Sexual Offences Bill [Lords]

Public Bill Committee, 11 September 2003.

Standing Committee B

Clause 6 - Rape of a child under 13

Humfrey Malins (Conservative, Woking)

I beg to move amendment No. 133, in

clause 6, page 3, line 18, after 'if', insert

'as part of an assault'.

Win Griffiths (Labour, Bridgend)

With this it will be convenient to discuss the following:

Amendment No. 134, in

clause 7, page 3, line 25, after 'if', insert

'as part of an assault'.

Amendment No. 135, in

clause 8, page 3, line 33, after 'if', insert

'as part of an assault'.

Amendment No. 136, in

clause 9, page 4, line 2, after 'if', insert

'as part of an assault'.

Humfrey Malins (Conservative, Woking)

I welcome the Under-Secretary of State for the Home Department, the hon. Member for Wythenshawe and Sale, East (Paul Goggins), to the Committee. I may be wrong, but this Standing Committee may be the first that he has attended as a Minister. We are delighted to see him in his place on the Front Bench and congratulate him. Our dealings with him thus far have been most cordial, and we do not doubt that they will continue in exactly the same vein.

Clauses 6 to 9 have a great deal in common. They all relate to children under 13 and a common thread runs through each clause. I hope that I—and my hon. Friend the Member for Beaconsfield (Mr. Grieve), if he makes the same error, which I do not think that he will—will be forgiven if I occasionally make a comment that could apply to more than one clause in the group. Once made, it will not be made again, so time will be saved.

The general proposition that is well understood by all members of the Committee is that aggressive, non-consensual, predatory sexual behaviour on the part of one person towards another is utterly to be deplored. Furthermore, our attitude of horror towards that proposition escalates as the gap in age between the parties involved widens. It is our duty as legislators to protect people, particularly from predatory sexual behaviour. The Bill is designed to modernise the law on sexual behaviour and assault and, by and large, it does that well. However, the other side of the coin is that all members of the Committee find it difficult to criminalise consensual behaviour of a sexual nature between young people who are broadly of the same

age. We know that young people experiment with sexual behaviour from a fairly early age.

Such views were well reflected in the debate in the other place. How then do we match those two different points of view in legislation? Clauses 6 to 9, but particularly clauses 6 to 8, will create very serious offences relating to people who perform sexual acts with children under 13. That makes sense to all of us when the defendant is older than the victim, but does it make sense when the defendant is the same age or much the same age as the victim? Perhaps not.

Let me give some examples. If a boy and girl aged 12 indulge in French kissing to which each consents, they will be committing an offence under clause 8. If a boy fondles a girl sexually over her clothes, or vice versa, both will be committing a sexual offence under clause 8, and that offence will be punishable—yes, punishable—by 14 years imprisonment. I am not being flippant, but if two 12-and-a-half-year-old boys relieve the boredom of their first year at boarding school by indulging in mutual masturbation—which has happened—a serious offence will have taken place. If, at the suggestion of a girl aged 12, a boy of the same age puts his finger into her vagina, the boy will be committing an offence punishable under clause 7 by imprisonment for life. We think that that is a preposterous proposition, for the reasons I have outlined.

The anomaly already exists in principle, because much of the behaviour in question is criminal under existing law. However, the position seems to be worsening, because under the Bill the maximum penalties are much increased. Under current law, some of the behaviour we are talking about would constitute indecent assault and/or indecency with children, which is currently punishable with up to 10 years imprisonment, but the Bill would make such offences punishable with 14 years imprisonment in some cases and life imprisonment in others.

What truly shocks us about sex with children under 13 is if there is a large age gap. Of course, we want to make it seriously punishable for an adult to perform sexual acts with a child under 13; there is no doubt of that. We also feel uneasy and unhappy about, for example, a child of 14 performing sex acts with a child of eight or 10, but we feel far less aghast at—indeed, we understand—the prospect of consensual sexual acts between children who are 11 or 12. I do not think that there is any appetite in society for criminalising that sort of behaviour.

What is the proper course of action? My hon. Friend the Member for Beaconsfield will speak at some length on the various approaches that can be taken. There is the argument—I am not sure that it is right—that there should not be an age gap between the parties of more than, say, two years. If such a provision were brought into force, it would create an exemption from criminal liability in respect of consensual acts only. The child of 12 who forces attentions on an unwilling victim of the same age would still be committing a variety of offences.

Amendment No. 133 to clause 6 would insert:

''as part of an assault''.

Amendments Nos. 134, 135 and 136 are identical to it, but apply to clauses 7, 8 and 9; that is why I bring them within the scope of this debate. Amendment No. 133 is a probing amendment. The Law Society suggested it to me, and its purpose is to clarify the definition of non-consensual offences against children under 13.

Clause 6, like clauses 7 to 9, covers non-consensual sexual offences against under-13s, so the issue of consent is not relevant there. We understand the plain and laudable purpose of clauses 6 to 9, which is to protect children from suffering abuse. Any touching that is not consented to constitutes an assault. However, as assault is not part of the offence under the Bill as it stands, the provisions will also criminalise consensual child-on-child conduct in which both parties are under 13. Although child-on-child activity can be abusive and damaging, is it the Government's intention to have the threat of criminalisation hanging over the heads of those engaged in consensual activity?

The Law Society and Opposition Members understand that the Crown Prosecution Service intends to issue guidelines for prosecution. I feel distinctly uneasy about passing a draconian law that punishes offences under clauses 6 and 7 with imprisonment for life, and with imprisonment for 14 years under clause 8, and simply relying on the fact that the Government say, ''Don't worry about the law. We shall make sure that it is never enforced.'' It is not helpful to have legislation that constantly requires modification by guidelines.

In this instance, there is something to be said for the proposition that it is advantageous to spell out the requirement of an assault element to the offence. Of course, things would be clearer if such an element were introduced into the clause, because if the conduct that is disapproved of resulted from an assault it would become a serious offence.

I conclude with a few general remarks on the age of consent for heterosexual sex. In this country it is 16. Committee members will be interested to know—in fact, they probably already know—that the rules in European Union countries vary. For example, in Austria the common age of consent for males and females is 14; in Denmark, Finland and France it is 15; in Italy, on occasions, it can be 14; in Spain it is as low as 12, and in Sweden as low as 15. There are different approaches to the matter.

I have opened the debate with some comments of general principle on clauses 6, 7 and 8 and stressed that all of us are completely against predatory sexual behaviour. However, it is difficult for the Opposition to accept that draconian sentences for consensual sexual behaviour between youngsters should be on the statute book. More will be said about that as the debate unfolds.

Hilton Dawson (Labour, Lancaster and Wyre)

The hon. Gentleman speaks very well and with good purpose. There is much sense in what he says. However, is he happy with the introduction of the word ''assault''? Might not that leave room for the appalling kinds of

sex offenders—people who groom or entice a child into sexual abuse—about which some Committee members heard yesterday evening in our discussion with Scotland Yard?

Humfrey Malins (Conservative, Woking)

The hon. Gentleman makes a good point. I am not entirely happy with the wording. One of the difficulties with the Bill, which was referred to in the House of Lords debates and by the Home Secretary, is that although we know what we want to achieve—I do not suppose that there is a scintilla of difference between Committee members about that—we are not certain how to achieve it. Other relevant amendments will be tabled and dealt with later. One of mine says that the activity in question must have created harassment, alarm or distress to the complainant. The hon. Gentleman says, quite rightly, that there are difficulties. I do not suggest that my amendment is a perfect solution.

You have been kind enough to let me range a little on the issue, Mr. Griffiths. We shall return to this subject as the debate unfolds. This is one of the more important debates that we have had, or will have, on the subject. Different points will crop up under clauses 7, 8 and 9, and which there will be a certain amount of interchange, and I hope that many Committee members will voice their views on this vexed topic. That may help us reach a conclusion.

I have always understood that the Government acknowledge the issue and will do their best to listen during the course of the Committee stage to the propositions that are advanced. They might, if not at this stage, then on Report, seek another way of improving the Bill.

Sandra Gidley (Liberal Democrat, Romsey)

I understand the motivation for these amendments, but they fail to achieve the stated purpose. We must not lose sight of the fact that clauses 6 to 9 deal with children under the age of 13. I have particular concerns about clause 8, which deals with sexual touching, and clause 9, which deals with inciting a child to engage in sexual activity.

To return to clauses 6 and 7, I start from the premise that it is difficult to accept that the acts they deal with involving such a young child can ever be regarded as anything but assault. The Family Planning Association suggested amendments that appear to provide a defence of consent for a child under 13. I have problems with that because I am not sure that a 12-year-old is in any position to consent to sexual intercourse—we are talking about full sexual intercourse now, not consensual touching, or any sort of touching. The Family Planning Association must have meant well when it proposed these amendments—which I notice no hon. Member has tabled—because its job is to deal with the practical side of providing advice on contraception and sexual health to young people. However, I was slightly concerned: if the association regularly comes across the problem of 12-year-olds having sex, that is something that unfortunately we have to face, but such activities should not be condoned in any way.

The amendments do not help with the consensual aspects. We should consider a different approach. In fact, the amendments provide a loophole. I might not

have thought that prior to yesterday's briefing from the Metropolitan police. Clause 6 deals with the penetration with a penis of

''the vagina, anus or mouth of another person''.

There are no circumstances in which we would condone 12-year-olds engaging in that sort of sexual activity, or with the activities dealt with in clause 7. In yesterday's briefing by the Metropolitan police, I was struck by the fact that the officer opened by talking about children who are brought into abusive situations not by deceit, but because they think that what is happening in their family is normal. All children think that what happens in their family is normal. To offer a rather silly example, a friend of my daughter came to tea once and as she left she asked, ''Why don't your parents shout at each other all the time?'' She thought that it was unusual that we were not arguing. It is clear that a child might be unaware that she is being abused, because she does not know any different: for example, she might think that dad is being nice to her. She might not have any other framework within which to put what is going on. The amendments would make it impossible to bring charges in these sorts of cases.

Clause 8 raises a slightly different issue, because we are coming closer to criminalising what might happen naturally between young people, but again the amendments would not help. Let me describe a case of which I became aware some 30 years ago, when I was a teenager, before I had any idea that things like this happened. The victim was a four-year-old girl. Nobody knew that there was a problem until she went into her parents' bedroom one day when her father was getting changed. I have to tell it as it apparently happened. The little girl looked at her father and said, ''Why is your willy different to uncle's?'' One can imagine the cold shock and horror that must have passed through her parents. They did not panic, but gently questioned her, and it immediately became apparent that, unlike her father's, the uncle's penis had been in a state of considerable arousal when she saw it.

The long and short of it is that the problem was dealt with and the uncle lost his job. He was not a real uncle, but a ''friend'' uncle. The little girl looked forward to the times that he came to babysit, and there had been no awareness of any problem—the child had never said that she did not want him to come. She had been encouraged to touch the uncle in that way, yet it was not part of an assault. The amendments would not deal with that sort of situation.

I hope that I have made the case for the amendments being withdrawn. I appreciate the spirit in which they were tabled—we are all struggling to find a way around the problem. I am becoming increasingly concerned that the issue is dominating much of the debate. There are a lot of other good things in the Bill, and if we can come to some sensible solution or compromise, I am sure that all Committee members will find that acceptable.

Dominic Grieve (Conservative, Beaconsfield)

Mindful of what the hon. Lady has said and of the intervention of the hon. Member for Lancaster and Wyre (Mr. Dawson), it seems to me that the amendments

suggested by the Law Society present problems, as my hon. Friend the Member for Woking (Mr. Malins) acknowledged when opening the debate.

The first problem that the amendments seem to present is that they arguably allow a loophole for paedophile activity if it could be shown that an act was an act of seduction rather than of assault. I reassure the hon. Member for Romsey (Sandra Gidley), who probably does not need reassurance, that these and a host of amendments tabled this morning are designed to provoke discussion and to help us to see whether we can improve this part of the Bill.

There is no doubt that the Bill presents some problems. The basic problem is that although sexual activity with a child under 13 is already contrary to law, the penalty consequences are nothing like as draconian as we are about to make them. There is something stark about the maximum penalty of life imprisonment that could be imposed, when one considers that some of the activities could well be, as my hon. Friend the Member for Woking so rightly described, consensual sexual activity between two young people or children of the same age—12 and three quarters, or 12 and 11 months, for example.

On the face of it, unless printed guidelines are available, it will be possible for prosecutions to be mounted and for penalties ranging up to life imprisonment to be imposed. The state is taking draconian powers of sanction for a range of sexual offences in respect of which there were previously rather limited powers of punishment—although that latter fact has been the subject of considerable complaint. There are numerous examples of somebody being convicted for this type of activity, but it was consensual and not rape, and that person receiving a remarkably lenient sentence, which has excited public anger, wrath, and in the case of the tabloid press, a lot of foaming at the mouth. There is a very real difficulty.

Is there any way in which we can improve the position? There are two approaches: one, reflected in the amendments that we tabled to provoke the debate, asks whether we should differentiate between different types of sexual activity and whether those activities are consensual or involve an assault. If they involve an assault, most people would agree that there are few problems in classifying that as a serious matter. However, it is difficult to see the dividing line if the act is one of seduction of someone who is immature: one has to ask, as the hon. Member for Romsey said, whether consent can properly be given.

To make the position clear, amendments to this group of clauses, 6 to 9, are designed to provoke debate rather than to propose a solution. Another possible course of action is to consider spelling out differential penalties in the Bill, but I accept that that, too, presents difficulties. One is constantly trying to work one's mind round the different circumstances in which criminality could occur, but we will have to try to do that.

Straying slightly from the current group of amendments, when we reach clauses 10 to 15, which deal with child sex offences, the issue will become even

starker. Although the penalties are slightly different, they are similarly draconian, and people will start to feel even more uneasy if they apply to consensual activity between young people of roughly the same age. We will return to that matter later.

I accept that there is a basic principle, which the Committee may decide to stick to, that for a child under 13 no activity should be tolerated with anyone. If we start to introduce exceptions, we may get ourselves tangled up in knots and provide the very loopholes that we want to avoid.

Julie Morgan (Labour, Cardiff North)

I am pleased that this subject has been introduced at the beginning of this debate, because I share the view of the hon. Member for Romsey that it may be diverting us away from the important questions of how to deal with serious sexual abusers.

Nevertheless, there is a great deal of concern among children's charities and the Family Planning Association about the proposition that any form of consensual sexual activity between under-16s should be criminalised. A provision to make it clear that that is not the intention behind the Bill might be one way to go. It is difficult to find a solution, and the proposed amendments do not provide it for some of the reasons already mentioned. Mention of assault could exclude some of the activities that we were shocked to hear about in last night's police presentation. The amendments are not correct, but I hope that the Government will come up with a form of words that makes it clear that the provisions do not apply to consensual sexual behaviour between teenagers.

If that does not happen, the Bill will send out a message that works against all that has been achieved in tackling teenage pregnancy and the spread of sexually transmitted diseases. We need a climate of openness and education to tackle those problems, but the Bill tends to push us towards secrecy for young people under 16. Furthermore, we must accept that sexual behaviour is different from what the Committee might wish. On average, boys have their first sexual experience at 13 and girls at 14. How does that affect the clauses that deal with under-13s? We must deal with reality.

Chris Bryant (Labour, Rhondda)

I am sympathetic to my hon. Friend's argument. When I did my own research and was presented with those statistics, I tried to ascertain what precisely is meant by ''first sexual experience''. A young person's first experience of heavy petting may be at 11 or 12, and that is not normally recorded in the statistics. Perhaps my hon. Friend has better information than I do.

Julie Morgan (Labour, Cardiff North)

I thank my hon. Friend for that intervention, because those are the same queries as I had. What is meant by the term?

Humfrey Malins (Conservative, Woking)

When the hon. Lady was talking, I was struck by the early age at which young people have their first sexual experience. We are legislating for the future. Young people nowadays reach puberty younger than they did in the past, and that trend may continue, so the hon. Lady is talking about an

interesting area. There could be more problems as the years go by and people reach puberty at an even younger age.

Julie Morgan (Labour, Cardiff North)

The hon. Gentleman makes an important point, because young people are developing far earlier and having experiences that in the past would have been reserved to a much older age group. We must take into account what is actually happening. One statistic of which I am sure we are all aware is that a third of all men and a quarter of all women say that they had sex before they were 16.

That is the climate in which we are discussing these issues, and it is important to take all those facts into account when we consider the legislation. However much we wish that such activities did not take place at such a young age, that is what happens and we must try to get into the Bill a provision that deals with consensual activities between young people. If 13 is the average age at which boys first take part in sexual activity, I do not think that I can go along with the views of the hon. Member for Romsey that what we are discussing is always an offence if it involves someone under 13.

Hilton Dawson (Labour, Lancaster and Wyre)

I am extremely sympathetic to and accept almost entirely my hon. Friend's arguments about young people aged over 13, but is there not an important point about what clauses 6 to 8 are designed to achieve? They draw a clear distinction between children under 13 and children over 13. Is that not a vital protective element of the Bill?

Julie Morgan (Labour, Cardiff North)

It is important to distinguish between younger children and older children, but it is obvious that at the age of 13 many young people have had sexual experiences. To say that any sort of experience involving a young person under 13 constitutes criminal activity is a dangerous move.

Dominic Grieve (Conservative, Beaconsfield)

I am interested in the debate on these clauses and I do not want to stray too far from it, but the irony is that, apart from the penalties, there is no distinction between children under 13 and children under 16. All their activities are criminalised in exactly the same way, which is one of the most interesting aspects of the Bill.

Julie Morgan (Labour, Cardiff North)

That is a valid point. The Government have said that they will issue guidelines to the CPS and will ensure that unnecessary prosecutions do not take place. However, I wonder whether that is the right way to go about making law. It would be much better if we had something in the Bill to ensure that normal teenage activity is not criminalised. I hope that my hon. Friend the Minister can respond in some way that deals with these issues, because we must go on to discuss how we deal with young people who commit sexual offences and situations in which there is no consent. Those are the young people whom we need to identify and help.

John Randall (Conservative, Uxbridge)

As I was listening to the Minister on the ''Today'' programme—he sounded very reasonable-—one thing occurred to me, which follows on from what the hon. Member for Cardiff, North (Julie Morgan) said. If what we are discussing is

a criminal offence, although the guidelines will have been published and we have had assurances that it will not be taken further, is there not a danger that some youngsters will not know that the guidelines exist? The myth will then go round the schools that these activities are criminal, and young people who engage in them will think that they are in danger of the police coming around and carting them off. I wonder whether that might defeat the object, and make the issue more undercover than we intend.

Paul Goggins (Labour, Wythenshawe and Sale East)

We have already had an indication of the sort of debate that we will have in Committee today. I thank the hon. Member for Woking for his kind remarks at the start of the debate—it is indeed my first time on a Standing Committee, and it is an interesting and challenging one to be part of. I hope that I am able to maintain the constructive atmosphere that prevailed in the Committee on Tuesday.

The hon. Gentleman reminded the Committee at the outset that, as we tease out the issues, what unites us is greater than that which may divide us. He said that sexual assault on children, particularly very young children, was ''abhorrent''. That is our starting point, and that unites us far more than it divides us.

The hon. Gentleman also made the point, which has been repeated by other hon. Members on both sides, that we will discuss a wide range of issues this morning. I will respond to some of those issues now, particularly those that relate to the current group of amendments. However, it has become clear that many other issues are involved. I will deal with the issue about consensual—what some might call harmless—sexual activity between under-16s later on, when we discuss other amendments. However, I reassure my hon. Friend the Member for Cardiff, North and other members of the Committee that the aim of the clauses under discussion is not to criminalise ordinary developmental, fairly harmless behaviour by children. None the less, we have a duty to make the legislation robust.

Amendments Nos. 133 to 136 would require the activities covered by the offences in clauses 6 to 9 to have been carried out

''as part of an assault.''

The hon. Member for Romsey graphically illustrated the sort of problems that such a strict interpretation would cause. There would be two consequences. First, where consent is raised as an issue—and we can anticipate that that would be in almost every case—lack of consent would need to be proved in relation to each offence. I emphasise to the hon. Member for Woking that that would apply whether the offender was under 18 or over 18. Secondly, where lack of consent could not be made out by the prosecution, any sexual activity with a child under 13 would be charged under one of the child sex offences in clauses 10 to 14. In essence, there would be no point in having a range of separate offences for children under 13. The hon. Member for Beaconsfield referred to that issue.

