Clause 8 - Sexual assualt of a child under 13

Sexual Offences Bill [Lords] – in a Public Bill Committee at 10:15 am on 11th September 2003.

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Photo of Sandra Gidley Sandra Gidley Liberal Democrat, Romsey 10:15 am, 11th September 2003

I beg to move amendment No. 173, in

clause 8, page 3, line 36, at end insert—

'( ) Conduct by a person (A) which would otherwise be an offence under subsection 1 of this section against another person (B) is not an offence under this section if—

(a) there is no great difference in the ages or the mental and physical maturity of the persons involved, and

(b) B has fully consented to all aspects of the conduct.'.

Photo of Mr Win Griffiths Mr Win Griffiths Labour, Bridgend

With this it will be convenient to discuss the following:

Amendment No. 174, in

clause 14, page 5, line 32, leave out subsection (1) and insert—

'(1) Subject to subsection 1A, a person under 18 commits an offence if he does anything which would be an offence under any of sections 10 to 13 if he were aged 18.

(1A) An offence is not committed if—

(a) there is no great difference in ages or mental or physical maturity of A and B, and

(b) B has fully consented to all activities which would otherwise be an offence,

(c) the activity was not part of an assault.'.

Amendment No. 175, in

clause 14, page 5, line 33, at end insert—

'( ) Notwithstanding subsection (1) it is a defence for offences under sections 10 to 13 and 15 in respect of a complainant who is 10 years or more but under the age of 16 where the complainant consented to the activity and A is—

(a) 13 years or more but under the age of 18,

(b) less than 2 years older than the complainant, and

(c) is not in a relationship of dependency.

Photo of Sandra Gidley Sandra Gidley Liberal Democrat, Romsey

The amendments were tabled in an attempt to deal with a vexed question. Although we are not dealing with clause 14, I was taken with the simplicity and—dare I say it—common sense of amendment No. 11 to that clause, tabled by the hon. Member for Lancaster and Wyre. I look forward to that debate, because there are many parallels between clause 8 and clause 14. The Liberal Democrats want to tackle the problem, but we realise that there are a number of approaches. The fact that we have supported four different amendments that purport to do the same thing does not mean that we are confused. I hope that hon. Members realise that we are genuinely attempting, in as many ways as possible, to find a solution that is acceptable to the Committee and to Ministers.

Amendment No. 173 is an attempt to keep things relatively simple. Hon. Members who have read the briefings closely will probably have worked out that it is a variation on an amendment suggested by the Family Planning Association. We have incorporated what can be regarded as the Finnish model, because we did not want to get too bogged down in age limits and maximum differences in age. There are many differences in maturity and physique even between people of similar ages, and the permutations are endless. One can always find a combination in any age definition that does not to work. The amendment is an attempt to resolve that problem.

The amendment could be interpreted as condoning sexual behaviour between a 12-year-old girl and an 18-year-old male. The Committee knows from my earlier comments that I would be unhappy about that. I will freely admit that there are some 12-year-old girls who—mostly for the reason that they have suffered abuse themselves in some way—might want to try to attract an older male. My assertion is that in those cases, the test of physical maturity would come into play, so that there would be no defence for the man. One can imagine an opposite situation in which a young man who had developed an unhealthy taste for young girls would try to work around that provision. That situation would also be provided for with the ''no great difference in age'' provisions. That is our

preferred way of dealing with the question, but amendment No. 174 proposes an alternative method and gives more detail about age differences. We have tabled parallel amendments to clause 14, including amendment No. 175, which we are discussing now.

The maturity of young girls and boys varies widely during the teenage years and putting aside basic differences, the most obvious is the different age at which the hormones kick in. As someone whose family is currently suffering from teenage hormones kicking in, I am aware of those problems. Guidelines would have to be produced for the CPS but that would not present a problem to the Minister, who was on the ''Today'' programme this morning suggesting that they will be produced anyway. Any of the amendments that we are tabling would also have to be backed up with guidelines as to what is and what is not acceptable, so I accept that there is a little more to be done.

Amendment No. 174 provides greater age definition: under its provisions the defendant would have to be between 13 and 18 and the age difference no greater than two years. Many agencies have suggested that an age difference of three years would be much more acceptable, as that would take into account differences in physical and mental maturity. The Liberal Democrats would be prepared to consider the amendment. The two-year age difference provides a tighter framework; it is already used in countries such as Canada to fairly good effect and it provides less scope for a mature older male—I am sorry, my maths has gone to pot—to try to develop a relationship with a relatively immature female. The two-year age difference provides a little more protection.

