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Lord Williams of Mostyn: My Lords, I do not see myself--and I listened to every speech and I have re-read them with care--the moral distinction. That may be my deficiency but I think I am entitled to put that forward as the basis on which I approach matters. We do need to protect those who are in a particular relationship, which is what we generally describe as a relationship of trust. I said, as firmly as I might, on the last occasion that I believe it to be a standing reproach to us in this country that we have not had legal sanctions--that is, the sanctions of the criminal law--to protect young people in those breach-of-trust relationships.
That is what the Bill does. Again I respectfully suggest that before throwing it out, if that is what your Lordships are determined to do, we should pause for a moment or two to see whether our duty is going to be discharged properly towards those people who may be abused by someone in a position of trust. I fully recognise the very real concerns that were expressed. I repeat, I expressed them myself. We set up a group to examine the situation. Its report on abuses of trust was placed in the Library on 25th November. That forms the basis of the proposals before the House.
The abuse of trust proposals govern both heterosexual and homosexual relationships, as they should, and they are part of a wider programme for protecting children and the vulnerable. I should also like to say as regards the proposed new offence that it is necessary to be careful and look closely at what we draw into the criminal law as abuse of trust. It is a "shorthand" which has value but also deficiencies. All of us in every relationship we have are in one way or another in a relationship of trust. There is no other way to conduct a civil society. However, I believe we have rightly concentrated our focus for the purposes of this legislation on the abusive relationships which may occur in the circumstances of the Bill.
Many who responded were against the creation of a new criminal offence and thought that we should proceed through codes of conduct. We did not come to that conclusion. We tried to focus as carefully as we could and took the view that if an offence is wanted we have a duty to introduce it. There should be four bases. The first is that it should protect those who are particularly vulnerable in the circumstances in which they find themselves and, in particular, the location.
So mainly in the Bill one finds residential settings, whether social services, foster care, detention or hospital. Anyone who has had anything to do with children in these circumstances will know how very isolated they are. A new report compiled under the chairmanship of Sir Ronald Waterhouse is to appear later this year. Anyone familiar with that sort of problem knows that in many residential institutions, whatever they are, children go into a "gulag", and no one wants to know the extent of the archipelago. It is unimaginably lonely and isolating to have no protection in those circumstances. Even if a child can leave, where is he or she to go?
The other important category is education where the relationship of trust, as I think we all know, is particularly strong. The teacher is in a position of extraordinary--perhaps unique--influence over the student. Those who take advantage of such a position I believe are wrong, and those who are taken advantage of are entitled--I put it as high as that--to the protection of the criminal law.
Of course, non-consensual sexual activity is already criminal, and the purpose here is to give primary protection to those 16 and 17 year-old boys and girls who are over the age of consent, though there is of course no lower age limit. It is intended, and I think it is bound to be, directed at the abuse of trust. It was difficult to get the drafting right. If your Lordships have any observations to make or amendments to bring forward to improve the drafting I stress that I will approach them with an open mind. I think I can say that we have already done so: I do not think I am trespassing on confidences. A number of your Lordships thought that the proposed original penalty was too low. We thought about it and realised there might be virtue in that approach, and therefore increased the penalty.
The further issue is the decriminalisation of the younger partner in buggery and homosexual offences. We have used the Bill to take the opportunity to bring that about. A 14 or 15 year-old boy may be frightened to complain about predatory behaviour. He may be blackmailed by the older man, and therefore we have put in a further protection, which again I believe to be right, by way of decriminalising the younger of the two: that is the one under the age.
I do not believe that this Bill is a vehicle for wider reform at this stage. Your Lordships know that we have a review of sexual offences generally, because by and large they are a disparate collection of offences--perhaps historical accretions in many ways--and certainly with a range of penalties that it is difficult to describe as coherent.
I make this further point not in any partisan way. I simply record it as a matter of recent history. All the party leaders in the House of Commons--I pay full credit to Mr Hague in that he is included--have supported this proposal. I recognise that in his circumstances that is an act of political and moral courage. I know there will be arguments about what public opinion is, or may not be. I am not sure what precise basis there is for determining that. But even if public opinion is found to be against us, that does not absolve us from our responsibilities. Even if public opinion were against me--as it may be against me on capital punishment where I have made it perfectly plain that I would never support its retention or use--I would not support the continuation of what I believe to be unfairness in this context.