It is important that the Government and Parliament send out a clear signal through the legislation that

although 16 is the age of consent, we have strong views about any sort of sexual activity involving, or sexual assault on, a child under 13. We believe that that is a significant difference. If the amendments were accepted, the legislation would fall far short of the Government's commitment to enhance protection for children.

Let me outline the rationale that led us to define the range of child sex offences dealt with in this group of clauses. Our priority is to maximise the protection offered by the law for very young children. We want to make it clear in statute that sexual activity involving a child under the age of 13 will not be tolerated, so we adopted the policy that a child below the age of 13 is not capable of giving legally significant consent. I am grateful for the support of my hon. Friends and the hon. Member for Romsey on the issue. The hon. Lady referred to the presentation by the Metropolitan police that members of the Committee attended yesterday; unfortunately I was elsewhere and could not be present, but I had a similar presentation from the same unit of the Metropolitan police on Monday, so I am aware of the information that they shared. As we heard, it is important that our deliberations are rooted in the reality that they have to deal with.

We chose the benchmark age of 13 as it reflects the provisions of existing sexual offences legislation, whereby cases involving victims below that age trigger higher maximum sentences than those in which the victims are aged 13 or over, but under 16. We have already debated the age at which people mature and whether that age is rising, falling or staying the same. We have drawn the conclusion that as 13 is the age at which children enter their teenage years and which is recognised by society as marking a significant step towards maturity, it seems appropriate for 13 to be the age threshold below which any ostensible consent to sexual activity should not be deemed to be legally significant. Regardless of whether a child under the age of 13 may have the necessary understanding of sexual matters to give ostensible consent to sexual activity, we firmly believe that the law has a duty to protect all children from engaging in sexual activity at such an early age.

We are also anxious to ensure that children below that age should not have to endure detailed questioning either about their sexual understanding or about whether they gave consent to sexual activity on the specific occasion in question. The effect of the amendments would be that the under-13 child offences would apply only when the sexual activity was forced upon the child. It would follow from that that in some circumstances children under 13 could be deemed capable of consenting to such sexual activity; that is completely at odds with our position.

If the amendments were accepted, there would be nothing to distinguish between offences involving children under 13 as being particularly serious or deviant behaviour and it is important that the Committee, and Parliament, send the message that we do regard that as serious and deviant behaviour. In addition, in connection with proving that an assault has taken place, children under 13 would have to face cross-examination in relation to consent in court,

which is something that we have expressly sought to avoid. Young children should not be put through that experience.

The central point made by the hon. Member for Beaconsfield was about maximum penalties. Without making any commitments or promises, I am happy to reflect on the matter in the light of his comments. In my view, the amendments would totally undermine our policy and weaken protection for vulnerable children under 13. For the reasons I have given, I hope that the hon. Member for Woking will withdraw the amendment.

Humfrey Malins (Conservative, Woking)

We have had a useful opening debate in which we have laid out some thoughts. The amendments, which I shall seek leave to withdraw, would not sort out what you and I, Mr. Griffiths, might call the consent issue. That problem remains, and we shall return to it in clauses 7 and 8.

We should remember that clause 6 deals with rape of a child under 13, which is an extremely serious matter. Other, more forceful points will be made in respect of clauses 7 and 8, particularly about the consent issue. I am pleased that the Minister said he would reflect on the issue of maximum penalties; I am sure that he will seek to make progress on those matters between now and Report. I am sure that discussions will continue to see if there is a perfect answer to some of the problems we have placed before the Committee.

On behalf of my hon. Friends, I thank the Minister sincerely for his reply. To enable the debate to move on to clauses 7 and 8 and beyond, I beg to seek leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 6 ordered to stand part of the Bill.

Clause 7 - Assault of a child under 13 by penetration

Dominic Grieve (Conservative, Beaconsfield)

I beg to move amendment No. 130, in

clause 7, page 3, line 27, after 'body', insert 'other than his penis'.

Win Griffiths (Labour, Bridgend)

With this it will be convenient to discuss the following:

Amendment No. 131, in

clause 9, page 4, line 14, after 'body', insert 'other than his penis'.

Dominic Grieve (Conservative, Beaconsfield)

The amendment can be dealt with briefly, as it refers to the issue of duplication of offences that arose during our sitting on Tuesday. The result of the two amendments would be to differentiate between rape and assault by penetration, which could not involve rape with the penis.

The Minister's explanation remains valid because there is concern that there may be some, perhaps rather odd, cases where it would not be clear whether penetration had taken place with an object or by the penis. In such circumstances, as I understand it, the Government want to retain the flexibility that both counts could be put on the indictment and the jury would therefore have a choice on which to convict. If

the Minister will confirm my understanding of the matter, I will not press the amendments further.

Paul Goggins (Labour, Wythenshawe and Sale East)

In the spirit of the hon. Gentleman's conciliatory approach, I am happy to confirm his understanding of what I said. As my hon. Friend the Minister for Citizenship and Immigration said in Committee on Tuesday, in cases in which the evidence clearly indicates that non-consensual penile penetration took place, we would expect a charge of rape. If there has not been penile penetration the charge would not be one of rape. In cases where there is some doubt and where, in the course of a case, it emerges that there was penile penetration, we would not want the accused to walk out of court scot-free. That is the territory and our aim is to provide clarity.

Dominic Grieve (Conservative, Beaconsfield)

I am grateful to the Minister. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Dominic Grieve (Conservative, Beaconsfield)

I beg to move amendment No. 129, in

clause 7, page 3, line 28, leave out paragraph (b) and insert

'(b) he has neither lawful authority, nor reasonable excuse, and'.

This, too, is a subject we touched on on Tuesday. However, I return to the matter because it concerns the issue of having to prove under clause 7 that the intentional penetration is sexual. The Minister will remember that on Tuesday I expressed reservations about that test. I suggested that in the case of penetration of the vagina or anus, it was difficult to see that the sexual motive was particularly relevant. I said that there should be a different definition that would properly exonerate someone who carried out such penetration in the course of an intimate search or because there was reasonable excuse for the penetration, for example, if a doctor was treating an unconscious patient. That is why I tabled the amendment and I still prefer my wording. As there was no opportunity for the Government to respond fully on Tuesday, because I had not tabled an alternative wording but simply proposed deleting the words ''the penetration is sexual'', perhaps we might consider it now.

I have received several representations, in particular from Liberty, expressing anxiety about the definition of ''sexual'' in, I believe, clause 79, to which we may return at a later stage. I am worried about what the judge will say to the jury. If something is not easy for a jury to understand mistakes will be made and cases will be overturned on appeal. I have a niggle about the quality of the drafting, and I will come back to that when we discuss clause 79.

Paul Goggins (Labour, Wythenshawe and Sale East)

The amendment would remove the requirement that the penetration carried out during the offence must be sexual. We must remind ourselves that we are discussing the Sexual Offences Bill and that any offences covered by it are sexual and would attract the sex offender notification requirement. The legislation cannot include offences that are not sexual.

The existing requirement that the penetration be sexual excludes from the offence penetration of a child by doctors or parents for health care reasons. I am pleased to note that, following Tuesday's discussions,

there is now a degree of sophistication in the hon. Gentleman's approach. That is clear from his further amendments. However, the amendment would cover anyone who penetrates a child under the age of 13 with any part of his body or anything else without a legitimate reason, regardless of whether that penetration was sexual.

Paul Beresford (Conservative, Mole Valley)

Not being legally qualified, may I seek a small clarification? Each of the subsections begins with the phrase ''a person'' and then reverts, in the paragraphs, to the word ''he''. Can I assume that the politically correct have not reached the drafting stage and that it should read ''he or she''? I use the example of Rose West.

Paul Goggins (Labour, Wythenshawe and Sale East)

It is good to be in non-legally-qualified company. The hon. Gentleman's point is well recognised; when drafting legislation, the word ''he'' is always used but can apply to both sexes.

Although it may be hard to conceive of circumstances in which a court would consider penetration of such intimate organs to be anything but sexual, we cannot allow the drafting to include non-sexual assault within the scope of sexual offences legislation. It may be possible that, because of the circumstances and the purpose of the defendant, an assault by penetration was not sexual. Such assaults should not fall within the scope of a sexual offences Bill. A conviction for such an offence automatically results in registration as a sex offender and we simply could not justify sentencing or treating anyone committed of a non-sexual assault as a sex offender.

Alternative legislation exists to prosecute grievous bodily harm with intent, which carries a maximum life penalty—clearly a severe penalty. Any violent, non-sexual penetration of a child should be prosecuted in that way if the case warrants it. There is no reason not to list grievous bodily harm as an alternative charge on the indictment if assault of a child under the age of 13 by penetration is charged. I acknowledge that the hon. Member for Beaconsfield has progressed from his original amendments, and I hope that he will accept my explanation.

Dominic Grieve (Conservative, Beaconsfield)

I am interested to hear the Minister's response. I confess that I had not gleaned from Tuesday's debate—it is interesting that it has now emerged, although I am not suggesting that the Government concealed it—that one of the reasons for using the word ''sexual'' is to justify placing a person on the sex offenders register thereafter. I confess that that had never crossed my mind as a reason for the definition of ''sexual'' in clause 79. That may explain why clause 79 is not as happily drafted as I would like.

Paul Goggins (Labour, Wythenshawe and Sale East)

It may help the hon. Gentleman to know that the Government have tabled an amendment containing a new definition of ''sexual''. I hope that it will lead to greater clarity.

Dominic Grieve (Conservative, Beaconsfield)

I am grateful to the Minister, and I accept that that may improve matters. However, I still believe that it may be a mistake to insist on the sexual motive being proved. The jury will have to be satisfied that there was a sexual intention—whatever that may mean—behind the act.

I agree with the Minister that in some cases it is essential to establish a sexual intention. When one is deciding whether an assault, such as when one person brushes up against another, is indecent under the old law, the sexual nature of the act becomes very important. There is general agreement on the Committee that penetration, especially with an object, of another person without their consent is a serious matter. Once it is shown that it happened and that there was no consent it is easy to say that an offence has been committed. Yet we are putting an extra hurdle before the jury of having to decide the sexual motivation before conviction can take place.

Defendants, as I know from experience, are very creative individuals. They quickly cotton on to all sorts of explanations that can be put forward to justify their actions. They will tell their barristers to put forward the defence that it was all an unfortunate accident and that there was no sexual motive behind it. We will get into a situation where, with a superabundance of caution, prosecutors will put non-sexual alternatives on the indictment. The difference will be that if there is no grievous bodily harm it will be a very minor matter. It may just be a common assault. It might be actual body harm.

As I said on Tuesday, we are making a rod to beat ourselves with quite unnecessarily. Although the idea that we could end up with a penetration of someone's anus or vagina with an object that does not have a sexual motivation is rather far fetched, we could have all sorts of odd people trotting into the witness box to argue that as their client is a eunuch who cannot get any arousal out of his activities there can be no sexual motivation. I am trying to think this one through. I just do not think that the provision is necessary.

The Minister suggested that the reasoning behind the provision was anxiety about the sex offenders register. However, it is time for us to be reasonably robust. Let us suppose that a repeat serial offender, who penetrated other people with objects without consent, was able to establish that because of his psychological condition he did not do so from any sexual motive. Would we not want him on the register to warn people that he was around? We would probably think that the sex offenders register would be a good place for him. Here also we are making life difficult for ourselves. I appreciate the Minister's point and I do not want to take more of the Committee's time. I will obviously ask leave to withdraw the amendment, but I hope that we will think about this because I find it an odd thing to do in view of the nature of the allegation that is being made.

Paul Goggins (Labour, Wythenshawe and Sale East)

We may have made a bit of a breakthrough. The hon. Gentleman may like to reflect that in such a case it would not be necessary to prove that the offender's motive was sexual. The jury could decide that the nature of the act—the penetration of the anus or the vagina—was in itself sufficient to enable it to conclude that the act was sexual. It would be the judgment of the jury on the nature of the act, rather than the intention of the offender, that would determine whether the act was sexual.

Dominic Grieve (Conservative, Beaconsfield)

I am grateful to the Minister, and take his point. We will have a good opportunity to

reconsider the issue when we reach clause 79, especially once we have looked at the Government amendments to it. I was rather concerned by the clause, but I accept that that was principally on looking at the old clause 79, and not at the Government amendments to it.

In my experience, juries are very good at answering questions, as long as they are not convoluted and bizarre. The only representations that judges have made to me about the Bill have been on occasions when they have taken me to one side at drinks parties and said, ''Have your read this thing? I am not sure how I will ever explain this to a jury in summing up.'' Of course, judges are conservative with a small ''c'', and if they are used to a particular summing up patter, they can probably get used to a new one.

It struck me that the ''sexual'' element in clause 79 could, when explained to a jury, easily leave them puzzled. I think that, whatever the Minister may have intended, juries would interpret it as ''a sexual motive'', because if there is not a sexual motive, how can there be a sexual act? I accept that we can return to the issue. I understand the distinction that the Minister is making—that there can be a sexual act without a sexual motive—but reading clause 79 worried me, because it gets us into esoteric distinctions as to what people understand.

Once juries are asked, ''Are you satisfied that this is a sexual act?'' there is a risk that they will ask themselves, ''Why am I being asked this question? Either it's obvious, or there is something that I must decide about it.'' That is where the defendant will come along with all sorts of creative explanations. Anyway, we will leave the subject until we get to clause 79. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Win Griffiths (Labour, Bridgend)

Before I call the hon. Member for Woking to speak to clause stand part, I should say that, because of the nature of the subject, I have allowed a pretty wide-ranging debate. However, given that amendments have been tabled to clause 79, I hope that there will be no more referrals to that clause, except, perhaps, in a simple sentence. I do not want any more detail on that clause, because it is not relevant.

Question proposed, That the clause stand part of the Bill.

Humfrey Malins (Conservative, Woking)

I shall be brief. I return to the principal point, which I made more than an hour ago. We know of what we disapprove, and we know that it should be made criminal, but we also instinctively know what should not be made criminal. That is commonly understood in Committee.

Many months ago, I had the privilege to chat to Professor John Spencer, QC, of Selwyn college, Cambridge—a leading, if not the lead, academic in this and other criminal fields in Cambridge university. I advise the Minister to make contact, through his officials, with someone of that eminence to consider

possible drafting measures to get over the problem to which I have alluded.

The following problem is acute, and remains under clause 7: if a 12-year-old girl asks a boy of the same age to put his finger into her vagina, he is liable, on conviction, to imprisonment for life, despite the fact that she asked him to do it and makes no complaint. That is the beginning and the end of the story. If I am wrong, let the Minister tell me so. If any Committee member thinks that we should be happy with that proposition, let that person intervene on me now.

Sufficient time has passed for it to be plain that no Committee member thinks that that young boy should go to prison for life. However, that is exactly what we are saying should happen. The Minister and his officials are under a duty to observe.

Neil Gerrard (Labour, Walthamstow)

I do not disagree with the fundamental point that the hon. Gentleman makes. We are saying not that that should happen, but that it could, which is not the same thing.

Humfrey Malins (Conservative, Woking)

I take the hon. Gentleman's point. We are passing a law, saying, ''That is the law.'' I am not satisfied with the proposition that we should pass lots of laws and follow those with regulations saying, ''The laws are stupid, so we will not enforce them. We just like to have them on the statute book.'' I have already mentioned Professor Spencer. I shall return to what he said later, because he has more to say about other clauses.

If we agree to the clause in its present form, it will become law. However, there is not a single Committee member who thinks that it is sensible. Someone somewhere must find a way to make an amendment—perhaps one of my later amendments—that will add something to the end of the clause to the effect that one person has caused harassment, alarm or distress to the other. We shall debate that later. We should be discussing that; otherwise, we are doing something that is utterly stupid.

Paul Goggins (Labour, Wythenshawe and Sale East)

On Tuesday, the hon. Gentleman described his manner of speaking as self-deprecating. His self-deprecation does not, however, conceal his strong feelings about certain issues, and I sense that he feels strongly about this one. He says that the law must be clear. Committee members are clear that we must do our best to achieve clarity through our deliberations. The clause makes it clear that the sexual penetration of the vagina or anus of a child under 13 will always amount to an assault by penetration. The question of consent will always be irrelevant. Our policy is that a child under 13 should be deemed incapable of giving legally significant consent to any form of sexual activity.

The hon. Gentleman describes a scenario involving two 12-year-olds. He did not speculate further about the degree of innocence in that relationship, or whether one of the children might have been, perhaps for some years, the victim of abuse in the family. The individual circumstances of such an offence and of the two children caught up in it will always be a matter of deep deliberation and

consideration. All those circumstances will be taken into account at the point where the CPS has to decide whether to prosecute. If there were a prosecution and a finding of guilt, the question of the penalty would arise. Again, the specific circumstances would always be examined.

Humfrey Malins (Conservative, Woking)

That is a well made point and it shows the advantages of a Committee debate. My views remain the same, but the Minister makes a good point.

Paul Goggins (Labour, Wythenshawe and Sale East)

I am grateful for the hon. Gentleman's comments. Perhaps I have said enough.

Julie Kirkbride (Conservative, Bromsgrove)

I am grateful to the Minister for his response, but, in contrast to my hon. Friend the Member for Woking, I am more alarmed. The following possibility is raised. Let us say that a young boy was invited to insert his finger into a young girl's vagina and suppose her mother found out, was upset and wanted to pursue a prosecution. That would technically be possible under the law. There may have been no abuse in the family. These things can, after all, just happen through sheer curiosity, perhaps arising from something that the children read in a book. They may have wanted to see whether it was more interesting than it looked. There do not have to be extenuating reasons why that young man behaved in that way. He was just doing what he will want to do a lot more of when he gets a bit older, but he will have to face court proceedings, which will completely change his life. He should not be put in that position at 12 years of age, when some kids will do what kids do.

Paul Goggins (Labour, Wythenshawe and Sale East)

I hope that I can reassure the hon. Lady by emphasising again that the specific characteristics and circumstances of the offence and the offender will be the subject of some consideration.

There is the world of the law, but there is also the world of good practice. Recently, I had the privilege of visiting the Aim project in Manchester, which is run by the National Society for the Prevention of Cruelty to Children.

Neil Gerrard (Labour, Walthamstow)

Will my hon. Friend give way?

Paul Goggins (Labour, Wythenshawe and Sale East)

I will, but then I hope to say something about that project.

Neil Gerrard (Labour, Walthamstow)

I want to refer to the point that the hon. Member for Bromsgrove (Miss Kirkbride) made, and to raise a concern of mine that runs through all our discussions on this matter. Regardless of what we might say about the CPS guidelines that we expect, it is difficult to guarantee that all Crown prosecutors will adopt a common approach. Secondly—this is the hon. Lady's point—I do not see how that would protect against an attempt to bring a private prosecution. We can be pretty certain that there will be people who regard themselves as the moral guardians of the nation and who will be only too willing to attempt a private prosecution in some circumstances.

Paul Goggins (Labour, Wythenshawe and Sale East)

My hon. Friend, with his vast experience, makes an interesting point, and I shall reflect on it further.

I was going to make a point about the Aim project I visited in Manchester. In liaison with the police in

Greater Manchester, it has established that whenever there is the possibility of a prosecution for a sexual assault by a child on another child there is an automatic bail period during which an expert from the youth offending team, with support and training from the Aim project, is able to assess in great detail the particular circumstances of the alleged perpetrator. That helps to inform the deliberations of the CPS and, eventually, of the court. Therefore, notwithstanding the provisions that we make, good practice can prevail, and sometimes it can provide the support that the perpetrators require, which is needed every bit as much as is the action to be taken against them.

Julie Morgan (Labour, Cardiff North)

Can my hon. Friend confirm that the NSPCC project's investigations and discussions are held pre-charge, so that as many young people as possible are diverted from the custodial system?

Paul Goggins (Labour, Wythenshawe and Sale East)

I am happy to confirm that they are all held pre-charge. The stand-down 28-day bail period is pre-charge. This helps to inform the whole process with a more thoughtful approach, while bearing in mind that there is a need for justice and to ensure that where an offence has taken place the victim is accorded the proper respect and dignity. We must have an effective intervention with regard to such children.

Paul Beresford (Conservative, Mole Valley)

I was going to raise the point that the hon. Member for Walthamstow (Mr. Gerrard) raised on the back of the point of my hon. Friend the Member for Bromsgrove. If a mother comes across her daughter playing nurses and doctors—or whatever children of that age call it now—and is sufficiently aggrieved and upset because she cannot stand the boy concerned and so on that she goes for a private prosecution, what will the situation be?

