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Baroness Scotland of Asthal: My Lords, I hope that I shall be able to give pleasure to both sides of the argument, which is a very unusual and happy position in which to hope to be. I warmly thank the noble Baroness, Lady Walmsley, for her compliments and my noble friend Lady Jay, who it gives me great delight to see sitting on the Privy Counsellors' Bench for this debate.
Perhaps I may say straightaway that I hope I shall be able to fulfil the expectation of the noble Baroness, Lady Walmsley, as regards guidance. I am confident that it was her persuasive voice, along with a number of others, which led to clarification of the guidance. I need to be quite firm that the age of consent has meaning, as the noble Baroness, Lady Blatch, requested, and provides a very helpful indication of what is and is not appropriate and acceptable behaviour.
The effect of the amendment would be to undermine the protection in law that the age of consent offers children. Setting the Boundaries, the report of the review of sexual offences, looked at the age of consent and concluded that it was,
The age of consent is a simple concept. We will weaken it and the protection it gives if we remove it, even for two young people together, or try to draw artificial distinctions between conduct which is or is not covered by it. As we have said, there is a huge range of sexual behaviour, from sexual kissing through masturbation to penetration. It is not sensible to try to prescribe a sexual code based on an age of consent.
While it is widely held that a sexual relationship is far more likely to be abusive if the age gap between the two parties is significantfor example, between a 15 year-old and a 40 year-old adultthe bottom line is that adults do not have a monopoly on child abuse and we cannot assume that sexual relationships between young people will be fully consensual just because they are the same age. We know that other children often abuse children, and the law must be able to protect them. It is a tragedy that children who are abused and have themselves been abused at a tender age have a higher propensity to become abusers themselves. It is something that we have to accept and seek to address.
The underlying assumption in the amendment is that the non-consensual offences of rape, assault by penetration, and sexual assault will deal with all of those situations where there is lack of consent to sexual activity between teenagers. So why are we criminalising acts that are consensual?
The review of sex offences heard evidence that children can and do behave in a sexually abusive way towards other children. There can be subtle or even blatant pressure or bullyingbut stopping short of coercionwhich secures the consent of the child to sex. Sometimes, even where there is an element of coercion, the child continues to believe that the other person genuinely cares for her and she will not give evidence against him. There are therefore cases of behaviour which all would agree were abusive but for which a non-consensual offence cannot be proved. It is for those reasons that we need Clause 14.
We accept, however, that genuinely mutually agreed, non-exploitative sexual activity between teenagers does take place and, in many instances, no harm comes from it. It is therefore important that we ensure that these children do not end up being prosecuted or issued with a reprimand or final warning, and we will introduce additional safeguards to ensure that this is not the case. We will therefore be amending guidance to the police in relation to their use
The guidance to be issued by the Director of Public Prosecutions to custody officers under the provisions of the Criminal Justice Bill will provide that the decision whether children under 18 should be charged with child sex offences will be reserved for Crown prosecutors rather than the police. The Crown Prosecution Service will be issuing guidance to its prosecutors about which factors should be taken into account when making such decisions. The type of factors to be considered would include the relevant ages of the parties; the emotional maturity of the parties and whether they entered into a sexual relationship willingly; any coercion or corruption by a person and the relationship between the parties; and whether there was any existence of a duty of care or breach of trust.
This is a difficult and sensitive area in which the views of well-informed people of good intention are genuinely divided. We believe that we have struck the right and sensible balance between acknowledging that consensual sexual activity may take place between children under the age of 16 while, at the same time, protecting all our children from sexual abuse.
The noble Baroness, Lady Noakes, asked me some specific questions which I would like to answer. She asked "When?" as far as the guidance is concerned. We will seek to ensure that the guidance is prepared and coincides with the commencement of the Bill's provisions. As to consultation, we will discuss these matters with the police and the Crown Prosecution Service. The noble Baroness will know that the current guidance is not in the public domain. We will look at these issues, but I certainly cannot give the noble Baroness any guarantee that there will be a change in practice.
What is important is that we effect appropriate control on the ground, that these issues are dealt with sensitively and well, and that the fears which have been expressed by the noble Lords, Lord Lucas, Lord Monson and others, are properly taken into account. We believe that the balance is about right and we invite the noble Baroness, Lady Walmsley, to withdraw her amendmenthaving, I hope, succeeded in giving her the good news she sought.
If it were accepted, then someone of 17 could sleep with someone of 13, week after week, month after month, perfectly legally but, the moment the older party reached the age of 18, he or she would become a criminal and be subject to 14 years' imprisonment.
Lord Lucas: My Lords, can the noble Baroness clarify this matter of reprimand and final warning? I admit to being in ignorance about it. If someone is issued with one, do they have a way of clearing that from their record? Do such things have any consequence when it comes to notification or any of the other ramifications of criminal records, in relation to employment in later years?
Baroness Scotland of Asthal: My Lords, they should not have a consequence for employment in later years. We have a very helpful document which sets out the way in which it all fits together. I am sure that it would be of great assistance to the House, and I will seek to ensure that a similar document to that which the noble Baroness, Lady Noakes, currently holds in her hand is put into the Library.
In the most appropriate caseslet us talk about two 13 year-olds kissing, where a parent finds it objectionable that her 13 year-old daughter happens to be found kissing some other person and wants to take action about itthere is provision for there to be no final warning but that the matter should just be raised and dealt with appropriately. We think that that light touch would be very successful in dealing with such issues.
Baroness Walmsley: My Lords, I thank the Minister for her reply and for the changes that are to be made. They are most welcome and do move us in the right direction. I also thank her officials, who have been most helpful in this regard, particularly in supplying me with a copy of the document on final warnings.
Turning to some of the points which have just been made, the noble Lord, Lord Monson, feels that Clause 10 goes too far. He may well be right, but in fact my amendments are to Clause 14. In that regard he talked about penalties for these offences. I am not suggesting that nothing is done, but I believe that the criminal law is a clumsy tool in respect of these sensitive issues relating to young people, who are exploring towards adulthood. I believe that other ways are more appropriate, as the noble Baroness, Lady Jay, said.
In response to the noble Baroness, Lady Blatch, I believe that coercion is covered by other parts of the Bill. I am not suggesting that the age of consent has no meaning, but I believe that the penalties outlined in Clauses 9 to 13 are not appropriate for the sort of consensual behaviour we are talking about. As the noble Baroness, Lady Jay, said, counselling, information and guidance are a much better approach.
The Minister referred in a number of her comments to abuse. We are not talking about abuse here. We are talking about consensual, exploratory activity. Bullying is coercion, in my book, and I believe that other clauses cover it.
However, I am most glad that we have moved in the right direction. I believe that it is about as far as we can get. I am grateful to the Minister for her comments on what is to be done. In the mean time, I beg leave to withdraw the amendment.