rose to move, That the draft order laid before the House on 30 April be approved.

The noble Lord said: My Lords, I apologise in advance for the length of my speech during what is dinner break business.

The order was laid before the House on 30 April. While the main focus of my opening speech will be on this order, I am pleased that we can also debate the Sexual Offences (Northern Ireland Consequential Amendments) Order 2008 at the same time. As we move towards the devolution of policing and justice powers in Northern Ireland, I certainly hope that this will be the last time that this House is asked to consider major criminal justice legislation for Northern Ireland through the Order in Council procedure. In future, that will quite rightly be a job for the Northern Ireland Assembly. In the mean time, as we have always said, business should continue in the interests of the people of Northern Ireland, so I make no apology for bringing forward the order. The order has already been considered in the other place.

The draft Sexual Offences (Northern Ireland) Order 2008 is the result of the first ever fundamental reform and consolidation of the law on sexual offences in Northern Ireland. Many of the current statutes governing Northern Ireland date not from the last century but from the 19th century and are difficult to apply to current circumstances. For some time we have recognised the growing need for a strengthened, modernised and harmonised body of law based on the Sexual Offences Act 2003.

The draft legislation was preceded by a comprehensive review of the law. The Government sought views from key stakeholders and others in Northern Ireland on how the law should distinguish for the 21st century between acceptable sexual behaviour and criminal activity. The review took as its starting point the extensive research and findings of the fundamental review of the law on sexual offences that was carried out in England and Wales, as well as the parliamentary scrutiny of the 2003 Act. Essentially, we took the view that unless there was a good reason, the law in Northern Ireland should, as far as possible, match that in England and Wales. That is a common theme throughout many of the changes in the legislation.

The proposed order will update the law. All offences will be gender neutral and, in the main, consensual sexual activity between adults in private will not fall within the criminal law. The order will strengthen and modernise sexual offences, primarily to ensure that all non-consensual sexual activity and sexual activity involving children and other vulnerable people is criminalised and will attract appropriately robust sanctions.

It will provide for clearly defined offences, which should ensure that anyone who engages in non-consensual or unacceptable sexual activity will face justice and appropriate punishment. More importantly, children and young people are at the centre of the proposals, with new offences designed to protect the most vulnerable and to punish severely any perpetrator of child sexual abuse.

The consultation on the order has been thorough. A policy consultation was carried out in 2006. A proposed draft sexual offences order was prepared and consulted on from November 2007 until February 2008. Altogether there were 369 responses to the legislative proposals, including 29 from organisations, political parties and elected representatives. The remaining number were from individuals responding in a personal capacity, and they focused mainly on one aspect, the proposal to change the age of consent from 17 to 16.

The Northern Ireland Assembly established an ad hoc committee of all of the main Northern Ireland political parties to consider the draft order. My honourable friend the Minister for Criminal Justice in Northern Ireland has already recorded, as I do tonight, his gratitude to the members of that committee for their careful scrutiny.

While the age of consent issue has provided some difference of opinion, there has been strong support for the order as a whole. The Northern Ireland Assembly not only affirmed its support for the sweep of the legislation, but welcomed the increased sentences and the move to gender neutrality. The Northern Ireland Commissioner for Children and Young People and the Police Service of Northern Ireland welcomed the contents of the order. The major children’s organisations, such as the National Society for the Prevention of Cruelty to Children and Barnardo’s, were also generally supportive, along with Brook and the Family Planning Association.

It may help noble Lords if I briefly run through what is proposed in the legislation. There is a clear focus on five different themes: non-consensual offences, offences against children, offences against those with a mental disorder, prostitution and other unacceptable sexual behaviour. The core offences that rely on the absence of consent are set out in Part 2. They include a new statutory offence of rape to replace the common-law offence, and new serious offences of assault by penetration and causing a person to engage in sexual activity without consent.

The new offence of rape has been expanded to include oral penetration, and the offence of assault by penetration carries a maximum life sentence for behaviour that under the current law would be classed as indecent assault with a maximum sentence of only 10 years. We propose the same statutory definition of consent as exists in England and Wales, with a number of evidential presumptions that consent was absent unless evidence is provided to the contrary. For example, if violence was used or threatened, there would be a presumption that consent had not been given.

On the second major element of the legislation, the new framework of offences against children is set out in Part 3. The most important issue in that regard is that where an offence is committed against a child under the age of 13, there is no requirement to address the issue of consent. That follows the Sexual Offences Act 2003 and makes it clear that there can be no question about the capacity of a child under the age of 13 to agree to sexual activity. Penetration of a child aged 12 or under will always be classified as rape.

The next group of offences concern children under 16 and criminalises all sexual activity with children and young people under that age. The maximum sentence for that group of offences is 14 years, although where the offence is committed by someone under 18, the maximum sentence is reduced to five years. By comparison, the current offence in Northern Ireland of unlawful carnal knowledge criminalises only sexual intercourse, and the maximum sentence for unlawful sexual intercourse with a girl aged 14 to 17, regardless of the age of the other party, is only two years. Indeed, there is no specific offence by which it is unlawful for a girl or woman to have sexual intercourse with a boy under 17.

The third group of offences applies to young people under 18. The aim is to provide a safety net against exploitation and abuse. For example, it will continue to be unlawful to have sexual activity with a young person under the age of 18 for anyone in a specified position of trust or in a specified family relationship. It will be unlawful to pay for the sexual services of a child under 18, or to cause, incite or arrange for a young person to become involved in prostitution or pornography and to control that person. Finally, the age under which it will be illegal to make, take, possess or distribute indecent photographs of children will be increased to 18.

Part 4 of the order, relating to offences against other vulnerable groups, sets out the circumstances in which it will be illegal to engage in sexual activity with a person who has a mental disorder. There are three clear aspects to those offences. The first relates to those with more severe disabilities and will penalise any sexual activity with someone who lacks the capacity to choose because of a mental disorder, or who is unable to communicate such a choice. The second deals with the procuring of sexual activity with a person with a mental disorder by inducement, threat or deception. The third simply outlaws any sexual activity by a care worker with a person with a mental disorder. These offences increase the range of offending behaviour against this particularly vulnerable group, while still acknowledging the rights of many such individuals to a consensual and non-exploitative sexual relationship.