Paul Goggins (Labour, Wythenshawe and Sale East)

I did say that I would reflect on the comments of my hon. Friend the Member for Walthamstow—and now of the hon. Member for Mole Valley (Sir Paul Beresford) as well—and after a little time for reflection, I am able to respond by saying this: the Director of Public Prosecutions can take over private prosecutions, and can discontinue them. After advice, it appears that this route would not open up scenarios of the type that were put to me by the hon. Member for Bromsgrove and my hon. Friend.

Question put and agreed to.

Clause 7 ordered to stand part of the Bill.

Clause 8 - Sexual assualt of a child under 13

Sandra Gidley (Liberal Democrat, Romsey)

I beg to move amendment No. 173, in

clause 8, page 3, line 36, at end insert—

'( ) Conduct by a person (A) which would otherwise be an offence under subsection 1 of this section against another person (B) is not an offence under this section if—

(a) there is no great difference in the ages or the mental and physical maturity of the persons involved, and

(b) B has fully consented to all aspects of the conduct.'.

Win Griffiths (Labour, Bridgend)

With this it will be convenient to discuss the following:

Amendment No. 174, in

clause 14, page 5, line 32, leave out subsection (1) and insert—

'(1) Subject to subsection 1A, a person under 18 commits an offence if he does anything which would be an offence under any of sections 10 to 13 if he were aged 18.

(1A) An offence is not committed if—

(a) there is no great difference in ages or mental or physical maturity of A and B, and

(b) B has fully consented to all activities which would otherwise be an offence,

(c) the activity was not part of an assault.'.

Amendment No. 175, in

clause 14, page 5, line 33, at end insert—

'( ) Notwithstanding subsection (1) it is a defence for offences under sections 10 to 13 and 15 in respect of a complainant who is 10 years or more but under the age of 16 where the complainant consented to the activity and A is—

(a) 13 years or more but under the age of 18,

(b) less than 2 years older than the complainant, and

(c) is not in a relationship of dependency.

Sandra Gidley (Liberal Democrat, Romsey)

The amendments were tabled in an attempt to deal with a vexed question. Although we are not dealing with clause 14, I was taken with the simplicity and—dare I say it—common sense of amendment No. 11 to that clause, tabled by the hon. Member for Lancaster and Wyre. I look forward to that debate, because there are many parallels between clause 8 and clause 14. The Liberal Democrats want to tackle the problem, but we realise that there are a number of approaches. The fact that we have supported four different amendments that purport to do the same thing does not mean that we are confused. I hope that hon. Members realise that we are genuinely attempting, in as many ways as possible, to find a solution that is acceptable to the Committee and to Ministers.

Amendment No. 173 is an attempt to keep things relatively simple. Hon. Members who have read the briefings closely will probably have worked out that it is a variation on an amendment suggested by the Family Planning Association. We have incorporated what can be regarded as the Finnish model, because we did not want to get too bogged down in age limits and maximum differences in age. There are many differences in maturity and physique even between people of similar ages, and the permutations are endless. One can always find a combination in any age definition that does not to work. The amendment is an attempt to resolve that problem.

The amendment could be interpreted as condoning sexual behaviour between a 12-year-old girl and an 18-year-old male. The Committee knows from my earlier comments that I would be unhappy about that. I will freely admit that there are some 12-year-old girls who—mostly for the reason that they have suffered abuse themselves in some way—might want to try to attract an older male. My assertion is that in those cases, the test of physical maturity would come into play, so that there would be no defence for the man. One can imagine an opposite situation in which a young man who had developed an unhealthy taste for young girls would try to work around that provision. That situation would also be provided for with the ''no great difference in age'' provisions. That is our

preferred way of dealing with the question, but amendment No. 174 proposes an alternative method and gives more detail about age differences. We have tabled parallel amendments to clause 14, including amendment No. 175, which we are discussing now.

The maturity of young girls and boys varies widely during the teenage years and putting aside basic differences, the most obvious is the different age at which the hormones kick in. As someone whose family is currently suffering from teenage hormones kicking in, I am aware of those problems. Guidelines would have to be produced for the CPS but that would not present a problem to the Minister, who was on the ''Today'' programme this morning suggesting that they will be produced anyway. Any of the amendments that we are tabling would also have to be backed up with guidelines as to what is and what is not acceptable, so I accept that there is a little more to be done.

Amendment No. 174 provides greater age definition: under its provisions the defendant would have to be between 13 and 18 and the age difference no greater than two years. Many agencies have suggested that an age difference of three years would be much more acceptable, as that would take into account differences in physical and mental maturity. The Liberal Democrats would be prepared to consider the amendment. The two-year age difference provides a tighter framework; it is already used in countries such as Canada to fairly good effect and it provides less scope for a mature older male—I am sorry, my maths has gone to pot—to try to develop a relationship with a relatively immature female. The two-year age difference provides a little more protection.

I am keen to hear what the Minister will say in response. We will press amendment No. 173 to a Division because it represents a simple and manageable way to deal with the problem. We will not press amendments Nos. 174 and 175 to a Division, because the Conservatives have tabled similar amendments that will be dealt with later, and it will be useful to have a wider-ranging debate at that point.

Neil Gerrard (Labour, Walthamstow)

I was listening to the hon. Lady with a fair degree of sympathy until she said that she was going to press amendment No. 173 to a Division. We are trying to find a solution to a difficult problem and I do not see a complete solution in that amendment.

Sandra Gidley (Liberal Democrat, Romsey)

I was minded to press it to a Division merely to see how much sympathy there was for it. If it is clear that there is no such sympathy in this Room, we might revise our opinion. However, for the record, it would be useful to see what support there is.

Neil Gerrard (Labour, Walthamstow)

The difficulty with the amendment is in the use of the phrase ''no great difference''. I have a considerable problem in seeing how that would be interpreted. One thing that has come through the debate this morning is that we are trying to resolve a problem and we need as much clarity as possible within the law. The problem with the amendment is

the use of that phrase, particularly when the matter is complicated by the wording,

''no great difference in the ages or the mental and physical maturity'',

meaning that there is a further issue to assess: the mental and physical maturity of two individuals. We all appreciate that one can see enormous differences between the mental and physical maturity of two 12 or 13-year-olds.

Vera Baird (Labour, Redcar)

Obviously it is sensible to incorporate such factors into any decision about prosecution, but are they not better dealt with pre-prosecution, in the way that the Minister outlined, rather than left to a jury to assess, which is what the amendment would require?

Neil Gerrard (Labour, Walthamstow)

That is absolutely right. The Minister and others have referred several times to guidelines. On a number of the offences in the Bill—and in any criminal prosecution, come to that—one would expect that the CPS would have guidelines that would be followed in cases where there might be issues of discretion. It would be of assistance to hon. Members, both in the Committee and in the House as a whole the Bill is discussed on Report, to have a clearer idea of what the guidelines to the CPS might comprise and what factors the CPS would expect individual prosecutors to take into account.

Furthermore, although we have discussed guidelines to the CPS, that will not be the only body involved in such matters. What will the police do? What approach will different police forces take? I can think of one or two chief constables who took some bizarre approaches to sexual offences in the past. A few years ago, I would not have trusted a chief constable in Manchester to take an enlightened approach to such legislation. What approach the police take is important. We must bear in mind that, for a 12 or 13-year-old, the matter would not involve only the possibility of being prosecuted, but of having to deal with the police. That could be a real problem if an individual police officer did not approach the complaint in the right way.

It would be helpful to receive information on what guidelines might be considered, how they might be applied through the CPS and how a consistent approach might be taken by different police forces, because such problems are not easy to deal with.

Chris Bryant (Labour, Rhondda)

I, too, have sympathy with the direction in which the hon. Member for Romsey is trying to pull us. However, I do not have much sympathy with the amendment for a similar reason to that advanced by my hon. Friend the Member for Walthamstow, namely that the phrase

''no great difference in the ages''

is problematic.

As we have gone from clauses 6 and 7 to clause 8, the problems inherent in the Bill have increased. We already know that the age at which many boys and girls have sexual experiences is 13 and 14—[Interruption.] The average age. We can be certain that many boys and girls have had sex at a younger age and we can be even more certain that sexual touching

of some sort or another had been happening for a considerable period before the age of 13.

I recognise that the Minister is trying to do everything in his power to make sure that the law does not criminalise what we consider to be the normal process of growing up, but unless we find a clearer solution to the conundrum, we will be doing precisely that. I am nervous about the Romeo and Juliet possibility. If my knowledge of English literature is correct, Juliet was coming up to her 13th birthday. The Capulets and the Montagues certainly hated each other enough to bring forward a private prosecution, if they had wanted to. Many families in my constituency hate each other just as much as the Montagues and the Capulets did. If, at any time, they thought that one of their children had been touched in a sexual manner by another child from a family that they did not like, they would be only too happy to use the law in a way that would do no favours for either of the children involved.

While I heard the extremely sensible arguments advanced by my hon. Friend the Minister on the ''Today'' programme—

Mr. Malins rose—

Chris Bryant (Labour, Rhondda)

If the hon. Gentleman will let me finish my sentence, I shall give way. I listened to everything that my hon. Friend said this morning on the ''Today'' programme and I am sympathetic to the conundrum that he faces, but without having clear CPS guidelines, it would be difficult for us to go forward with full confidence in the clause.

Humfrey Malins (Conservative, Woking)

The hon. Gentleman reminds me of the school play in which one of my children was involved at the age of 12—I will not say which child, in case they are prosecuted. The play was ''Romeo and Juliet''. Many 12-year-olds were involved on stage, and to say that there was some sexual touching would be an understatement. I assume that the Minister or the hon. Gentleman will confirm that, guidelines apart, there would be an absolute defence if such behaviour were part of a play.

Chris Bryant (Labour, Rhondda)

I fear that the hon. Gentleman has enticed me into a terribly difficult area. I remember playing Robin—not Christopher Robin—in ''Time and the Conways'', a play by J.B. Priestley. In one of the major scenes in the play, Robin kisses his girlfriend, whom I think is called Joan. The scene ends with the terrible line, ''Oh, Robin! Oh Joan!'' The local girls' school was invited to watch the play one night, and there were titters from the beginning to the end of the show. I was only 12 at the time. However, this is not really the moment for confessions.

I want to make another important point: the process of deciding whether there should be a prosecution may do infinitely more harm than the event itself may have done. I am sure that there have been many thousands of occasions on which boys and girls—or, for that matter, boys and boys or girls and girls—may have touched each other with sexual intent, entirely innocently. We must ensure that they will not be put through the mill of unnecessary legislative processes, or criminalised for the rest of their lives.

That was intended to be a peroration, but I shall give way to the hon. Lady.

Sandra Gidley (Liberal Democrat, Romsey)

Does the hon. Gentleman not agree that amendment No. 173 decriminalises such behaviour, so the chance of there being a prosecution would diminish greatly? Such a prosecution would therefore only occur in the sort of Romeo and Juliet situation that he described earlier, and would happen extremely rarely. At least the act is being decriminalised, so that young people will not be afraid to access sexual health services, or to ask for advice.

Chris Bryant (Labour, Rhondda)

I accept the thrust of the hon. Lady's argument, but I do not believe that the phrase

''there is no great difference in the ages''

in paragraph (a) is sufficiently robust to stand the test of legal drafting. I am therefore happy to sympathise with the arguments that the hon. Lady advances, but I do not agree with her solution. I hope that the Minister will provide us with a better solution.

Julie Kirkbride (Conservative, Bromsgrove)

The hon. Gentleman's comments remind me of an incident that happened in my constituency, of which I hope the Minister will take account when he gives further thought to our discussions today. The incident occurred in the playground of a middle school and the child concerned was under the age of 12. I am not sure what sort of touching took place, or whether it was a flashing incident. The police talked to the young boy concerned, the social services got involved, and a great hoo-hah was made about the incident.

In the circumstances, it did not help that the young boy was black, in a predominantly white village. The involvement of all the services meant that everyone knew about what had happened, and the poor boy was even more stigmatised by an incident that, five years ago, I suspect would have been approached in a very different way. He would probably have been told, ''Well, young man, you really shouldn't do this.'', his mother and head teacher would have been informed, and nothing more would have been said about it. It is bad enough that so many services got involved that he and his family felt stigmatised. It would be even more dreadful if, perhaps because of racist intent, this law were used to criminalise that young person. I hope that the Minister will bear that in mind when he considers taking this provision further.

Hilton Dawson (Labour, Lancaster and Wyre)

I am much more sanguine and less worried about this clause and other clauses than some colleagues who are moving and expressing support for amendments. There is an enormous protective purpose in making a distinction between children who are under 13 and children who are over 13. In all our discussions about school plays and doctors and nurses, we must acknowledge that as far as we know a very significant proportion of sexual assaults on children are carried out by children. It is important that we deal with that.

We are also falling into a trap into which the Home Office has fallen. I am referring to the assumption that all these issues will necessarily be sorted out by this Bill and the criminal law. We must set the issues in the context of social policy. The children's Green Paper was published on Monday. I sincerely hope that we will move to better levels of support for parents and children, much more openness and honesty about issues that are often not discussed properly, and much more availability of education and support for children on matters of sexuality and health.

I shall argue the same point on a slightly different tack later in respect of children over 13. I am much more sanguine than others that what we are deciding today will not lead to the dire consequences that people are predicting. I stress the importance of the distinction between under-13s and over-13s.

Win Griffiths (Labour, Bridgend)

We have had a pretty wide-ranging debate, so I am not minded to allow a stand part debate on the clause at the end.

Annette Brooke (Liberal Democrat, Mid Dorset and North Poole)

I had a useful visit to Finland last week. It was about the treatment of children more generally, but I met an official from the Ministry of Justice to talk about the phrase from Finland that we have introduced. We have not applied it to sexual intercourse with a child younger than 16, which Finland does. We are talking about a 15-year-old kissing a 12-year-old. I asked the official how the terms work, because that is the question being asked here, and his answer was clear: ''We trust our judges.'' He said that there had been a case involving a 30-year-old and a 14-year-old. That age gap is clear. The point probably becomes much clearer when we talk about touching. For a 15-year-old and a 12-year-old, that is totally normal behaviour. Should it reach the situation in which a judge is involved, surely we should have some trust. This is about decriminalising normal behaviour.

Unfortunately, I did not learn enough in Finland. I shall have to make follow-up visits. The age of criminal responsibility is higher in Finland, so under-15-year-olds are not dealt with in the courts. That is really why we are having this discussion. The Bill is in a tangle because the age of criminal responsibility is wrong. We clearly have to do our best within that constraint.

Chris Bryant (Labour, Rhondda)

The hon. Lady makes an important point, which relates to that raised by the hon. Member for Woking about the different ages of consent in Europe. The age of consent in Spain may be 12, but it does not have the same effect on the way in which children in Spain are prosecuted.

Annette Brooke (Liberal Democrat, Mid Dorset and North Poole)

Yes. I might add that politicians in Finland voted to keep the age of consent at 16, even though officials recommended that it be lowered to 15. The background is not that of a free society; the parliamentarians apparently acted against the advice of officials.

I am picking up on something said by the hon. Member for Lancaster and Wyre. Given the handicap

of a low age of criminal responsibility, the fundamental work has to be done in the pre-prosecution stage, should it be necessary. Come what may, we need to know a lot more about how the problem will be approached. We should realise that we have a big problem, which is stopping us from finding a solution in the Bill. We have to do the best we can.

Amendment No. 173 tackles many of the issues about which we are concerned. It covers full consent to all aspects of the conduct, and as I said earlier it focuses on the touching issue. The touching aspect worries me: I would not have wanted one of my daughters to have felt guilty and besmirched at the age of 12 simply because she happened to be kissing someone or engaged in friendly touching. That is an awful thought. We have a big responsibility to get it right before we reach the end of the Bill. My main concern, however, is that we are operating with a huge handicap. I am pleased that the Minister is looking at the matter because those guidelines will be critical.

Humfrey Malins (Conservative, Woking)

Is the hon. Lady giving way, or has she concluded?

Annette Brooke (Liberal Democrat, Mid Dorset and North Poole)

I am giving way.

Humfrey Malins (Conservative, Woking)

On the question of the Crown Prosecution Service and guidelines, is it not worth stressing that quite a lot of damage could be done to the child in question by having to go through a process that resulted in the CPS saying that, given the circumstances, it would not prosecute? The time leading up to the decision would be difficult, even without a prosecution.

Annette Brooke (Liberal Democrat, Mid Dorset and North Poole)

I thank the hon. Gentleman for that intervention. As well as trying to make sensible amendments, my line of thought is that we need a pre-prosecution stage—a new system that acts like a sieve that allows innocent people to fall out of the system at an early stage. The sieve might stay in place a little longer if treatment were needed, and we could include the treatment. If we had such a hierarchy, we could sift cases out and then ensure that the terrible cases that we saw in yesterday's presentation can be tackled.

Julie Kirkbride (Conservative, Bromsgrove)

I understand why the hon. Lady talks about some form of sift, but I wonder whether she shares my concern. She said how upset we would feel if 12-year-olds were made to feel dirty for having done something that they thought was quite innocent, but the idea of some kind of process becoming part of their lives, and of being arraigned before a court or some other institution, fills me with horror. It is something about which we should be able to say, ''Well, little Johnny, you should not do that at the moment—later on, perhaps, but for the time being just leave her alone.'' That seems quite enough at that age.

Annette Brooke (Liberal Democrat, Mid Dorset and North Poole)

That is what I meant about using a simple filter—I call the sift a filter. Normal behaviour must be treated quite separately, but we have to have some protection for the most awful cases. That is what we are struggling with, but the innocent will be caught up in it because of the age of criminal responsibility.

Hilton Dawson (Labour, Lancaster and Wyre)

I share the hon. Lady's views on the need to increase the age of criminal responsibility.

Does she think that ensuring that children cannot give consent under the age of 13 would be a useful weapon to use against the Home Office in the battle to increase the age of criminal responsibility? Is she not watering that campaign tool down by trying to introduce the issue of under-13s' consent with the amendment?

Annette Brooke (Liberal Democrat, Mid Dorset and North Poole)

There is a certain logic, and if I thought that the age of criminal responsibility were likely to be changed within the next year, I might agree with the hon. Gentleman. However, as it would take a brave Government and many years to do that, we should look for an interim solution. I commend our amendment as the interim solution.

Dominic Grieve (Conservative, Beaconsfield)

I have been struck by today's debate, which has been a reflection of the way that times have moved on. There has been only a tentative suggestion that one purpose of criminal law is to reinforce a social message, but for the prohibition of sexual activity for those under 13, that is exactly one background intention of past and, I suspect, current legislation. We have spoken about how bad it would be for a 12-year-old to feel that as a result of some playground activity, they had sullied themselves and left themselves open to great criticism. That is one anxiety, but the reverse is also true.

Picking up on what my hon. Friend the Member for Bromsgrove said, one reason for having a blanket prohibition is to enable parents to say to their children that something is not allowed and that they will just have to wait until later to do it. The Minister may say that I am wrong, but I believe that that is one intention behind the Bill. It has not been mentioned, because it has become a somewhat unfashionable concept, but it is not one that we should completely shirk. Things happen, and picking up on what the hon. Member for Lancaster and Wyre has just said, if they do happen, we should not make a big fuss about them. However, the truth is that human experience has suggested that it is not a particularly good idea for them to happen. Two 12-year-olds spending all their time behind the bike sheds may have other ways in which to spend their time more profitably. We know that sexual experiences stir up passions and emotions of all kinds, which young people find it difficult to handle.

That is why I cannot support the Liberal Democrat amendment, although I appreciate the intention behind it. I understand the thinking behind the first exception—that

''there is no great difference in the ages or the mental and physical maturity of the persons involved''—

but the provision is woolly. It would be an absolute nightmare to disentangle in court, and it could sanction a physical relationship between two children who had become highly sexualised for whatever reason—perhaps because they had been abused in some other context—even if the relationship were extremely counter-productive to their own interests. Only the parental sanction would be left, and it is sometimes difficult to enforce. Therefore, I am unable to support the amendment, despite appreciating the intention.

Once we get beyond the age of 13, we could apply different criteria. However, again picking up on the

comments of the hon. Member for Lancaster and Wyre, we should just accept that there is a blanket prohibition under 13. Our children do not carry microchips that register in the police station every time that they go behind the bike sheds. We must be realistic. It is unlikely that there will be persecution of 11-year-olds for behind-the-bike-shed activities. That does not happen at present, although it could, under the laws of indecent assault, so perhaps we should not get too twitchy. However, guidelines that the public could see would be desirable.

