlish not to welcome the fact that the Government have conceded the force of our argument, and have accepted the need for clarification. The position of trust has been extended to other people to whom many members of the public would feel it ought to be extended. In the light of the debate, I beg to ask leave to withdraw the amendment. Amendment, by leave, withdraw. Amendments made: No. 6, in page 3, line 22, leave out 'in an' and insert 'at an educational'. No. 7, in page 3, line 23, leave out 'in' and insert 'at'. No. 8, in page 3, line 29, at end insert— '( ) For the purposes of this section a person receives full—time education at an educational institution if— (a) he is registered or otherwise enrolled as a full—time pupil or student at the institution; or (b) he receives education at the institution under arrangements with another educational institution at which he is so registered or otherwise enrolled.'—[Mr. Boateng.]

SEXUAL OFFENCES (AMENDMENT) BILL

Teresa Gorman (Conservative, Billericay)

I have sat through many of the debates on this subject from 1994 through to today. I have not spoken at all on the Bill because I have been keen to understand the reasoning behind it. The Government have made a great issue of equality before the law, and they have said persistently that this is not a matter of moral judgment, but of making the law as it applies to 16-year-old girls apply to boys—the implication being that the sexual activity in those two sexes is similar. Of course, we all know that it is not, and that there are different consequences from that activity. What we are debating tonight is a removal of protection from some of our citizens. By changing the law, we are bringing younger people into a position of risk from which the law has previously protected them. No one would pretend that any law passed in this House will prevent people from doing things that they are determined to do, but the laws that we create give a strong signal as to the way in which we hope people might behave—or, at least, they reflect the behaviour that is commonly held to be appropriate within society. There is no doubt that the great majority of people in this country, if polled, would not take the Government's position or that of the majority in the Lobby tonight. They believe that the current legislation gives some protection—and they are right. Even when homosexual activity between males aged 16 to 18 was illegal, in 1994, there were 300 cases of such young men with AIDS. Perhaps some of them have died. If we relax the law, it is reasonable to suppose that the number will increase. I cannot think of a law that we would change in almost any other context that would lead to an increase in a dangerous disease or practice. The new Labour party, which is so sanctimonious about smoking and diseases that are caused by people's behaviour, which it seeks to correct, would never approve of that. The Government must have some other motivation. The Government are usually fairly canny in identifying issues that are popular with the public and exploiting them. All political parties do that to some extent. Knowing, as they must, that the great majority of people outside the Metropolitan area would not approve of the proposed alteration in the law, it is interesting to speculate as to why the Government have made such an issue of this matter. Clearly, there is a great deal of support for the change among what might be called the chattering classes, and certainly in the media. Nobody denies that there is a disproportionate number of homosexuals in those communities. In the run-up to the general election—not only the immediate run-up, but the period since 1994—there would have been every good reason for the Labour party to want to come to terms with those people. It certainly would have received a lot of pressure from them. I believe that the Government have to some extent played up to that powerful and influential group in our society. What is the role of the House? Surely we are here to reflect, by and large, the views of the people whom we represent; to try to express their concerns, especially when there are proposals to change the law in a way that is likely to affect them and their families; and, if possible, to remedy their grievances rather than adding to them. I put it to the House that the Bill does exactly the opposite, and that we are seeking to impose a minority view on the great mass of people with families or with concern for the care of 16-year-old young men—or boys, as I prefer to call them—and going against the will of the people. For that reason alone, I want to vote against the Bill. We are continually told that homosexuality is a normal activity and way of life but, having looked through the debates since 1994, I have found not a single instance of an hon. Member declaring openly that that is the position that he or she is coming from. I have heard hon. Members saying that they are Christians or that they are family people with sons but that they support the change—I even heard a Labour Member saying that he was a Christian, a Catholic and a father of sons but still supported the change—but no one has opened his mouth to say that he is a homosexual and can tell us the truth about the subject. There has been covert support for the Bill in some quarters that does less than justice either to the Government's claim that homosexuality is a natural and normal part of life for certain sections of the community, or to the electorate. It is significant that the Government and their supporters have not come clean with the electorate. There is an element of deceit in the way in which the legislation has been presented to the House.

Gerry Bermingham (Labour, St Helens South)

Has the hon. Lady been asleep for the past two years? The European Court of Human Rights has ordered us to change our law. We have to do it.

Nicholas Winterton (Conservative, Macclesfield)

Rubbish.

Gerry Bermingham (Labour, St Helens South)

The hon. Gentleman says that it is rubbish, but unfortunately life is life. We have to change the law and we are doing it. There is no hidden agenda.

Nicholas Winterton (Conservative, Macclesfield)

Of course there is.

Gerry Bermingham (Labour, St Helens South)

Rubbish, Winterton, you really are a silly man.

Teresa Gorman (Conservative, Billericay)

I am as aware as the hon. Gentleman that there has been a debate on the issue from that perspective, and to some extent he has made a contribution to that; but that does not alter the fact that we are debating what will be domestic legislation, and we have not been entirely open and clear with the public about the motivation behind it.

Ann Winterton (Conservative, Congleton)

Does my hon. Friend agree that, although the European Court of Human Rights might require us to change the law, that does not mean that the change is a good one? The change could be completely wrong, so it is a shame that people of principle do not stand up and say so. Frankly, I am sick to death of hearing about the European Court.

Teresa Gorman (Conservative, Billericay)

My hon. Friend knows my views on that, and I entirely agree with everything that she says. On the "Today" programme on 22 February, a certain gentleman named Derek Bodell, who apparently runs something called the National AIDS Trust, complained that the budget for AIDS, at £52 million, was not enough to deal with the problem; that it cost £15,000 a year to treat an AIDS patient; that 1,500 homosexual men develop AIDS every year; and that we are too complacent about the issue. He and I might not share the same form or degree of complacency. He ended his remarks by saying that there is a worrying increase in AIDS among younger men. The behaviour of homosexual men must surely affect those figures.

David Borrow (Labour, South Ribble)

Several times, Conservative Members have adduced AIDS as a reason for not reducing the age of consent. All the bodies concerned with the sexual health of young gay men are unanimous in the view that the age of consent at 18 rather than 16 is a factor in increasing the number of HIV cases among young gay men and that a reduction to 16 will assist in giving proper sexual health education to 16 to 18-year-olds.

