Jonathan Freedland in London
SO, soon a man will be able to love another man from the day he turns sweet 16 – trouble is, neither will be allowed to have a cigarette afterwards. The British government’s recent dual announcements – one proposing a lowering of the homosexual age of consent to 16, the other looking to ban the sale of tobacco to under-18s – have created a bizarre anomaly. To put it crudely: you can be a fag, but you can’t buy one.
It seems absurd, and not just because Britain’s young homosexuals are set to gain one great liberty even as they lose another – the fundamental human right to a post- coital smoke. For the ruling Labour Party’s two initiatives are deeply contradictory, both of them begging a few profound questions: when do rights start? When does childhood end and adulthood begin? Is it fair to give some people responsibilities even as we deny those same people basic rights?
Not that the new tobacco plan and a change in the law on gay sex have conjured a whole new problem. On the contrary, they just add to the bundle of anomalies, archaisms and contradictions that is the British legal view of young people.
Some of it is plain ridiculous. You can work down a mine at 16, but have to wait till you’re 18 to get a tattoo. You can be held responsible for a crime at 10 – eight in Scotland – but have to be 18 to arrest someone (the recruitment age for police). You can pay taxes at 16, but can’t decide how they’re spent, by casting a first vote, until after your 18th birthday – a clear case of taxation without representation.
More gravely, you can die for your country at 17, by joining the army, but can have no electoral say where you might be sent. (It won’t be Northern Ireland: uniquely, postings there are confined to the over- 18s). You can have a bank account at 14 and be regarded by the law “as if you were 40”, according to an 1845 court ruling, but you still can’t buy a drink – although you can work in a place where drinks are served.
You can drive a car at 17, but you’ll have to wait four years till you can rent one. Over-16s can marry, with their parents’ consent, and have children – but only naturally. If they want to adopt, they can’t. Until they’re 21.
On it goes, the rules changing so randomly even the experts struggle to keep up. “It’s a huge muddle,” admits Alan Levy, QC, a specialist in the labyrinthine ways of child law.
There’s an easy explanation for the problem. British law has evolved piecemeal, a higgledy-piggledy pile of common-law rulings, precedents and specific statutes. Britons don’t have the Europeans’ knack for comprehensive legal codes; and so they’ve never been forced to fix on a single, consistent age of adulthood. Instead, they’ve muddled through.
But there is some method in the madness. Despite the arbitrariness of a system which allows a child to stand trial but not to leave school, a principle can be spotted within the thicket of rules. Britain gives responsibilities early and rights late.
Hence the legal view of the child, which has only barely advanced on medieval times. By those dim standards, a child of seven was held morally and legally culpable. In today’s Scotland children get just 12 months’ grace on that figure before they are held liable for a crime; in England and Wales, it’s a couple of years more. And the rules are about to get tighter: politicians are mounting an assault on doli incapax – the long-held legal assumption that children between 10 and 14 are not fully able to know the gravity of their actions.
Previously prosecutors had to prove the accused child knew what he had done was seriously wrong. Now the burden will shift to the defence. And the Labour Party plans to abandon the old system of multiple cautions for young offenders, replacing it with a one-off first and final caution. For the youngest Britons, there will be no second chances. It’s one strike and you’re out.
So the law is happy to give children the responsibilities of adults. The attitude changes, however, when it comes to rights. You can’t bring a court case in one’s own name, for example, until you’ve turned 18.
But the lawyers should not take all the blame. As so often, they’re just following a lead set by the rest of the population. For Britain’s kids are growing up in a culture which demands more and more from them, while allowing them to do less and less. At the sharp end are the one in three children living in poverty – the highest figure in Europe, according to a study released earlier this year. Among them will be some of the 50 000 young people acting as carers for sick or disabled parents and relatives.
But even in less stressed homes, the pressure is piling up. Constant assessment, annual testing and league tables have brought forward the kind of school-induced angst kids used to avoid till their mid- teens. Now primary school testing means that some children are under the microscope before they can even read.
Labour’s plans are only adding to the load. Tony Blair’s vision of a 90-minute nightly minimum on homework is part of a new approach to education, which seems to regard schools as hothouses, built to breed a crack force of global marketeers. If all this was balanced by some adult-style rights, maybe we would lament it still – but we could not fault it for inconsistency.
The unevenness in attitudes to the young represents a genuine challenge to Labour, which has made a virtual religion of rights and responsibilities. By asking one group to accept lots of one, without getting much of the other, Labour is exposing a semi- authoritarian streak which should make all of us take notice. They’re doing it to kids today; it might be grown-ups tomorrow.
But there are wider lessons which pre-date Tony Blair. Youth rights activists worry that ours is a culture which doesn’t value children, which maybe doesn’t even like them very much. “Children should be seen and not heard” is a peculiarly British maxim; legal jargon classifies childhood as a “disability”.
We are confused about children, and we have a pretty feeble tradition of rights. No wonder we have trouble with the notion of children’s rights. Not that other countries have fared much better. The Americans are big on civil liberties, but even they have failed to draw a single starting line. Fourteen-year-olds can drive fast cars in some states, but no American can drink before the age of 21.
The United States does at least offer the merit of consistency. American teenagers may have fewer rights, but they are not weighed down with responsibilities. They don’t have to choose an academic specialism, for example, until their fourth year at university; British kids must make the same decision when they’re 16.
Europe can be as muddled as the Brits about the age of rights. Gay teenagers can get it on aged 14 in San Marino, but have to keep it zipped till 18 in Austria. Maybe the ideal of a single official age of adulthood is unrealistic. But there is a pragmatic solution: we should bring the ages of responsibility and adulthood, now wide apart, closer together.
Maybe 14 – rather than 10 – is a legitimate age to hold a boy or girl criminally culpable, while 16 would be a good age to allocate rights – to vote, to work, to marry, to drive, to wear the country’s uniform. That way we would recognise that children are not adults but, once they are, they should be able to have a kiss – and even a smoke.