Paul Goggins (Labour, Wythenshawe and Sale East)

You have been very tolerant of our consideration of the amendments, Mr. Griffiths, and I will press you for a little more forbearance. The hon. Member for Woking said that he would make some comments that went wider than the amendments. In articulating the Government's approach to the amendments, I must make some wider points, too.

I am pleased that several hon. Members were up and about and listening to ''Today'' this morning; I do not mean to be facetious, but I hope that some had a few happy memories reawakened as they listened to one of its items. It addressed the fact that this difficult debate occurs in our deliberation of a Bill that is about ensuring that our children are properly protected, and that those who abuse them face stiff penalties.

My hon. Friend the Member for Lancaster and Wyre made a good point: we have to face the fact that many sexual assaults on children—estimates are between a quarter and a third—are committed by other children. We should not lose sight of that. The claim is that in bringing about the degree of protection provided in the Bill, we also catch young children under 16 who are engaging in what most people would regard as fairly innocent, normal growing-up behaviour. I agree with what the hon. Member for Mid-Dorset and North Poole (Mrs. Brooke) said about young children engaging in what she described as ''innocent'' behaviour being made to feel guilty. None of us would want that. I do not believe that the Bill brings that about, and I shall explain why.

The legal position is that that kind of consensual, low-level—as some might describe it—sexual activity is already illegal. That is our starting point. We are not introducing provisions that bring in a whole new set of circumstances. The proof of the truth of my arguments is that there are no prosecutions. However, it is important that we have the opportunity to investigate allegations because of the point that my hon. Friend the Member for Lancaster and Wyre raised—the fact that, in many cases, children are sexually assaulted by other children. We have a responsibility to ensure that we have the facility to carry out those investigations. Also, in the guidance there is the concept of common sense, which ensures that we do not seek to make children feel guilty and do not criminalise them for relatively harmless and normal things.

I pay tribute to the tremendous efforts made since the Home Secretary issued the champagne challenge in July on Second Reading. He made it clear that he

would present a magnum of champagne to anyone who produced a solution to the problem. I think that it was a genuine offer, but he is a canny Yorkshireman, and perhaps he had already worked out—he is thoughtful about such matters—that there might not be an answer to it.

We entered into the discussions of the past couple of months in an open spirit. I pay tribute first to the children's organisations that have taken up the challenge in entirely the right spirit. They have worked together and with officials in the Home Office to come up with a solution to the tricky problems that we are discussing. I also pay tribute to the officials who have worked tirelessly and generously to find a way of changing what we are putting on the statute book so as to remove that innocent kind of behaviour. I pay tribute, too, to the hon. Members in this Room, who have, during the past couple of days, been trying to find ways of improving the legislation. Every time Committee members have tried to do that, we have had to conclude that in trying to bend it a little bit to open up the possibility of allowing such behaviour to be outside the law, we would reduce the important protection that should be maintained.

Any attempt to amend the clause to exclude the kind of innocent behaviour that hon. Members have described would add enormous complexity to the Bill. We cannot get away from that. People say in conversation, ''Well, we will just leave out normal, low-level sexual activity.'' It is all right to say that, but to enshrine it in legislation is a far more challenging task. We would all agree that an innocent kiss is at one end of the scale and that full sexual intercourse is at the other. There is, however, a heck of a lot of behaviour in the middle that would have to be defined clearly, so that the court and juries could understand it. There is always that degree of complexity when we consider amendments such as those that are before us. If it is complex in terms of the law, how much more complex is it in the mind of a child, whom we are expecting to make rational decisions and choices about such matters?

I was very taken by the comments of the hon. Member for Beaconsfield. He said that we should make it clear that such things were not allowed. The age of consent has to mean something. That is important. Of course, we accept that behaviour of the innocent development type, which has been described, goes on, but to say that it can all go on—to say that it is okay, whatever the activity or age—is a different argument. Society has a responsibility to send out a message. In the light of the review of sexual offences and our various debates, we are on quite robust ground in saying that there is solid public support for 16 to be the age of consent. There is also the danger that if we reduced the significance of 16 as the age of consent, we would send a message to children about what is expected of them. It would be damaging if the message went out that we were reducing the importance of the age of consent—that there was something like a cultural expectation that now they would engage in sexual activity before they were 16.

An additional problem, if we accept that certain sexual activity can be permitted between consenting under-16s, is that proof would be required that such activity was consensual. At that age children are in a time of growth, adolescence and growing maturity and consensual activity is quite hard to prove. How do we prove that consensual sexual activity between a mature 15-year-old boy and an immature 13-year-old girl is truly consensual? How do we prove that a sexual relationship between two people in the same class, one of whom is trying massively to impress the other, is of a consensual type? If we define certain permissible sexual activities, we must also face the fact that their consensual nature must be dealt with. That produces many great difficulties.

The amendment says:

''no great difference in the ages . . . or maturity''.

It is impossible to work out what that might mean in practice. My hon. Friend the Member for Walthamstow has already described that difficulty.

Annette Brooke (Liberal Democrat, Mid Dorset and North Poole)

I am concerned about the direction of the Minister's argument. This is a difficult question, but is it right to have simpler legislation that leaves society with quite a few problems? The Minister is saying that we cannot do what the amendment says because it is so difficult, but that is not a good reason for not trying to do it or for not doing more work and putting more emphasis on it.

We are losing sight of the fact that the problem must be dealt with. It is not enough to say that it is too difficult. I wonder whether the Minister shares the concerns of the Joint Committee on Human Rights about liabilities being imposed on children.

Paul Goggins (Labour, Wythenshawe and Sale East)

I assure the hon. Lady that the fact that we have not arrived at a solution is not for want of trying—I am sure that she did not mean it in that way—nor for the want of hard work by officials, representatives of voluntary organisations and others. However, we must draw legislation as tightly as we can. We discussed earlier the complexities arising from the question of whether an act is sexual. Legislation must be drawn as tightly as possible, but we must take account of the fact that, in circumstances like these where we want to make some clearly defined exceptions, it might make it complicated to implement. However, in no sense are we saying that we cannot be bothered to try a bit harder to find a solution. We have tried very hard to find a solution, but our conclusion is that such a solution is not available.

Paul Beresford (Conservative, Mole Valley)

I support the Minister. We need to remember why we are here; that is why, on Second Reading, I suggested yesterday's teach-in. I quote a well-known barrister who was part of the team defending Rose West and has defended many other paedophiles, words that are supported by my hon. Friend the Member for Beaconsfield, which is that defendants, particularly in this area, are the most devious, slippery and unpleasant people to deal with. Indeed, the barrister said that she felt that they made some of the biggest fraudsters look straight. We have to remember that when legislating, and perhaps rely on guidance.

Paul Goggins (Labour, Wythenshawe and Sale East)

I am grateful for the hon. Gentleman's support, and for suggesting the police demonstration, which has informed our discussions. He has an admirable track record in this area, and the Committee will benefit enormously from it. I am grateful for his support.

The police have made it clear to us, not least in this week's presentation, that they are far too busy trying to catch real criminals to keep diving behind the bike sheds to see whether people are behaving. In the real world of policing, that would not be a priority. We come to the question of guidance, mentioned by my hon. Friend the Member for Walthamstow, but I shall deal first with the questions raised by the hon. Member for Bromsgrove about the incident in her constituency. I can understand the distress and the added complexity of the race issues in that case. I underline what I have said before; we need to reflect on the fact that the voluntary and statutory agencies can intervene in such situations. They need to be as sympathetic as possible and to put those incidents in perspective. If they are truly innocent, we can help with a little education, but if they are serious the intervention must be all the more serious. That has to be developed locally, but there are good examples of such support being provided by schools and elsewhere.

Finally on the matter of guidance, I offer the Committee the assurance that the guidance will be published. Clearly, as normal, it will not be published until the Bill is enacted. However, we are not acting entirely in a vacuum. Guidance already operates in relation to the sort of relatively innocent behaviour that has been mentioned today that will lead to no prosecution. The guidance says that various things should be considered, including the age and emotional maturity of the defendant, whether the sexual relationship was entered into willingly, the relationship of the parties, whether there was a breach of care or trust, whether there was an element of seduction and whether the victim encouraged the defendant. That guidance will help the prosecution to arrive at a decision as to whether it is in the public interest to bring a prosecution, and the complexity of a particular incident or relationship will always be taken into account.

Neil Gerrard (Labour, Walthamstow)

If that guidance is in the public domain, will the Minister circulate it to members of the Committee?

Paul Goggins (Labour, Wythenshawe and Sale East)

I am reliably informed that it is available on the internet.

Neil Gerrard (Labour, Walthamstow)

Could we be told where?

Paul Goggins (Labour, Wythenshawe and Sale East)

I will ensure that members of the Committee are fully informed about how to obtain that guidance. It is important that we recognise that guidance is not something that Ministers are promising from above. There is guidance already in operation that will be developed in the light of the Bill.

Vera Baird (Labour, Redcar)

My hon. Friend makes a strong point by exemplifying what the guidance currently contains. Is not a major problem with the amendment, which I was minded at one time to put to the vote, that if all the filtration processes failed, the issue of whether a 12-year-old consented would have to come before a

court? One can then envisage the horrible picture of some barrister cross-examining a 12-year-old and telling her, ''You really liked it, didn't you.'' That is too awful to contemplate and it is a major problem with the amendment.

Paul Goggins (Labour, Wythenshawe and Sale East)

I thank my hon. and learned Friend. She underlines the importance of the arguments we advanced earlier about not wanting children under 13 to be put in a position where they are cross-examined in that way. That is why we have taken the view that we have. Finally, I confirm that the current guidance is available on the Crown Prosecution Service website.

Sandra Gidley (Liberal Democrat, Romsey)

I accept fully what the Minister says. I must also reluctantly accept that the amendment is not perfect, but I still believe that it will probably present fewer problems than we currently have. We have been told that a large proportion of assaults on children are made by other children. Our amendment introduces the necessity for consent. I do not think there is reduced protection here either. That is important. It is also important to note that we seek to amend only this clause in a whole range of clauses that deal with under-13s. The overriding factor is the protection of the under-13s.

The lead amendment in the group does not affect the age of consent. The amendments that start getting into age differences sometimes have that effect even though they do not do so on the statute book. Some people are unhappy with those types of amendments because they think of it as weakening the age of consent. I can understand those arguments but I contend that amendment No. 173 does not do so in the same way.

The clause involves only sexual touching. I am still concerned that there will be occasions on which consensual behaviour between 11-year-olds, which is not really that sexual but is more a doctors and nurses type of situation, will be problematic. I would hope to be reassured by the fact that the police are too busy to go around finding out what goes on behind the bike sheds or elsewhere. Will the Minister tell us how many under-13s have been investigated and then brought before the courts? If we could see that the numbers were low and it was not currently a problem, we might be minded to be a little more relaxed about the issue.

Finally, I was disappointed to hear the Minister say in response to a question from the hon. Member for Walthamstow that the guidance will not be published before the Bill is enacted. My understanding has been that the Bill would deal with different circumstances. I may not have been fully awake this morning, but I thought I heard him say that in these unusual circumstances the Government would publish the guidance before the Bill was enacted. Can the Minister clarify that? Certainly I would be happier if we had a greater idea about what we may be dealing with before Report and Third Reading.

As there is little support for the amendments I shall not take the Committee's time by pressing them to a Division. However, if, at a later stage, the Minister

could provide some reassurance about the publication of the guidelines it may help to make everyone happier about the Bill's consequences and divert some public attention from this small matter.

Paul Goggins (Labour, Wythenshawe and Sale East)

I cannot give the hon. Lady the figures that she requested now but every effort will be made to ensure that all members of the Committee have them as soon as possible.

Guidance arising from a Bill when it is enacted cannot, by definition, be issued until the Bill becomes law. The process makes it impossible to produce the guidance before then. I intend to ensure that the guidance is widely known and understood, not merely by reference to the Crown Prosecution Service website but more generally. Organisations that work with children, and Members of Parliament, will know precisely what it is. The guidance will reflect my arguments that, as now, there will be no prosecutions where low-level, developmental, growing-up activities are involved. I have tried to show through the existing guidance that that is a serious promise.

Although I could not give the hon. Lady precise answers, I hope that she will ask leave to withdraw the amendment.

Sandra Gidley (Liberal Democrat, Romsey)

I thank the Minister for his reply. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 8 ordered to stand part of the Bill.

Clause 9 - Causing or inciting a child under 13 to engage in sexual activity

Paul Goggins (Labour, Wythenshawe and Sale East)

I beg to move amendment No. 43, in

clause 9, page 4, line 2, leave out '(A)'.

Win Griffiths (Labour, Bridgend)

With this we may take Government amendments Nos. 93, 94, 95 and 96.

Paul Goggins (Labour, Wythenshawe and Sale East)

At long last we have arrived at a stage in our deliberations where we can adopt a slightly more relaxed mode. Hon. Members will have studied the amendments, which are a testimony to the assiduousness of officials and Ministers who spotted that they were necessary. They remove the definition of the person committing the offence as person (A), given that there is no such reference in the clause thereafter.

Amendment agreed to.

Clause 9, as amended, ordered to stand part of the Bill.

Clause 10 - Sexual activity with a child

Annette Brooke (Liberal Democrat, Mid Dorset and North Poole)

I beg to move amendment No. 157, in

clause 10, page 4, line 19, leave out 'aged 18 or over'.

Win Griffiths (Labour, Bridgend)

With this it will be convenient to discuss the following:

Amendment No. 158, in

clause 10, page 4, line 23, leave out 'B is under 16' and insert—

'A is aged 18 years or over and B is aged between 13 and 16'.

Amendment No. 159, in

clause 10, page 4, line 25, leave out 'B is under 13' and insert—

'A is under 18 years and B is more than 3 years younger than A, and A does not reasonably believe that B is less than 3 years younger than A.'.

Amendment No. 161, in

clause 11, page 4, line 29, leave out 'aged 18 or over'.

Amendment No. 162, in

clause 11, page 4, line 34, leave out 'B is under 16' and insert—

'A is aged 18 years or over and B is aged between 13 and 16'.

Amendment No. 163, in

clause 11, page 4, line 36, before 'B', insert—

'A is under 18 and B is under 16 and A does not reasonably believe that B is 16 or over or,.

(iii) '.

Amendment No. 164, in

clause 11, page 4, line 37, after 'section' insert

'if aged 18 or over at the time of the offence'.

Amendment No. 166, in

clause 12, page 4, line 40, leave out 'aged 18 or over'.

Amendment No. 167, in

clause 12, page 5, line 10, After 'section' insert

'if aged 18 or over at the time of the offence,'.

Amendment No. 169, in

clause 13, page 5, line 16, leave out 'aged 18 or over'.

Amendment No. 170, in

clause 13, page 5, line 26, after 'section' insert

'if aged 18 or over at the time of the offence,'.

New clause 4—Definition of between 13 and 16—

'For the purposes of this Act ''aged between 13 and 16'' refers to persons aged 13, 14 or 15.'.

New clause 5—Penetration involving adult and child—

'(1) A person (A), aged 18 years or over, commits an offence if—

(a) he intentionally penetrates the vagina or anus or mouth of another person (B) with his penis, or

(b) the activity involves penetration of A's vagina or anus or mouth with B's penis,

(c) and the other person (B) is aged between 13 and 16 and A does not reasonably believe that B is 16 or over.

(2) A person guilty of an offence under this section is liable on conviction on indictment, to imprisonment for a term not exceeding 14 years.'.

New clause 6—Penetration involving a child and a child or a young person—

'(1) A person (A), aged below 18 years, commits an offence if—

(a) he intentionally penetrates the vagina or anus or mouth of another person (B) with his penis, or

(b) the activity involves penetration of A's vagina or anus or mouth with B's penis,

(c) and the other person (B) is aged below the age of 16 years and A does not reasonably believe that B is 16 or over.

(2) A person guilty of an offence under this section is liable—

(a) on summary conviction, to imprisonment for a term not exceeding 6 months or a fine not exceeding the statutory maximum or both;

(b) on conviction on indictment, to imprisonment for a term not exceeding 7 years,

(c) in determination of the sentence, consideration shall be given to the age differential between A and B.

(3) Prior to sentencing, there shall be a comprehensive assessment by a multidisciplinary agency or Youth Offending Team.

(4) Under this clause, a person shall only be subject to notification requirements under part 2 of this Act following an assessment of the risk that he poses to the public.'.

This is another attempt to win the champagne, and it involves many amendments. In the minute or two that we have left I shall explain the background to our approach, and go into the detail when we resume this afternoon.

It may seem that there are a lot of amendments, but they are designed to make clause 14 redundant; to omit that clause, and have everything clearly specified would help considerably. Our concerns result from clause 14 being coupled with other clauses.

It being twenty-five minutes past Eleven o'clock, The Chairman adjourned the Committee without Question put, pursuant to the Standing Order.

Adjourned till this day at half-past Two o'clock.

Standing Committee B

Clause 10 - Sexual activity with a child

Win Griffiths (Labour, Bridgend)

With this it will be convenient to discuss the following:

Amendment No. 158, in

clause 10, page 4, line 23, leave out 'B is under 16' and insert—

'A is aged 18 years or over and B is aged between 13 and 16'.

Amendment No. 159, in

clause 10, page 4, line 25, leave out 'B is under 13' and insert—

'A is under 18 years and B is more than 3 years younger than A, and A does not reasonably believe that B is less than 3 years younger than A.'.

Amendment No. 161, in

clause 11, page 4, line 29, leave out 'aged 18 or over'.

Amendment No. 162, in

clause 11, page 4, line 34, leave out 'B is under 16' and insert—

'A is aged 18 years or over and B is aged between 13 and 16'.

Amendment No. 163, in

clause 11, page 4, line 36, before 'B', insert—

'A is under 18 and B is under 16 and A does not reasonably believe that B is 16 or over or,.

(iii) '.

Amendment No. 164, in

clause 11, page 4, line 37, after 'section' insert

'if aged 18 or over at the time of the offence'.

Amendment No. 166, in

clause 12, page 4, line 40, leave out 'aged 18 or over'.

Amendment No. 167, in

clause 12, page 5, line 10, After 'section' insert

'if aged 18 or over at the time of the offence,'.

Amendment No. 169, in

clause 13, page 5, line 16, leave out 'aged 18 or over'.

Amendment No. 170, in

clause 13, page 5, line 26, after 'section' insert

'if aged 18 or over at the time of the offence,'.

New clause 4—Definition of between 13 and 16—

'For the purposes of this Act ''aged between 13 and 16'' refers to persons aged 13, 14 or 15.'.

New clause 5—Penetration involving adult and child—

'(1) A person (A), aged 18 years or over, commits an offence if—

(a) he intentionally penetrates the vagina or anus or mouth of another person (B) with his penis, or

(b) the activity involves penetration of A's vagina or anus or mouth with B's penis,

(c) and the other person (B) is aged between 13 and 16 and A does not reasonably believe that B is 16 or over.

(2) A person guilty of an offence under this section is liable on conviction on indictment, to imprisonment for a term not exceeding 14 years.'.

New clause 6—Penetration involving a child and a child or a young person—

'(1) A person (A), aged below 18 years, commits an offence if—

(a) he intentionally penetrates the vagina or anus or mouth of another person (B) with his penis, or

(b) the activity involves penetration of A's vagina or anus or mouth with B's penis,

(c) and the other person (B) is aged below the age of 16 years and A does not reasonably believe that B is 16 or over.

(2) A person guilty of an offence under this section is liable—

(a) on summary conviction, to imprisonment for a term not exceeding 6 months or a fine not exceeding the statutory maximum or both;

(b) on conviction on indictment, to imprisonment for a term not exceeding 7 years,

(c) in determination of the sentence, consideration shall be given to the age differential between A and B.

(3) Prior to sentencing, there shall be a comprehensive assessment by a multidisciplinary agency or Youth Offending Team.

(4) Under this clause, a person shall only be subject to notification requirements under part 2 of this Act following an assessment of the risk that he poses to the public.'.

Annette Brooke (Liberal Democrat, Mid Dorset and North Poole)

This set of amendments could be another solution to our dilemma. Taken together, the amendments could obviate the need for clause 14. Other amendments hang together with those that we are about to discuss, but for the purpose of explaining them, they have been divided into two groups. If I stray on to an amendment from the next group, Mr. Griffiths, I promise that we will not refer to it again.

Win Griffiths (Labour, Bridgend)

That would mean that we would be here longer this evening, would it not?

Annette Brooke (Liberal Democrat, Mid Dorset and North Poole)

I shall be as concise as I can, but it is difficult to compartmentalise the amendments, given the way in which they have been drafted.

