§ [Relevant documents: Seventh and Twelfth Reports from the Joint Committee on Human Rights, Session 2002–03, on its continuing scrutiny of Bills, HC 547 and HC 765; and Fifth Report from the Home Affairs Committee, Session 2002–03, on the Sexual Offences Bill, HC 639.]
§ Order for Second Reading read.1.58 pm
§ The Secretary of State for the Home Department (Mr. David Blunkett)
I beg to move, That the Bill be now read a Second time.
I thank not only my noble Friends in the Lords, but all those of all parties and none who contributed to the debate and the improvement of the Bill as it made its way through the upper Chamber. The Bill has been a long time in the making. Both actions against sex offenders and the law on sex offences are outdated and arcane, and are sometimes subject, I regret to say, to a great deal of silliness. That is why Governments of all persuasions have for so long been reluctant to act on some of these measures.
Consultation on the paper "Setting the Boundaries" and the preparation for the Bill lasted two and a half years. The process was worth it in the sense that getting the balance right has been critical to winning over support and finding a consensus. I hope that this House will continue to address the issues rationally and with a view to finding an agreed solution to some of the more difficult problems. All those who have addressed the matter have found that one solution often leads to another difficulty. I therefore hope that we can continue that consensus this afternoon and in Committee. I offer to the Opposition parties the opportunity to continue in Committee that process of dialogue and improvement.
I want to thank once again the members of the taskforce on child protection on the internet for their work. Important work remains to be done on getting the sentencing policy right.
§ Andy Burnham (Leigh)
I am grateful to the Home Secretary for giving way. He is aware of the case of my constituent Shevaun Pennington, who went missing on Saturday and is believed to have travelled to France with a US citizen. That worrying case emphasises why the measures in clause 17 are so necessary, but her safe and immediate return to this country is of course our immediate concern. Would the Home Secretary today contact his French counterparts, not only to thank them for their help to date, but to ask them to do everything else within their power to facilitate that, including providing all necessary information to the Greater Manchester police to help them with their inquiries, publicising media photographs and ensuring that immigration staff at entry and exit points have all the necessary information? Would he further ask his officials to work with Interpol to ensure that information is spread as far and wide as possible to the authorities of neighbouring countries?
§ Mr. Blunkett
I am grateful to my hon. Friend for raising that issue; I will deal with it now. Clause 17 and clauses 121 to 127 strengthen the law substantially in that respect.
178 On behalf of the House, I send our deepest sympathy to the family of Shevaun. It must be a very trying time for them. No parent who knows and understands that their child will enter and use the internet does not sympathise with them greatly as regards what has happened and the way in which it happened. My office has been in touch with the office of Nicolas Sarkozy, the Minister for the Interior in France, and we have secured agreement from him that the French will take every possible step to assist in apprehending the couples who flew into Paris on Saturday evening. They will engage with our forces—two members of the Greater Manchester police are going out to Paris to assist with the investigation—and work with us through Europol and Interpol to ensure that we follow every possible lead.
On 5 May, in Paris, we had a home affairs meeting of the G8 countries that was led by the French. They were concerned that we should discuss the whole issue of child pornography, grooming on the internet and the use of the internet for such crime. It was agreed then, two months ago, that we should step up joint international action. This case provides an opportunity for people to put into practice their words and intentions. The Foreign Secretary and I want to use every avenue that is available to us in relation to the incident, which reinforces why the measures in clause 17 and the clauses in part 2 relating to enforcement are long overdue and matter so greatly. Apart from fitting into the broader context of strengthening the law and sentencing, they underline the importance of working with the industry on the protections that the taskforce considered and of working together to protect young people from gross abuse.
The signals that we send in today's debate and in Committee will make a difference in terms of the messages that young people receive, the measured way in which we deal with the wider issues of offending and offences, and the engagement of broader civil society in being part of the solution. It is important to take cognisance of the great difficulty of balancing protection against a free and open society. As with so many of the issues that Home Secretaries—as opposed to Guardian columnists—have to deal with, such balances must be kept in view all the time.
§ Mr. David Hinchliffe (Wakefield)
I place on record my appreciation of the work that my right hon. Friend has done in introducing this very important Bill, which is indeed long overdue.
The Family Planning Association and the Joint Committee on Human Rights have expressed concern that the Bill could criminalise young people of 14 or 15 for consensual petting or kissing. I would be grateful if my right hon. Friend could clarify that, bearing in mind that the average age of first intercourse is now 16. Has he considered the possible implications?
§ Mr. Blunkett
Yes, I have. As recently as yesterday I thought about whether there was a formulation that would change the existing law in a way that addressed the practical issues. As the House of Lords found, and as the Committee in this House will find, it is extremely difficult to come up with a formulation that not only protects young people from those over the age of 16 or 18 engaging in activity preparatory to sexual behaviour 179 that would put them at risk and is considered in the Bill to be unacceptable, and therefore outside the law, but from those under 16—we have all had experience of this in terms of school exclusions—who have taken equally unacceptable actions against those of a similar age. Drawing the line between penetration—we are going to be dealing with these issues, I am afraid—and actions leading to penetration by those intent on doing so without consent has made it impossible to find another definition, given the well-known difficulty of ascertaining consent in relation to youngsters.
