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Lord Walton of Detchant: Without question. It is entirely right that health professionals who are fully informed about the risks must say to an individual, "If you persist and if you go ahead, the risks are these". It is very important that the dangers should be made clear to individuals. But if they persist, the health professional would give advice about every possible means of protection, including the use of appropriate condoms.

As a parent, a grandparent and now a great-grandparent twice over, I support the views of those who are concerned with the protection of young people and with the protection of the family. But, after agonising over this issue, for all the reasons I have given, I believe that the Bill should be supported.

The Lord Bishop of Birmingham: We have to recognise--

Lord Mishcon: Does the noble Lord--

Lord Bach: My noble friend is not intending to speak. He wishes to ask a question of the previous speaker.

Lord Mishcon: I am grateful. Does the noble Lord, for whose medical knowledge we all have such admiration and regard, really believe that the law would move against any doctor who gave the advice, "Please do not do it. But if you have to do it, and you

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will not follow my advice, these are the consequences"? The law indeed would be an ass if it moved a prosecution on those grounds, would it not?

Lord Walton of Detchant: I agree. I do not think for a moment that the law would do so. It is possible that professional organisations might condemn a doctor in those circumstances.

The Lord Bishop of Birmingham: We have to recognise that this is an area in which people of good faith can properly and rightly take a different view. I do not subscribe to the view that the law has nothing to do with morals; the law can have the important function of stating common ground. Nevertheless, I do not believe that an attempt to enforce morals in this area is likely to be a proper or effective use of the criminal law.

Quite rightly, in my judgment, the debate has focused on the issue of protection, of which there are two aspects. The first aspect is the issue of health, on which persons far more knowledgeable than I--notably the noble Lord, Lord Walton--have spoken. The issue of health applies as much to those over 18 as to those under 18. That is absolutely fundamental. If the kinds of activities being described are so terrible that they need to be made a criminal offences for those under 18, surely they should be made criminal offences for those over 18. But that is absurd because we are talking, in general, about consensual acts.

The question that has to be asked--in fact it has been asked already--is this: if young people need serious and informed advice and help in this area, are they likely to be helped by the knowledge that this has been made a matter of the criminal law? I do not think that they are. I think that they are more likely to ask for and find help if it is not criminalised.

The second issue concerns the proper protection of young people from an abuse of trust by people in more powerful positions. Here I welcome the amendments brought forward by the Government in the version of the Bill that now stands before the Committee. I hope that, on balance, we shall feel able to support the Government and to resist these amendments.

Lord Monson: Before the right reverend Prelate sits down, does he not agree that while adults should be allowed to make terrible mistakes which endanger their health, minors are different? Minors should be protected from such mistakes in so far as they possibly can be.

The Lord Bishop of Birmingham: It is a question of what is likely to be the more effective mode of protection. I do not believe that the criminal law is likely to be sensible or effective in this area.

Lord Goldsmith: This is the first time that I have spoken in any of these debates, although I have sat through several and read carefully the Second Reading debate, which I was unable to attend, in full. I do not have the qualifications of the noble Lord, Lord

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Walton, nor those of the right reverend Prelate, to speak about these matters. I have one qualification, to which I shall return.

What has struck me most about the difference between today and the Second Reading debate, is that the principles of equality, tolerance and non-discrimination which figured so largely now appear to be, in large measure, common ground. In my view, what matters is the extent to which the amendments tabled by the noble Baroness achieve equality, and the extent to which they achieve the concerns which have rightly been addressed by the right reverend Prelate--that is, the protection of children and the health of children.

When I looked at the evidence of those who know far more about this than I do, I was impressed by the medical reasons in favour of reduction of the age of consent for anal intercourse. Of course it is the fact that anal intercourse is a risky form of sexual activity, but HIV experts agree that safe sex practices can largely--I shall not enter into the debate as to how far--eradicate those risks. That is why it is so important that young people receive good health advice about both the dangers and the measures which may reduce risks.

Criminalising this conduct is not likely to prevent young persons with homosexual tendencies from having sexual experiences. Even before the age of consent was reduced from 21--

Lord Waddington: May it not dissuade men of mature years from having sex with children? One has to remember that when we talk of 16 year-olds, we are talking of children according to international law. I can understand the noble Lord's comments when he is addressing his remarks to two young men aged between 16 and 18 having sex relations with each other. But should we not bear in mind that the Bill does not merely legalise sex between two young people aged between 16 and 18, but legalises a man of mature years having anal sex with a boy of 16--a child? That is the point.