Nicholas Winterton (Conservative, Macclesfield)

That cannot be right.

David Borrow (Labour, South Ribble)

Conservative Members may not like the facts, but their comments, made in complete ignorance of them, show that they have no arguments.

Teresa Gorman (Conservative, Billericay)

The hon. Gentleman is saying that more people will come forward if their activity is legalised, but in 1994—the latest year for which I happen to have figures—300 16 to 18-year-olds with AIDS came forward. If one is that ill, one will automatically go to the doctor's surgery and get treatment for the problem. One would not simply stay at home and die in bed. That is an absurd suggestion.

Ann Winterton (Conservative, Congleton)

To assist my hon. Friend and to counter the intervention from the hon. Member for South Ribble (Mr. Borrow), I can tell her that, when I served as a member of the Social Services Select Committee and we undertook an inquiry into AIDS, it was abundantly clear from the evidence that we received from many sources that the main causes of it were intravenous drug abuse and active homosexual sex. The case that my hon. Friend makes is genuine and right, and the Bill will be damaging and encourage an increase in the incidence of AIDS.

Teresa Gorman (Conservative, Billericay)

I agree with my hon. Friend. The issue is one of health. What adults do in the privacy of their homes is their business, but the Bill will affect very young people. The Government have sought to mollify people who have expressed concern by amending their original proposals, prompted by the hon. Member for Bassetlaw (Mr. Ashton), to protect people from certain types of predation. We hope that those people are protected, but the fact that we have to add such provisions to the Bill tells us that it is flawed. The change in the law is not needed. There were almost no prosecutions of young people between the ages of 16 and 18 and, therefore, we do not need legislation that will send a signal that certain activities are acceptable and, in the view of the hon. Member for South Ribble (Mr. Borrow), safe. They are not. The Government's purpose is not the high and mighty one of creating equality for young people. I do not believe that for a moment. They are giving a signal to a very small, but very powerful element in our society—the media—that the Government are open-minded about those activities, which are widespread in the media. The Government want to say that they condone those activities to the extent that young people aged 16 should be able to engage in such activities, unless they happen to need special protection. I have been a teacher and I know that young people of that age are immature emotionally and vulnerable. I shall not support the Bill. I hope that the electorate, in so far as they follow what goes on in the House, will have noted from which quarter the pressure for the Bill has come. It is their 16-year-old sons who will be put in situations as depicted on certain television programmes, which have already been mentioned, on Channel 4 recently. There is active predation on young people by people who are not in a position of care and, in such cases, the young people will not be protected by the Bill.

Evan Harris (Liberal Democrat, Oxford West and Abingdon)

It is the same for girls.

Teresa Gorman (Conservative, Billericay)

The hon. Gentleman has made that point time and again. It is not the same for girls. We are talking about activities that can be physically dangerous, as the hon. Gentleman, who is a medical doctor, well knows, and have led to the development of AIDS. That disease was almost unknown before the liberalisation of the laws on homosexuality. I hope that the public will remember that it was the Labour party which removed the protection from their young sons. When it comes to deciding which party is suitable to protect youngsters, I hope that people will remember this debate and which party forced the Bill through the House.

Alan Beith (Liberal Democrat, Berwick-upon-Tweed)

It is unfortunate that the hon. Member for Billericay (Mrs. Gorman) should try to turn the issue into a party political one. When the Division records have been examined, her claim will be found to be absurd, because Members from all parties are found on both sides of the argument. Members from her party, my party and the Labour party will be found in each Lobby. To start attributing absurd motives to those who support the Bill is equally foolish. I would not do so to her. People support the Bill for a variety of motives, which they have declared openly and I shall give my views in a moment. I have never found it fruitful in politics to discuss legislation on the basis of the motives of those supporting it or opposing it: it is better to consider what its effects will be. That is what the House has sought to do in this case. The Government have rightly brought back to the House a matter on which the House made a decision in the last Session. The House of Lords required us to think again and it is proper for the Government to bring it back to us so that we can have a free vote. It was also right that the Government brought back to us something else on which the House expressed strong views—although not majority views as it turned out—which was the need to build into the legislation provisions dealing with abuses of trust. The legislation is much better for containing those provisions. I supported the original amendments tabled by the hon. Member for Bassetlaw (Mr. Ashton) and it is good that we have managed to incorporate those principles into the Bill. Anomalies and difficulties remain, but the first part of the Bill will remove an indefensible anomaly—that conduct involving people in the age group from 16 to 18 could be the subject of criminal proceedings for male homosexuals but not for heterosexuals or female homosexuals. My view of that point has nothing to do with my opinions as to the merits of such conduct. I am not entitled to write my views into law, unless there is an overriding principle of public protection involved. That has not been demonstrated. Indeed, the evidence is that it is better, if one believes that serious health dangers are at stake, that young people in that age group should feel no discouragement from taking medical advice at the time when they first might be drawn into such conduct. On public safety grounds, there is a strong case for the provisions in the first part of the Bill. Several anomalies were explored in Committee; both my hon. Friends the Members for Sheffield, Hallam (Mr. Allan) and for Oxford, West and Abingdon (Dr. Harris) have done a lot of work on the Bill. The remaining anomalies will have to be considered carefully in the review that the Government will undertake, including the abuse of trust issue, where teachers might be involved in potential charges, and why some categories of people, who might have closer contact with children than many teachers, are not included. We will have to revisit the subject, because the Bill cannot dot all the i's and cross all the t's. It was necessary to make a fundamental change and to include abuse of trust provisions that apply to both heterosexual and homosexual relationships. It is right for the Bill to be non-discriminatory, although there are elements of discrimination left, as has been mentioned by my hon. Friends. Given that the House has had the opportunity to resolve the key issues on free votes, it is right that the Bill should be voted into law.