Part 5 contains provisions to address the problems of kerb crawling and soliciting for prostitution, which occur to some degree in all of our major cities, Belfast being no exception. The police have pressed for these provisions. We are also sending a further message to those engaged in commercial sexual exploitation, with sentences of seven years for causing, inciting and controlling prostitution and for keeping a brothel.

My Lords, I wonder whether the Minister can help me. As I read it, Part 5, like the rest of the order, is in gender-neutral terms. Yet at page 22 of the Explanatory Memorandum, it is stated:

“The reference to ‘sexual services’ would cover someone who controls the activities of a number of women in prostitution”.

Am I reading the order wrongly, or is the Explanatory Memorandum slightly misleading?

My Lords, that is a very fair question because, obviously, it can be the other way round. I will get an answer before the evening is over, because it is intended to be gender-neutral as regards the practicalities of the law. However, the idea that there cannot be prostitution the other way is completely nonsense. I will get an answer to the noble Lord and I am grateful for the question.

Part 6 contains a miscellaneous but important group of offences. It criminalises acts where the clear intention is to commit a sexual offence; for example, giving someone so-called date rape drugs. It also criminalises sex with an adult relative, and it lists other behaviours considered unacceptable; namely, exposure, voyeurism, intercourse with an animal, sexual penetration of a corpse and sexual activity in a public toilet.

Part 7 makes further important provisions. It allows offences committed overseas against children to be pursued by the courts in Northern Ireland, whether or not they are offences in that other country. It also removes offences against children committed by other children or young persons from the reporting requirements of the Criminal Law Act 1967, although the Government have agreed not to commence that provision until new safeguarding legislation is enacted—we hope in 2009.

As I said earlier, there was an impressive and largely supportive response to the Government’s consultation on the order. The Government set out their response to the issues raised in a statement, which contained a summary of the representations that accompanied the order when it was laid before Parliament. A further document contained a summary of the changes made to the order; for example, the Government have agreed to look further at the possible inclusion of sports coaches within the positions of trust listed in Article 28. We will ask the Minister for Culture, Arts and Leisure to consult sports bodies in Northern Ireland on that suggestion. We have also agreed to consult on guidance and to look at ways to engage with children and young people on the introduction of the new law.

As regards the subject of the noble Lord’s amendment, however, the Government have not been persuaded to raise the age from 16 to 17 for the purposes of the offence of sexual activity with a child, more commonly referred to as the “age of consent”. Our policy position remains that we have not seen any compelling evidence to suggest that the criminal law in Northern Ireland should continue to be at variance with the rest of the United Kingdom on this issue.

Much of the argument against the move to harmonise the law has come from a basic misunderstanding of what the term “age of consent” means. It does not set in law the age at which it is deemed appropriate to start sexual activity. We are setting out the circumstances in which it is an offence to engage in sexual activity with a young person, even though that young person gives their consent. If that young person is 14 or 15, it remains an offence for another person to engage in sexual activity with them. We say that at 16, a young person has a right to take responsibility for their decisions and the other person should not be criminalised as a result. It is important to underline that the focus for the criminal law is not the conduct of the person below the age of consent; it is the conduct of the other person.

We believe that a majority of young people from the age of 16 will make sensible decisions, supported particularly by parental guidance, as well as by sex education in schools and the work of statutory and voluntary organisations that influence young people. Sixteen is the age throughout the whole of the United Kingdom at which, with parental consent, marriage can take place. That is not affected. I understand that is the position in the Republic, even though the age of consent is 17. There is a history about why the age of 17 was chosen which other noble Lords are far better qualified to know the detail about than I.

We are supported in the view we have taken by all the major children’s organisations: the NSPCC, Barnardo’s, the Children’s Law Centre and the Northern Ireland Commissioner for Children and Young People, by numerous representatives of social care trusts and by MLAs, including the chairman of the Assembly’s ad hoc committee that considered the order in detail. I fully accept that the committee was not unanimous, but that is not the point. The chairman, Dr Stephen Farry, said in the debate in the Assembly:

“My view is that the age of consent in Northern Ireland should be set at 16 years of age and be in line with the rest of the United Kingdom. I do not believe that there is a compelling reason for Northern Ireland to be out of line with the rest of the UK”.

The focus of my speech has been the main order. I shall briefly address aspects of the other order. The draft Sexual Offences (Northern Ireland Consequential Amendments) Order is, by and large, a short, technical piece that allows the main order and the Sexual Offences Act 2003 to work together in a UK context. It also amends the list of offences that attract the sex offender notification requirements of Part 2 of the Sexual Offences Act 2003 and adds the new offences to the Criminal Justice Act 2003 for the purposes of sentences for public protection.

The answer to the question asked by the noble Lord, Lord Tebbit, is that the Explanatory Memorandum is seeking only to give an example. The offence is gender neutral and would apply equally to male prostitutes. I assumed that that would be the case, but sometimes the his and the her and the he and the she make it look as if it is not gender neutral, but it is.

I am pleased to bring before the House this fundamental reform of the criminal law on sexual offences in Northern Ireland. I make no apology. This has been in being for a considerable number of years. We see no reason to delay the implementation of the many new offences and penalties I have spelt out while awaiting the further devolution that we fully expect to take place. Then it will be up to the Northern Ireland Assembly. The new framework of sexual offences is about better protection for all against unacceptable sexual behaviour. It will improve protection for children, young people and other vulnerable groups against sexual abuse, and it will help to tackle prostitution and commercial sexual exploitation. I commend both orders to the House.

Moved, That the order laid before the House on 30 April be approved. 19th Report from the Joint Committee on Statutory Instruments, 19th Report from the Merits Committee.—(Lord Rooker.)

rose to move, as an amendment to the Motion, to leave out from “that” to the end and insert “this House declines to approve the draft order laid before the House on 30 April because of opposition in Northern Ireland to lowering the age of consent”.

The noble Lord said: My Lords, it may be wondered why a Member of this House should rise to oppose an Order in Council, an instrument normally considered non-controversial. Yet any non-controversial features of this legislation are overshadowed by one extremely contentious provision: the proposal to lower the age of consent for sexual activity in Northern Ireland from 17 to 16. The age of consent in the criminal law is a powerful expression of what a society believes is best for its young people. Northern Ireland has chosen to set that age at 17 since 1950 and today most of its politicians and the majority of its people want to keep it at 17. Noble Lords may know that the Merits Committee drew the special attention of the House to the order in its 19th report, which was published on 13 May, noting that the Assembly and other consultees were broadly in favour of the legislation but opposed the lowering of the age of sexual consent from 17 to 16.