We are trying to highlight the difference between under-18s and over-18s. Earlier we strayed on to matters that do not apply, so I want to put it firmly on the record that the amendments are not seeking to abolish the age of consent. The theme that runs through them is an attempt to balance the concern about criminalising all consensual sexual behaviour with retaining the age of consent.

New clause 4 deals with penetration involving a child or a young person. New clause 5 covers penetration involving a child and an adult. The purpose of creating such new offences is to remove penetration involving under-16s from the offence of sexual touching, so that sexual touching can be decriminalised for children in certain circumstances, without impacting on the age of consent.

The amendments do not cover oral sex and penetration with other parts of the body or objects. The idea is to create a coherent argument throughout the Bill, which could be supplemented. There would be

much scope for further development. New clause 5 defines the ages between 13 and 16, and would make it clear that the age between 13 and 16 is 13, 14 or 15. That detail is included in several other clauses. The new clause would add clarity to the Bill.

The amendments would avoid unnecessary criminalisation of usual behaviour, many examples of which were referred to this morning. The children's associations that have helped to draft the amendments are absolutely committed to protecting younger children from inappropriate sexual activity. They would introduce an age proximity test. It is almost impossible to come up with a hard and fast rule but, as we know, several people who work co-operatively with those within the organisations that have specific knowledge of such matters have made a specific suggestion.

Clauses 10 and 11 would be amended so that over-18s were liable only for offences with 13 to 16-year-olds—a theme that is followed throughout the amendments.

Dominic Grieve (Conservative, Beaconsfield)

I may have interrupted the hon. Lady too early, but I was interested in the fact that she has chosen to amend clause 11 as well as clause 10, because the two things that are being aimed at in those clauses are different, and there might be an argument, which I shall try to develop, in favour of confining one's attentions to clause 10.

Annette Brooke (Liberal Democrat, Mid Dorset and North Poole)

I thank the hon. Gentleman. This approach is intended to make the overall distinction between under-18s and over-18s throughout this part of the Bill—which involves the question whether clause 14 is necessary. There is a logic to this.

If I remember rightly, the example has been given of two teenagers looking at a pornographic magazine. Most parents would agree that one should not get too worked up about such behaviour. We keep coming up with examples, which I was trying to avoid. We should stick to the principles.

It is unnecessary to read out all the amendments in full. I have outlined the general principles of this approach. If any hon. Members think that there is a different way of tackling the clause 14 problem I should be interested to hear from them.

Dominic Grieve (Conservative, Beaconsfield)

The hon. Lady's amendments cover an important area, and this is the right time to debate the principles of her approach. Notwithstanding that I have carefully read her amendments, for reasons that I will explain later I have a preference for my amendment No. 132, but that point involves drafting issues, and we should now discuss the generality of the matters that are to be considered with regard to this part of the Bill.

As I said this morning, the problem that we have as we move on to address children between the ages of 13 and 16 is that we are much more aware that, as part of the normal development process, many of them will engage in sexual activity. The statistics show that by the time that they have reached their 16th birthday the

majority—certainly of those who have been surveyed—have had full sexual intercourse: the average age at which they begin to do so is 15. Therefore, I have always accepted that different criteria could properly apply to this area than to that which involves children under the age of 13.

We must apply our minds to this key difficulty: if we are to decriminalise any of these activities, every time that we look at each of these clauses, we must think of a worst case. We must be satisfied that in a case that would fall within the exception but which some people might nevertheless consider to be unpleasant we are comfortable with the idea that it should be decriminalised.

We can start from the first premise that anything that is not consensual should be banned. That clearly applies as much to adults as it does to children. Then the question arises: is there any category of activity within those which have been identified and targeted in this Bill which is of such an order that it is pointless criminalising it for those aged between 13 and 16, and if so with whom should it be decriminalised? Should it apply across the board to any adult, or should it be restricted to persons of their own age or roughly their own age?

I start from this basic principle: there is only one category that could be decriminalised, which is straight sexual activity through touching. Having thought about this matter, I find it difficult to see—if anyone disagrees, I would be happy to listen to them—how we could sanction full sexual intercourse because, if we were to do that, it would raise enormous problems in terms of the exceptions where someone wants to enforce the law because it is clear that there has been exploitation and seduction.

On the other hand, I have always felt that clause 10 is fairly draconian; that is the clause that, allied with clause 14—when one takes the two together—criminalises what were described as ''behind-the-bike-shed'' activities. Let us suppose that no criminal offence is committed; someone aged between 13 and 16 engages in behind-the-bike-shed activities with someone of the same age, or, as I suggested in amendment No. 132, within three years of that age. It would be possible for an 18-year-old to have sexual touching with a 15-year-old, and a 13-year-old to have it with a 16-year-old.

I must tell the Minister: as I thought the matter through, it seemed to me that that might be a possible solution, thus potentially earning me the magnum of champagne from the Home Secretary. I would be interested to hear from the Minister what cases within that restricted example would cause the Home Office anxiety because it would wish to prosecute.

Let us take some worst-case examples. We have to face the fact that, notwithstanding the fact that we are rightly removing any homophobic elements from the Bill, many people regard heterosexual and homosexual activity as very different in their nature and quality. We have to face the fact that the amendment would allow two boys or two girls to engage in sexual activity with each other involving sexual touching and mutual masturbation, for example.

However, can it really be said that, where such a case involved a 16-year-old and a 13-year-old or an 18-year-old and a 15-year-old, it would be likely to lead to prosecution? I have difficulty in envisaging the circumstances where a prosecutor would feel that that was necessary. I would be interested to hear from the Minister why he thinks it is necessary to have the crime so starkly on the statute book and not to make such an exception.

One has to face the fact that—as it seems to me, and it is probably common ground between everyone present—the consequences of sexual touching, short of penetration, are in physiological terms fairly innocuous. It is difficult to see that any serious consequences may flow from it. Obviously there are emotional consequences, and the emotions of teenagers at the best of times tend to be fairly topsy-turvy, but that must be balanced against the prospect that, in the restricted circumstances that I have described, someone will think that it is in the public interest to prosecute one of the participants. That is the issue that I should like the Minister to address.

Our own amendments have suggested that the same thinking might be applied to other activities in clauses 11, 12, 13 and 14; I should like us to consider that as well. However, curiously enough, I can see a greater objection—this was the point that I made to the hon. Member for Mid-Dorset and North Poole (Mrs. Brooke)—because a 16-year-old inciting a 13-year-old to engage in sexual activity with someone else is quite worrying; that is a very undesirable state of affairs. I do not think it is an undesirable state of affairs if two people, unincited, who happen to be 14 and 15, wish to engage in sexual touching, either behind the bike sheds or anywhere else. I wonder whether the Committee should be focusing on clause 10, because that is the clause to which it is most likely that we can make a decriminalising amendment without causing all sorts of knock-on problems. That is my suggestion for our consideration, but I shall be interested to hear what others have to say.

Paul Goggins (Labour, Wythenshawe and Sale East)

I will not repeat this morning's arguments or their details, but will try to address the specific issues relating to the amendments. I begin by pointing out again that as soon as we try to differentiate one kind of sexual activity from another, or to differentiate in terms of age, we immediately hit a degree of complexity.

The hon. Member for Beaconsfield (Mr. Grieve) spoke about full sexual intercourse as something that we agree is not acceptable between children under 16. He went on to refer to sexual touching, and made it sound mild and innocent. I think that the phrase he used was ''fairly innocuous''. We can all imagine examples of sexual touching that would be fairly innocuous—a young boy placing his hand on a young girl's breast, for example. That might fit into the behind-the-bike-sheds category. However, if a naked adult touched a naked child with any and every part of his body, that would be sexual touching, although it may stop short of penetration. I am sure Committee members agree that that is a lot more serious than the

first instance. As soon as we begin to say what sexual touching means, we find that it means a lot more than can be explained with just one example, and we see the complexity of the argument.

The hon. Member for Mid-Dorset and North Poole opened our discussions this afternoon. Her new clauses 5 and 6 would differentiate between penetrative and non-penetrative activity. I perfectly understand her motive for introducing the subject in Committee, and I accept that there is a greater incidence of adolescents under 16 engaging in non-penetrative behaviour than there is of adolescents engaging in penetrative sexual acts.

Paul Beresford (Conservative, Mole Valley)

For the sake of my political career, I really should not do this, but I am supporting the Minister again. A colleague of mine is a senior psychiatrist specialising in abused children, and she regularly appears in court on either side of a case. Her comment on penetration and the reference in much legislation to the word ''vagina'' is that it is, as she puts it, about half a centimetre too late. She says that girls at a certain age, who can recognise what is happening but not do anything about it, are as severely damaged by such behaviour as by penetration. So, regretfully for my political career, I am supporting the Minister.

Paul Goggins (Labour, Wythenshawe and Sale East)

Once again, I am grateful for the hon. Gentleman's support, and I wish him well in his political career.

Returning to new clauses 5 and 6, the penetrative activity that would remain criminal behaviour under the amendments is restricted to penetration by the penis of the mouth, anus or vagina. That suggests that other sexual activity that falls short of penile penetration should be decriminalised for offenders under 18. That would mean that it was not an offence for a person under 18 to engage in sexual activity with a child under 16. That could involve, for example, the older child penetrating the anus or the vagina of the younger with an object of some kind. Straight away we can see a deficiency in the hon. Lady's new clauses, as they leave out significant and substantial matters.

Annette Brooke (Liberal Democrat, Mid Dorset and North Poole)

I did briefly say that we did not include oral sex or penetration with objects to keep the new clauses as simple as possible—we thought that they were complex enough as it was. However, if the Minister thought that there was something to our approach, other provisions could be worked into the new clauses.

Paul Goggins (Labour, Wythenshawe and Sale East)

I again acknowledge the hon. Lady's honourable intentions, but my argument holds; as soon as one tries to introduce greater clarity, one introduces greater complexity. Although I accept that the hon. Lady has tried her best not to confuse things, there is still confusion. The kind of penetration that I described could be extremely damaging and serious, but it is excluded from the offence that the hon. Lady is proposing. I offer that as a consequence—perhaps a shortcoming—of her amendment.

Under the hon. Lady's proposal for a comprehensive assessment by the youth offending team, the notification requirements under part 2 should apply to children only after a risk assessment.

I do not want to take up more time dealing with those matters, because we discussed them this morning and earlier in the week. Procedures for dealing with young sex offenders already take into account their age and maturity and the individual circumstances of the case. That applies at all stages in the criminal justice system, from investigation to possible prosecution, through to court and final sentencing. The age of the offender is always taken into account.

We believe strongly that the notification requirements should flow directly from the nature of the offence committed. We accept that in all but the most serious cases children should and will be subject to the registration requirements for only half the period applicable to an adult convicted of the same offence. It is not necessary to put in statute that the age difference between the offender and the victim should be taken into account when sentence is being determined. Account is taken of an offender's age all the way through the criminal justice system.

I have listened carefully to the arguments of the hon. Lady and the hon. Member for Beaconsfield. If they are still not persuaded by my argument after our discussions this morning, I hope at least that they are increasingly persuaded of the fact that we have tried to consider whether such things could be incorporated in the Bill. Frankly, however, any compromise that introduces more complexity puts at risk our central determination to provide protection for children.

Dominic Grieve (Conservative, Beaconsfield)

When speaking to amendment No. 132, I shall consider one possible option, which I outlined earlier. The Minister has no difficulty persuading me or anybody else that there are limits and difficulties to making exceptions. By doing so, one allows for all sorts of rather horrific things to be decriminalised. I understand that there may be circumstances in which the prosecutor will undoubtedly exercise his discretion not to proceed. However, my broad conclusion is that to provide an exception for sexual intercourse or penetration, whether by the penis or by an object, of vagina or anus, is impossible. If somebody comes up with another idea, I am prepared to consider it.

I was, however, struck by the Minister's example of sexual touching. He said that that could be much more than fondling a breast behind the bike sheds. It could involve two people touching every part of each other's body. The exception that I suggested could apply to cases involving a young person aged between 13 and 16, if there were a three-year age difference between that person and the person doing the act, or if two such young people were doing it to each other. The Minister says that that could be a horrible set of facts—it is certainly a set of facts about which people might be concerned. Those who want their children to be protected from excessive sexual activity before they reach the age of 16, or even beyond it—many families do—may find that thoroughly undesirable. However, in terms of consequences, there is an enormous difference between that and penetrative sexual activity.

I wonder what examples from the past 10 years the Minister can give of cases in which there has been full consent on both sides but a prosecution has been

brought, against, for example, a 15, 16, or 17-year-old for having engaged in sexual activity not involving penetration or full intercourse. I suspect that there have been hardly any such cases—I would be amazed if there had been, especially if the case did not involve bodily harm on the other person. I would, however, be interested in seeing those statistics, if the Minister can provide them.

I admit that such activity covers a wide spectrum, but do we wish specifically to criminalise, or might we want to make an exception? If we decriminalise such activity, we will have to live with the consequences of our actions. We would have to accept that, in cases of a 16-year-old taking a 14-year-old to bed and engaging in a huge amount of sexual touching, but no penetration, there would have been no offence. If that was all that happened, should prosecution take place? However undesirable we think such activity might be, I am a little surprised that it would warrant a prosecution.

If the Minister can provide facts or write to me with some illustrations and examples of when sexual touching alone has been thought to be so serious that it merited prosecution, I am willing to be convinced of such matters. However undesirable I may consider such activity to be, I am not persuaded that the force of the criminal law is necessarily required when the age difference is so small. I accept entirely that it would be a different matter if a 35 or 40-year-old performed such activity with a 13 or 14-year old, because that would constitute a paedophile assault. That is precisely why the only circumstances that could be permitted are those relating to people between whom the age difference is very small. I have suggested three years, but if a member of the Committee comes up with another formula, I am willing to consider it. We could have a difference in age of two years.

Has prosecution taken place when the age difference is so small? If so, what aggravating features persuaded the prosecutor make such a decision? It would be interesting to know what penalties are imposed in such circumstances. It seems that they would be towards the lower end of the scale. That said, I accept that the alternative approach is to follow the Minister's suggestion and give the prosecutor discretion—the world will not come to an end if such action is taken. However, it would be nice to legislate with a firm understanding of such matters, so that we can justify our action if we are challenged about it.

Paul Goggins (Labour, Wythenshawe and Sale East)

I shall respond briefly. At present, I am not able to give the hon. Gentleman the information about how many cases there have been. I am interested in the matter and I shall look into it. I caution him and other members of the Committee, however, that indecent assault currently covers non-penile penetration and other non-penetrative activities; it does not differentiate between the two. None the less, I shall write to the hon. Gentleman about the matter.

Dominic Grieve (Conservative, Beaconsfield)

The Minister has touched on an important issue that illustrates the problem of indecent assault covering such a wide spectrum.

There is a world of difference between ordinary sexual touching and oral sex, for example. Most people outside this place think so, too. For the first time, we have an opportunity to make that differentiation.

Paul Goggins (Labour, Wythenshawe and Sale East)

We do, but we must be careful when making such a distinction. As I have said, the more we try to draw distinctions, whether in terms of activity or age, the more problematic things become.

I shall be interested to find out how many prosecutions there have been, but whatever the number, we are legislating now. I advanced the proposition that such offences are possible and I agree with the hon. Gentleman that the activities are not acceptable. In the light of that, we should create the offence and leave it to the prosecutor to decide, with guidance, whether it is in the public interest to bring the case to court. In that way, we combine good legislation with sound common sense and public interest.

Annette Brooke (Liberal Democrat, Mid Dorset and North Poole)

I should like to reflect on some of the points made by the hon. Member for Beaconsfield. I agree with what he says; that is probably because of my age, rather than anything else.

The linkage between clauses 10 and 14 is the priority area, and arguments have been put forward strongly for sorting out under-18-year-olds and over-18-year-olds throughout the clauses. I should like to introduce a cautionary point into the strong argument made by the hon. Gentleman. If it were thought to be right to condone heavy petting but heavily criminalise anything else, youngsters might not seek birth control and other advice. They might not think that they would go on to act in a criminal manner, although of course they might once they were in a situation to do so.

There is a lot more teasing out to be done on that point, because we are putting people who may become very involved in the activity that they are undertaking at risk of their own actions. I hope that our discussion on the amendments is useful; it is teasing out some points.

I was reflecting also on a point that the hon. and learned Member for Redcar (Vera Baird) made this morning about not wanting to put someone in court to justify that there was no consent at the age of 12. There is a balance. There is concern that young people may be put in a criminal situation because of the way the legislation is phrased—I am particularly thinking of the impact of clause 14—yet every time we try to do something about that, we end up implying that they will end up in court. The justification for leaving the legislation as it stands is that most such cases do not get to court anyway. I am wondering whether we need to be as concerned about that. I suppose I am asking which situation is more likely to end up in court. I just thought of that over lunch; I am sorry, I was not very quick-witted, but the matter is not in my legal frame.

Vera Baird (Labour, Redcar)

Another point that I sought to make this morning, although perhaps I did not articulate it well enough, was that I would not have thought it a bad principle to introduce into criminal

law the notion that a sub-13-year-old can consent, because that may have all sorts of knock-on effects in defending other kinds of case. That was a sub-text in what I said.

Annette Brooke (Liberal Democrat, Mid Dorset and North Poole)

I thank the hon. and learned Lady for that.

The Minister responded to some of the new clauses in the group. If I deal with them now, it will save us time later. Yes, there is repetition of some of the points that we have discussed already, but the amendments not only clearly lay out that under-18-year-olds should be punished with different levels and types of sentences, but relate to the need for a full, multi-disciplinary assessment.

The amendments refer specifically to youth offending teams. I mentioned that on Tuesday, but because I said it, rather than putting it in the amendment, I did not get a response, so I shall make that point again. The need for a full multi-disciplinary assessment, particularly in relation to the younger age group, is so important. I am interested to hear that the Minister is so enthusiastic about the Manchester project he has recently visited. What steps can be taken to ensure that such provision is available across the country? That is not an aside, because the subject is integrated into the amendments.

There is desperate need to identify problems at an early age, and ensure that they are acted on and treated before we get into worse situations. Certainly, after last night's presentation, it seems clear that it is crucial to identify problems and to take action as early as possible. We can visit such wonderful projects—as well as that in Manchester, there is a smaller one in Dorset—but we need to know that there will be a national programme to tackle such issues.

I hope that the amendment has drawn out more useful discussion and further food for thought and that we will continue this debate, because we need to find a solution. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Humfrey Malins (Conservative, Woking)

I beg to move amendment No. 137, in

clause 10, page 4, line 21, at end insert

'causes B harrassment, alarm or distress and'.

Win Griffiths (Labour, Bridgend)

With this it will be convenient to discuss the following:

Amendment No. 138, in

clause 10, page 4, line 25, at end insert—

'( ) a person does not commit an offence under subsection (1) if—

(a) the sexual activity is consentual;

(b) the sexual activity does not involve penetration of the mouth, vagina or anus, and

(c) A was in a pre-existing relationship with B prior to reaching the age of 18 and their sexual activities were not considered a sexual offence under section 14.'.

Amendment No. 132, in

clause 10, page 4, line 27, at end add—

'(3) Conduct by A which would otherwise be an offence under this section shall not be an offence if.

(a) B is aged between 13 and 16 and A is no more than 3 years older than B.

(b) B has the capacity to consent to that conduct.

(c) B does consent to that conduct.

(d) the conduct does not involve penetration.

(4) B will be regarded as having the capacity to consent to conduct by A only if B is capable of understanding the nature and implications and reasonably foreseeable consequences of such conduct.'.

Amendment No. 140, in

clause 14, page 5, line 33, at end insert

'unless

(a) the sexual activity is consentual;

(b) the sexual activity does not involve penetration of the mouth, vagina or anus, and

(c) there is no significant difference in the age or mental or physical maturity of the persons involved.

( ) A person under 18 commits an offence if he does anything that would be an offence under sections 11 to 13 if he were 18'.

Amendment No. 141, in

clause 14, page 5, line 33, at end insert—

'(1A) Notwithstanding subsection (1) it is a defence for offences under sections 10 to 13 and 15 in respect of a complainant who is 10 years or more but under the age of 16 where the complainant consented to the activity and the defendent is—

(a) 13 years or more but under the age of 18,

(b) less than two years older than the complainant, and

(c) is not in a relationship of dependency.

(1B) No person aged 10 to 13 shall be tried for an offence under sections 10 to 13 and 15 unless the defendent is in a relationship of dependency with the complainant.'.