I am keen to hear what the Minister will say in response. We will press amendment No. 173 to a Division because it represents a simple and manageable way to deal with the problem. We will not press amendments Nos. 174 and 175 to a Division, because the Conservatives have tabled similar amendments that will be dealt with later, and it will be useful to have a wider-ranging debate at that point.

Photo of Neil Gerrard Neil Gerrard Labour, Walthamstow 10:30 am, 11th September 2003

I was listening to the hon. Lady with a fair degree of sympathy until she said that she was going to press amendment No. 173 to a Division. We are trying to find a solution to a difficult problem and I do not see a complete solution in that amendment.

Photo of Sandra Gidley Sandra Gidley Liberal Democrat, Romsey

I was minded to press it to a Division merely to see how much sympathy there was for it. If it is clear that there is no such sympathy in this Room, we might revise our opinion. However, for the record, it would be useful to see what support there is.

Photo of Neil Gerrard Neil Gerrard Labour, Walthamstow

The difficulty with the amendment is in the use of the phrase ''no great difference''. I have a considerable problem in seeing how that would be interpreted. One thing that has come through the debate this morning is that we are trying to resolve a problem and we need as much clarity as possible within the law. The problem with the amendment is

the use of that phrase, particularly when the matter is complicated by the wording,

''no great difference in the ages or the mental and physical maturity'',

meaning that there is a further issue to assess: the mental and physical maturity of two individuals. We all appreciate that one can see enormous differences between the mental and physical maturity of two 12 or 13-year-olds.

Photo of Vera Baird Vera Baird Labour, Redcar

Obviously it is sensible to incorporate such factors into any decision about prosecution, but are they not better dealt with pre-prosecution, in the way that the Minister outlined, rather than left to a jury to assess, which is what the amendment would require?

Photo of Neil Gerrard Neil Gerrard Labour, Walthamstow

That is absolutely right. The Minister and others have referred several times to guidelines. On a number of the offences in the Bill—and in any criminal prosecution, come to that—one would expect that the CPS would have guidelines that would be followed in cases where there might be issues of discretion. It would be of assistance to hon. Members, both in the Committee and in the House as a whole the Bill is discussed on Report, to have a clearer idea of what the guidelines to the CPS might comprise and what factors the CPS would expect individual prosecutors to take into account.

Furthermore, although we have discussed guidelines to the CPS, that will not be the only body involved in such matters. What will the police do? What approach will different police forces take? I can think of one or two chief constables who took some bizarre approaches to sexual offences in the past. A few years ago, I would not have trusted a chief constable in Manchester to take an enlightened approach to such legislation. What approach the police take is important. We must bear in mind that, for a 12 or 13-year-old, the matter would not involve only the possibility of being prosecuted, but of having to deal with the police. That could be a real problem if an individual police officer did not approach the complaint in the right way.

It would be helpful to receive information on what guidelines might be considered, how they might be applied through the CPS and how a consistent approach might be taken by different police forces, because such problems are not easy to deal with.

Photo of Chris Bryant Chris Bryant Labour, Rhondda

I, too, have sympathy with the direction in which the hon. Member for Romsey is trying to pull us. However, I do not have much sympathy with the amendment for a similar reason to that advanced by my hon. Friend the Member for Walthamstow, namely that the phrase

''no great difference in the ages''

is problematic.

As we have gone from clauses 6 and 7 to clause 8, the problems inherent in the Bill have increased. We already know that the age at which many boys and girls have sexual experiences is 13 and 14—[Interruption.] The average age. We can be certain that many boys and girls have had sex at a younger age and we can be even more certain that sexual touching

of some sort or another had been happening for a considerable period before the age of 13.

I recognise that the Minister is trying to do everything in his power to make sure that the law does not criminalise what we consider to be the normal process of growing up, but unless we find a clearer solution to the conundrum, we will be doing precisely that. I am nervous about the Romeo and Juliet possibility. If my knowledge of English literature is correct, Juliet was coming up to her 13th birthday. The Capulets and the Montagues certainly hated each other enough to bring forward a private prosecution, if they had wanted to. Many families in my constituency hate each other just as much as the Montagues and the Capulets did. If, at any time, they thought that one of their children had been touched in a sexual manner by another child from a family that they did not like, they would be only too happy to use the law in a way that would do no favours for either of the children involved.