I believe that the issue comes down to equality. I do not think anyone could have observed in our lengthy debates on previous occasions that anyone was guided by a malevolent motive. I suggested--I think rightly--that one needs to bear in mind that the experience and principles we draw on, and perhaps even the prejudices we feed on, were, in the overwhelming majority of cases of your Lordships, including mine, formed and crystallised quite a long time ago. Things are not as they were when we were young.
The noble Baroness said: My Lords, I wish to start by thanking the noble Lord, Lord Williams, for introducing this Bill this afternoon. I also take the opportunity to thank him publicly for the useful meeting that we had earlier this year in his office when we discussed some of the issues in the Bill. He has not misrepresented in any way the points that I made about the constitution. But, of course, for all of us time has moved on and this is a different situation.
I shall explain why I am taking this unusual course of action. This is an unusual Bill. It was not part of the Labour Party's election manifesto in 1997 and therefore is not subject to the Salisbury/Addison Convention. The House is constitutionally entitled, if it so wishes, to vote against the Bill's Second Reading. I understand that since 1966, 12 government Bills, and 86 non-government Bills, have been opposed at Second
Since last July the noble Lord, Lord Ahmed, who is a Moslem, but who did not take part in the debate last July and unfortunately cannot be here today, has told me on more than one occasion that he supports my view. I have received representations on several occasions from the Moslem community in Great Britain asking me to stand firm. I make these points to show that this is an issue which crosses both party and religious lines.
I now turn to the detail to say why I hope that the House will vote against this Bill later today. If you consider, as I do, that it is wrong to lower the age for homosexual consent from 18 to 16, in effect this Bill is unamendable. As regards boys, Clauses 3 and 4 on abuse of trust are not necessary unless the age of consent is lowered to 16 in Clause 1. I have been advised that an amendment either to leave out Clause 1 or not to accept it would be regarded as a wrecking amendment.
As regards girls, Clause 1 allows for the first time anal intercourse on 16 year-old girls. I can only suppose that this is regarded as another equal opportunity, but of a rather curious character! It is true that the subsequent clauses would provide some safeguards, but they are strictly limited.
During the passage of the Bill in another place Members of Parliament made repeated attempts to strengthen the clauses on abuse of trust. Amendments were tabled to cover, in addition to the provisions in Clauses 3 and 4, existing relationships, part-time pupils in schools, step-families, religious organisations, youth workers and temporary teachers and carers. Individuals in all these groups of people are in positions of trust at some time or another, yet none of those amendments was acceptable to the Government. Indeed, the defence in Clause 3(3) means that if a sexual relationship existed between an adult and a young person before the new offence of abuse of trust comes into force, that sexual relationship is afterwards exempt. This opens up a large loophole in the abuse of trust clauses which can be used for some time to come.
I now turn to the issue of principle. My overwhelming concern last July and today is the protection of young people. Sixteen year-olds are children in law. This Bill makes legal for the first time buggery for both boys and girls. Both boys and girls can be, and often are, vulnerable and lonely at that age. They are children one day and adults the next. They are frequently uncertain about themselves. Boys in particular are often less mature than girls at 16, and not infrequently ambivalent about their sexuality. Good parents do not want their
Further, lowering the age of consent will send out the wrong signal to young people. The fact is that all law influences behaviour. We would not pass laws if we did not think they would influence behaviour. This measure will be a signal that sex at 16 is all right for either girls or boys, whether in a heterosexual or homosexual relationship. I am sorry to say that I do not share the view of the noble Lord, Lord Williams, that there is a moral equivalence as between those two kinds of relationship. I do not believe that any responsible parent would want his or her daughter to marry at 16, and certainly not to have an involved affair with a much older man. But in particular parents do not want older men to form relationships with their 16 year-old sons. Of the hundreds of letters that I have received the overwhelming majority come from parents who make this point every single time.
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