New clause 7—Pre-existing sexual relationship—

'(1) Conduct by a person (A) which would otherwise be an offence under section 10 against another person (B) is not an offence under that section if, immediately before A turned 18 years, a consensual sexual relationship existed between A and B.

(2) Subsection (1) does not apply if at that time sexual activity between A and B would have been unlawful.

(3) In proceedings for an offence under any of section 10 it is for the defendant to prove that such a relationship existed at that time.'.

Humfrey Malins (Conservative, Woking)

I shall speak only briefly about amendments Nos. 137 and 138, and my hon. Friend the Member for Beaconsfield will speak to other amendments in this group.

All hon. Members know the problem that we are addressing because we have identified it. We are now trying to find a way through it. With regard to amendment No. 137, I ask the Minister whether there is any fundamental objection to the clause being amended in that way. I am addressing the situation of a person aged 17 having a relationship that falls short of full sex with—if it is a man—a girl whom he knows to be 15. He might have known her or been friends with her for some time. They form a relationship that involves sexual touching. We have all been round and round the arguments about whether that should be a criminal offence—whether the person should be questioned, warned, subject to guidance and so forth.

What if the clause were amended to read as follows:

''A person aged 18 or over (A) commits an offence if—

(a) he intentionally touches another person (B),

(b) the touching is sexual, and''

it causes the other person

''harassment, alarm or distress''? What is the objection to that? I pulled the phrase straight out of public order legislation. It is a common legal phrase. It covers a recipient of those attentions who finds them unwanted—they cause her ''harassment, alarm or distress''—but it also offers protection for what we loosely referred to as a genuine relationship. All I need from the Minister is an answer to this question: is there a legal problem with my amendment?

Neil Gerrard (Labour, Walthamstow)

I understand the hon. Gentleman's point. However, at the Metropolitan police presentation yesterday evening, which I think he attended, a point was made about the difficulty of dealing with cases where a child who was being abused did not regard the attention as unwelcome and did not understand that what was happening was not normal.

Humfrey Malins (Conservative, Woking)

I recall that point being made. The hon. Gentleman is right, which is why my amendment might not be right. Incidentally, it was drafted well before I attended that presentation, after which I might have been wiser. However, I am dealing with someone who is 15 and over as opposed to 13, so my arguments might apply to some extent. All I need to know from the Minister is this: if he does not like the amendment, why does he not like it—what are the principal objections to it?

My amendment No. 138 was, effectively, proposed by Brook, which is the country's leading provider of free, confidential sexual health advice and contraception to the under-25s. It is fair of me to table it, on the basis that it might be a helpful way forward. It is linked to an amendment to clause 14. If it is not a helpful way forward, the Minister will undoubtedly tell me. I look forward to hearing from him.

Dominic Grieve (Conservative, Beaconsfield)

I shall try briefly to look at the other amendments. As I said earlier, I see amendment No. 132 as the key amendment—particularly in light of the last group. I should like briefly to speak to that and to explain it, although the Minister will then tell me that it is flawed for a series of procedural reasons that I had not previously understood.

Rather than considering clause 14, which provides for a different sentencing regime for a person under 16—different from that for persons over 18—in relation to the offences in clauses 10 and 13, it is easier to focus on clause 10, which deals with sexual touching, and, having accepted that that could be an offence as defined in that clause, provide an exception there. I shall read my amendment to show how narrow the scope of the exception would be:

''Conduct by A which would otherwise be an offence under this section shall not be an offence if.

(a) B is aged between 13 and 16 and A is no more than three years older than B.

(b) B has the capacity to consent to that conduct.

(c) B does consent to that conduct.

(d) The conduct does not involve penetration.

I hope that paragraph (d) is sufficient to cover my wish to exclude penetrative sexual activity. The amendment continues:

''B will be regarded as having the capacity to consent to conduct by A only if B is capable of understanding the nature and implications and reasonably foreseeable consequences of such conduct.''

For example, that would prevent the exploitation by a 15-year-old boy of a 13-year-old who might have some degree of learning disability. I suggest to the Minister that, in view of all the problems he has correctly identified, that will probably be the high point of my attempt to get the Home Secretary's magnum.

It would be useful to know the circumstances in which a prosecution would currently be brought within those defined criteria. I suspect that it will turn out to have happened hardly ever, if at all. Although I shall not press the matter to a vote, we may have to come back to it on Report. My amendment would still provide adequate protection against paedophiles—older people preying on the young—and would continue to provide protection for those aged between 13 and 16 who, for whatever reason, do not have the capacity to consent because they do not understand the nature and quality of the acts in which they are engaging. It confines the exception to the activities of two people together, whether boy and girl, girl and girl, or boy and boy.

I have not sought to affect clauses 11, 12 and 13. That may seem a bit strange. Some people might think that causing a child to watch a sexual act is less serious than sexual touching, but I am not sure whether I agree. One appears to have a natural origin, whereas I sometimes think the other involves witnessing scenes that are far more depraved and unpleasant than the activities in which two people would reasonably and normally get up to.

Chris Bryant (Labour, Rhondda)

I rather agree with the hon. Gentleman about that, not least because bullying may lead, particularly in boys' schools, to boys forcing boys to watch other boys do things. That is not entirely unknown—and it is just as cruel and vindictive an activity as anything else.

Dominic Grieve (Conservative, Beaconsfield)

I think the hon. Gentleman may have misunderstood what I said. I was saying that the amendment would not legalise somebody being forced to watch something. Perhaps I have misunderstood what he said. I shall try to deal with what he possibly meant, which is that somebody may be bullied into consenting to sexual activity. In that case, they would not have given consent. I accept that it may sometimes be difficult—this is a legitimate and important point—to persuade somebody who has been bullied into consenting to sexual activity to admit that that is what happened.

We know that, in the context of sexual activity between adults—the hon. and learned Member for Redcar has raised the point in relation to rape cases—it is often difficult for somebody to come forward and to state that they were bullied and coerced into doing something that they did not wish to do. There, I think, the hon. Gentleman has a good point. That is an evidential problem, which is likely to exist in most circumstances. I accept that it might be possible to

have evidence other than the evidence of the victim, but one certainly needs the evidence of the victim if one is to mount a prosecution on the basis that consent did not occur.

This is the only possible loophole that I can think of that would allow us to deal with the Home Secretary's difficulties. He was plainly anxious about criminalising what he regards as perfectly normal adolescent activity. I accept that there are possible downsides but I hope that the Minister will look at the matter seriously, if not today, then perhaps we can come back to the matter on Report.

John Randall (Conservative, Uxbridge)

I apologise to the Committee because I was unable to attend the full sitting this morning.

I congratulate my hon. Friend on getting very close to something that might be acceptable. I understand the problem and I think that the Committee is gradually making progress towards resolving it. I would not run to a magnum of champagne, but perhaps a can of lager from Uxbridge.

I still have a problem with the whole idea. I understand the problems, but the issue must be resolved; there will be great concerns about it, not only within the Committee but outside it. Has the Minister had any conversations with the Department for Education and Skills about what guidelines it would give on sex education with regard to those under 16? Will those giving sex education be telling people that certain touching is officially a crime, but that people will be all right up to a point? Or would those teachers be in danger from a parent, perhaps more prurient than others, saying that their child has been told that touching is okay, even though it is a crime? I am wondering how the Department for Education and Skills would get around the matter. Before I can sit down and be happy that we have tried our very best, I would like to know what has been happening on that point.

Vera Baird (Labour, Redcar)

I had not intended to say much today, but I am driven to my feet by a craving for champagne. I worry a little whether I have understood the position properly. I think that the position is that if someone aged between 13 and 16 is raped by someone not much older than them, there will be a defence of consent. If I have misunderstood that, I am pleased to have that corrected.

Dominic Grieve (Conservative, Beaconsfield)

No, no; indeed not. I have specifically drafted amendment No. 132 to relate to sexual touching without penetration, which is why it is provided for in the amendment. It would not cover rape or any form of penetrative sexual activity at all.

Vera Baird (Labour, Redcar)

I am grateful for that, but what would prevent a defence of consent in the Bill to the rape of someone aged between 13 and 16? I ask that rhetorically. [Laughter.]

Win Griffiths (Labour, Bridgend)

I call Paul Goggins to answer that rhetorical question.

Paul Goggins (Labour, Wythenshawe and Sale East)

I will either have a conversation with or write to my hon. and learned Friend.

My overall observation returns me to a comment made by the hon. Member for Beaconsfield during a very passionate defence of the importance of the age of consent. The more we try to change the lines regarding age, no matter how reasonable it may appear on paper, the more problematic it becomes. Inadvertently, our efforts to win the champagne may send out an unfortunate message from this House regarding the age of consent. It is important that we hold that as a backdrop to the debate. It is central that we offer that protection.

The hon. Member for Woking (Mr. Malins) asked why there would be any problem in adding the phrase,

''causes B harassment, alarm or distress''.

I think that my hon. Friend the Member for Walthamstow (Mr. Gerrard) answered that question, in part at least, very well indeed. Perhaps because the child has been abused, perhaps for other reasons, that activity may not be seen by them as causing that harassment, alarm or distress, but it is not defensible in any way whatever and needs to be caught by the Bill.

The hon. Member for Woking asked me gently to respond to the other part of the question, to which I say the following. Clause 10 applies to offenders over 18, so I give him the scenario of a 50-year-old engaging in sexual intercourse with an 13-year-old where the prosecution have to prove that there has been harassment, alarm or distress. They will have to prove in court the issue of consent causing more distress for the child involved.

Mr. Malins indicated assent.

Paul Goggins (Labour, Wythenshawe and Sale East)

The hon. Gentleman nods. That is a sound argument showing why his helpful and constructive suggestion would not work.

The hon. Member for Beaconsfield asked me again about prosecutions. I promise to get back to him on that. I hope that there are not many. None of us wants to think that such cases occur in great numbers, but we would want prosecutions to happen where appropriate. I return to the combination of good, solid legislation coupled with sensible guidance, which gives us good law and common sense in practice.

The hon. Gentleman asked me further about issues relating to lack of consent. I give him the example of an adult—I will not put that adult in a position of trust—on whom the child has what used to be called a crush, to the point where sexual activity is taking place. That child feels that she loves that individual and will want to protect him, and will not give evidence against him. We have a scenario where a child is placed in the position of having to give evidence to prove the case for the prosecution, which is totally unwarranted. If we move those goalposts we hit the problem that in order to prove the case we have to put children in distress and question their consent. I put it to the Committee that as soon as we try to add greater clarity to the provision, we actually introduce more complexity.

Humfrey Malins (Conservative, Woking)

It has been an interesting debate. There will be more interesting debates later this afternoon. I

am grateful for the Minister's response. It may be that my hon. Friend the Member for Beaconsfield would like to intervene to make a few comments. It will fall to me in a moment to ask leave to withdraw the amendment. I do not do so yet in case others wish to make concluding remarks. I believe that they do not. Having had a good debate, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Annette Brooke (Liberal Democrat, Mid Dorset and North Poole)

I beg to move amendment No. 160, in

clause 10, page 4, line 26, leave out from 'offence', to the end of line 27 and insert—

'(a) under subsection (1)(c)(i) of this section is liable on conviction on indictment to imprisonment for a term not exceeding 14 years,

(b) under subsection (1)(c)(ii) of this section is liable—

(i) on summary conviction, to imprisonment for a term not exceeding 6 months or a fine not exceeding the statutory maximum or both;

(ii) on conviction on indictment, to imprisonment for a term not exceeding 7 years,

(iii) in determination of the sentence, consideration must be given to the age differential between A and B.

(3) A person aged below 18 years at the time of the offence—

(a) prior to sentencing, shall be subject to a comprehensive assessment by a multidisciplinary agency or youth offending team,

(b) shall only be subject to notification requirements under part 2 of this Act following an assessment of the risk that he poses to the public.'.

Win Griffiths (Labour, Bridgend)

With this it will be convenient to discuss the following:

Amendment No. 139, in

clause 10, page 4, line 26, after first 'on' insert—

'(a) summary conviction to imprisonment for a term not exceeding 6 months or a fine not exceeding the statutory maximum or both;'.

Amendment No. 165, in

clause 11, page 4, line 38, at end insert—

'(3) Unless subsection (2) applies, a person guilty of an offence under this section is liable—

(a) on summary conviction, to imprisonment for a term not exceeding 6 months or a fine not exceeding the statutory maximum or both;

(b) on conviction or indictment, to imprisonment for a term not exceeding 7 years.

(4) A person aged below 18 years at the time of the offence—

(a) prior to sentencing, shall be subject to a comprehensive assessment by a multidisciplinary agency or Youth Offending Team.

(b) shall only be subject to notification requirements under part 2 of this Act following an assessment of the risk that he poses to the public.'.

Amendment No. 168, in

clause 12, page 5, line 14, at end insert—

'(3) Unless subsection (2) applies, a person guilty of an offence under this section is liable—

(a) on summary conviction, to imprisonment for a term not exceeding 3 months or a fine not exceeding the statutory maximum or both;

(b) on conviction on indictment, to imprisonment for a term not exceeding 5 years.

(4) A person aged below 18 years at the time of the offence—

(a) prior to sentencing, shall be subject to a comprehensive assessment by a multidisciplinary agency or Youth Offending Team,

(b) shall only be subject to notification requirements under part 2 of this Act following an assessment of the risk that he poses to the public.'.

Amendment No. 171, in

clause 13, page 5, line 30, at end insert—

'(3) Unless subsection (2) applies, a person guilty of an offence under this section is liable—

(a) on summary conviction, to imprisonment for a term not exceeding 3 months or a fine not exceeding the statutory maximum or both;

(b) on conviction on indictment, to imprisonment for a term not exceeding 5 years.

(4) A person aged below 18 years at the time of the offence—

(a) prior to sentencing, shall be subject to a comprehensive assessment by a multidisciplinary agency or Youth Offending Team,

(b) shall only be subject to notification requirements under part 2 of this Act following an assessment of the risk that he poses to the public.'.

Humfrey Malins (Conservative, Woking)

I shall speak to amendment No. 139. I will take some persuading that the amendment is not acceptable. The more I think about it, the more compelling I find it. Under clause 10, the position on punishment is as follows: the offence, which may vary in severity from a minor offence to a very serious one, is triable only on indictment. That is significant. To draw a parallel from the magistrates courts, there are many offences that are triable only summarily. They are minor offences, such as careless driving. Other offences are triable only on indictment, because of their extreme severity. They can be tried only by a Crown court, not a magistrates court. Such offences include murder. Other offences, such as theft, are triable either way. A low-level theft can be tried in a magistrates court, which has the power to give a statutory fine or six months' imprisonment. If the theft is severe, it may be tried in the Crown court.

For the life of me, I can see no reason why the offence of sexual activity with a child should be regarded in every single case as so serious that it can be tried only in a Crown court. There must—I repeat, must—be examples in which the sentencing powers of the magistrates would be sufficient. Perhaps that would be so in most cases, or perhaps in some, but there must be some cases. Surely it cannot be right that every single allegation under this clause would be deemed suitable to be tried before a jury. Remember that the position in a magistrates court, after the person is arraigned, is as follows: if the Crown thinks that the either-way case, such as a case of theft, which can be tried in either court, is so serious that it can be tried only in the Crown court, it will say so and the magistrates will commit it for trial. There is no danger of terribly serious cases remaining in the magistrates court.

Surely we should retain the option—perhaps it would be used often, or perhaps occasionally—of trying such cases in a magistrates court. Why is the offence triable only on indictment, as opposed to summarily as well? Have I missed anything? If I am right, surely my amendment covers both situations.

Dominic Grieve (Conservative, Beaconsfield)

I am waiting in haste to hear the Minister, but unless I have misunderstood how statutes are drafted, my hon. Friend is absolutely right and clause 10 provides only for trial on indictment. If that is the case, that raises an interesting question. To jump back to my argument on the previous group of amendments, the suggestion is that only extremely serious cases will go to trial. That is probably not what the Minister intends. If a 17-year-old sexually touches a 15-year-old in circumstances—[Interruption.] Let us say that an 18-year-old inappropriately touches a 15-year-old and a prosecution is brought. There would be instances in which it would be possible for a magistrates court to dispose of such a case.

The difficulty is that the phrase ''sexual activity with a child'', which has been drawn from the previous statutory framework, covers everything from consensual sexual intercourse with a 15-year-old, which is not rape, but is still a very serious offence if the other person involved is, say, a 35-year-old, right down to an 18-year-old having a snog behind the bike sheds with a 15-year-old. At the bottom end, there must surely be provision for a summary trial.

Paul Goggins (Labour, Wythenshawe and Sale East)

On first reading those clauses, one imagines some horrendous scenarios that would trouble us all. The penalties in the Bill reflect the sense of seriousness that we would feel. They are the maximum penalties, but none the less, the crux of the argument made by the hon. Member for Woking—whether trial could take place in a magistrates court or would have to be in a Crown court—deserves further reflection. If he will withdraw his amendments, I will undertake to give the matter further consideration, and either I will provide a compelling argument, or he may see something on Report that will give him some cheer.

Dominic Grieve (Conservative, Beaconsfield)

There may be an argument for considering the point in the context of clause 11 as well. As I said earlier, the circumstances outlined in clause 11 are on the whole likely to be more serious than the bottom end circumstances outlined in clause 10.

Paul Goggins (Labour, Wythenshawe and Sale East)

I acknowledge that the hon. Gentleman was intervening on me. If any other member of the Committee would also like to intervene, I will of course give way.

Hilton Dawson (Labour, Lancaster and Wyre)

I am grateful to my hon. Friend. Will he clarify whether a sentence on indictment could be for six months or anything up to the maximum sentence? The fact that the case could not be tried summarily does not preclude the possibility of a six-month sentence on indictment.

Paul Goggins (Labour, Wythenshawe and Sale East)

I made the point initially that 14 years is the maximum sentence available, so the sentence could be anything up to that maximum. Central to the argument advanced by the hon. Member for Woking was whether the case could be tried in a Crown court only. The argument is such that I need to reflect on it further. I need to provide a compelling argument as to why that should be available only through the Crown

court for myself—and certainly for the hon. Gentleman. If there is strong merit to the argument, there will be something that might help him on Report.

Hilton Dawson (Labour, Lancaster and Wyre)

The charges are very serious. If proved, they will remain on people's records for ever. They will place people on the sex offenders register and prevent them from working in certain fields of employment for ever. Therefore, why should not people who are charged with those offences be given the absolute benefit of a jury trial?

Paul Goggins (Labour, Wythenshawe and Sale East)

I appreciate my hon. Friend's encouragement to resist the argument by the hon. Member for Woking.

I return to the first point that I made in response to the hon. Member for Woking. On first reading the clauses, one immediately contemplates a horrendous scenario where something terrible has happened, and where that has happened one expects the book to be thrown at the individual responsible. If the maximum penalty of 14 years should be handed down, it should be handed down.

That is not the question that the hon. Gentleman poses, however. He asks whether it is possible that there is a scenario where that is not appropriate. In theory, it may be true; in practice, however, it may never, or seldom, happen. In many other parts of the Bill where other very serious offences and penalties are outlined, there is the possibility of a summary trial. In fairness, I should also consider whether that is appropriate in the matter before us. Notwithstanding that, my hon. Friend's comment about the seriousness of many such offences stands firm, and I stand behind that. The argument advanced by the hon. Gentleman is, however, worthy of further reflection.

Humfrey Malins (Conservative, Woking)

The hon. Member for Lancaster and Wyre (Mr. Dawson) makes an interesting point. To confirm the position with him, however, the magistrates court may give six months imprisonment, and the Crown court may give a conditional discharge or a £5 fine. They can go from the bottom end to the top end. It is wrong to include in the Bill the provision that only a judge and jury can try the case.

Hilton Dawson (Labour, Lancaster and Wyre)

Is the hon. Gentleman envisaging a situation where a charge as serious as this would have to be tried before magistrates, and the defendant would have no option?

Humfrey Malins (Conservative, Woking)

No. When an offence is triable either way, such as theft, the court hears representations from the prosecutor, who might say, ''This is such a serious case that we believe that your powers of punishment are not sufficient, and these are the reasons why.'' That case will go to the Crown court because it is too serious for the magistrates court. However, the prosecutor might say, ''This is such a down-market case that we think that your powers of sentence are sufficient,'' in which case the defendant has the option to go to the Crown court in any event—even for a small theft, for example, where the powers of the magistrates court are absolutely sufficient. There would be no injustice in the matter.