Douglas Hogg (Conservative, Sleaford and North Hykeham)

The right hon. Member for Berwick-upon-Tweed (Mr. Beith) said one thing with which I profoundly agree—the fact that one disapproves of an activity is not a good reason to make it criminal. That is an observation that might inform more people's approach to fox hunting than perhaps it does. It is true that one may disapprove of something without thinking that it should be made the subject of the criminal law. This is the first time that I have spoken on the Bill and the first time in 20 years that I have spoken on this subject. That notwithstanding, I shall be brief. There are parts of the Bill with which I agree. I find the provisions of clause 2 correct. We have debated whether it goes far enough: I suspect that it does not, but that can be dealt with in another place or by the review, and the Minister has been good enough to indicate that special attention will be given to the concept of people in loco parentis, and those in their charge. However, I do not agree with clause 1. The essential argument underpinning it is that it is desirable to establish equality in the criminal law for males and females. I hope that the House will forgive a very old-fashioned remark, but I believe that it is one that has greater resonance than we care to admit. One of the curses of the age is the lack of restraint on people's sexual appetites. The truth of that contention is evident in the enormous number of teenage pregnancies and of children born out of wedlock, in the very large incidence of abortion, in the many cases of venereal disease, and so forth. That lack of restraint is a curse that has disfigured society, and that will continue to undermine its cohesion. I am reluctant to accept as valid the argument that, because 16 is an appropriate age of consent for females, we should make it the age of consent for young men. I am willing to accept that it is not possible to increase the age of consent for young women. Whether to do so would be good or bad in an ideal world does not matter—it is not realistic in the present age. However, the question that we are asking is whether we should reduce the age of consent for young men. Against the background of my anxiety about society's willingness to succumb to sexual appetites, I am bound to say that I am very cautious about that proposition. In the course of my life—at school, at the criminal Bar, in the House and so on—I have become aware that older men can be predatory vis-a-vis young men. That is a fact of life, and much to be regretted. The Bill significantly increases the pressure on young men, and I oppose it for that reason. I hope that the House will forgive another old-fashioned remark. I have never wanted to persecute homosexuals. In general, I do not think that they should be treated in a discriminatory way and, when asked, I have always said so. However, I do not believe that the homosexual way of life is a wholly satisfactory existence. Further, I believe that the sexual orientation of many people is not fixed at a young age, and probably is not fixed even at 15, 16 or 17. I am very reluctant for the House to do anything that would encourage people to adopt the homosexual way of life, if otherwise they would not have done so. The hon. Member for Oxford, West and Abingdon (Dr. Harris) is looking at me disapprovingly, and he will no doubt draw on his experiences as a doctor. However, I have years of experience at the Bar and elsewhere to draw on, and I have seen people who I suspect have changed their sexual way of life as a result of experiences when young. On balance, I think that they have had a less full and happy life than they would have had if they had become heterosexual. I regret the Bill. I do not think that it is desirable, and I shall not support it if it is pushed to a vote. On the whole, I think that the House ought to regret the Bill, and I am sure that most of my constituents will do so.

Evan Harris (Liberal Democrat, Oxford West and Abingdon)

I rise briefly to make two main points about the medical aspects of the Bill. It is entirely wrong for Conservative Members to justify their opposition to clause 1 on medical grounds, when all the medical opinion—in the world, not just in this country—is that clause 1 is necessary to protect health. If Conservative Members want to bring health into the debate, they must recognise that the medical arguments favour reduction in the age of consent, to allow information about sexual health to get through to people who are sexually active.

Ann Winterton (Conservative, Congleton)

I hope that I am not jumping the gun, but will the hon. Gentleman say whether he believes that the Bill when it is enacted—as it will be—will mean that figures for AIDS and sexual health among young men will be considerably better than today? What happens if they are not?

Evan Harris (Liberal Democrat, Oxford West and Abingdon)

I have worked with HIV, in prevention and as a clinician, and my experience tells me that, all other things being equal, the fact that the Bill enables young people to access important information on sexual health will reduce the number of new HIV infections among young gay men. That is not just my view: it is shared by all the relevant organisations, especially the medical ones. As I have said on previous occasions, the council of the British Medical Association—not a radical organisation—was unanimous in its recommendation of a unified age of consent at 16.

Desmond Swayne (Conservative, New Forest West)

Will the hon. Gentleman give way?

Evan Harris (Liberal Democrat, Oxford West and Abingdon)

In a moment. The reason that the BMA council gave was that such a change would reduce the spread of HIV among young people. Other experience shows that the criminalisation of an activity drives it underground, with the result that people cannot get the information that they need.

Ann Winterton (Conservative, Congleton)

How do you know?

Evan Harris (Liberal Democrat, Oxford West and Abingdon)

The same thing happened, in the Victorian era, with back-street abortions. What is needed is more education. I concede that young people—especially girls, if we are talking about abortion and teenage pregnancies—must be empowered to say no. That is a large element in sexual and health education. We will be able to do that—particularly for those of school age—only if we do not attach criminality to one type of behaviour and not to another.

Desmond Swayne (Conservative, New Forest West)

Should we therefore lower the age at which it is permissible for children to purchase tobacco products so that they can have greater access to health information about the consequences of smoking?

Evan Harris (Liberal Democrat, Oxford West and Abingdon)