While I heard the extremely sensible arguments advanced by my hon. Friend the Minister on the ''Today'' programme—

Mr. Malins rose—

Photo of Chris Bryant Chris Bryant Labour, Rhondda

If the hon. Gentleman will let me finish my sentence, I shall give way. I listened to everything that my hon. Friend said this morning on the ''Today'' programme and I am sympathetic to the conundrum that he faces, but without having clear CPS guidelines, it would be difficult for us to go forward with full confidence in the clause.

Photo of Humfrey Malins Humfrey Malins Conservative, Woking

The hon. Gentleman reminds me of the school play in which one of my children was involved at the age of 12—I will not say which child, in case they are prosecuted. The play was ''Romeo and Juliet''. Many 12-year-olds were involved on stage, and to say that there was some sexual touching would be an understatement. I assume that the Minister or the hon. Gentleman will confirm that, guidelines apart, there would be an absolute defence if such behaviour were part of a play.

Photo of Chris Bryant Chris Bryant Labour, Rhondda

I fear that the hon. Gentleman has enticed me into a terribly difficult area. I remember playing Robin—not Christopher Robin—in ''Time and the Conways'', a play by J.B. Priestley. In one of the major scenes in the play, Robin kisses his girlfriend, whom I think is called Joan. The scene ends with the terrible line, ''Oh, Robin! Oh Joan!'' The local girls' school was invited to watch the play one night, and there were titters from the beginning to the end of the show. I was only 12 at the time. However, this is not really the moment for confessions.

I want to make another important point: the process of deciding whether there should be a prosecution may do infinitely more harm than the event itself may have done. I am sure that there have been many thousands of occasions on which boys and girls—or, for that matter, boys and boys or girls and girls—may have touched each other with sexual intent, entirely innocently. We must ensure that they will not be put through the mill of unnecessary legislative processes, or criminalised for the rest of their lives.

That was intended to be a peroration, but I shall give way to the hon. Lady.

Photo of Sandra Gidley Sandra Gidley Liberal Democrat, Romsey

Does the hon. Gentleman not agree that amendment No. 173 decriminalises such behaviour, so the chance of there being a prosecution would diminish greatly? Such a prosecution would therefore only occur in the sort of Romeo and Juliet situation that he described earlier, and would happen extremely rarely. At least the act is being decriminalised, so that young people will not be afraid to access sexual health services, or to ask for advice.

Photo of Chris Bryant Chris Bryant Labour, Rhondda

I accept the thrust of the hon. Lady's argument, but I do not believe that the phrase

''there is no great difference in the ages''

in paragraph (a) is sufficiently robust to stand the test of legal drafting. I am therefore happy to sympathise with the arguments that the hon. Lady advances, but I do not agree with her solution. I hope that the Minister will provide us with a better solution.

Photo of Julie Kirkbride Julie Kirkbride Conservative, Bromsgrove

The hon. Gentleman's comments remind me of an incident that happened in my constituency, of which I hope the Minister will take account when he gives further thought to our discussions today. The incident occurred in the playground of a middle school and the child concerned was under the age of 12. I am not sure what sort of touching took place, or whether it was a flashing incident. The police talked to the young boy concerned, the social services got involved, and a great hoo-hah was made about the incident.

In the circumstances, it did not help that the young boy was black, in a predominantly white village. The involvement of all the services meant that everyone knew about what had happened, and the poor boy was even more stigmatised by an incident that, five years ago, I suspect would have been approached in a very different way. He would probably have been told, ''Well, young man, you really shouldn't do this.'', his mother and head teacher would have been informed, and nothing more would have been said about it. It is bad enough that so many services got involved that he and his family felt stigmatised. It would be even more dreadful if, perhaps because of racist intent, this law were used to criminalise that young person. I hope that the Minister will bear that in mind when he considers taking this provision further.

Photo of Mr Hilton Dawson Mr Hilton Dawson Labour, Lancaster and Wyre

I am much more sanguine and less worried about this clause and other clauses than some colleagues who are moving and expressing support for amendments. There is an enormous protective purpose in making a distinction between children who are under 13 and children who are over 13. In all our discussions about school plays and doctors and nurses, we must acknowledge that as far as we know a very significant proportion of sexual assaults on children are carried out by children. It is important that we deal with that.