Dominic Grieve (Conservative, Beaconsfield)

My hon. Friend might agree with me that one reason why this matter has arisen is that indecent assault and unlawful sexual intercourse with a child between 13 and 16 have been rolled together. If the Government are worried that there might be cases in which unlawful sexual intercourse with a child aged between 13 and 16 would end up in the magistrates court, the solution is to split those things—to go back to the previous position, in which they were separate—so that one is triable on indictment only, and the other is triable either way.

Humfrey Malins (Conservative, Woking)

I hear what my hon. Friend says. He makes an interesting point.

John Randall (Conservative, Uxbridge)

I know that this will expose my great ignorance but, for the clarification of the Committee, could my hon. Friend say who makes the decision about this? The prosecutor puts the case; will the magistrates decide?

Humfrey Malins (Conservative, Woking)

That decision is, in effect, a mixture. If the prosecution says that the offence is so serious that the magistrates' powers are not enough, the magistrates will make a decision based on the prosecutor's representations about whether the case goes to the Crown court, regardless of what the defendant wants. If it is a very minor case—the theft of a bottle of whisky from a supermarket, for example—and the prosecutor says it is so down-market that the powers of the magistrates court are entirely sufficient, funnily enough the defendant still has the right to go to the Crown court. However, when the allegation is serious, the court will make the decision.

I am extremely grateful to the Minister and I do not want to say any more on the matter. We will not press the amendment to a Division, for obvious reasons. It is not the lead amendment, and we look forward to hearing the views of the Minister and his officials in due course. As the lead amendment in the group was tabled by the Liberal Democrats, it might be for the hon. Member for Mid-Dorset and North Poole to formally seek the leave of the Committee to withdraw it.

Annette Brooke (Liberal Democrat, Mid Dorset and North Poole)

I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 10 ordered to stand part of the Bill.

Clause 11 - Causing or inciting a child to engage in sexual activity

Paul Goggins (Labour, Wythenshawe and Sale East)

I shall be brief. Clause 11 introduces the offence of causing or inciting a child to engage in sexual activity and covers any situation in which an adult intentionally causes or incites a child under 16 to engage in any form of sexual activity, whether or not that is penetrative. That will not only cover cases where an adult makes a child engage in sexual activity—such as sexual intercourse—with them, but those where an adult makes the child engage in such activity with a third party, whether or not that party is a willing participant or another victim. The offence

will also cover cases where the adult makes the child carry out a sexual act, such as masturbation or stripping, for the sexual gratification of the adult. That closes a gap in the law that was identified last year, when an estate agent caused two young girls to strip in his office and, regrettably, there was no offence with which he could be charged. The offence can also be charged when the adult incites the child to take part in sexual activity, even when the activity itself does not take place—such as when, thankfully, a parent intervenes.

The prosecution shall be required to prove that the child is under 16. In cases when the defendant claims to have believed that the child was 16 or over, the prosecution will have to prove either that he did not hold such a belief or that it was not reasonably held. The provision concerning mistaken belief in age will not, however, apply when the child is under 13.

It is important to emphasise that we have no wish to interfere in the rights of an individual to engage in consensual sexual relationships within a lawful marriage. It is therefore the case that a defendant will not be guilty of the offence when he is lawfully married to the person under 16 and they are engaging in consensual sexual activity. The defence will not be available when the married person causes his or her child spouse to engage in sexual activity with another person. That marriage defence will, of course, apply only in relation to marriages that are contracted in another country where the legal age of marriage is below 16.

We take the firm view that it is the responsibility of every adult to have due regard to the criminal law and to place the well-being of a child above his own desires. The law should deal severely with any adult who knowingly causes or incites any child who has not reached the age of consent to engage in sexual activity. The protection of children should be at the heart of our legislation. The offence will send a clear message that any adult who causes a child under 16 to engage in sexual activity is committing an unlawful act and can expect to be punished.

Dominic Grieve (Conservative, Beaconsfield)

I welcome the clause although, as the Minister will be aware from my comments about clause 10, I wish to know whether the matter should be an ''either way'' offence, too. I appreciate that the act is different from sexual activity with a child, but we must face up to the fact that it will run across a spectrum of seriousness—from the 18-and-a-half-year-old who encourages his 15-year-old friend to have sex with his 15-year-old girlfriend to serious paedophile cases. Do we want that 18-and-a-half-year-old to be dealt with only in the Crown court? The Minister might like to consider that question.

I had intended to reserve my comments on the marriage exception until we discussed clause 16, which covers such a provision under clauses 10 to 15. I want to put down the benchmark that I have serious worries about the marriage exception provision. Many members of the public will regard it as deeply offensive. Why is it necessary? I need to hear a clear justification.

I appreciate that we have no power to prevent people from marrying at much younger ages abroad than in this country, but I do not understand why that fact should compel us to accept behaviour in this country that would otherwise be regarded as criminal. If people were living in this country, having contracted the marriage abroad, I cannot for the life of me understand why they, exceptionally, should not comply with our laws, even if that might involve their not having sexual intercourse or sexual relations while they are here until one of the partners is aged 16 or over.

John Randall (Conservative, Uxbridge)

I simply want to echo what my hon. Friend said. After listening to the Minister, I have grave worries. It sounds as though the protection that we would be affording children under 16 in this country would not necessarily apply to those in a legal marriage who have come from outside the country. I speak entirely as a layman, but the message will have to be relayed clearly outside so that people can understand why there is a difference under the legislation.

Paul Goggins (Labour, Wythenshawe and Sale East)

I understand why Opposition Members are responding to marriage exceptions. I felt that it was important to advance that argument, because it relates to clause 11 and other clauses. However, with the forbearance of the Opposition, perhaps we may leave discussion of the marriage exceptions until a little later in our business.

I shall not comment on the scenarios proposed by the hon. Member for Beaconsfield, but I offer him the same assurance that I offered his hon. Friend the Member for Woking on the previous amendment. I accept the argument. If it applied there, it would also apply here.

Question put and agreed to.

Clause 11 ordered to stand part of the Bill.

Clause 12 - Engaging in sexual activity in the present of a child

Paul Goggins (Labour, Wythenshawe and Sale East)

I beg to move amendment No. 44, in

clause 12, page 5, line 3, leave out from 'it' to 'knowing' in line 4 and insert—

'(i) when another person (B) is present or is in a place from which A can be observed, and

(ii) '.

Win Griffiths (Labour, Bridgend)

With this it will be convenient to take Government amendments Nos. 50, 56, 66, 80, 97 to 99 and 103.

Paul Goggins (Labour, Wythenshawe and Sale East)

Amendments Nos. 44, 50, 56, 66 and 80 redefine the offences relating to engaging in sexual activity in the presence of a child or a person with a mental disorder to include situations where the offender is in a place from which the activity can be observed and he believes that the other person is aware, or intends that that person should be aware, that he is engaging in the activity. The amendments are needed to close a loophole in the current version of clauses 12, 20, 34, 38 and 42. I am happy to acknowledge that that loophole was exposed during

discussion in the House of Lords, where a commitment was given that that issue would be considered further. Hon. Members have already referred to the benefit of the scrutiny in another place.

The clause covers a situation in which a person in, for example, the next room or in the garden of a house next door to a child's home engages in sexual activity, intending the child to see it, for his—the offender's—own sexual gratification. Clauses 20, 34, 38 and 42 share the same wording and consequently they are similarly amended.

Amendments Nos. 97 and 98 make minor, presentational drafting changes to clause 70, which deals with the interpretation of the provisions on voyeurism. Amendment No. 99 would remove from that clause the definition of observation, because the term is now, by virtue of amendment No. 103, included in clause 80 on general interpretation, which applies to the whole of part 1. It is therefore unnecessary to define it again.

Amendment No. 102 defines the word ''image'', which we shall deal with in a later clause, and No. 103 defines ''observation''. They ensure that the offences referred to above would include the observation of the sexual activity by means of an image created by, for example, a webcam or other remote viewing system. That will help deal with paedophiles and others who use technology and the display of sexual acts through the internet or mobile phones as part of their abuse of a child, or as preparation of the child for later abuse.

Some of the amendments are minor or presentational and others are more substantial. I hope that hon. Members have found my brief explanation helpful.

Dominic Grieve (Conservative, Beaconsfield)

I welcome what the Minister has done. I am grateful that he has taken on board the remarks made in the House of Lords. The amendments are undoubtedly a major improvement to this part of the Bill.

Amendment agreed to.

Clause 12, as amended, ordered to stand part of the Bill.

Clause 13 - Causing a child to watch a sexual act

Paul Goggins (Labour, Wythenshawe and Sale East)

I beg to move amendment No. 45, in

clause 13, page 5, line 19, leave out 'a photograph or pseudo-photograph' and insert 'an image'.

Win Griffiths (Labour, Bridgend)

With this it will be convenient to take Government amendments Nos. 47, 51, 59, 69, 85, 92, 100 and 102.

Paul Goggins (Labour, Wythenshawe and Sale East)

Some of the amendments will have a particular resonance for those Committee members who attended the presentation by the Metropolitan police yesterday. Amendments Nos. 45, 51, 59, 69 and 85 will ensure that any individual who shows a child or a person with a mental disorder or learning disability a cartoon, drawing or any other image of a person, whether real or imaginary, engaging in a sexual act is

committing an offence. That extends the offence in clause 13, causing a child to watch a sexual act, which previously only included causing a child to look at sexual activity depicted in photographs or pseudo-photographs. The amendments were tabled in response to concerns raised by the police that paedophiles often show media other than photographs depicting sexual activity to children for their own sexual gratification. For example, they might show tracings of such photographs, cartoons or other kinds of drawings.

The other amendments make similar changes to the offences corresponding to the behaviour described in clause 13, namely those offences in clauses 21, 35, 39 and 43 concerning abuse of trust and the protection of adults with mental disorders. Amendment No. 47 ensures that the marriage defence in clause 16—again, I emphasise that we will debate that at greater length later—uses the same term as the offences in clauses 10 to 14, to which it applies. Amendment No. 102 provides the definition of ''image'' on which the amendments rely. It includes moving or still images, however produced, and three-dimensional images. In the context of those offences, it will also cover images of imaginary people engaging in sexual activity, such as images created by computer graphics and cartoons.

Amendment No. 92 makes a minor consequential drafting amendment to the interpretation clause, clause 53, relating to child prostitution and pornography. Amendment No. 100 makes a minor consequential drafting amendment to clause 70, relating to the voyeurism offence under clause 69. Those amendments will assist the police in dealing with offenders who show such material, particularly to children, for their own sexual pleasure. Such behaviour may lead to a reduction of a child's natural barriers against engaging in sexual activity and forms a well recognised part of the process of grooming a child for abuse. We believe it right to extend that protection to vulnerable adults who may also be subject to abuse of that kind.

Dominic Grieve (Conservative, Beaconsfield)

I welcome the amendments. I recall visiting Scotland Yard about a year ago, prior to the briefing available yesterday to members of the Committee. I went there in the course of my then new job as criminal justice spokesman to discuss the issue of internet pornography. It was brought home to me that there was a serious difficulty in that although there was clearly a deep anxiety about photographs taken of children that clearly involved abuse, there was a volume of extremely unpleasant material that was simply generated by computer, but which still had the same capacity to corrupt, particularly when aimed at the young. The Minister has taken on board the views of the police, and has incorporated them into the clause, so that showing such material will be a criminal offence.

It is striking that the Minister has decided that the provisions should be extended to vulnerable adults, and I welcome that. Perhaps it is dangerous to say so, but I suspect that all Committee members agree that that is a sensible course of action. However, it raises profound issues about child pornography. Such material is regarded as tending to deprave and

corrupt children and vulnerable adults, so it is noteworthy that we allow adults to be exposed to it to their heart's content, as long as the material is generated either by sexual activities between adults or—this is equally interesting—it involves visual images that may show sex between adults and children that are not photographs.

I am sure that the Minister is aware of that difficult issue, which worries the police but strays deeply into areas of civil liberties. I am quite satisfied that, in doing what he has done, the Minister is on the right side of the line. However, I cannot ignore the fact that my visit to Scotland Yard brought home to me that we have been somewhat complacent in our attitude to the large amount of material that does not fall foul of the law at present, but which is in fact extremely unpleasant and which can be used, as the Minister accepts, for even more unpleasant purposes.

Amendment agreed to.

Clause 13, as amended, ordered to stand part of the Bill.

Clause 14 - Child sex offences committed by children or young persons

Hilton Dawson (Labour, Lancaster and Wyre)

I beg to move amendment No. 11, in

clause 14, page 5, line 33, at end insert

', unless such actions could be considered by a reasonable person to constitute ordinary, consensual adolescent behaviour.'.

We have had an excellent debate, which seems to have lasted for a very long time. Frankly, my overwhelming feeling at the moment is one of relief that my own daughters are now well into their 20s. I am grateful to the three other members of the Committee who have put their names to the amendment and for the words of support for it that I have received from officials of the National Society for the Prevention of Cruelty to Children; from Rachel Hodgkin, who wrote the briefing from the Family Planning Association; and from officials of the Children's Rights Alliance for England.

This is developing into an excellent Bill. It makes a very strong statement about the importance that the Government and hon. Members of all parties attach to the issues. In that context, I strongly support the retention of the age of consent at 16. One of the best things that the Government have done was to equalise the age of consent at 16. Also, as I said earlier, I am very pleased with the concept that children under 13 are incapable of consenting to any sexual activity.

I am also pleased by the introduction of the offence of touching that is sexual, and I am happy with the definitions that are given in the Bill. The sexual abuse of children by other children is a very serious problem that was discussed earlier today. I do not believe that anyone is terribly clear about this, but the figures indicate that perhaps as much as 40 per cent. of sexual offences against children are committed by their peers. We must deal with that sorry statistic with openness and through education and the effective treatment of disturbed children, whether they are victims, offenders

or both, and we must have good services that are backed up by sound law.

In a broader context, I am concerned that too many children are losing out on their childhood. The pressure on children to engage in mock-adult behaviour and behaviour that is way beyond their years is immense and growing, and the current age of consent is under threat. How can it not be, when it is reliably reported in The Lancet and other places that 30 per cent. of men and 26 per cent. of women say that their first experience of intercourse occurred before the age of 16? Every Member of Parliament is concerned about the teenage pregnancy rate in this country.

Clause 14 effectively outlaws kissing for under-16s on pain of five years imprisonment. That is how young people see it, but I do not know about other hon. Members. I attended a spirited debate at the annual assembly of the United Kingdom youth parliament in July when young people were well informed and aghast at the implications of the clause. I am extremely concerned that it is deeply flawed and that it will bring the age of consent of 16 into total disrepute and undermine it. The young people to whom I talked at the youth parliament and those from my constituency who visited Parliament earlier this week could not believe that such a provision was even being considered by anyone in this House.

I am concerned that the clause will prevent young people who are involved in consensual relationships from seeking advice on contraception, how to handle those relationships and the emotional implications of deep relationships before the age of 16. I am also concerned that it will leave some young people more vulnerable to abuse because of the need for secrecy. Who could fail to recognise the potential for emotional blackmail of a vulnerable child who is emotionally attached to a domineering partner of a similar age and who cannot tell what is going on because she would not want him to go to prison for five years? We want openness, education, sound advice, counselling and support, and that should be based on effective law that is rooted in the reality of children's experience. Touching may be coercive, but it may be mutually agreed, experimental and normal. Young people develop in maturity and understanding at different rates and the response of parents, family and professionals to the challenges of young people's sexuality should be proportionate, supportive, sympathetic and helpful.

Some of the amendments that we have discussed today are complicated. The Home Secretary said that the conundrum is so difficult that he is prepared to offer a magnum of champagne to anyone who can solve it. I think that we have made it too complicated by trying to allow for the vast range of possible situations in the Bill. That is impossible and the Home Secretary's champagne is completely safe.

The amendment is not perfect, but it is on the right lines. It would introduce an appeal to the common sense and reason not only of the police and the Crown Prosecution Service, but of every parent of every teenage child, every teacher of every teenage child and

anyone who has contact with adolescents and is concerned about them. The amendment would not decriminalise anything. It would retain the backing of the serious sanction if and when it is needed, but it would set the matter out in a form that is understandable and explicable. It tries to strike the necessary balance between protection and allowing children to grow. If we over-protect children, we render them vulnerable.

My proposal would be understandable and explicable to young people and I think that we could make it acceptable to them. We need something clear and straightforward in the Bill. We need effective legislation to underpin a change of culture in this country. We need greater openness, understanding and sympathy for young people. We need a realistic point from which to promote a culture that says, ''Until you're ready, it's quite all right for you to say no.'' Amendment No. 11 would help to create that.

Vera Baird (Labour, Redcar)

I hope that I did not jump up too quickly; I thought that my hon. Friend was going to end his peroration. Although I sympathise with the reasons why the amendment was tabled, clause 14 applies clause 10, which is intended to include penetration, to under-18s. Despite his support for the age of consent staying at 16, if his amendment were made, it would appear to give a defence to somebody who penetrated an under-16. Did he intend the amendment to clash with the age of consent?

Hilton Dawson (Labour, Lancaster and Wyre)

Actually, it is what I intended. It is far too difficult for us to define different forms of sexual experience. We do not prosecute under-16s who become pregnant. If we are effectively to help young people who are involved in consensual sexual relationships, we must treat them decently. The response to any form of sexual experience for under-16s should not be condemnation, which is implied by clause 14.

We should understand the position of under-16s. We should try to help, understand and assist them—we desperately want to protect them—but they must know that such behaviour is illegal. Such behaviour should remain illegal, and the age of consent should remain at 16. Unless we give the age of consent credibility, which is the purpose of the amendment, we will lose all the under-16s who are engaged in sexual relations. They should see that the Bill is a great attempt to protect them from sexual exploitation, and the implications of clause 14 are preposterous and potentially extremely damaging.

Dominic Grieve (Conservative, Beaconsfield)

I fully understand the hon. Gentleman's intention. Indeed, the intention is similar, albeit differently worded, to that of the amendment moved by the hon. Member for Romsey (Sandra Gidley) this morning and amendment No. 132, which was my attempt. The amendment is, of course, cast in a different way because it preserves the offence while leaving a saving provision to a jury that concludes that, despite the facts, there is no need to convict. Indeed, a jury would have the option not to convict because it is completely happy with what has been going on.

I remember having a discussion at the Bar—not the Bar downstairs—with a barrister about criminal law. We were arguing that it might be possible to get rid of the criminal law entirely, so that people could do whatever they liked, but that if the prosecutor thought that what somebody was doing was wrong they could prosecute them and go in front of a jury, which would have three possible verdicts—that the activity was in order, out of order or totally out of order—and the person would then be dealt with accordingly.

The problem with the amendment tabled by the hon. Member for Lancaster and Wyre is that it raises the obvious possibility that the definitions are so loose that somebody who does some heavy petting in Lancaster might appear in front of a Lancaster jury and see it decide that the activity is in order, while a defendant in Norwich might appear in front of another jury for doing the same thing and, because of the flexibility, see that jury decide that the activity is out of order. I hope that the hon. Gentleman recognises that the degree of uncertainty that that would produce in relation to people's behaviour and conduct is such that the administration of justice would become very difficult. People would legitimately complain that they had a reasonable expectation that what they were doing was in order. They would ask why, suddenly, when they had read in the paper that the activity was held to be in order somewhere else, it was held to be out of order now that they were doing it. However, that is the flexibility that is envisaged.

I will listen carefully to what the Minister has to say on the subject, but I fear that, despite its attractiveness, the amendment would lead to enormous problems. We must either provide a definition of what is acceptable and what is not, or we must stick to what the Minister has proposed, which is that this entire category is unacceptable, without the saving provision.

Under the Minister's proposals, the protection to a defendant is twofold. The first is that the prosecution does not prosecute because it exercises its discretion not to do so. The second, which has always been present, is that even after conviction the judge gives an absolute discharge and says that he regrets that the prosecution brought the case and that he hopes that such a case never gets brought again, which builds a volume of case law on which the prosecutors subsequently exercise their discretion.

I hesitate over the hon. Gentleman's proposal, because it might not work.

Hilton Dawson (Labour, Lancaster and Wyre)

Part of my argument is that the reality of the situation is that, hopefully, there are many stages at which these issues can be dealt with long before they ever reach the police or the Crown Prosecution Service. Is it not every parent's experience that they are faced with the challenge of their young person saying, ''I want to do this because Fred's or Frieda's parents down the road allow them to do it''? Is not what we are facing adolescent sexuality, which is being challenged and subject to change?