No. I do not believe that there is anything—other than the budgets of health education authorities—to prevent health educators passing information about the dangers of tobacco on to young people at risk. The right hon. and learned Member for Sleaford and North Hykeham (Mr. Hogg), when he was Minister, referred to scientific and expert opinion a great deal, but those who want to use health as an argument must recognise that the expert opinion supports those of us on my side of the argument. Conservative Members are entitled to their opinion and—I do not mean the term derogatively—to their prejudices. However, without scientific opinion to back them up, they should not try to impose their views on other people. Other arguments in favour of decriminalisation have been framed in terms of human rights. The right hon. and learned Member for Sleaford and North Hykeham talked about reality, so he will know that the European Court of Human Rights—which is not a European Union institution—is about to find against this country in that respect and that the European Commission of Human Rights has instructed the Government to let the House think again. So there are judicial reasons for the proposed equalisation in the age of consent. None of the hon. Members who say that the age of 16 is too young have tabled an amendment to raise the age of consent for girls, which at least would be consistent, if unrealistic. Finally, Conservative Members implied that most predatory older men are homosexual. Of course there are predatory men who are homosexual, and I deplore some of the storylines recently on television, just as I have serious reservations about the contents of the famous Nabokov novel that has been made into a film. However, I do not recommend book-burning on that basis. The fact is that there are more predatory men also on the look out for girls—the proportions are probably similar. I must tell the hon. Member for Billericay (Mrs. Gorman) that the hon. Member for New Forest, West (Mr. Swayne) claimed not long ago that that was not so, and that, in fact, 15-year-old girls were recognised as hunting for older men and wanting relationships with them. The people who have spoken against the Bill on predation seem to want it both ways, but they cannot have it every which way. There is predation, and it should be condemned. However, it cannot be distinguished by sexuality. More sex education would give young people the power to say no. Those without power, such as those in care homes, are entitled to the protection provided by clauses 2 to 4, and I agree with all that my right hon. Friend the Member for Berwick-upon-Tweed (Mr. Beith) said on that. My only concern on those clauses is how wide ranging they are. They cover teachers, even those who do not have a direct educational relationship with the people with whom they are having consensual sexual relations. Disciplinary codes already exist to punish behaviour that is wrong. To bring in the criminal law seems to be going too far. In Committee, I raised the problem of Scottish higher education institutions, at which the majority of first-year students are 17. Anyone, even a postgraduate involved in teaching, will be subject to the Bill's provisions if he has sexual relations with a 17-year-old whom he knows to be an undergraduate, even if he is not teaching that student, but is doing some teaching as a postgraduate student. A 22-year-old and a 17-year-old—and in many cases people meet their future life partners at university—will be subject to the provisions of the Bill. Even if not prosecuted, they could be subject to worry, guilt and potential blackmail. It is strange to set apart 17-year-olds—both male and female—so that they will not be able to have relationships with their postgraduate peers. I hope that the other place will try to get rid of some of those problems. I am sorry that the Minister is not here, as I need not have made my final point if he had allowed me to intervene even once on his closing remarks during one of our earlier debates. The point that I want to put on record is this: the Minister outlined the Government's motives for introducing the Bill. They had been forced to do so by the European Commission of Human Rights, and they would give the House a free vote on the age of consent. The welcome provision to decriminalise under-16s would provide protection for the young. There was, it seemed, no intention of recognising the other reason—equally valid in my opinion—that there is currently discrimination between heterosexuals and homosexuals. The Government rejected other amendments to equalise the law between heterosexuals and homosexuals outwith protection of children issues. I hope that the Government will be clear about their intentions. I have spoken to many people outside the House who have felt that that was not what they understood the position of the Labour party to be. In the party's election manifesto, there was a commitment to end unjustifiable discrimination wherever it exists". Yet the Government have said that seeking to provide equality in criminal legislation during this Parliament is not on their agenda. Any measures that are taken will be a side effect of child protection, which is, of course, valuable in itself. The Government should be clear whether the gay community—and those like myself who are outside the gay community, but who feel strongly about the issue on human rights grounds—is correct in understanding the Minister to mean that there will be no wider reform in this Parliament and that the motives for this reform on under 16-year-olds did not include equality. We shall get the Bill through the House. I hope that it passes through the House of Lords at its first attempt. The larger the majority that we can muster, the more the will of the House of Commons should prevail.

Desmond Swayne (Conservative, New Forest West)

I voted against the Bill on Second Reading, and my profound impression is that it has become worse as it has proceeded through the House. A leap to the Bill's detriment has been taken this afternoon by the inclusion of new clause 4. The Bill began with the intention of reducing the age of consent for homosexual young men. Its effect will be to abolish that age of consent. A young man under 16 may explore his sexuality without any constraint of the law. He need only choose a partner over the age of 16. For any young man in that position, there will be no age of consent under the Bill. The Bill sets out to protect young people. I believe that it puts them at much greater risk. I have no doubt that it will serve to entrap a small number of young men in a life style that is gross and unnatural. They might otherwise have led a life not blighted in that way. Some of the correspondence that I have had from constituents on this matter has been almost apocalyptic. It has suggested that all standards are being swept away, that the consequences will be disastrous and that there will be a huge increase in homosexuality. I do not believe that that is so. We must trust to the good sense of people, in which respect the remarks of the right hon. Member for Berwick-upon-Tweed (Mr. Beith) were instructive. There are a number of motives behind the Bill. There are people who believe that equality before the law is the most important principle. I agree that the principle is important, but it is not the most important. There are those whose motive is to improve the health of the nation, as the hon. Member for Oxford, West and Abingdon (Dr. Harris) seeks to do. He is mistaken, but his position is perfectly honourable. There is another motive, however. There is a homosexualist agenda. The homosexual community, by its nature, is sterile, and it can survive and grow only by proselytising. There is an agenda to make it easier for that community to grow—an agenda that will be further expressed when all sorts of requests are made to get rid of section 28 of the Local Government Act 1988. Having said that, I believe that the wisdom of the general public is rather greater than that. It is unlikely that there will be a large increase in homosexuality. Irrespective of the change that we will make to the law today, most people are still profoundly disgusted, and alarmed, by homosexuality. That will provide a powerful incentive to reduce the level of homosexuality. Many comments have been made to me, particularly in my correspondence, about how sorry and small a number have opposed the Bill. I think that those comments are wrong. If Lot had found himself in the Division Lobby with 126 voters and two tellers—all just men—the cities of the plain would have been saved.

Nicholas Winterton (Conservative, Macclesfield)

I commend the remarks of my hon. Friend the Member for New Forest, West (Mr. Swayne) who tackles issues straight on and who does not mince his words. I have not yet spoken in the debate, although I have voted against the Bill at every possible opportunity. It is fundamentally flawed, wrong and dangerous to the young men and boys about whom we are concerned. My right hon. and learned Friend the Member for Sleaford and North Hykeham (Mr. Hogg) said that it was utterly wrong to seek to outlaw or criminalise something just because we do not like it. I agree with that. However, there is a great difference between sexual intercourse between a man and a woman—or, for that matter, a boy and a girl, whether they are over or under the age of 16—and the act of sodomy. That is what is so often practised in homosexual relationships. I do not hesitate to say from the Conservative Benches that heterosexual sex is a God-given act for reproduction, joy and pleasure. One cannot say that of the homosexual act—the act of sodomy. I am not an expert on biology, but if God had meant men to commit sodomy or buggery with other men, even a doctor would admit that their bodies would have been built differently. That is a fundamental reason why there is a great difference between a heterosexual and a homosexual act. My right hon. and learned Friend the Member for Sleaford and North Hykeham was right to have concerns about clause 1 because it would enshrine in law an unnatural act, in particular an unnatural act of a young person who is vulnerable and in many cases does not know his true sexuality. The hon. Member for St. Helens, South (Mr. Bermingham) said that the European Court of Human Rights or even the European Court of Justice would bring this Parliament to court as our legislation does not give equality to the sex act between men and women and men and men, but that does not mean that we should change our law. If someone said that I should jump off Beachy head because some European Court told me to do so, I would not jump off, and this mother of Parliaments, the House of Commons and, indeed, Parliament as a whole should not do something that it believes to be morally and fundamentally wrong.