Lord Goldsmith: I want to deal with that. First, criminalising conduct in which young people may engage in any event will discourage and inhibit them from obtaining the advice and counselling that they need. That is not my view; it is the view of people who know far better than I do--namely, the NSPCC and the BMA, both of which recently stated that discrimination in law discourages young gay men from accessing sexual health services and help in coming to terms with their sexuality. It inhibits health agencies from providing advice to young people engaging in consensual, but criminalised, sexual activities. It is not a question of what the law provides; it is a question of inhibition.

The Bill already deals with the question of persons in a position of trust. That is the most important way of dealing with the concerns that we all have about abuse by certain people--I give way to the noble Baroness.

Baroness Blatch: I am grateful to the noble Lord. Does he agree that a large number of categories are left outside the categories relating to those in a position of

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trust? If the noble Lord is making a point of that argument, I hope that he will support the inclusion of some of the categories that are the subject of the amendments before the Committee.

Lord Goldsmith: The noble Baroness deals with amendments that are yet to come. The Bill as it stands deals with the most important categories: educational institutions and residential care. But that is a matter to which the Committee will return.

I do not believe, on the evidence, that young people are in need of special protection. As the noble Lord, Lord Walton, said, current expert medical opinion is that sexuality is fixed at an earlier age.

I have also considered the experience of other countries where the age of consent is generally the same. I said at the outset that I have only one qualification to speak: I am the father of teenage children--two boys and a girl, who are around precisely the age bracket about which we are concerned. Their care and protection is dearest to my heart. I am old-fashioned and traditional enough to be sure that I should be saddened if one of my boys came to me and said that, rather than having found a young woman whom he wanted to marry, he was setting up with a young man. But I should be more saddened still if he were slinking in corners, if he were fearful and suffered guilt because of his particular activity.

In another place, Mr John Bercow made a courageous speech indicating that he had changed his mind. He said that now was the time for progress and reform. I respect the opinions of all Members of the Committee. I hope that many will enter the Lobby in support of the Bill and in opposition to the amendments.

4.45 p.m.

Earl Ferrers: We are all concerned about the health of children and of young children. I agree with the noble Earl, Lord Longford: I should have preferred no reduction in the age at which these activities are permitted. But, as my noble friend Lady Young said, the amendment is an effort to meet the Government part way, by providing that homosexual acts should be permissible at 16, other than buggery, whether of men or of girls.

My noble friend Lord McColl told us of the sensitivities of the lining of the rectum, the breaking and slippage of condoms and the possibility of infection. He, together with the noble Lord, Lord Davies of Coity, said that the possibility of infection was 2,700 times greater with anal intercourse than with vaginal intercourse. That is a telling figure. To lower the age from 18 to 16 is to place people at risk, particularly girls, who, apart from anything else, may be deeply traumatised by such activity. Parliament has the right, indeed the duty, to protect young people. Lowering the age to 16 puts girls and young men at risk.

It is sometimes forgotten that anal intercourse has only been permitted at age 18 since 1994. Before that the permitted age was 21. I was in the Home Office

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when the legislation came through. I was obliged to respond to an amendment to the Bill. I do not like to rub the noble and learned Lord the Attorney-General's face in it--actually, I do rather like doing that, but I know that it is his noble friend who will reply. When I came to answer the amendment, I did not think it was right that the age should be lowered from 21 to 18. I said: "Can I say that, because I think it is wrong". The advice from my officials was perfectly clear. They said: "No, you can't. This has always been a matter for conscience and it should be decided by the free vote of those in the House of Lords or in another place". I said: "Can I say at the end which way I intend to vote?". They said: "Yes, you can say that. That is your view. But it is not the Government's view". That was good advice, because this has always been a matter of individual conscience.

I want to know why the provision is being changed. Why have the Government suddenly decided to take up this matter and why do they believe it is right to change and to lower the age? There is no strong public opinion in favour of it. It was not in the Government's manifesto. Why have they decided to make this change on a matter which has never been a subject of government policy?

It is a great mistake for the Government to interfere on this matter. In the previous debate about the morality of mink farming, the noble Baroness, Lady Hayman, referred to the overwhelming number of people who had written in in favour of the proposal. She said that the postbags show that the Government are right. If that is to be the criterion on which government decisions are made, then I point out that the overwhelming number of people who have written to me and to other noble Lords have been wholly in favour of not lowering the age to 16.

The Government are wrong, first, to lower the age; secondly, to consider it their responsibility to do so without any mandate or any evidence that it is the right thing to do. They are making a great mistake in introducing this provision so quickly after the age was lowered to 18--only six years ago. What has happened in the past six years to make the Government behave almost like the Gadarene swine and say that now the age must be changed from 18 to 16? There has been no demand for such a change. Indeed, there has been widespread anxiety. I hope that the Committee will agree with my noble friend Lady Young in her amendment.


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