Dominic Grieve (Conservative, Beaconsfield)

I accept that, but I am not convinced that the proposal should be incorporated into law,

with the consequences that would flow from that for a person who gets things wrong. Somebody might be convicted even though they claim that they thought about the matter and they were absolutely convinced that what they were doing came within the category of ''ordinary, consensual adolescent behaviour.'' That is a difficult principle of law, and I do not know whether we should start going down that route. Law must have greater certainty than that.

Chris Bryant (Labour, Rhondda)

I think that I agree with the hon. Gentleman. Does he not think that there might be a thoroughly reasonable or fundamentalist Christian who believed that it was extremely extraordinary for two young people of 15 to be kissing, or even holding hands, whereas two liberal-minded people living in Hampstead or Highgate might hold completely different views on that? If the law is unable to be specific enough, it will be difficult to direct a jury.

Dominic Grieve (Conservative, Beaconsfield)

Indeed, I think it would not be possible to direct a jury at all. On the basis of the amendment, the judge would simply have to ask the members of the jury if they as reasonable people thought the case was all about ordinary, consensual adolescent behaviour. That is a complete defence, and one would have to leave it to them.

The proposal is attractive, but there will be people who rejoice because they get acquitted, and people who get convicted, who will feel upset and aggrieved because they will not understand it in the light of what they have done. I do not know what mechanism of appeal there could be. It would simply be a matter of the jury's view. I am wary of it. That is all I want to say on the subject.

Julie Morgan (Labour, Cardiff North)

I support the amendment tabled by my hon. Friend the Member for Lancaster and Wyre. I put my name to it because I support the spirit behind it. I accept that there may be a problem with what is ''ordinary, consensual adolescent behaviour.'' We all know what my hon. Friend means and where he is trying to get to. Although the amendment is not perfect, I support the spirit in which it was drafted.

The message we give to young people is important and we must remember the high teenage pregnancy rate in this country. We must not give a punitive message to those young people who have become pregnant at an early age, and who we know engage in sex at an early age. The law as it stands clearly fails, because so many young people under 16 are pregnant. It is important that we give a message that we want to concentrate on young abusers in the Bill, and there is a significant number of them, as has already been said. They cause terrible anxiety and problems. In order to do that, we need to get rid of the concept that we are widening the net and drawing in behaviour that we know is ordinary and part of growing up.

Chris Bryant (Labour, Rhondda)

I sympathise with the point that my hon. Friend is making. My difficulty is with the word ''ordinary'' that she has just used. Another word for ''ordinary'' is ''normal''. It is very difficult to use those words without attracting value judgments, which, unless we are prepared to include them in the Bill,

would make it almost impossible for people to gain justice.

Julie Morgan (Labour, Cardiff North)

I accept my hon. Friend's point. The clause needs to be more specific. The spirit behind the amendment is something that my hon. Friend the Member for Lancaster and Wyre has put forward clearly. We need to reach out to young people. The words in the Bill must be understood by young people. I have had the sort of experience that my hon. Friend said that he had when he spoke to young people in the youth parliament. Their concern about this sort of development in the Bill is a worry. We ought to bear that in mind, and it is in that spirit that I put my name to the amendment.

Annette Brooke (Liberal Democrat, Mid Dorset and North Poole)

I attempted to obviate the need for clause 14. When I was knocked down over that, I thought, ''Oh well, it is probably better to go down the simpler route.'' I now feel rather disillusioned.

To return to the main principles, I think that clause 14 is very damaging as far as the way in which young people interact with society is concerned. We have to accept the culture of young people. I do not mean agony aunt columns in magazines, but the sort of magazines that they read, what they read about, the films that they are seeing and the books that they are reading. The clause does not match that at all and we owe it to young people not to give signals that everything that they do is wrong. I find it very worrying that we have had some exceedingly useful discussion and at times edged closer to a solution, but then the lawyers stand up. With all the struggles that we are having, I keep coming back to the point that we are reassured because not many cases will come before the courts if matters are left as they are, but every time we try to change them, a huge problem emerges about cases coming before the courts and how the law will be interpreted.

I would really like to find a solution to that problem. I wish that I had the skills, which I obviously do not, to find it. I just hope that we can keep working on it. We all had a mailing from a Mr. Bennion, which we did not have time to discuss and examine, so I do not know if there is anything in that that the civil servants will be able to consider. I support wholeheartedly every sentiment in the amendment, and I wish that we could find the way through.

Neil Gerrard (Labour, Walthamstow)

My hon. Friend the Member for Lancaster and Wyre and other hon. Members who have spoken are absolutely right to point to the clause as currently drafted as a real problem. In his amendment, my hon. Friend has tried to take a common-sense approach by looking at what actually happens. It fits in with the tone of a lot of the debate that we have had on this part. I agree with what he said on that sort of approach. I find difficulties with every one of the other solutions that have been suggested. For example, on the suggestion that involved three-year periods, we can think of 15-year-olds who could easily pass for 19 and 13-year-olds who we would not think were 10. There is only a two-year age gap there, but an enormous difference in maturity.

The question is whether this common-sense amendment is legally workable. I understand what the hon. Member for Mid-Dorset and North Poole said about the lawyers getting hold of matters. On a previous Committee that I served on, I referred to the speech made to Jack Cade in Shakespeare's ''Henry VI'', which no doubt some hon. Members will be familiar with, which starts:

''The first thing we do, let's kill all the lawyers.''

Sometimes, one wonders whether that is the approach that we should take.

Chris Bryant (Labour, Rhondda)

That is not an offence under this Bill.

Neil Gerrard (Labour, Walthamstow)

The hon. Member for Beaconsfield mentioned the interpretation that juries might put on the law. I am sure that that happens anyway with other parts of the criminal law. East London juries might be rather different from juries in Lancaster. I recall an hon. Member telling me that when he started to practise as a barrister his colleagues expressed astonishment that he had managed to get one of his clients convicted at a particular court in London. However, this is not just about how juries interpret. It is a question of what prosecutors look at when deciding whether to charge.

I took the opportunity of the lunch break to look at the current CPS guidelines, which were mentioned this morning, to see what happens under the law now and how that would relate to the clause. What they say highlights the problem. We are in a situation, which we will still be in when the Bill is enacted, in which, as a matter of law, someone under the age of 16 cannot consent to an act that is otherwise an assault. However, they can consent as a matter of fact. That is the problem: matching together a matter of law in terms of consent and the matter of fact that someone has consented.

What is clearly in the guidelines now is that, if the victim consented, that would be relevant when considering the public interest in whether to prosecute. Factors such as the age of the defendant in relation to the victim, emotional maturity, any element of seduction, the relationship between the parties, a duty of care and breach of trust are, rightly, taken into consideration now. They are exactly the sort of factors that one would want to be taken into consideration. Ideally, we would somehow be able to bring the guidelines into the Bill, but I still have great difficulty in seeing how we could do that and produce a legally workable clause.

I sympathise entirely with what my hon. Friend the Member for Lancaster and Wyre says in the amendment. That is what we are all basically thinking. We need a common-sense approach, so that people are not prosecuted for what we would regard as consensual adolescent behaviour and not a problem. How one defines that may be the difficulty. This is the nearest to being an amendment with which I fully agree. I want to hear the view of the Minister and his officials as to how legally workable it might be, whether there are real problems and, if so, what they

are and what approaches we might be able to take to improve the amendment so that it works.

Humfrey Malins (Conservative, Woking)

This is a difficult clause. It is not a happy clause and I have a great deal of sympathy with the approach taken by the hon. Member for Lancaster and Wyre. Let us consider what the clause says. It will make it an offence punishable by up to five years imprisonment for a young person of 13, 14 or 15 to engage in any sexual activity with a person of similar age, even if it is consensual and/or relatively minor. It bears repeating that it would be an offence for a boy and girl aged 15 not only to have sexual intercourse, but to indulge in heavy petting, to fondle one another sexually or even to kiss mouth to mouth.

I mentioned earlier that I had been in contact with Professor John Spencer of Selwyn college, Cambridge. I shall share some of his thoughts on the clause and the amendment, because he is as distinguished an academic as one could find and what he says may be of some help to the Government. I hope that they will take on board what he says. Professor Spencer says of the clause:

''I share the view of many speakers in Parliamentary debates who have said that this is ridiculous. The reason was well put in respect of the existing law by Professor Brian Hogan, who took the case of 'a 14 or 15 year-old schoolboy being familiar with a schoolgirl of similar age.'''

He said in ''On modernising the law of sexual offences'', which appeared in ''Reshaping the Criminal Law'' of 1978:

''Such conduct is a crime for him, and a crime for her if she responds in kind. No doubt prosecutions in such cases as these are almost unheard of, but that such conduct is even technically an offence I find wholly repugnant. As all . . . research shows this makes criminals of a sizeable proportion of the population. And it is wholly wrong that conduct which has been a part (and surely not a detrimental part) of the sexual growth of nearly all of us should be stigmatised as criminal. The reformer who explained to fourth, fifth and sixth formers at any school that much of their consensual sexual conduct is criminal and ought to remain so in a modern criminal code would be deservedly laughed out of the class.''

How can I distance myself from those observations?

Professor Spencer states:

''It is no answer . . . for people to say 'It's not a change—the present law makes it illegal too.' The Bill is supposed to create a modernised, rationalised law of sexual offences, fit for the 21st Century. Nor is it any answer to say''—

as some do—

'''It's not possible to exclude harmless consensual behaviour between teenagers whilst enabling the law to protect children against sexual exploitation.'

French law managed to find a sensible solution when its new Criminal Code was enacted in 1994. This contains in Article 227–25 a general offence of sexual behaviour with persons who are under 15: but (unlike the earlier law) it can only be committed by adults (i.e. people who have reached the age of 18).''

The professor thinks that

''the solution for us would be simply to delete Clause 14, without replacement. The sort of predatory minor whom we might want to prosecute, or at least threaten with prosecution, would still be guilty of a whole range of serious offences if he turned his attention to a child under the age of 13, or did any sexual act to or with a child over 13 to which the other participant did not freely consent (in the sense in which clause 75 defines it).''

He adds that he cannot

''think of much behaviour by minors that we would want to prosecute which would not be caught by one of the other offences in the Bill, or some other part of the criminal law. Perhaps there might be a problem with the over-sexed youth who continually pesters other children for sex: like the 15-year-old defendant in R v B (A Minor) [2000] AC 428, who repeatedly pestered a 13-year-old girl on a bus by asking her for oral sex.''

The professor believes that such a scenario could be covered by a prosecution of

''an offence under the Public Order Act—and presumably would be the case if the girl he had pestered had been over 16 (or indeed if this sort of thing were done by one adult to another).''

He concludes:

''If this were thought to be insufficient, then I suppose we could leave Clause 14 in, but limit its effect to some of the offences only (e.g. the incitement offence in Clause 11). I think a respectable case could be made for saying that the criminal law needs to extend to catch a minor who pesters unwilling children for sex, whilst not making consensual sex acts criminal when they are done by consenting minors over the age of 13.''

The Government and the Minister should listen carefully to Professor Spencer's views. I do not dissent from anything the professor says. He is a top academic. I do not know what discussions officials have with top academics. Have they run such matters right past the top professors at all the universities in the country? If not, why not? Professor Spencer has been most helpful to me. The last thing he said to me was, ''Have you read 'The Secret Diary of Adrian Mole Aged 13Ž3?/?4?'?'', to which I replied, ''I think so.'' He said, ''Listen chum, look at the page that describes his adventures with Pandora, when he says, 'Pandora let me touch her bust today, but I couldn't feel much through her anorak.''' I think that the telephone call then came to an end. We must not forget what Professor Spencer said.

John Randall (Conservative, Uxbridge)

Perhaps I should have saved some of my earlier comments—in response to which I received glazed-over looks from members of the Committee—for this amendment because I have a great deal of sympathy with it. Had I done more homework, I might have added my name to it when it was tabled. However, having heard my hon. Friend the Member for Woking, I am interested in what the Minister has to say about clause 14 and whether it is necessary.

I am at a disadvantage because my children range in age from 13 to seven. Listening to what is being said in Committee, I worry when I think of the ''ordinary . . . adolescent behaviour'' that is to come. I have a problem with laws that may be broken—we must endeavour not to create laws that need be obeyed only in certain ways. That makes an ass of the law.

I understand the position of the legal profession and I do not want to knock it. Before I was elected, it was easy for me to say that Parliament has too many lawyers. Now, when I sit through proceedings in Committee, I say, ''Thank God for lawyers,'' because they are often the only people who understand some of the intricacies, and they are the ones who will have to deal with the laws we pass. However, it is a shame that common sense is not allowed to be part of the proceedings. I believe that it was my hon. Friend the Member for Beaconsfield who said that common sense cannot be defined in law and that it would be different in different areas, which is absolutely true. I have some

academic background for that assertion: I remember reading a treatise on different Serbian villages between the wars. One village regarded sex before marriage as perfectly acceptable, whereas a village 10 miles down the road did not. We can understand that. I live in Uxbridge, in suburbia—not the dizzy heights of Hampstead and Highgate, but a fairly ordinary sort of place.

We talked about issuing guidelines, so someone will be making a value judgment about potential prosecutions. Old-fashioned though it may be, I would prefer to rely on the 12 men or women on a jury to take a view. I understand the problems. Perhaps the lawyers on the Committee would consider it a lucrative area of practice.

Hilton Dawson (Labour, Lancaster and Wyre)

When the hon. Gentleman's four children reach their teenage years, would he rather that they were dealt with by a jury, the police or the CPS or by their teachers, himself or other members of his family making sensible decisions based on the evidence before them?

John Randall (Conservative, Uxbridge)

The answer is obvious. Incidentally, I have three, not four, children—although the change of parliamentary hours might change that.

Chris Bryant (Labour, Rhondda)

Too much information.

John Randall (Conservative, Uxbridge)

Perhaps it is.

As hon. Members have said, we will be sending out a rather strange, albeit well intentioned, message. One of my constituents, an 11-year-old, was raped by a 13-year-old. I come from a sheltered background, and I found some of things that I heard at yesterday's presentation deeply shocking. We would be sending out a strange message if we said that although we do not expect cases to be taken to court, much normal behaviour is technically a criminal offence. I have a great problem with that.

Vera Baird (Labour, Redcar)

I share the sentiments that motivated my hon. Friend the Member for Lancaster and Wyre to table the amendment and I do not want to spoil it, although I cannot stop being a lawyer. I thought that the hon. Member for Beaconsfield overstated the case when he talked about the range of possible findings that would emerge from reasonable juries in different geographical locations. After all, the point of having a jury is that there are 12 members and they cancel out each other's prejudices—at least, that is supposed to be the point. I do not believe that the amendment is all that unworkable, although I have other reservations about it.

Sandra Gidley (Liberal Democrat, Romsey)

The hon. and learned Lady might be in a position to answer a question that has been vexing me. In clause 1, the Government appear to be quite happy to leave it to a jury to decide whether a behaviour was reasonable. We seem, somehow, to have a problem with giving the same responsibility to a jury in the few cases that will be brought to court under clause 14. Perhaps she would care to comment on that.

Vera Baird (Labour, Redcar)

That thought occurred to me as I listened to the hon. Member for Beaconsfield. I suppose that he would say that what has been left for a jury to decide under amendment No. 11 is a

much wider question than whether in an individual case somebody behaved reasonably. To some extent I agree with that. One is considering what people think is reasonable consensual behaviour. Perhaps it would be better if the hon. Gentleman answered that question.

Dominic Grieve (Conservative, Beaconsfield)

Yes, indeed—what is

''ordinary, consensual adolescent behaviour''?

That is the problem. It is a wide concept. Somebody with a Christian background and someone from another cultural background might have very different notions of what is appropriate. People would be uncertain about what is and is not permissible. Whether one could justify one's actions would be a lottery.

Vera Baird (Labour, Redcar)

I thought that that was what the hon. Gentleman meant. With the greatest respect, however, there is no suggestion that the amendment is legally drafted, so it is possible that it could be tightened up, leaving the issue couched in narrower terms. I am worried that amendment No. 11 might be compared and contrasted with amendment No. 132. I am surprised, now that I reflect on it, that the hon. Member for Beaconsfield, who tabled that amendment to clause 10, did not table an identical amendment to clause 14 as well as or instead of the amendment to clause 10.

I should like to discuss amendment No. 132 in criticising amendment No. 11. I hope that I am not wandering away from the point, Mr. Griffiths. If amendment No. 132 were made, conduct that would otherwise be an offence under clause 14 would not be an offence if there were only a small age difference between the parties. I suppose the point is that the one who might object the most has the capacity to consent and does so. That might be an appropriate criterion to apply to clause 14.

The amendment tabled by my hon. Friend the Member for Lancaster and Wyre also says that if actions are consensual, they are not unlawful. However, in addition to the activity being consensual, under my hon. Friend's amendment the jury has to decide that it is also ''ordinary . . . adolescent behaviour.'' There are two tests in amendment No. 11 and I do not know whether the second—the more difficult of the two—is necessary.

Dominic Grieve (Conservative, Beaconsfield)

I initially envisaged amending clause 14. Indeed, that could be done very easily with roughly the same wording. My reason for not doing that was that, on reflection, it seemed that clause 14 was providing for a different tariff of sentencing where an offence had taken place. That is a matter of drafting. If it is better drafting to shift my amendment to clause 14, it could be done quite easily.

Vera Baird (Labour, Redcar)

Amendment No. 132 is more attractive. Although it achieves most of the aims, I suggest that my hon. Friend the Member for Lancaster and Wyre intends—

Chris Bryant (Labour, Rhondda)

I do not think that my hon. and learned Friend has read the whole of amendment No. 132. It continues over the page, where it says:

''the conduct does not involve penetration.''

Would she want to incorporate that into her version of the amendment to clause 14?

Vera Baird (Labour, Redcar)

I was about to come to that. I would.

Humfrey Malins (Conservative, Woking)

The hon. and learned Lady said that she was a little surprised that an amendment was not tabled to clause 14 as it was to clause 10. My hon. Friend the Member for Beaconsfield and I tabled a similar amendment to clause 14, but it was grouped with other amendments debated under clause 10—although I did not speak to it at length at that point. I am not sure it was necessary for me to have mentioned that.

Vera Baird (Labour, Redcar)

Let me shake my head and try to grasp the import of what the hon. Gentleman has just said.

A second aspect of amendment No. 132 makes it preferable to amendment No. 11. The age of consent for sex—or penetration—should either be 16 or not. We cannot say that we agree with that age of consent but then not apply it in some circumstances. That is not practical. Either the state thinks that a girl under 16 cannot consent to sex, or it does not. It does not matter who she has sex with; the state must take a position and keep to it. The other advantage of amendment No. 132, or an amendment along similar lines, over amendment No. 11 is that it would allow consent to everything other than penetration.

John Randall (Conservative, Uxbridge)

I understand what the hon. Lady is saying, and in my own small way I was thinking the same. However, if the state says that a girl under 16 should not have sex, why is it that we often do not prosecute?

Vera Baird (Labour, Redcar)

There is the option to do that, and sometimes it occurs. I have defended several people who have had sex with girls under 16—sometimes they have been a lot older than her, and sometimes not.

John Randall (Conservative, Uxbridge)

I was wondering whether there were cases in which the girl is the one who is prosecuted.

Vera Baird (Labour, Redcar)

I am talking about girls being prosecuted. Why, often, we do not prosecute the girl is a good question. I cannot answer that, but I am sure that the Minister can.

The hon. Member for Mid-Dorset and North Poole made the point that if we make legislation that says, ''People under 16 can do everything but'', we might discourage those people from pursuing family planning. They will think, ''We are not going to do that, so we don't need to know.'' I do not know whether the situation will be made any worse. As the hon. Member for Beaconsfield said this morning in another context, we should draw a line and say, ''You should not have sex until you're 16'', but none the less provide all the sex education that is given currently. I hope that that unhappy compromise might be a reasonable answer.

As we all agree, this is a difficult area—we are all still touting like mad for the Home Secretary's

champagne. However, the Government should think again. In the spirit of what my hon. Friend the Member for Lancaster and Wyre and other hon. Members have said, all of which has confirmed my view, I would say that it might be possible to reach a formulation, such as that of amendment No. 132, that would allow the sort of petting that everyone knows goes on between teenagers preparatory to sex. There could be a formulation that did not criminalise that, as it would make consent a practical proposition. Such an amendment would say that it was against the law to have sex under age, and that would be consistent with our respect for the age of consent. I commend the Government to look again at a formulation similar to that in amendment No. 132.

The rest of the debate is in Hansard.