Gerry Bermingham (Labour, St Helens South)

The case will be taken to the European Court of Human Rights. The European charter on human rights will become part of our law on 1 January 2000. It is also a fact of history that in Act after Act, from the Mental Health Act 1983 and under Governments of all parties, this country has had to change its laws to comply with European law. One is taken to court and offered a deal, "Change the law and we won't go for you." That is what we have done time and again. There is nothing novel in the situation.

Ann Winterton (Conservative, Congleton)

Except when the hon. Gentleman was hectoring me when I intervened from a sedentary position, he has always been a most agreeable man. We come from the same region.

Desmond Swayne (Conservative, New Forest West)

Region?

Ann Winterton (Conservative, Congleton)

The north-west. I do not believe in regional government, and I will not be led down that path. The hon. Member for St. Helens, South is a lawyer and I am not. I come from a business background. My constituents have elected me for almost 28 years, and I hope that I have a basic experience of life and that I also show good sense. Just because the law is an ass, it does not mean that I have to behave like an ass. If the European Court of Human Rights wants to bring the United Kingdom to court for failing to implement parts of the convention, let it do so. I would prefer to go screaming to defeat rather than go passively like a sheep to the slaughter. I really mean that. This House is about people expressing their own view. I am not entirely sure that every vote has been a free vote for Labour Members. That is my view and it is an instinct. My instinct is why I oppose enshrining in law homosexual acts between youngsters of 16 upwards. We heard certain medical views from the hon. Member for Oxford, West and Abingdon (Dr. Harris). I will repeat what I said following an intervention by the hon. Member for South Ribble (Mr. Borrow). When I was a member of the Select Committee on Social Services, we undertook an inquiry into AIDS. From all the evidence that we amassed, it was clear that the two prime sources of AIDS in this country were intravenous drug abuse—injecting oneself with infected or dirty needles—and the homosexual act. AIDS is costing the people of this country and of the world huge sums of money and is a great tragedy, which is resulting in tens of thousands of deaths.

Ann Keen (Labour, Brentford and Isleworth)

rose—

Ann Winterton (Conservative, Congleton)

I will give way to the hon. Lady. I respect the sincerity with which she has advanced her cause, although I disagree with her.

Ann Keen (Labour, Brentford and Isleworth)

Does the hon. Gentleman care to comment on the fact that unsafe sex in the heterosexual community also carries a great risk of infection with AIDS-HIV?

Ann Winterton (Conservative, Congleton)

I am happy to comment on that because that matter was also drawn to the attention of the Select Committee. AIDS among heterosexuals is sometimes due to bisexual men, who not only commit positive homosexual acts with men, but have heterosexual sex with women. That is one reason why there has been a limited number of AIDS cases resulting from heterosexual acts. A second reason is that one partner—either the man or the woman—is a drug abuser and injects him or herself with dirty needles. That is another way in which the AIDS disease can come into the heterosexual community. Further to the point made by my right hon. and learned Friend the Member for Sleaford and North Hykeham at the beginning of his short speech on Third Reading, I do not want to ban, criminalise or outlaw something in legislation merely because I dislike it. I do dislike homosexual behaviour because I believe it to be unnatural. This legislation will make a large number of young men more vulnerable to predators. I see my role as protecting young men so that they go through those formative and vulnerable years to have a normal heterosexual relationship, which is the natural relationship given by God.

Allan Rogers (Labour, Rhondda)

I have always voted against the lowering of the age of consent from 18 to 16, but after hearing some of the homophobic rantings from Conservative Members, I am not sure what to do this evening. The hon. Member for New Forest, West (Mr. Swayne) is obviously a great expert on homosexuality, but if he thinks that this legislation would create homosexuals, that is nonsense. Listening to the hon. Gentleman has made me wonder whether he thinks that the best way to abolish homosexuality—complete nonsense in itself—is to abolish all, all-male institutions. I presume that he would want to abolish the Army, the Navy and a couple of other all-male institutions. He would probably abolish public schools—I understand that a great number of men have had their first experience of homosexuality in such schools, although I am not sure how many Labour Members that applies to. Perhaps all those of us who went to public schools could confess our experiences. I did not go; I went to Bargoed secondary school. I am sorry that the issues have been turned into homophobic rantings. The reason that I will either abstain or vote against the Bill is that I think that people need to have time to develop their sexuality. As a young lad of 18, I went into the Army, an all-male environment. There were predators—people who had been in the Army for many years who looked for young lads. No one can deny that. When I was shadow defence Minister and homosexuality in the armed forces came up, we had a much more constructive debate than this on the problems of homosexuals in the Army and predators. I am afraid that the homophobic ranting might well make me abstain, but I will probably vote against. I do not believe that the law creates homosexuals. Homosexuality is a natural condition that people have within them. There is nothing we can do to legislate about it, but I am concerned about predators, which is one reason why I may well vote against.

Gerald Howarth (Conservative, Aldershot)

I am sorry that the hon. Member for Rhondda (Mr. Rogers) feels that there has been a lot of homophobic ranting by Conservative Members. That misrepresents what we have been saying. A feature of the way in which the Government have proposed the Bill is that they have cloaked it all with the word "equality". As we all subscribe to the concept of equality, we are invited to support it; if we do not, we are inferior citizens because we do not support the concept of equality. All too often, it has been up to Conservative Members, with some distinguished contributions from Labour Members, to point out to the House and the wider public the Bill's practical consequences for young boys. It has largely been Conservative Members who have made that view known, but 13 Labour Members voted against clause 1 on 10 February. I do not know to what extent the Whips have been active.