I shall elaborate. According to normal consultative procedure, the legislation was scrutinised by an ad hoc committee of the Northern Ireland Assembly. After receiving written and oral evidence from interested bodies, the committee presented a report to the Assembly. The report included the statement that,

“the Committee strongly recommends that there be no change to the current age of consent of 17”.

In February, the Assembly voted unanimously to submit the report to the Secretary of State as a report of the Assembly. No Division was required. Shortly after that vote, the MLAs tabled a no day named motion calling on the Secretary of State to retain the age of consent at 17. To date, it has been signed by 57 MLAs from across the political spectrum, unionists and nationalists alike. That makes it the best supported no day named motion of the current Assembly and the only one to achieve an overall majority of Members. It is clear that the Assembly would never have passed legislation lowering the age of consent.

Stormont’s position reflects that of the Northern Ireland populace. A ComRes poll in March found that 73 per cent of Northern Ireland’s citizens, including 80 per cent of Protestants and 72 per cent of Roman Catholics, opposed any reduction in the age of consent. Such widespread opposition was reflected in public comments from church representatives, the Northern Ireland Rape Crisis centre, the Province’s biggest youth organisations, the Boys’ Brigade and the Girls’ Brigade, and Love for Life, a relationship and sexual education project that delivers programmes to more than 20,000 young people annually. The Northern Ireland Office’s analysis of the public consultation reveals a similar pattern. Of 369 responses received, only seven specifically supported the age of consent proposal; 346 responses specifically opposed it.

The Government have put forward such a controversial provision in a statutory instrument that cannot be amended, leaving us with no choice but to reject the order. I shall test the opinion of the House at the conclusion of this debate. It is right to ask the Government to think again on such an important issue. Even now, it would not be difficult to withdraw the order, amend it and relay it before Parliament. There are precedents for this House rejecting statutory instruments—for example, the Greater London Authority (Election Expenses) Order 2000 and the Gambling (Geographical Distribution of Casino Premises Licences) Order 2007.

Let me at this point respond to a question that has been raised: is there not a contradiction between an age of consent set at 17 and allowing marriage at 16? No. Marriage is clearly a special institution. This has never caused a problem in the past 58 years. When Stormont raised the age of consent to 17 in 1950, it included an exception for married couples. It is crucial that marriage at the age of 16 or 17 in Northern Ireland can take place only with parental consent. The unique status of marriage is demonstrated by the fact that several other provisions in the order—for example, the abuse of trust laws—include exceptions for married couples.

To date, the Northern Ireland Office has offered only the scantiest justification for lowering the age of consent. The only reason offered to the Stormont committee and the Merits Committee was consistency across the United Kingdom. The logic of that argument is contrary to the principle of devolution. We are left asking why the Government continue to support devolution if they believe that the laws in every part of the United Kingdom must always be the same. In laws covering, for example, abortion, employment, public order and alcohol licensing, Northern Ireland has long differed from the rest of the United Kingdom. Moreover, the Northern Ireland Office has not provided evidence of any legal difficulty caused by the inconsistency of the age of consent.

Ministers have attempted to justify the policy by citing the need for clarity in the minds of young people. By calling for clarity, Ministers appear to believe that there is widespread confusion among Northern Ireland’s young people because the age of consent is 16 elsewhere in the United Kingdom. The fear has also been expressed that a legal age of consent of 17 deters young people from seeking sexual health advice because they feel that they will be criminalised in some way.

My Lords, if indeed it be the case that the people of Northern Ireland do not wish the age of consent to be reduced from 17 to 16, it is a serious matter that we should be thrusting that change on them. I want to make one simple point. I took great cheer from what the Minister said. It is often said—I have heard it said in this place—that the age of consent laws are an awful nuisance for young people and it is not the business of the law to make life difficult for them. The Minister made it plain that that is complete nonsense and a complete misunderstanding of the purpose of age of consent laws. They are there simply to protect young people from adults who might be minded to prey on them. When the age of consent is reduced, that protection is diminished and the rights of potential predators are extended. Clearly, people in the Province do not want that protection for young people to be reduced; they do not want the right of potential predators to be extended. I think that we should pay great regard to their wishes.

My Lords, I thank the Minister for bringing forward the statutory instrument tonight and I note the amendment moved by the noble Lord, Lord Morrow. The major part of the statutory instrument is for the protection of children and young people. That is its most important role. A lesser but, for me, an equally important role is, as the Minister said, that it is once again bringing Northern Ireland into line with British law. We have a huge travelling public—young people, middle-aged people and children—going backwards and forwards. To have two different laws in something that is so important to the social lives of travelling young people has to be harmful and unhelpful to those young people.

I am not going to take part in the argument about the moral story advanced by the noble Lord, Lord Morrow, and others who think similarly. However, I wonder why Her Majesty’s Government have chosen this time to bring this provision in the statutory instrument into your Lordships’ House and into this Parliament. As the Minister said, we are all hoping that at some stage in the not-too-distant future—although it seems to be getting more distant at the moment—there will be devolution of criminal justice and policing to Northern Ireland. That is when such difficult matters, on which the people of Northern Ireland clearly have strong views that differ from the views of the population of this country, should be widely debated publicly in their Assembly. The Assembly should have been given that opportunity with the part of the instrument referred to in the motion of the noble Lord, Lord Morrow, although not the rest of the order.

It is a shame that the Government were arrogant enough, knowing the volume of concern, if not antagonism, in the Province, not to have just left it out for another day. If we are all lucky and it all goes as we would like it to go, that other day might not be very far away. However, because I am not happy about that issue and because I took part in the major debate on lowering the age of consent in Great Britain in your Lordships’ House a year or two ago, I do not intend to vote in this debate. I am very sorry that the Government have felt the need to put a serious Whip on this issue tonight.

My Lords, I understand what the noble Lord, Lord Glentoran, is saying, although I cannot quite follow his logic. First, he says that it is going to be some time off before criminal justice is repatriated to Northern Ireland; then he says that it is important to have a common standard because of travel, particularly by students, between Northern Ireland and Great Britain. So, not for the first time, I did not quite follow his logic.