We are also falling into a trap into which the Home Office has fallen. I am referring to the assumption that all these issues will necessarily be sorted out by this Bill and the criminal law. We must set the issues in the context of social policy. The children's Green Paper was published on Monday. I sincerely hope that we will move to better levels of support for parents and children, much more openness and honesty about issues that are often not discussed properly, and much more availability of education and support for children on matters of sexuality and health.

I shall argue the same point on a slightly different tack later in respect of children over 13. I am much more sanguine than others that what we are deciding today will not lead to the dire consequences that people are predicting. I stress the importance of the distinction between under-13s and over-13s.

Photo of Mr Win Griffiths Mr Win Griffiths Labour, Bridgend 10:45 am, 11th September 2003

We have had a pretty wide-ranging debate, so I am not minded to allow a stand part debate on the clause at the end.

Photo of Annette Brooke Annette Brooke Shadow Spokesperson (Home Affairs)

I had a useful visit to Finland last week. It was about the treatment of children more generally, but I met an official from the Ministry of Justice to talk about the phrase from Finland that we have introduced. We have not applied it to sexual intercourse with a child younger than 16, which Finland does. We are talking about a 15-year-old kissing a 12-year-old. I asked the official how the terms work, because that is the question being asked here, and his answer was clear: ''We trust our judges.'' He said that there had been a case involving a 30-year-old and a 14-year-old. That age gap is clear. The point probably becomes much clearer when we talk about touching. For a 15-year-old and a 12-year-old, that is totally normal behaviour. Should it reach the situation in which a judge is involved, surely we should have some trust. This is about decriminalising normal behaviour.

Unfortunately, I did not learn enough in Finland. I shall have to make follow-up visits. The age of criminal responsibility is higher in Finland, so under-15-year-olds are not dealt with in the courts. That is really why we are having this discussion. The Bill is in a tangle because the age of criminal responsibility is wrong. We clearly have to do our best within that constraint.

Photo of Chris Bryant Chris Bryant Labour, Rhondda

The hon. Lady makes an important point, which relates to that raised by the hon. Member for Woking about the different ages of consent in Europe. The age of consent in Spain may be 12, but it does not have the same effect on the way in which children in Spain are prosecuted.

Photo of Annette Brooke Annette Brooke Shadow Spokesperson (Home Affairs)

Yes. I might add that politicians in Finland voted to keep the age of consent at 16, even though officials recommended that it be lowered to 15. The background is not that of a free society; the parliamentarians apparently acted against the advice of officials.

I am picking up on something said by the hon. Member for Lancaster and Wyre. Given the handicap

of a low age of criminal responsibility, the fundamental work has to be done in the pre-prosecution stage, should it be necessary. Come what may, we need to know a lot more about how the problem will be approached. We should realise that we have a big problem, which is stopping us from finding a solution in the Bill. We have to do the best we can.

Amendment No. 173 tackles many of the issues about which we are concerned. It covers full consent to all aspects of the conduct, and as I said earlier it focuses on the touching issue. The touching aspect worries me: I would not have wanted one of my daughters to have felt guilty and besmirched at the age of 12 simply because she happened to be kissing someone or engaged in friendly touching. That is an awful thought. We have a big responsibility to get it right before we reach the end of the Bill. My main concern, however, is that we are operating with a huge handicap. I am pleased that the Minister is looking at the matter because those guidelines will be critical.

Photo of Humfrey Malins Humfrey Malins Conservative, Woking

Is the hon. Lady giving way, or has she concluded?

Photo of Humfrey Malins Humfrey Malins Conservative, Woking

On the question of the Crown Prosecution Service and guidelines, is it not worth stressing that quite a lot of damage could be done to the child in question by having to go through a process that resulted in the CPS saying that, given the circumstances, it would not prosecute? The time leading up to the decision would be difficult, even without a prosecution.

Photo of Annette Brooke Annette Brooke Shadow Spokesperson (Home Affairs)

I thank the hon. Gentleman for that intervention. As well as trying to make sensible amendments, my line of thought is that we need a pre-prosecution stage—a new system that acts like a sieve that allows innocent people to fall out of the system at an early stage. The sieve might stay in place a little longer if treatment were needed, and we could include the treatment. If we had such a hierarchy, we could sift cases out and then ensure that the terrible cases that we saw in yesterday's presentation can be tackled.