Paul Boateng (Labour, Brent South)

indicated dissent.

Gerald Howarth (Conservative, Aldershot)

The Minister need not get excited. He is not a Whip at the moment. There has been some cross-party support.

Allan Rogers (Labour, Rhondda)

What the hon. Gentleman suggests is untrue. I have always voted against the measure. I have never been approached by a Whip or Minister about how I vote. It is silly to suggest that.

Gerald Howarth (Conservative, Aldershot)

I think that I am aware of the hon. Gentleman's views, although I have checked Hansard and I see that he was not here to vote on clause 1 on 10 February. I hope that I can persuade him to support us in the Lobby tonight. This is an important issue and he should not feel that he cannot support those of us who oppose the Bill simply because some of my hon. Friends have been forthright in expressing their views. On Second Reading, one of his colleagues made a contribution that was much more explicit than anything that I have heard from other Members. The hon. Gentleman should remember that it is not Conservative Members who have been guilty of being too specific about the practicalities of what we are discussing. I have spoken several times on the Bill because I believe that it is profoundly misguided. Those who have opposed the Bill have been concerned on two counts. First, we want to protect the vulnerable—the children. As my hon. Friend the Member for Billericay (Mrs. Gorman) said, it is extraordinary that a Government who go to such lengths to invoke the nanny state to interfere in people's lives—

Paul Boateng (Labour, Brent South)

indicated dissent.

Gerald Howarth (Conservative, Aldershot)

It is no good the Minister shaking his head. The top item on today's news is that the Secretary of State for Wales has eaten beef on the bone. What a brave man to fly in the face of the Government's hostility to eating that.

Nicholas Winterton (Conservative, Macclesfield)

I think that it was the Prince of Wales.

Gerald Howarth (Conservative, Aldershot)

They were both eating beef on the bone, which is banned. The Secretary of State for Wales, having secured his "victory" in the recent election in Wales—

Michael Lord (Deputy Speaker, Central Suffolk and North Ipswich)

Order. Perhaps the hon. Gentleman could turn his attention back to Third Reading.

Ann Winterton (Conservative, Congleton)

It is all too close to the bone.

Gerald Howarth (Conservative, Aldershot)

My hon. Friend says that it is all too close to the bone, which is worth putting on record. My hon. Friend the Member for Billericay has noted that the Government are keen to interfere in the decisions of individuals about how they run their lies. In this case, they wish to reduce the protection available to children. The Bill is utterly flawed because of clause 2, which provides for protection between the ages of 16 and 18 in certain circumstances, but only in certain circumstances. If the Bill's supporters believe that children between those ages need protection in some cases, it is logical for us to propose that all, and not only some, children between those ages should be protected. Therefore, the idea that this is all to do with equality is humbug. It was only a few years ago that Parliament was invited to consider reducing the age of consent for homosexuals from 21 to 18. All the arguments were deployed and we were told that it was not proposed that matters would go further and that 18 would be fine. Of course, there were some who argued for 16. Only a few years later, we face a decision to reduce the age to 16 from 18. I believe that the supporters of the Bill—not all, but many, and certainly some of the pressure groups outside—will seek to go further. It will not be long before we have—

Paul Boateng (Labour, Brent South)

indicated dissent.

Gerald Howarth (Conservative, Aldershot)

Again, it is no good the Minister shaking his head. It is all in "Equality 2000". The fact is that Stonewall has shown in its five-point plan how much further it wishes to go. There will therefore be further pressure. Passing the Bill will show that Parliament is prepared to go further. I venture to suggest that there will be pressure for us to legalise homosexual marriages. I hope that those who support that will take note of what has been done in France. I gather that no fewer than 200,000 people demonstrated in Paris at the prospect of gay marriages. We know from what happened with the Countryside Alliance how the Government respond to public demonstrations. Perhaps those of us who feel strongly about this should take to the streets and demonstrate that we will not support any further move on this issue. [Interruption.]

Michael Lord (Deputy Speaker, Central Suffolk and North Ipswich)

Order. We cannot have private conversations. The hon. Gentleman must address the contents of the Bill.

Gerald Howarth (Conservative, Aldershot)

I was addressing the contents of the Bill.

Michael Lord (Deputy Speaker, Central Suffolk and North Ipswich)

Order. I think that the hon. Gentleman must let me be the judge of that.

Gerald Howarth (Conservative, Aldershot)

Of course, Mr. Deputy Speaker. I was only trying to point out that the Bill follows on from a decision made by the previous Parliament to reduce the age of consent from 21, where it had stood for many years, to 18 and that now, only a few years later, we are asked to reduce the age of consent again. I contend that it will not be long before we are invited to consider further moves to provide for the homosexual life style. In Paris, 200,000 people demonstrated against the concept of gay marriages, and I hope that people will take to the streets in this country if it appears likely that we are to go down that road. There is no public support for the Bill and it is extraordinary that so many members of a Government who rely on focus groups and opinion polls are prepared to defy public opinion. I know that the Minister is a practising christian, so I hope that he will take note of what the bishops said before Second Reading. They said that the leaders of both Church and state have a duty to protect them"— children— from harm and exploitation and to offer them a vision of what is good. They added that legislation affecting sexual relationships should set an example of what is good and be rooted in sound moral values". They went on to say: Pressures are at work to legitimise any and every life style irrespective of any difference of value and quality between them. These pressures should be resisted. That is another reason why the Bill should be opposed. The hon. Member for Oxford, West and Abingdon (Dr. Harris) made great play of the British Medical Association being all in favour of reducing the age of consent, but I remind him that the same argument was used in 1994, when it was claimed that, if we reduced the age of consent from 21 to 18, the number of new HIV cases would fall because young people would come forward and seek advice without fear of being prosecuted. The truth is that figures show that, overall, HIV infections acquired through sex between men rose by 11 per cent. from 1995 to 1996—a full year after the change was made by Parliament. The British Medical Journal, which is the official organ of the BMA, said at the time that that was a considerable rise compared with previous years and found that new cases of HIV infection were particularly common among young homosexual men. I rest my case: the Bill will increase the risk of HIV infection among vulnerable young men by increasing their exposure to that fatal illness. I do not believe that either the BMA or the hon. Gentleman has proved that medical opinion is in favour of the Bill. There is clear evidence that, if the Bill is passed, there will be increased infection among young people. My hon. Friend the Member for Macclesfield (Mr. Winterton) mentioned the European convention on human rights and the European Court of Human Rights. I find it deeply offensive that a matter of this nature should be decided by a court beyond our islands, when this Parliament is perfectly capable of deciding this issue. Even if I oppose Parliament's likely decision, I do not believe that it should be second-guessed by foreigners sitting in Strasbourg or anywhere else. We should be able to decide such matters in this country and I resent that idea that Parliament cannot adequately safeguard human rights. We have had our say and made a strong case on why the Bill should be resisted. I shall vote against it on Third Reading, as I did on Second Reading, and I hope that I shall be joined by a good representative number of Labour Members. I also hope that, when the Bill goes to another place, their lordships will not be afeared to stand firm as they have done before and that, if we cannot defeat the Bill in this House, they will ensure that public opinion is properly reflected by voting it down in the other place.