I congratulate the noble Lord, Lord Rooker, on giving a comprehensive introduction to this order. As he remarked, it is the outcome of the first fundamental review of the law on sexual offences in Northern Ireland, which aims to modernise the law in Northern Ireland. We very much welcome the codifying in one order of all the sexual offences in Northern Ireland. We hope that this will make it easier for those who are involved in using sexual offences legislation to apply it in an effective way.

As I said, we support the order, so I will not go into detail about many of the provisions before us today. In particular, we welcome the new gender-neutral offences, which can be applied to males and females where this is possible, and the removal of consent as a defence for sexual activity with a child under the age of 13, which will now always be rape. As the Assembly ad hoc committee heard from a number of witnesses, that will be particularly important for child witnesses.

I also support lowering the age of consent in Northern Ireland to 16, thereby providing continuity with England and Wales. In many ways, there are misunderstandings about the way in which Northern Ireland’s current age of consent is set, which creates unlawful carnal knowledge offences for boys, but not for girls, in consensual relationships between teenagers.

Despite having a higher age of consent than other parts of the UK, Northern Ireland has one of the highest levels of teenage pregnancy in the UK and the current age of consent has largely been superseded by the Fraser guidelines on consent to contraceptive advice in the 1985 case of Gillick v West Norfolk. By bringing Northern Ireland into line with the rest of the UK, the order will ensure that young people have access to the same rights and protections. It is often the most vulnerable young people who will engage in early sexual activity. It is vital that they feel that they can access information and advice about their sexual health. It is important to emphasise that this provision sets 16 as the age at which it is no longer a criminal offence to engage in sexual activity. It does not encourage young people to engage in sexual activity. However, it is important that this is implemented in tandem with a strategic approach to the sexual health needs of young people. We will support this order and oppose the motion proposed by the noble Lord, Lord Morrow.

My Lords, the Minister made a great deal of the need for uniformity across the various parts of the United Kingdom. It was one of his main points. Putting aside for the moment the question of the age of consent, am I not right in thinking that the criminal law of Scotland differs greatly from the criminal law of England in many respects? If that is right, does that not largely undermine his argument that there should be uniformity in this case?

My Lords, I am grateful to the Minister for the opportunity to speak during this important debate on the draft Sexual Offences (Northern Ireland) Order 2008. It is a matter of most importance to the protection of children and adults in Northern Ireland. I want at the outset to declare an interest as the Northern Ireland chair of Barnardo’s. The Minister has outlined many of the positives in this legislation. It is a modernisation of the law on sexual offences in Northern Ireland, the first for 100 years, and a codification in one statute. It includes the abolition of consent as a defence for sex with a child under the age of 13; tougher sentences for those who exploit children under the ages of 13 and 15; new offences, such as sexual activity with children; laws that are gender neutral in their application; and a range of other protections, such as the abuse of trust provisions. It is most important that we realise that the vast majority of the provisions in this legislation are aimed at providing increased protection for children and are most welcome on that basis.

One issue has dominated the debate on this order in Westminster and at the Northern Ireland Assembly; that is, the age of consent. Part of the difficulty is that the concept is not fully understood, on which I shall say a few words before dealing with other aspects of the order. The law currently does not create a criminal offence for a young person to have sex; rather it is the person with whom the child has sex who is committing offences in certain circumstances. This order recognises that a young person over the age of 16 is able to consent to sexual activity without the other person committing an offence. In doing so, it brings Northern Ireland in line with the rest of the United Kingdom, stops a contradiction in laws where a young person can get married in Northern Ireland at 16 and respects the rights of young people to make decisions about their lives.

In reality, the new provisions, by virtue of the offence of sexual activity in Articles 16 and 20, strengthen—not weaken—the protection for children up to the age of 16. Despite having an age of consent of 17 in Northern Ireland, it has one of the highest teenage pregnancy rates in the United Kingdom and I work with many of those young people on a daily basis. This highlights that it is other social welfare mechanisms, education and prevention, and not the law, that are important in encouraging young people to avoid early sexual activity. It would be very wrong, indeed a travesty, if an incorrect interpretation of current law should be allowed to overshadow all the child protection measures in this order.

I should like also to deal with a few other issues of policy underpinning the order and I have a number of detailed, specific questions for the Minister, to whom I have given some warning in the hope that he will be able to put his answer on the record in Hansard. This order is fairly complex and much of its outworking will be in the devolved areas of health and so on. Can the Minister confirm that the NIO will issue guidance on the legislation, and can he say something further on the interface between Article 20 sexual offences against children committed by children or young people and the existence of reporting requirements under Section 5 of the Criminal Law (Northern Ireland) Act 1967, which the Government have indicated will not immediately be disapplied by virtue of Article 79? Can he also confirm for the record that it is certainly not the intention to criminalise normal consenting activities between competent young people, and will the Public Prosecution Service issue guidance on this?

Can the Minister confirm what steps officials from the NIO will take with the Department of Health, Social Services and Public Safety in the development of child protection guidance for professionals in terms of the new law in dealing with children who seek contraceptive advice? Does he agree about the absolute need for professionals to be clear on the bounds of confidentiality and when children should be referred for their protection? Finally, both the NSPCC and Barnardo’s campaigned during the passage of the 2003 Act and the consultation on the order that there should be a statutory requirement on social services to lead a multi-agency assessment on children who sexually harm others? The Government decided not to do so, and I think that that was a mistake. Young people sexually harm others for a variety of reasons, and it is fundamentally important that they have access to adequate assessment, treatment and support. It is a complex policy area covering reserved and devolved matters, the police, the PPS and the courts, health and social care and so on. I seek an assurance from the Minister about the handling of these cases under the order and ask him to commit the NIO, the Courts Service and the PPS to leading discussions about the care and prosecution pathways for this group of vulnerable children, and to ensure that an adequate inter-agency policy is devised to deal with them. Will he give a timescale for the completion of such guidance and the outcome to be reported back?

Finally, if an opinion is asked for in a vote, I urge Peers to think carefully and not to throw the baby out with the bath water.

My Lords, I waded through the order and the Explanatory Memorandum and found it at times a slightly surreal experience as it entered into areas which I hope most of us have no experience of, and no wish to have it either. I thank the noble Lord, Lord Rooker, for his explanation and particularly for clarification of a point that had me slightly puzzled.