Photo of Julie Kirkbride Julie Kirkbride Conservative, Bromsgrove

I understand why the hon. Lady talks about some form of sift, but I wonder whether she shares my concern. She said how upset we would feel if 12-year-olds were made to feel dirty for having done something that they thought was quite innocent, but the idea of some kind of process becoming part of their lives, and of being arraigned before a court or some other institution, fills me with horror. It is something about which we should be able to say, ''Well, little Johnny, you should not do that at the moment—later on, perhaps, but for the time being just leave her alone.'' That seems quite enough at that age.

Photo of Annette Brooke Annette Brooke Shadow Spokesperson (Home Affairs)

That is what I meant about using a simple filter—I call the sift a filter. Normal behaviour must be treated quite separately, but we have to have some protection for the most awful cases. That is what we are struggling with, but the innocent will be caught up in it because of the age of criminal responsibility.

Photo of Mr Hilton Dawson Mr Hilton Dawson Labour, Lancaster and Wyre

I share the hon. Lady's views on the need to increase the age of criminal responsibility.

Does she think that ensuring that children cannot give consent under the age of 13 would be a useful weapon to use against the Home Office in the battle to increase the age of criminal responsibility? Is she not watering that campaign tool down by trying to introduce the issue of under-13s' consent with the amendment?

Photo of Annette Brooke Annette Brooke Shadow Spokesperson (Home Affairs)

There is a certain logic, and if I thought that the age of criminal responsibility were likely to be changed within the next year, I might agree with the hon. Gentleman. However, as it would take a brave Government and many years to do that, we should look for an interim solution. I commend our amendment as the interim solution.

Photo of Dominic Grieve Dominic Grieve Conservative, Beaconsfield

I have been struck by today's debate, which has been a reflection of the way that times have moved on. There has been only a tentative suggestion that one purpose of criminal law is to reinforce a social message, but for the prohibition of sexual activity for those under 13, that is exactly one background intention of past and, I suspect, current legislation. We have spoken about how bad it would be for a 12-year-old to feel that as a result of some playground activity, they had sullied themselves and left themselves open to great criticism. That is one anxiety, but the reverse is also true.

Picking up on what my hon. Friend the Member for Bromsgrove said, one reason for having a blanket prohibition is to enable parents to say to their children that something is not allowed and that they will just have to wait until later to do it. The Minister may say that I am wrong, but I believe that that is one intention behind the Bill. It has not been mentioned, because it has become a somewhat unfashionable concept, but it is not one that we should completely shirk. Things happen, and picking up on what the hon. Member for Lancaster and Wyre has just said, if they do happen, we should not make a big fuss about them. However, the truth is that human experience has suggested that it is not a particularly good idea for them to happen. Two 12-year-olds spending all their time behind the bike sheds may have other ways in which to spend their time more profitably. We know that sexual experiences stir up passions and emotions of all kinds, which young people find it difficult to handle.

That is why I cannot support the Liberal Democrat amendment, although I appreciate the intention behind it. I understand the thinking behind the first exception—that

''there is no great difference in the ages or the mental and physical maturity of the persons involved''—

but the provision is woolly. It would be an absolute nightmare to disentangle in court, and it could sanction a physical relationship between two children who had become highly sexualised for whatever reason—perhaps because they had been abused in some other context—even if the relationship were extremely counter-productive to their own interests. Only the parental sanction would be left, and it is sometimes difficult to enforce. Therefore, I am unable to support the amendment, despite appreciating the intention.

Once we get beyond the age of 13, we could apply different criteria. However, again picking up on the

comments of the hon. Member for Lancaster and Wyre, we should just accept that there is a blanket prohibition under 13. Our children do not carry microchips that register in the police station every time that they go behind the bike sheds. We must be realistic. It is unlikely that there will be persecution of 11-year-olds for behind-the-bike-shed activities. That does not happen at present, although it could, under the laws of indecent assault, so perhaps we should not get too twitchy. However, guidelines that the public could see would be desirable.