James Clappison (Conservative, Hertsmere)

Clauses 1 and 2 have been the subject of free votes among Conservative Members and, as I said, when I speak from the Dispatch Box I am expressing only my personal views. My right hon. and hon. Friends have expressed their views, which may be different. In this matter, we are called on to exercise our individual judgment and decide what we think is the appropriate age of consent. The hon. Member for St. Helens, South (Mr. Bermingham) was right: the case which he mentioned is before the European Court, which has decided that there is a case to answer. We do not know what the outcome will be. Even before the European convention on human rights was incorporated into domestic law, we always incorporated the findings of the European Court in our law. Even so, on a matter such as the one before us now, we have to exercise our individual consciences and judgment and do what is right, while simultaneously endeavouring to represent our constituents as best we can. I do not feel any shred of homophobia: I do not think that homosexuality is evil or wrong; still less do I think that individual homosexuals are evil. However, when called on to exercise my judgment on the right age of consent—we have to set one; we cannot do away with it altogether—the more I think about it, the more I believe that 18 is the appropriate age of consent and that 16 is simply far too young. That was my view when the matter came before the House last year, in an amendment to what became the Crime and Disorder Act 1998. At that time, the hon. Member for Bassetlaw (Mr. Ashton), who served on the Standing Committee, raised the important matter of the protection of young people. He did the House a great service in doing so, for that is an eminently worthy objective and one of which the House should be mindful, especially in view of the catalogue of cases chronicled in the Utting report, to which the hon. Gentleman drew our attention. He described many cases in which young people in residential and other forms of care had been made the victims of abuse by older people—a scandalous state of affairs which had existed for far too long and was brought to light time and again, to an almost unbelievable extent. The hon. Gentleman brought that issue to the House's attention, and the debate that took place at that time gave rise to clause 2, which attempts to protect young people by creating a new offence of abuse of trust. We should do all that we can to promote that worthy objective, but the provisions that the Government have produced to achieve that aim fall well short of what is needed. It has three important weaknesses: first, clause 2 does nothing to protect under-16s, yet it is under-16s who are the main subject matter of the Utting report. They are the most vulnerable and the most in need of protection from potential abusers. We believe that there are ways in which under-16s could be given greater protection, but the Bill does not go so far, and that is an important defect. Secondly, in respect of the protection that the Bill does give to 16 and 17-year-olds, the scope of the definition of a position of trust set down in the Bill by the Government is not nearly broad enough. The public will feel that many people who are not included in that definition should be so included. To adopt an argument advanced by the Liberal Democrats, some teachers who are considered to be in a position of trust under the Bill might well wonder why that should be when other people in other walks of life—clergymen, youth leaders—are not so considered. With great eloquence and gloss, the Minister put his arguments as to why that should be so. However, I am not convinced by them. I am more convinced by the contribution of the hon. Member for Swansea, East (Mr. Anderson) who, in a much earlier speech, asked quite bluntly why clergymen, scout leaders and other youth leaders had not been brought within the ambit of the Bill. It is difficult to understand why they are not. The third defect is that the maximum sentence was too low. That situation has now been remedied through our amendment in Committee, and we welcome the fact that the Government have seen sense and increased the maximum penalty. The hon. Member for Oxford, West and Abingdon (Dr. Harris) remarked about my earlier contribution to the House when I drew attention to the number of prosecutions for offences involving under-age sex and how there had been a significant change—a collapse—in those figures following the last lowering of the age of consent. I heard the points that the hon. Gentleman made on this subject. I did not call then—and I do not do so now—for any oppressive action or witch hunt. I do not want the police or other authorities to go on the offensive and seek out convictions under this offence. I hope that the law will be enforced properly, sensibly and sensitively, especially—but not exclusively—when one of the perpetrators is much older. I listened to the views expressed by my hon. Friend the Member for New Forest, East (Dr. Lewis) on the question of decriminalising the offence when one of the parties is under age. I can provide some reassurance on that point. I understand the concern that motivates him, but he must bear in mind the fact that, even with new clause 4, the offence will remain when both parties are under age. When only one of the parties is under age, it will be an offence for the over-age party. The law exists to protect the under-age party and to bring the older party to justice in those circumstances. As my right hon. and learned Friend the Member for Sleaford and North Hykeham (Mr. Hogg) said, on balance, that is the decision that we must take and that is where the public interest lies. We must bring the older party to justice without creating any disincentive for the younger person to report the offence. The under-age party should not become embroiled in criminal proceedings, and this is a sensible and well-justified change. I do not believe that clause 2 goes far enough in protecting young people. I think that the Government were timid in introducing the Bill, which contains several potential loopholes, anomalies and inconsistencies. I am doubtful about the defence that the Government afford to older people who, I believe, should know the ages of those they are teaching and looking after. That defence is anomalous and creates an entirely new type of defence. I am also concerned about the precedent that it will set. Although I welcome any attempts to protect young people, the Government's attempts are flawed. Those flaws are greater still when it comes to the main subject of the Bill. I do not feel any animus towards homosexual people: I welcome greater tolerance in society. However, I believe that 16 is too young for the purposes of the Bill. When the matter first came before the House, I supported reducing the age of consent from 21 to 18 years because I thought that the case for that change was well made and that it was oppressive for people to have to wait until the age of 21 before engaging in homosexual activities. However, as my right hon. and learned Friend the Member for Sleaford and North Hykeham said, some young people of 15, 16 and 17 are not fixed in their sexual preferences. I think that they should practise a little abstinence and wait until they are 18 before engaging lawfully in such activities. That view was shared by the Wolfenden commission, which certainly did not start from a position of hostility towards homosexuals. That commission discounted 16 as an age of consent in the 1950s. It found that too many young men did not have fixed sexual preferences at that age and that 16 was too young to take such a big step which could have profound consequences for the rest of people's lives. I believe that it does not do any harm to make a person wait until 18. I believe that many people share that view. I know that public opinion has been prayed in aid on all sides of the debate—it is difficult to be entirely accurate about public opinion in these circumstances. Many people have strong views about homosexuality and oppose it altogether—that is entirely a matter for them. However, many others look at the issue pragmatically and ask, "What is the appropriate age for youngsters to become involved in homosexual activity?" Drawing on their own lives and everyday experiences, they have concluded that 16-year-olds are far too young to take such momentous decisions. Hon. Members who favour reducing the age of consent to 16 are taking a step that will leave many constituents and a large section of the public with a sense of deep unease. This momentous decision comes hot on the heels of an earlier reduction in the age of consent from 21 to 18 years. The Bill goes too far too fast and allows people to make this important decision when they are still too young. Those are my views and that is why I shall oppose the measure.