It seems that there is a general consensus that this is overwhelmingly sensible legislation, and I find myself in difficulty only over the amendment of the noble Lord, Lord Morrow. Recently, the luck of the Irish appears to have been running out a little. No one takes any notice of a no vote south of the border, and the people are told, “Go away, you silly little Irish people. You don’t understand these things. They are much too complex for you”. And now, north of the border, the Government are saying rather the same sort of thing. They acknowledge that the one part of this order which is contentious, the age of consent provision, is strongly opposed, and yet their attitude is to pooh-pooh it. “Devolution is all right, but only if you do what we want you to do. We don’t take your ‘no’ seriously. Of course you will, it is hoped, have responsibility for these things in a year or two, but in the mean time we are going to take decisions against your will”. That is an extraordinarily illogical position to take.

The idea that the criminal law has to be the same right across the United Kingdom is obviously absurd. It has been said that the criminal law is different in Scotland, and there are many differences in what the Government see as a proper and appropriate way to administer a country between Northern Ireland and the rest of the United Kingdom. The example that sticks in my mind is that the Government do not have convicted terrorists in ministerial office in Great Britain, but seem to think it perfectly all right if that is what the people of Northern Ireland would like. I think that that is an extraordinary position to take. Perhaps they could have a little consistency there as well.

The motion proposed by the noble Lord, Lord Morrow, is sensible, practical and offers no offence whatever to the rest of the Kingdom and its criminal law. I hope that the Government will think again about this.

My Lords, I would have been keen to welcome the order, but the variation in the age of consent prevents me doing so. I come from 70 years of living in a sadly divided community that is struggling to find a way to live together. But how can we when those things that strongly unite us are set to be undermined by the Government? In the United Kingdom as a whole, we lament the erosion of the family unit and of corporate family life where the young would respect their elders, and where the elders would live almost exclusively for their children. Within that context, more than 70 per cent of all the communities in Northern Ireland—whom the Government tell us they wish to accept shared responsibility for their future—do not wish to have the age of consent lowered. That is a fact. Why then would the Government whip their Members in this House—where, as I have always understood it, we are sent because of our experience, expertise and judgment—to frustrate the will of a huge cross-community majority of people within Northern Ireland?

At the same time, we are told that justice issues should be devolved. Others will address, and have addressed, the moral issues—the judgment capacity of 16 year-olds, who are the targets of all kinds of sexual predators, and the health, both physical and psychological, of our young folk—but what is the benefit of government whipping on a moral and practical issue, a change that offends all of us who strive for community stability based on family values?

My record in this House and in the other place over the past 25 years on moral issues such as the death penalty and on principles such as 42-day detention has been consistent. I would never allow myself to be whipped to vote against community and family issues and the safety and health of young people. I appeal to all noble Lords, do not shame this House; do not abandon your care and concern for what is the will of my people in Northern Ireland. Please vote for the amendment.

My Lords, like many other Members of the House, I have received a considerable amount of correspondence on this order and the amendment of the noble Lord, Lord Morrow. A significant point about all the letters is that not one of the writers has said they agree with the lowering of the age of consent. It is very significant to receive a volume of correspondence all saying one thing.

One of the letters I have received suggested that the inclusion in this order of the part concerning the age of consent is politically motivated. After referring to all the matters about which we have heard—the number of people in the polls and so on—one correspondent from Strabane said:

“In view of this, many of us here believe that a form of political blackmail is being used in relation to criminal justice and policing powers”.

I have no idea whether the writer is right or wrong and my question to my noble friend is very clear: have the Government been involved in such trading? It is a simple question and I hope that he will confirm that our Government have not had their name sullied by such activity.

It has been said already that a number of people of the two main religious groups are opposed to a lowering of the age of consent. I should like to reiterate the point about the 57 Members of the Assembly. If it is right and they are on record as having signed the Early Day Motion, that is clearly a majority of the people elected to represent the people of Northern Ireland—you do not need to be the brain of Britain to work that out. I popped in to see the Minister earlier to give notice of the question that I would ask, which is: why are the Government pressing this change on the people of Northern Ireland when all the evidence is that they do not want it imposed on them?

In introducing the order this evening, my noble friend—for whom I have the highest regard and hold in the highest esteem; I am not saying this as a flowery speech because I have known the Minister for so long and respect his integrity—said that unless there was a good reason, the Government would pursue the lowering of the age of consent. I can think of no better reason than that of democracy and the voice of the people who say they do not want it.

My Lords, perhaps I may intervene for literally one minute or less. Twice this evening in this debate we have been told that teenage pregnancies in Northern Ireland are higher than they are in the mainland of Britain. I rushed out to get the statistics, which show:

“The conception rates among 16 year olds in Northern Ireland is less than half that among 16 year olds in England and Wales”.

That is according to the official statistical register, “Northern Ireland: Maternities, 113”, from Registrar General’s Annual Report 2006—Section 3 Births. It is right that that should be put on the record.

My Lords, I welcome the amendment tabled by my noble friend Lord Morrow, and I am thankful for the opportunity to make the House aware of the strong opposition in Northern Ireland to one particular element of the draft sexual offences order. In part, the order has much to offer the people of Northern Ireland, particularly in the protection it affords to innocent victims of sexual predators who prey on the young and the vulnerable. To that extent, I take no issue with the main provisions of the order. It is both necessary and timely.

The basis of my personal opposition, and the catalyst for this debate today, is the proposed lowering of the age of consent from 17 to 16. I welcome the report published in February 2008 by the Northern Ireland Assembly in response to the proposed order. As someone who is proud to represent the constituency of East Belfast in that forum, I associate myself with the Assembly’s response; I hope noble Lords have had sight of it and have had the opportunity to take cognisance of it. Since the establishment of the Northern Ireland Assembly, few issues have been as controversial and emotive as this. Nevertheless, when the report of the ad hoc committee was brought before the Assembly, it was passed without dissent. When a subsequent motion calling for the retention of the age of 17 for consent was tabled on 19 February this year, it was signed by over half of all the Members—Catholic and Protestant, unionist and nationalist.

