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7.56 pm
Dr. Evan Harris (Oxford, West and Abingdon): I broadly welcome the Bill. I was one of the six sponsors of the amendment to the Crime and Disorder Bill which brought the issue of the age of consent to the House. I was proud to be one, just as I am proud now to associate myself with the speech of the hon. Member for Witney (Mr. Woodward). He made almost all the points that could be made in support of clause 1, and I do not intend to repeat them.
I warmly endorse everything the hon. Member for Witney said. Indeed, he has done many hon. Members a favour. If they receive letters from constituents on this matter, they can do no better than to associate themselves with his speech and pass it on to their constituents. It was eloquent, and superb in many ways.
I regret that the measure that I backed was lost in another place, but it was predictable, given the time limits. It was not unreasonable for the other place to express its opinion once, although I disagreed violently with many, if not all, of the arguments made to defeat the views of this House. It was inevitable that it would take more than one pass at the House of Lords to get the measure through. The timing of the original measure was unfortunate, at best, and reckless, at worst, as it did not have the time to go back to the House of Lords to enable them to think again.
I respect the courage of those in the other place who spoke eloquently in defence of the reduction in the age of consent--particularly the Bishop of Bath and Wells, who made it clear that there were views both for and against the measure from those who described themselves as Christians.
Given what I am going to say about the need for wider law reform in terms of homosexuality, it may be appropriate at this point--the historic Second Reading of a Government Bill on the age of consent--to pay tribute to people who have campaigned for far longer than I have in support of this move; people like Antony Grey and Allan Horsfall of the Campaign for Homosexuality Equality, the former of whom received an award recently from the gay press for his long campaigning work. When progress is made--I hope for wider progress than the limited measures in the Bill--this legislation will stand as testimony to their campaigning and that of organisations such as Stonewall.
I am delighted to see that the hon. Member for Brent, South (Mr. Boateng) is the Minister in charge of the Bill. He has a proud tradition of working against discrimination against the gay community; that has been well recorded in the gay press and elsewhere. I broadly welcome both parts of the Bill, but I hope that he will accept the few caveats that I have to offer.
Clause 1, which reduces the age of consent, contains shortfalls that I hope to be able to examine in Committee, and I hope that the Government will accept amendments. The hon. Member for South Ribble (Mr. Borrow) mentioned the fact that the Bill still criminalises the victim. Clause 1 is a lost opportunity to decriminalise the victim and protect the young.
The law will still not treat homosexual and heterosexual offences equally, because there is no statutory defence for homosexuals. For heterosexual offences, it can be argued that the accused did not realise that they were committing an offence because they were misled or were not in a position to know the age of the person with whom they were having a sexual relationship; but the Bill makes no such provision for homosexual sex, and that is discriminatory. Gross discrimination also remains in sentencing, and people who are no longer considered guilty of an offence will still be subject to inclusion on the sex offenders register, in a prospective way, from the point of enactment onwards.
The Bill was an opportunity to make more than the limited, but historic and welcome, change that it makes. The Government were forced to act by the findings of the European Court of Human Rights in the Sutherland and Morris cases, which suggested that if they did not act they would be in breach of the European convention on human rights, to which we are a signatory and which, in a laudable step, the Government incorporated into British law.
I hope that the Government will take further action; otherwise there may be further instances of Britain being brought before the European Court of Human Rights or being found to be in breach of British law after the incorporation of the convention. I fear that the Home Secretary's declaration that the Bill is compatible with the convention and with the Human Rights Act 1998 will be open to debate, and, on closer scrutiny, I do not believe that it can be sustained.
Sexual offences law is a complex matter, and I am glad that the Government have issued details of the review, but significant problems remain. The current law and the Bill fail to protect the victim--the young man, in the case of homosexual sex--and he will be a criminal by the very same act that makes him a victim. That may be unique in British law, and it cannot be right if we seek to protect the younger party.
As Conservative Members have said, perhaps not deliberately, it cannot be right that, if we seek to protect the party who is below the age of consent, the Bill does not contain a simple provision to ensure that that party cannot be prosecuted and criminalised. The Tyrell principle applies to girls; there can be no prosecution of a consenting girl for aiding and abetting under section 6 of the Sexual Offences Act 1956, which concerns unlawful sexual intercourse, even though there may be cases in which a girl under the age of 16 has been the instigator.
For there to be equality, and for Britain not to be found once again to be subject to sanction under the European convention and the Human Rights Act 1998, that provision needs to be built in. The hon. Member for Rotherham (Mr. MacShane) made the point that his daughter can do as she pleases at the age of 16 but that
boys over 16 will still be in fear of criminal sanction even if they are the victim of a crime under the law relating to the age of consent.
Stonewall says:
Dr. Harris:
But in that protection lies, in a sense, protection of the offender. Labour Members have said that if there is fear of prosecution and criminalisation of the victim, that victim is less likely to report the offence. I know that the hon. Gentleman feels strongly about the protection of minors, and I share that feeling. It is vital to ensure that victims are not criminalised. In the recent case in Bolton, a 17½-year-old who was deemed to be the victim of the sexual relations as the result of which the other men in the case were deemed to be criminals was himself criminalised, prosecuted, convicted and sentenced for the same offence.
I see that the Minister is listening intently, and I hope that he will address that point in his summation. I have had representations on the matter from many outside the House, and I am sure that he has, too. I would support any amendment tabled by the hon. Member for South Ribble or others who feel strongly on the point. Protecting the victim from prosecution would be a relatively limited measure and need not open up the whole issue that the Government's review deals with; indeed, I may be moved to seek to amend the Bill myself in that respect, to ensure that the discrimination ends.
I am concerned about the discriminatory absence of the statutory defence. One might argue the merits of the statutory defence under section 6(3) of the Sexual Offences Act 1956, according to which, if a man under 24 has sex with a girl under the age of consent and did not know that she was so young, a defence can be mounted--whether the court believes him is an issue for the court--but that defence is not available to men prosecuted for consensual homosexual sex with boys under the age of consent under the current law or the law as amended by clause 1.
Mr. Gerald Howarth:
I have been hugely impressed by the hon. Gentleman's grasp of the law. Given that he is a doctor of medicine, can he address some of the concerns that have been expressed by doctors about the dangers to young people from the practice of anal intercourse?
Dr. Harris:
That was not the subject of my remarks, but I will be happy to send the hon. Gentleman copies of speeches made by myself and by other hon. Members on
"Simply amending the 1967 Act to replace '18' with '16' would leave this flawed structure"--
of the differential laws--
"in place. A gay 15 year old would still be criminalised if he had sex, although of course a 15 year old girl would not."
Mr. Bermingham:
Currently, when a girl under 16 has sexual intercourse with a man under 23, there is that statutory defence--I agree that the same defence should apply for homosexual acts--but there is also a provision in English law that says that one cannot give evidence if one is going to incriminate oneself; so in such a case the young man would immediately be warned by the judge that he need not give any evidence at all. That is his protection.
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