Sexual Offences (Northern Ireland) Order 2008

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.