That cross-community support in the Assembly is mirrored—indeed, surpassed—by the strength of opposition among the electorate in Northern Ireland itself. As a unionist I take no joy in highlighting differences between Northern Ireland and Great Britain, but differences there are, which do not solely arise from the conservatism of Northern Ireland society, its stronger religious affiliations or some illogical intransigence or refusal on the part of Ulster people to move forward. As we have heard, the percentage of teenagers in Northern Ireland who engage in sex before the age of 16 is less than half that in England and Wales. The incidence of sexually transmitted diseases and the numbers of pregnancies and abortions in Northern Ireland are also very much lower. We are dealing with different circumstances, different cultural norms and trends. For that reason alone, the maintenance of different legislative provision can be justified.

We ask the Government to take note of the opposition outlined and reconsider their order. At a time when there has been widespread condemnation of the subversion of democracy in Zimbabwe, it would be wholly inappropriate to ride roughshod over the expressed wishes of the people of Northern Ireland and their elected representatives.

Sexual offences and other criminal justice matters remain a reserved matter yet to be devolved. I hope, as do most unionists within the Northern Ireland Assembly, that they will be devolved as soon as practically possible. The Minister is well aware that greater community confidence and indeed further financial support are necessary before that can happen. The form that a policing and justice department would take and the competences it would have remain to be discussed and agreed.

Noble Lords will also be aware of the Sewel convention under which the Government do not legislate for matters that are devolved, or are likely to be devolved in the near future, to the Northern Ireland Assembly. I therefore urge this House to vote for the amendment that my noble friend Lord Morrow has tabled, thereby supporting the right of elected Northern Ireland representatives, with one mind and one voice, to legislate on this issue in good time.

My Lords, the Government’s decision to press ahead with lowering the age of consent in Northern Ireland against the will of both the majority of the elected Members of the Assembly and a substantial majority of the people of the Province seems, if I may say so, frankly colonialist. In their Explanatory Memorandum on the draft order, the Government argue in paragraph 2.1 that the order,

“seeks to … harmonise the body of offences and penalties with the rest of the United Kingdom”.

This justification is repeated in paragraph 7.2, which uses slightly different wording. It refers to,

“a unique opportunity to modernize, strengthen and harmonise the body of offences and penalties with the rest of the United Kingdom”.

However, the game is given away by paragraph 7.1, which states that,

“the law here should, as far as possible, match that in England and Wales”.

England, Wales and Northern Ireland, minus Scotland, do not constitute the United Kingdom. The Government know perfectly well that if a majority of MSPs in the Scottish Parliament voted to raise the age of consent in Scotland to 19 or lower it to 13, Westminster could do nothing about it. The argument of permanent harmonisation right across the United Kingdom simply will not wash, as my noble and learned friend Lord Lloyd of Berwick and the noble Lord, Lord Tebbit, pointed out.

Incidentally, some noble Lords may be unaware when they talk of harmonisation that every American state is free to set its own age of consent. Students who cross state lines simply have to keep their wits about them and do their homework. The same could apply within the United Kingdom, I suggest.

The sudden call for integration and harmonisation is a bit rich when one considers that, about 35 years ago, soon after the beginning of the Troubles in Northern Ireland, a number of distinguished Conservative Members of Parliament, two of whom later paid for it with their lives, together with a majority—not all—of Ulster Unionist MPs, called for total integration of the Province with the rest of the United Kingdom, with the abolition of Stormont and the people of Northern Ireland having exactly the same rights as the people of England, Scotland and Wales. The proposal was fought against tooth and nail all through the 1970s and 1980s, and most of the 1990s, by most of the parliamentary Labour Party with a few honourable exceptions. They argued that Northern Ireland was totally different socially and culturally from the rest of the United Kingdom and should be treated quite differently, and that there should be no question of integration. There we have a certain paradox, do we not?

As I understand it, the objections in Northern Ireland to the lowering of the age of consent are based not only on religious and cultural considerations but on considerations both pragmatic and moral at the same time, in that the Province has vastly lower rates of unwanted teenage pregnancies, as the noble Baroness, Lady O’Cathain, pointed out, and vastly lower rates of teenage venereal disease than in the rest of the United Kingdom. People are understandably anxious to keep it that way.

If the proposed change starts to destroy that great achievement—and it is a great achievement given the present Europe-wide moral climate—it will on balance diminish rather than enhance the sum of human happiness. For that reason, together with the considerations of democracy, I shall certainly support the Motion of the noble Lord, Lord Morrow, in the Division Lobby.

My Lords, I shall briefly make a wider point. Every time that Parliament confers a right, that right entails a duty. Rights demand recognition. Parents, guardians, teachers and all those in positions of trust and involvement with 16 year-olds will need to remember, if the right of consent is legally extended, that they, whatever their individual views, must respect it. Parliament needs to be careful about conferring additional rights by legislation regarding matters which are better left as they are to the people and to the courts. When we do not take that due care, we time after time damage our democracy. I support the amendment.

My Lords, the noble Lord, Lord Rooker, in his opening speech made a good exposition of the order, and there are many good things in it. However, they wrap up the one controversial aspect, which is the point to which the noble Lord, Lord Morrow, has drawn attention.

When the Minister said that children and young people were at the centre of the proposals, I do not think that he could have been referring to this particular aspect of the proposals. We have heard that 55 per cent of Assembly Members voted against lowering the age of consent and that 70 per cent of the population do not want it lowered. I cannot understand why the Government want to go against what is universally considered the view of Northern Ireland. The Prime Minister only a short while ago said, “We are going to listen to the people”. Well, the people have spoken clearly over in Northern Ireland, and I cannot see why they cannot leave it as it is. They may want the United Kingdom harmonised, but then you get the disharmony between Northern Ireland and southern Ireland, which brings its own problems. I really would have thought that the Government should not have done this, unless they are just determined to push ahead—and I do not believe that that is right.

The Minister says that there is no reason not to pass this order, but I think that there is a jolly good reason not to pass it: I do not believe that it is the right thing to do. Mr Jeffrey Donaldson said:

“It defies common sense, decency and democracy that the government should push ahead with this change that is so unwanted, unnecessary and detrimental to our society”.

I believe that the Government should not do that, which is why I will back the Motion.

My Lords, the Leader of the Opposition made a very good case for ensuring that the constitution of Northern Ireland should be observed by the Stormont Government. If we discount the substantive element of reducing the age from 17 to 16, why does he say—after making a very good argument—that he is not going to vote one way or the other?

