Previous Section Back to Table of Contents Lords Hansard Home Page

Lord Monson : My Lords, is the noble and learned Lord saying that those on his Benches will not have a free vote in the matter?

Lord Lester of Herne Hill : My Lords, I am not learned and I doubt my nobility, but on these Benches we of course allow a free vote. I am simply expressing what is the policy of my party, as put to the country at the last general election. If any Liberal Democrat peers do not agree, then no doubt they will express their disagreement in one way or another, as is their important right.

The Attorney-General has stated on the face of the Bill that in his view its provisions are compatible with the Convention rights. I respectfully agree with that position. The enactment of this Bill will enable the United Kingdom to comply with the obligations binding in international law on Parliament, the executive and the judiciary. The rejection or the wrecking of the Bill would lead to inevitable condemnation by the European Court of Human Rights, and by our own courts after 2nd October. If this Bill were not enacted now, it would have then to be enacted--after the United Kingdom had faced international public humiliation.

The criminal legislation fixing the minimum age for lawful homosexual activities at 18 rather than 16 undoubtedly interferes with the rights of adult male homosexuals, under Article 8 of the Convention, to respect for their private life, which includes their sexual life. The very existence of the legislation directly affects the private lives of such men. Either they respect the law and refrain from engaging in any prohibited sexual acts prior to the age of 18, or they commit such acts and risk criminal prosecution.

Contracting states are entitled to exercise some control over homosexual conduct, to provide safeguards against exploitation of those who are

11 Apr 2000 : Column 101

specially vulnerable by reason, for example, of their youth. The contracting states are not entitled, however, to maintain in force laws that discriminate against anyone on the basis of sexuality or sexual preference.

A difference of treatment is discriminatory, for the purpose of Article 14 of the convention, if it has no objective or reasonable justification. Under the present law a young man of 17 years of age who wishes to enter into and maintain sexual relations with a male friend of the same age is in a relevantly similar situation to a young man of the same age who wishes to enter into and maintain sexual relations with a female friend of the same age. Indeed, young male homosexuals are also treated differently from and less favourably than young lesbians, because it is not a criminal offence for lesbians or heterosexuals to have sexual relations at the age of 16.

The United Kingdom is out of line with most other European countries in maintaining a different age of consent for male-female and female-female relationships, as compared with male-male relationships. Of the 15 European Union countries only two others--Finland and Luxembourg--maintained discriminatory age differences in 1997. All of the major countries have equal ages of consent; as do, for example, Ireland, Portugal and Spain--countries noted for their strong Christian traditions.

In 1981, in the Dudgeon case, the European Court of Human Rights held that the criminal offence forbidding homosexual conduct in Northern Ireland between adult men amounted to an unjustified interference with the convention right to respect for private life. Where there are restrictions on a most intimate part of an individual's private life, the Court explained, there must be "particularly serious reasons" to amount to a justification. The Strasbourg Court reached the same conclusion in 1983 in a case against Cyprus, and in 1988 in a case against Ireland.

Last September the European Court unanimously ruled that the exclusion of homosexuals from the British Armed Forces violated various convention rights. It observed that a predisposed bias on the part of the heterosexual majority against the homosexual minority in the Armed Forces could not amount to a justification for the interference with the applicants' rights, any more than similar negative attitudes towards those of a different race, origin or colour. The Court pointed out that the hallmarks of a democratic society include--words that I have not heard very often from some in this House--pluralism, tolerance and broadmindedness.

Last December the Court ruled, again unanimously, that the Lisbon Court of Appeal in Portugal had discriminated against a homosexual father by granting custody of his child to his former wife, on the ground that he was a homosexual living with another man. The Portuguese court had said that the child had to live in what it called "a traditional Portuguese family" and that

    "children must not grow up in the shadow of abnormal situations".

11 Apr 2000 : Column 102

In July 1997, in the Sutherland case, the European Commission of Human Rights decided by a large majority that there was no objective and reasonable justification for maintaining a higher minimum age of consent for male homosexual than for heterosexual acts, and that there had been a violation of the applicant's convention rights, in breach of Article 8 read with Article 14 of the convention.

In that very important case, the commission referred to the evidence from the council of the British Medical Association that most researchers believe that sexual orientation is usually established before the age of puberty and that reducing the age of consent would be unlikely to affect the majority of men engaging in homosexual activity. The BMA council concluded in its report that the age of consent for homosexual men should be set at 16, as the existing law might inhibit efforts to improve the sexual health of young homosexual and bisexual men.

As the commission noted, an equal age of consent was also supported by the Royal College of Psychiatrists, the Health Education Authority and the National Association of Probation Officers, as well as by other bodies concerned with health and social welfare in this country. The commission also noted that the great majority of member states of the Council of Europe now recognise equality of treatment in respect of the age of consent.