Photo of Paul Goggins Paul Goggins Parliamentary Under-Secretary, Home Office 11:00 am, 11th September 2003

You have been very tolerant of our consideration of the amendments, Mr. Griffiths, and I will press you for a little more forbearance. The hon. Member for Woking said that he would make some comments that went wider than the amendments. In articulating the Government's approach to the amendments, I must make some wider points, too.

I am pleased that several hon. Members were up and about and listening to ''Today'' this morning; I do not mean to be facetious, but I hope that some had a few happy memories reawakened as they listened to one of its items. It addressed the fact that this difficult debate occurs in our deliberation of a Bill that is about ensuring that our children are properly protected, and that those who abuse them face stiff penalties.

My hon. Friend the Member for Lancaster and Wyre made a good point: we have to face the fact that many sexual assaults on children—estimates are between a quarter and a third—are committed by other children. We should not lose sight of that. The claim is that in bringing about the degree of protection provided in the Bill, we also catch young children under 16 who are engaging in what most people would regard as fairly innocent, normal growing-up behaviour. I agree with what the hon. Member for Mid-Dorset and North Poole (Mrs. Brooke) said about young children engaging in what she described as ''innocent'' behaviour being made to feel guilty. None of us would want that. I do not believe that the Bill brings that about, and I shall explain why.

The legal position is that that kind of consensual, low-level—as some might describe it—sexual activity is already illegal. That is our starting point. We are not introducing provisions that bring in a whole new set of circumstances. The proof of the truth of my arguments is that there are no prosecutions. However, it is important that we have the opportunity to investigate allegations because of the point that my hon. Friend the Member for Lancaster and Wyre raised—the fact that, in many cases, children are sexually assaulted by other children. We have a responsibility to ensure that we have the facility to carry out those investigations. Also, in the guidance there is the concept of common sense, which ensures that we do not seek to make children feel guilty and do not criminalise them for relatively harmless and normal things.

I pay tribute to the tremendous efforts made since the Home Secretary issued the champagne challenge in July on Second Reading. He made it clear that he

would present a magnum of champagne to anyone who produced a solution to the problem. I think that it was a genuine offer, but he is a canny Yorkshireman, and perhaps he had already worked out—he is thoughtful about such matters—that there might not be an answer to it.

We entered into the discussions of the past couple of months in an open spirit. I pay tribute first to the children's organisations that have taken up the challenge in entirely the right spirit. They have worked together and with officials in the Home Office to come up with a solution to the tricky problems that we are discussing. I also pay tribute to the officials who have worked tirelessly and generously to find a way of changing what we are putting on the statute book so as to remove that innocent kind of behaviour. I pay tribute, too, to the hon. Members in this Room, who have, during the past couple of days, been trying to find ways of improving the legislation. Every time Committee members have tried to do that, we have had to conclude that in trying to bend it a little bit to open up the possibility of allowing such behaviour to be outside the law, we would reduce the important protection that should be maintained.

Any attempt to amend the clause to exclude the kind of innocent behaviour that hon. Members have described would add enormous complexity to the Bill. We cannot get away from that. People say in conversation, ''Well, we will just leave out normal, low-level sexual activity.'' It is all right to say that, but to enshrine it in legislation is a far more challenging task. We would all agree that an innocent kiss is at one end of the scale and that full sexual intercourse is at the other. There is, however, a heck of a lot of behaviour in the middle that would have to be defined clearly, so that the court and juries could understand it. There is always that degree of complexity when we consider amendments such as those that are before us. If it is complex in terms of the law, how much more complex is it in the mind of a child, whom we are expecting to make rational decisions and choices about such matters?

I was very taken by the comments of the hon. Member for Beaconsfield. He said that we should make it clear that such things were not allowed. The age of consent has to mean something. That is important. Of course, we accept that behaviour of the innocent development type, which has been described, goes on, but to say that it can all go on—to say that it is okay, whatever the activity or age—is a different argument. Society has a responsibility to send out a message. In the light of the review of sexual offences and our various debates, we are on quite robust ground in saying that there is solid public support for 16 to be the age of consent. There is also the danger that if we reduced the significance of 16 as the age of consent, we would send a message to children about what is expected of them. It would be damaging if the message went out that we were reducing the importance of the age of consent—that there was something like a cultural expectation that now they would engage in sexual activity before they were 16.