My Lords, I begin by thanking those who participated in the debate. I have not counted but there were probably 20 speeches. I am grateful for the noble Lords’ participation and will do my best to answer their points. They have concentrated on one aspect—the latter aspect that I came to—and certainly not the general thrust of the order, which I think has received widespread support. It is a bit more complicated than simply taking one bit of it out, as I shall seek to explain.

I quite agree that it will be much better when Northern Ireland is looking after itself in terms of policing and justice. I have made that quite clear. It will offer more suitable scrutiny than what this House or the other House gives, with Orders in Council. It will be much better. However, as I said earlier, given the number of years that this provision has been gestating, following the passage of the 2003 Act, we see no good reason to delay it. It is as simple as that.

In due course.

My Lords, I do not know whether it is going to be in due course. There is no time set for devolution—that is the whole point—and because of that we are carrying on the process that we are duty-bound to follow, following the consultation.

There is obviously considerable interest in the issue relating to the age of consent.

My Lords, the Minister said that no time had been set for devolution, but he will know that there was a target time, which was just last month, and that the current First Minister made it very clear just the other day—yesterday, if not today—that he will seriously try to achieve that devolution within a short period. So the point comes back. The Minister knows that this devolution is going to occur, if not next month or the month after, probably this year, and that the Assembly will then proceed to reverse what he is now doing. Does he realise that, in reversing that, it might also reverse things that he would not like it to reverse, other than the point under discussion?

My Lords, first, that is up to the Assembly. Secondly, as far as I am concerned, there is no justification whatsoever for claiming that devolution will occur within a specific period. Until the agreements are reached we do not know; that is the history of Northern Ireland. Until then we continue to govern, as was the case before the current devolution.

The Assembly can do what it likes when it has authority, provided that it follows the voting system laid down. It does not just require a simple majority to change things, but a far more complicated system of voting than we have in this House. The 55 per cent referred to would not carry a change. I am not going to make a big point about that, but it is not as simple as that. Frankly, we cannot go by people signing Early Day Motions. I spent so long in the other place signing EDMs that I was challenged to vote for, only to find that I could not for other reasons. It is an expression of an opinion, and I respect that; however, it is not the vote.

I will give more details of the support for the Government’s change. I will reiterate what was said in the other place when this order was before it on the reasons to make the change. The Government—particularly my honourable friend the Minister for Criminal Justice, who has much experience in dealing with the issues—have taken careful note of a range of advice and representations on the age of consent. Different organisations have recommended different things depending on their particular experience and engagement with young people. The Government have had to reflect on the balance of that advice to see where we ought to move the legislation and whether we should change it. Given that the starting position was for uniformity unless there were compelling reasons against it, and having received advice from a whole range of organisations that we should reduce the age of consent to 16, the balance of the argument ultimately seemed to point to that change.

I fully accept that there is a different legal system in Scotland; I did not seek to make a point about that. It has always been a different system. Nevertheless, the age of consent is 16, and if they wish to change it, they can. The fact is that if Parliament now approves this order, the age of consent will be 16 throughout the UK.

I remind noble Lords of the organisations and individuals who have encouraged us to believe that 16 is the right age. Leading childcare organisations such as the NSPCC and Barnardo’s, to which I pay tribute and which do tremendous work in Northern Ireland and the rest of the UK, have been absolutely clear with us. We take the advice of the Northern Ireland Commissioner for Children and Young People. We take the advice of the health and social services boards and eight of the 10 trusts in Northern Ireland. These are the social services organisations working with children and their families day in and day out. They tell us absolutely clearly that they believe that 16 is the right age. The police recommend it. All want to provide welfare support, encouragement and education. We are all concerned for vulnerable young people. Those organisations think that keeping 17 as the age of consent is a barrier. We have to take that advice seriously.

It is clear that the debate in Northern Ireland has been far from one-sided. We have paid particular attention to those organisations working with children and young people. We have had to take their advice seriously. It would be wrong to dismiss the views of organisations such as the NSPCC and Barnardo’s, but that is not to undermine or to criticise the authentic views of others, as we have heard tonight, which I respect.

I add my voice to the concerns we have heard about the message that this change may be sending to young people. It is important that we send the message that we want to avoid confusion in their minds. Having a different age of consent in different parts of the United Kingdom could—could—add to that confusion. We want to make clear that this change does not signal that sex at an earlier age is the right thing—far from it. I made that point in my opening speech. We want the message to go out that young people should seek advice from agencies and counselling organisations without fear of criminalisation. We do not want young people to be deterred from obtaining advice on these important health issues, but this desire in no way signals any intent that more young people should get involved in early sexual activity. As I said earlier, it is important to make a distinction between the ethos of the age of consent and the criminal law. The criminal law seeks only to criminalise the person who has sexual activity with someone under a particular age. It does not, and never did, criminalise the act of giving consent. The young person and their conduct is not the focus of the criminal law; it is the perpetrator. It is important that that point is emphasised.

I shall not go into teenage pregnancies in great detail, as they have been discussed. It is true that there are concerns about levels of teenage pregnancy, but there has been a marked improvement in Northern Ireland since 2000 through the teenage pregnancy and parenthood strategy. In 2000, there were 222 pregnancies to under-17s, but in 2007 that figure had fallen to 142. The number is coming down because of the advocacy, education, support and advice being provided by a range of organisations. I propose to noble Lords that the level of teenage pregnancies has nothing whatever to do with the age of consent. The Netherlands has 16 as the age of consent and has the lowest rate of teenage pregnancies in Europe. Denmark has the second lowest rate of teenage pregnancies in Europe and the age of consent is 15. Therefore, they do not need any lectures from us about marrying the two issues. Teenage pregnancy and the age of consent may come together in the public mind, but they are two entirely separate matters. The quality of the education, advice and support available are important in driving down rates of teenage pregnancies, and we all want to see that. It has not always been easy to give education, support and advice to young people in this country. People have been attacked for doing that.

My Lords, although I do not think it is particularly germane to the argument, when the noble Lord is talking about rates of pregnancy could he be absolutely clear whether he is talking about pregnancies or births?

My Lords, I can separate the figures out. The figures I gave for Northern Ireland of 222 and 142 were absolute figures. They did not represent percentages of the population. I can provide more details. I also have figures for stillbirths resulting from those pregnancies. However, the point I am making concerns the dislocation between teenage pregnancy and the age of consent. Countries where the age of consent is lower than ours have fewer teenage pregnancies than we do.