Paul Boateng (Labour, Brent South)

This has been a wide-ranging debate. I wish that it had not ranged as wide as the twin cities of the plain via Aldershot and the New forest. Nevertheless, if that is where the debate had to lead, so be it. This debate has been spread over several sessions. We have considered the Bill carefully, and I thank hon. Members on both sides of the House for the care and attention that they have displayed in the House and in Committee. Everyone has had plenty of opportunities to express his or her views and, in the main, those views have been heard respectfully. Therefore, it is rather sad that some Opposition Members should suggest that those who support the Bill do so at the behest of some hidden, or not so hidden, agenda. That does not do justice to the deeply held feelings about fairness and equality that many hon. Members share with people outside this place who do not work to any hidden agenda either. The agenda for those who support the Bill is clear: equality and respect. They seek equality before the law in terms of equalising the age of consent and respect for vulnerability and trust, and share a determination to ensure that that trust is not broken. They are two distinct aims and it is important to stress that the two parts of the Bill are separate: each is important in its own right. We must also be clear about what the Bill can and cannot do. It can—I believe that it should—provide for equality before the law in relation to the age of consent. It can—I believe that it should—provide specific targeted protection for people who are particularly at risk from abuse of trust perpetrated by those in positions of authority. However, the Bill cannot go beyond that without the risk of getting it badly wrong. I assure the hon. Member for Oxford, West and Abingdon (Dr. Harris) that the Bill cannot remove all the anomalies and inequities in sexual offences law; nor can it be a wide-ranging child protection measure which rewrites the law on a grand scale. For example, the Bill cannot protect children in the family home or guard against abuse from strangers. Protection of the vulnerable, coupled with equality before the law, is the driving aim of the sexual offences review. We will ensure that the European convention on human rights informs and shapes the outcome of that review. Those who suggest that people support the measure—the charge was levelled particularly at my right hon. and hon. Friends—simply to comply with the European Court of Human Rights are wrong. The impulse is quite different: it recognises the importance of equality before the law and the need to protect the vulnerable in circumstances in which trust may be abused. That is what drives this legislation. I say to the right hon. and learned Member for Sleaford and North Hykeham (Mr. Hogg), the hon. Member for Aldershot (Mr. Howarth) and others that we ought to be concerned—the hon. Member for Macclesfield (Mr. Winterton) has certainly accepted this point—about a society in which there is a lack of restraint in people's sexual appetite. It is wrong to believe that concern about unrestrained sexual appetite exists solely on one side of the House. We are all concerned about recognising the importance of children and young people deferring sexual activity as late as it is reasonable to expect them to do so. We all understand that. Are we not all concerned about the sexualisation of children and young people? If we are not, we certainly ought to be. However, to believe that criminal law is the way to ensure that young people refrain from irresponsible or dangerous sexual behaviour simply flies in the face of reason. Young people will not be deterred from sex by the criminal law. We know that young people are made frightened, fearful and ill, but we know also that young people do not desist from sexual activity because we criminalise that activity.

Julian Brazier (Conservative, Canterbury)

Will the hon. Gentleman give way?

Paul Boateng (Labour, Brent South)

No, the hon. Gentleman has had an opportunity to speak during our discussions on these matters. The hon. Member for Billericay (Mrs. Gorman) again suggests that there is a hidden agenda at work. We know that there is evidence that we cannot ascribe to homosexuals the spread of AIDS. It is wrong to demonise any group of people in that way. AIDS is a public health issue and, when we are concerned with such issues, we must recognise that ignorance, fear and lack of information contribute to a danger to public health. Those are the real dangers, not this measure. To suggest otherwise does not do justice to the arguments.

Julian Lewis (Conservative, New Forest East)

Will the hon. Gentleman give way?

Paul Boateng (Labour, Brent South)

No; the hon. Gentleman has had his say during our debates, and no doubt we shall return to the subject. The House has had an opportunity to express a view and to scrutinise the Bill in great depth. It is now time to send the Bill to another place. I believe that, tonight, the Bill and its detailed proposals will receive an overwhelming endorsement based on principles of equality and a determination to ensure that the vulnerable are protected from abuse of trust. That is what will motivate hon. Members in the Lobbies tonight, and the other place had better listen to the democratically elected Chamber, because my right hon. Friend the Secretary of State has made it crystal clear that we do not intend for the will of Parliament to be thwarted again. Each and every one of us will go into the Lobbies tonight exercising his or her conscience. This is a free vote, and I, for one, shall vote for Third Reading of the Bill.