An additional problem, if we accept that certain sexual activity can be permitted between consenting under-16s, is that proof would be required that such activity was consensual. At that age children are in a time of growth, adolescence and growing maturity and consensual activity is quite hard to prove. How do we prove that consensual sexual activity between a mature 15-year-old boy and an immature 13-year-old girl is truly consensual? How do we prove that a sexual relationship between two people in the same class, one of whom is trying massively to impress the other, is of a consensual type? If we define certain permissible sexual activities, we must also face the fact that their consensual nature must be dealt with. That produces many great difficulties.

The amendment says:

''no great difference in the ages . . . or maturity''.

It is impossible to work out what that might mean in practice. My hon. Friend the Member for Walthamstow has already described that difficulty.

Photo of Annette Brooke Annette Brooke Shadow Spokesperson (Home Affairs)

I am concerned about the direction of the Minister's argument. This is a difficult question, but is it right to have simpler legislation that leaves society with quite a few problems? The Minister is saying that we cannot do what the amendment says because it is so difficult, but that is not a good reason for not trying to do it or for not doing more work and putting more emphasis on it.

We are losing sight of the fact that the problem must be dealt with. It is not enough to say that it is too difficult. I wonder whether the Minister shares the concerns of the Joint Committee on Human Rights about liabilities being imposed on children.

Photo of Paul Goggins Paul Goggins Parliamentary Under-Secretary, Home Office

I assure the hon. Lady that the fact that we have not arrived at a solution is not for want of trying—I am sure that she did not mean it in that way—nor for the want of hard work by officials, representatives of voluntary organisations and others. However, we must draw legislation as tightly as we can. We discussed earlier the complexities arising from the question of whether an act is sexual. Legislation must be drawn as tightly as possible, but we must take account of the fact that, in circumstances like these where we want to make some clearly defined exceptions, it might make it complicated to implement. However, in no sense are we saying that we cannot be bothered to try a bit harder to find a solution. We have tried very hard to find a solution, but our conclusion is that such a solution is not available.

Photo of Paul Beresford Paul Beresford Conservative, Mole Valley

I support the Minister. We need to remember why we are here; that is why, on Second Reading, I suggested yesterday's teach-in. I quote a well-known barrister who was part of the team defending Rose West and has defended many other paedophiles, words that are supported by my hon. Friend the Member for Beaconsfield, which is that defendants, particularly in this area, are the most devious, slippery and unpleasant people to deal with. Indeed, the barrister said that she felt that they made some of the biggest fraudsters look straight. We have to remember that when legislating, and perhaps rely on guidance.

Photo of Paul Goggins Paul Goggins Parliamentary Under-Secretary, Home Office

I am grateful for the hon. Gentleman's support, and for suggesting the police demonstration, which has informed our discussions. He has an admirable track record in this area, and the Committee will benefit enormously from it. I am grateful for his support.

The police have made it clear to us, not least in this week's presentation, that they are far too busy trying to catch real criminals to keep diving behind the bike sheds to see whether people are behaving. In the real world of policing, that would not be a priority. We come to the question of guidance, mentioned by my hon. Friend the Member for Walthamstow, but I shall deal first with the questions raised by the hon. Member for Bromsgrove about the incident in her constituency. I can understand the distress and the added complexity of the race issues in that case. I underline what I have said before; we need to reflect on the fact that the voluntary and statutory agencies can intervene in such situations. They need to be as sympathetic as possible and to put those incidents in perspective. If they are truly innocent, we can help with a little education, but if they are serious the intervention must be all the more serious. That has to be developed locally, but there are good examples of such support being provided by schools and elsewhere.

Finally on the matter of guidance, I offer the Committee the assurance that the guidance will be published. Clearly, as normal, it will not be published until the Bill is enacted. However, we are not acting entirely in a vacuum. Guidance already operates in relation to the sort of relatively innocent behaviour that has been mentioned today that will lead to no prosecution. The guidance says that various things should be considered, including the age and emotional maturity of the defendant, whether the sexual relationship was entered into willingly, the relationship of the parties, whether there was a breach of care or trust, whether there was an element of seduction and whether the victim encouraged the defendant. That guidance will help the prosecution to arrive at a decision as to whether it is in the public interest to bring a prosecution, and the complexity of a particular incident or relationship will always be taken into account.

Photo of Neil Gerrard Neil Gerrard Labour, Walthamstow

If that guidance is in the public domain, will the Minister circulate it to members of the Committee?