In response to what I have heard this evening, I want to send out two messages. One is to those engaging in sexual activity with people aged 14 or 15. A whole lot of new powers and stronger sentences are available to the courts for dealing with them. If they abuse the position of young people below the age of consent, they can expect a heavier sentence than ever before. The second message relates to the comments about the possibility that sexual predators in the Republic of Ireland and elsewhere will see the order as some kind of green light to go to Northern Ireland to abuse children. That is absolutely not the case. The message of the legislation could not be clearer. Abusers and sexual predators who go to Northern Ireland will be hit with sentences that have not been available there before. We will not tolerate sexual exploitation and abuse, but that has nothing to do with the age of consent; it has to do with how we deal with people who behave in that wholly unacceptable way.

I shall try to respond to individual questions as it is important to get my reply on the record. As regards who supports what, it is worth reading out the list. The responses to the consultation on the draft legislation regarding the age of consent have been published so there is no difficulty in that regard. Against the change were the Christian Institute, the Free Presbyterian Church, the DUP, the UUP and the SDLP. In favour of the change were the NSPCC, Barnardo’s, the Police Service of Northern Ireland, the Family Planning Association, Brook, the Children’s Law Centre, the national Commissioner for Children and Young People, the health and social care trusts, the Eastern Health and Social Services Board, the Southern Health and Social Services Board, Children in Northern Ireland, Sinn Fein and the Alliance Party. That is the scale of the result of the consultation.

I was asked by one noble Lord to leave out the changes to the age of consent. It is not quite like that. I do not think that any article in the order states that. The age of consent permeates the whole order. All offences against children are based on particular ages, as I have set out. There is no statutory age of consent as such. It is determined by the offences of sexual activity with a child under the age of 16. There is no age of consent article that one can simply strike out. I fully accept the point made by the noble and learned Lord, Lord Lloyd of Berwick, that the law in Scotland is different, but the age of consent is 16.

The noble Baroness, Lady Blood, gave me the opportunity to deal with a couple of points that she made in her speech. I will put my response on the record now. On the reporting requirement under Section 5 of the Criminal Law Act (Northern Ireland) 1967, we have given considerable thought to the issue whereby it is incumbent on someone who knows that a serious offence has been carried out to report it to the police. The concern is that it could place health professionals, counselling staff and parents in very difficult situations, whereby they may be expected to report young people who they know are engaging in consensual sexual activity.

The issue has been discussed at length with the Department of Health, Social Services and Public Safety in Northern Ireland. Although there is a provision in the order to take away the reporting requirement, the Executive Minister for Health has asked that we delay implementation until new safeguarding legislation for child protection is in place. As I said earlier, that is expected next year. In the mean time, I can say that it may not be appropriate in many instances to report and criminalise normal consenting sexual activity between competent young people. Northern Ireland Office officials will continue to work closely with Northern Ireland health department officials and the Public Prosecution Service on the production of guidance to remove any anxiety of the noble Baroness and others. This guidance will of course be published.

On the noble Baroness’s point about the need for mandatory guidance under the order, there will be further consultation on guidance with key stakeholders and others. The guidance will be issued prior to the enactment of the legislation. Although that may not be mandatory, it will be done seriously and inclusively because of the need to have the advice and minds of many stakeholders and organisations to help to frame the guidance so that it is both practical and useful. Northern Ireland Office officials will of course contribute to the development by the Department of Heath, Social Services and Public Safety of any guidance on child protection issues.

The noble Baroness also asked about guidance on the handling of cases of children who sexually harm. This is a very important issue, but our view is that legislative provision for a body of law on sexual offences is not the place for provisions that deal with how the criminal justice system interacts with children who display sexually harmful behaviour. I assure her that procedures are already in place which the agencies follow when handling such cases. There will also be opportunities to consider this issue in future inter-agency discussions on guidance.

The noble Lord, Lord Tebbit, made a point about the order in Northern Ireland. As I have said, the nature of the voting is such that it would not have passed through the Assembly anyway. I understand that the committee voted 5:3, so the vote was not unanimous, but I do not argue with the fact. I mentioned in my speech that the committee had made that point. I quoted its chairman. I gave an analysis of those in the consultation who came out in public in favour. Contrary to what some noble Lords have said, this is not a moral issue. We are dealing with criminal law. This is not about influencing teenage sexual activity. It is as simple as that.

I answered the point about cross-community voting. My answer may not be satisfactory, but it is the one that I gave to my noble friend Lord Clarke. I am very grateful to him for giving me notice of his question. The cross-community voting system would not mean that there is majority support for this in the Assembly.

I hope that I have dealt with teenage pregnancies.

My Lords, the noble Lord said that we are dealing with the criminal law, and that is that. With respect, however, it is not that; it is the way in which the law affects individuals. Although he cast a number of organisations in favour and organisations against, there are not only organisations but people. The people voted very differently.

With respect, my Lords, we are talking about the criminal law, not the issue of morals. The order is about the safety of young people. We have taken a judgment that, at 16, people would be informed enough to make those decisions. As I have said and as has been discussed, with parental consent 16 is the age at which one can marry. The organisations that I listed work with and advise young people day in and day out in Northern Ireland. It is not as though they do not have any locus or standing; they certainly do. I do not seek to claim great numbers one way or the other; I do not have the evidence for that.

My Lords, will the noble Lord clarify what appears to some of us to be the rather strange statement that the law is not based on morality, but that it is abstract and technical and that morality does not come into it? That is what he is telling us.

My Lords, it is, in this respect. We are dealing today with non-consensual sexual activity, a criminal offence at certain ages and different activities at different ages. I have set those out and will not repeat them. Sixteen is one of the ages that has been referred to. The view is not a moral one. We are not simply saying that 16 is the age at which people should engage in sexual activity; that is not what the age of consent issue is about at all, and it is not what the order is about. That is where one can get hares flying that give a totally false impression.

The issue has been debated in this House and the other place, and it is up to the House to come to a decision.

My Lords, I thank everyone who has contributed to the debate. It is not my intention to respond to everything that has been said. I will simply say that the House has an opportunity tonight to give a voice to the people of Northern Ireland on an issue to which more than 70 per cent of them are opposed. I wish to test the opinion of the House.