The commission rejected two arguments made in Parliament and by the then government in favour of retaining the criminal law as it stands. In the first place, it was argued that some young men between the ages of 16 and 18 do not have a settled sexual orientation and that the aim of the law is to protect such vulnerable young men. It was claimed that criminal sanctions against persons aged 16 or 17 would have a deterrent effect and give the individual the time to make up his mind. Secondly, it was argued that society is entitled to indicate its disapproval of homosexual conduct and its preference that children follow a heterosexual way of life.

The European Commission of Human Rights pointed out that current medical opinion is to the effect that sexual orientation is fixed in both sexes by the age of 16 and that men aged 16 to 21 are not in need of special protection because of the risk of their being "recruited" into homosexuality. As noted by the BMA, the risk posed by predatory older men would appear to be as serious whether the victim is a man or a woman and does not justify a differential age of consent. Even if there might be some young men for whom homosexual experience at the age of 16 would have influential and potentially disturbing effects, it is not a proportionate response to the need for protection to expose to criminal sanctions not only the older man who engages in homosexual acts with a person under the age of 18 but also the young man who is claimed to be in need of such protection.

The argument that society is entitled to indicate disapproval of homosexual conduct and its preference for a heterosexual lifestyle was rejected as an objective or reasonable justification for inequality of treatment

11 Apr 2000 : Column 103

under the criminal law. The commission referred to the Dudgeon case, where the court had said that "decriminalisation" does not imply approval, and that fear that some might draw misguided conclusions from the reform of the legislation does not afford a good ground for maintaining the legislation in force with all its unjustifiable features.

That case is now pending before the European Court of Human Rights which would, in my view, as I have said before in previous debates, be virtually certain to come to the same conclusion. The proceedings have sensibly been adjourned to allow this Bill to be enacted, if necessary by invoking the Parliament Acts if the Bill is torpedoed yet again in this House.

As the noble and learned Lord the Attorney-General very clearly told the House, this Bill gives protection to vulnerable young people by creating the offence of abuse of trust and by decriminalising the younger partner. Those provisions are a proportionate response to legitimate concerns from the Bill's opponents.

When I spoke on this subject on 22nd July 1998, I recalled the wise words of the Prime Minister, spoken in 1994 when he led for the Opposition. I recall them again today. Mr Blair said that the issue is,

    "not at what age we wish young people to have sex. It is whether the criminal law should discriminate between heterosexual and homosexual sex. It is therefore an issue not of age, but of equality ... At present, the law discriminates. There is no doubt about the personal misery that such discrimination brings to young people frightened to admit their own sexuality and of the fear of imprisonment".--[Official Report, Commons, 21/2/94; cols. 97-98.]

We believe that the Bill should be enacted speedily and as it stands, so as to secure compliance at long last with the basic human right, which is as much a moral question as the morality that the opponents of this Bill deploy, to respect for one's private life without discrimination against young homosexual men.

4.15 p.m.

Baroness Young of Old Scone: My Lords, I rise to speak with some diffidence today as much has already been said about this issue on previous occasions. I have to confess that I have absolutely nothing new to add to the excellent expositions given by the noble and learned Lord, Lord Williams of Mostyn, and by the noble Lord, Lord Lester of Herne Hill. However, I have chosen to speak for a selfish--or some might think frivolous--reason, which, nevertheless, has a serious point at its heart.

Some noble Lords may have noticed that there are two "Baroness Youngs" on the speakers' list. First, there is the noble Baroness, Lady Young, who sits on the opposite Benches and who is a key campaigner against gay rights and gay equality. Secondly, there is myself, Baroness Young of Old Scone, on these Benches. I am equally committed, but in the opposite direction: to equality and rights for gay and lesbian people. Alas, during the past few months, the newspapers have found themselves singularly unable to distinguish between the two of us. Indeed, the most recent perpetrator, Private Eye, was unable to

11 Apr 2000 : Column 104

distinguish between us and yet another person. That confounds the issue even further. I am now probably in the unique position in this country of having gained an unmitigated and unasked-for apology from Private Eye, without even having to sue.

I am afraid that even the BBC--I must declare an interest because I am vice-chairman--has also fallen into the trap, although it has now realised the error of its ways. In typical BBC style, although this may not be the case in the future under the leadership of Greg Dyke, it has introduced a new policy concept; namely, that of "the Ying and Yang of Young", which enables people to describe us and to tell us apart.

Today I simply want to give your Lordships some handy hints on how to tell the "Baroness Youngs" apart. First, there is the small matter of the 20-year age difference. I have discussed the matter with the noble Baroness, Lady Young, and we have agreed that we should simply leave it to your Lordships to decide which of us is which on that issue; indeed, we shall bow to noble Lords' judgment.

Perhaps the most important distinguishing peculiarity is the issue that I believe to be at the centre of the Bill. I want to make it very clear that I am the Baroness Young who believes that the time for equality for homosexual people on this issue is long overdue--

Next Section Back to Table of Contents Lords Hansard Home Page