Photo of Paul Goggins Paul Goggins Parliamentary Under-Secretary, Home Office

I am reliably informed that it is available on the internet.

Photo of Neil Gerrard Neil Gerrard Labour, Walthamstow

Could we be told where?

Photo of Paul Goggins Paul Goggins Parliamentary Under-Secretary, Home Office

I will ensure that members of the Committee are fully informed about how to obtain that guidance. It is important that we recognise that guidance is not something that Ministers are promising from above. There is guidance already in operation that will be developed in the light of the Bill.

Photo of Vera Baird Vera Baird Labour, Redcar

My hon. Friend makes a strong point by exemplifying what the guidance currently contains. Is not a major problem with the amendment, which I was minded at one time to put to the vote, that if all the filtration processes failed, the issue of whether a 12-year-old consented would have to come before a

court? One can then envisage the horrible picture of some barrister cross-examining a 12-year-old and telling her, ''You really liked it, didn't you.'' That is too awful to contemplate and it is a major problem with the amendment.

Photo of Paul Goggins Paul Goggins Parliamentary Under-Secretary, Home Office 11:15 am, 11th September 2003

I thank my hon. and learned Friend. She underlines the importance of the arguments we advanced earlier about not wanting children under 13 to be put in a position where they are cross-examined in that way. That is why we have taken the view that we have. Finally, I confirm that the current guidance is available on the Crown Prosecution Service website.

Photo of Sandra Gidley Sandra Gidley Liberal Democrat, Romsey

I accept fully what the Minister says. I must also reluctantly accept that the amendment is not perfect, but I still believe that it will probably present fewer problems than we currently have. We have been told that a large proportion of assaults on children are made by other children. Our amendment introduces the necessity for consent. I do not think there is reduced protection here either. That is important. It is also important to note that we seek to amend only this clause in a whole range of clauses that deal with under-13s. The overriding factor is the protection of the under-13s.

The lead amendment in the group does not affect the age of consent. The amendments that start getting into age differences sometimes have that effect even though they do not do so on the statute book. Some people are unhappy with those types of amendments because they think of it as weakening the age of consent. I can understand those arguments but I contend that amendment No. 173 does not do so in the same way.

The clause involves only sexual touching. I am still concerned that there will be occasions on which consensual behaviour between 11-year-olds, which is not really that sexual but is more a doctors and nurses type of situation, will be problematic. I would hope to be reassured by the fact that the police are too busy to go around finding out what goes on behind the bike sheds or elsewhere. Will the Minister tell us how many under-13s have been investigated and then brought before the courts? If we could see that the numbers were low and it was not currently a problem, we might be minded to be a little more relaxed about the issue.

Finally, I was disappointed to hear the Minister say in response to a question from the hon. Member for Walthamstow that the guidance will not be published before the Bill is enacted. My understanding has been that the Bill would deal with different circumstances. I may not have been fully awake this morning, but I thought I heard him say that in these unusual circumstances the Government would publish the guidance before the Bill was enacted. Can the Minister clarify that? Certainly I would be happier if we had a greater idea about what we may be dealing with before Report and Third Reading.

As there is little support for the amendments I shall not take the Committee's time by pressing them to a Division. However, if, at a later stage, the Minister

could provide some reassurance about the publication of the guidelines it may help to make everyone happier about the Bill's consequences and divert some public attention from this small matter.

Photo of Paul Goggins Paul Goggins Parliamentary Under-Secretary, Home Office

I cannot give the hon. Lady the figures that she requested now but every effort will be made to ensure that all members of the Committee have them as soon as possible.

Guidance arising from a Bill when it is enacted cannot, by definition, be issued until the Bill becomes law. The process makes it impossible to produce the guidance before then. I intend to ensure that the guidance is widely known and understood, not merely by reference to the Crown Prosecution Service website but more generally. Organisations that work with children, and Members of Parliament, will know precisely what it is. The guidance will reflect my arguments that, as now, there will be no prosecutions where low-level, developmental, growing-up activities are involved. I have tried to show through the existing guidance that that is a serious promise.

Although I could not give the hon. Lady precise answers, I hope that she will ask leave to withdraw the amendment.

Photo of Sandra Gidley Sandra Gidley Liberal Democrat, Romsey

I thank the Minister for his reply. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 8 ordered to stand part of the Bill.