The Under-Secretary of State for the Home Department, my hon. Friend the Member for Wythenshawe and Sale, East (Mr. Goggins), will meet the head of the Family Planning Association tomorrow. I repeat what I said to several groups who raised civil liberties issues in relation to the recommendations of the taskforce. If the people to whom my hon. Friend the Member for Wakefield (Mr. Hinchliffe) has been speaking are of good will—as he certainly is—and believe that we have got it wrong, I ask only one thing of them: that they produce a formulation that overcomes the objections that have been raised. It is extremely difficult. I do not want the law to be an ass. No one will be prosecuted in the circumstances outlined by my hon. Friend—they never have been, and they will not be—but to find a way out of a situation that relies on the common sense of the Crown Prosecution Service has proved impossible.
It would be appropriate for me to take offenders first, so I shall deal with part 2, which starts with clauses 81 to 93. That part of the Bill concerns the registration of offenders and updates the existing law, including the Sex Offenders Act 1997. It is about informing the police of changes of circumstance; visits that are to be made by those who are placed on the register; the confirmation every year of the details and whereabouts of those individuals, instead of the present situation; the power regularly to take biometric information, such as fingerprints and photographs; new laws concerning overseas visits and the requirements of notification orders; and, as is described in clauses 95 to 101, getting a grip of those who go overseas to procure the services of young children and monitoring them to prevent them from doing so.
Clauses 102 to 111 bring together sex offenders orders and restraining orders into the new prevention orders, which aim to prevent offenders from going near, or being around, areas such as playgrounds or schools or visiting particular localities. They also deal with the breach of orders and an extension to violent offenders who previously were not dealt with under the relevant provisions. We are also increasing the sentence for such breaches to five years. I am sure that that will send a much better signal.
Clauses 112 to 120 again deal with foreign travel and the need to bring our laws into line. When I responded to the point of my hon. Friend the Member for Leigh (Andy Burnham), I mentioned the way in which clause 17 interchanges with clauses 121 to 127, and risk assessment. The taskforce did an excellent job of considering the matter and dealing with chat rooms. That was one of the most difficult issues because it involves the modern phenomenon of using the internet and access to the internet in a way that it is hard for parents to monitor. We need to ensure that servers 180 provide some protection, but how can that be done in a free and open society? The difficulties are illustrated by the tragedy that has befallen Shevaun, who was taken away by someone who pretended to be a similar age.
However, we are tightening the law to deal with people who endeavour to meet a child following sexual grooming and we therefore need a new offence. We are introducing such an offence today and providing for a penalty when such meetings are intended to lead to a sexual offence against the child at that or a subsequent meeting, and the perpetrator has communicated with the child at least twice to start the grooming process. The offence carries a maximum penalty of five years, but it needs to be linked with the other offences in the Bill that carry much more substantial sentences, including anything that may have happened as a result of the grooming.
§ Simon Hughes (Southwark, North and Bermondsey)
The Liberal Democrats support the Government's proposals on grooming and dealing with sex offenders and their registration and monitoring. Like the Government, we stop short of supporting the full implications of a "Sarah's law" approach. Is the Home Secretary satisfied that, when British people or those resident in Britain commit sex offences abroad, information about the conviction will be adequately transferred to the authorities on all occasions so that we are protected against those who have offended abroad but return to this country and are obviously at risk of offending here?
§ Mr. Blunkett
I shall answer the question carefully because my immediate instinct is to say yes, but much depends on the jurisdiction in which the offence takes place and its ability to deal with such matters through its criminal justice system. Whenever such actions are identified, I expect the relevant countries to be required to ensure that they inform us properly, just as we would want to do the same when offenders commit crimes in this country. I am happy to explore in Committee whether we might take further measures to ensure that the process is watertight.
§ Mr. Dominic Grieve (Beaconsfield)
I, too, welcome the provisions on sexual grooming. As the Home Secretary knows, the Conservative party said some time ago that the matter required attention. Is he satisfied that there is enough flexibility in the proposed maximum sentence to deal with cases in which nothing else happens, but the evidence is clear and unequivocal about the intent of a person, who may have previous convictions for serious sex offences against children?
§ Mr. Blunkett
Yes. Earlier, I said that we must be able to judge the sentencing provisions that are available to the judiciary in the light of the variation in offences. As the hon. Gentleman knows, we have done that with respect to variation in age of the offender. The Bill now provides for that, as does the Criminal Justice Bill. My hon. Friend Baroness Scotland will raise the matter in the House of Lords when it considers the Criminal Justice Bill. She is prepared to listen to the comments of hon. Members here and in another place about other forms of offence and the shadow Home Secretary's 181 request for a sliding scale for youngsters. However, I am satisfied that we can get tough enough with individuals to the extent of imposing life sentences for some actions.
§ Stephen Hesford (Wirral, West)
I understood the point of the hon. Member for Beaconsfield (Mr. Grieve) to be that grooming offences do not carry the same maximum penalty, even against children under 13. A person could therefore get a life sentence for committing an offence against a child under 13, but not for grooming such a child. That is an important matter.
§ Mr. Blunkett
A person cannot get a life sentence for grooming but the actions that arise out of grooming can mean such a sentence. We are criminalising grooming; we are making it an offence with a penalty of five years. For the first time, other actions against children under 13 that arise out of grooming mean a life sentence and 14 years when committed against those who are older than 13. We are trying to make sense of things so that, for the first time, there is an offence that leads to another offence, should that tragically happen.
§ Sir Paul Beresford (Mole Valley)
Does the Home Secretary acknowledge now—it was acknowledged in the previous Session—that the Bill is proactive not reactive? The hon. Member for Wirral, West (Stephen Hesford) was therefore right. We should strike hard proactively rather than reactively to save a child.
§ Mr. Blunkett
First, I thank the hon. Member for Mole Valley (Sir Paul Beresford) for the enormous amount of work that he has undertaken as a member of the taskforce and beyond that. We must send the right signals, but hon. Members often draw attention, sometimes when criticising my actions, to the need for penalties to be incremental and to deal with the offence. Our criminal justice system must deal with the offence that has been committed. I should be happy to listen to further thoughts from the hon. Gentleman on the way to get the matter right and on whether I misinterpreted him.
Before I deal in detail with the substance of part 1, I want to lighten the mood by showing the reasons for the reluctance of Governments of all persuasions to deal with such issues and the difficulty of tackling them in practice. I draw on the debate in the House of Lords for examples.
§ Mr. Blunkett
I need to lighten my mood because going through some of the cases is harrowing.
Some of the comments that were made could have come from "Round the Horne" and "Beyond Our Ken". Let us take Lady Saltoun—or Opposition Members can take her. Between her more offensive comments, she came out with some gems. Her statements are almost priceless. She suggested that oral penetration could he considered less serious on the ground that it could be prevented because:Clenched teeth can provide quite a good defence. Indeed, not only can they provide a good line of defence, they can be an aggressive form of defence because teeth can also bite."—[Official Report, House of Lords, 31 March 2003; Vol. 646, c. 1054.]182 How could one disagree with such a gem? Lady Noakes also came out with a real classic when she described as a "probing amendment" a proposal toleave out 'genitals' and insert 'penis'."—[Official Report, House of Lords, 19 May 2003; Vol. 648, c. 555.]The good news is that she withdrew it. I hope that the Committee will restrain itself when it reaches these parts of the Bill, but these examples demonstrate the pitfalls that we can all encounter. These are deeply difficult areas, and it is a tribute to the way in which the Bill has been handled that we have got this far. I hope that the Committee will be able to continue that process.
§ Mr. David Cameron (Witney)
On the lighter points of the Bill, the Home Secretary might not have read all the evidence given to the Home Affairs Committee, on which I serve. One of the highlights was when the head of the naturists pointed out that all naturists had to carry a naturist passport, which led many members of the Committee to wonder where they would keep it.
§ Mr. Blunkett
If the hon. Gentleman will forgive me, I shall move quickly on from contemplating that thought—sufficient unto the day.
§ Mr. Blunkett
The hon. Member for Woking (Mr. Matins) makes me smile by asking that question. Perhaps the biometric data could be placed on the person.
Clauses 1, 3, 4 and 5 provide for clarity and greater strength in dealing with the law on consent. The definition of consent has been a difficult and problematic issue. In the House of Lords, we managed, through agreement and compromise, to ensure that consent had to be freely given, and that the test of reasonableness was accepted in terms of the genuine belief that consent existed. I am glad that we reached such a compromise because it was important that we were able to move forward in that way. In the Lords, we discussed the question of a list of offences involving a presumption, and we shall return to that in Committee. This involves circumstances in which the lack of consent is self-evident, including those in which someone was asleep or had been drugged or rendered unconscious. Clearly, it would be self-evident that they could not have given their consent in such circumstances. We will be happy to hear from Members on both sides of the House regarding how we can build on the progress that has been made and move forward in those areas. Honest and reasonable belief in relation to consent seems to be a sensible agreed solution.
Clause 2 deals with the difficult issue of anonymity, and a new clause relating to the definition of this was narrowly carried in the House of Lords. As drafted, It applies only post-charge, but as we all know, the difficult with anonymity often arises when there is speculation about what has happened and about the nature of an individual's activities, long before charges are brought. I have said before that we are not convinced that we can separate anonymity in such circumstances from anonymity in relation to other very serious offences, but we remain willing to listen to the 183 views put forward in Committee. It is our intention at the moment to ask the Committee to reverse that amendment.
§ Dr. Howard Stoate (Dartford)
I am grateful to my right hon. Friend for giving way on this rather difficult issue, and I hope that the Committee will have time to consider it in more detail. Clearly there is a problem when, for example, a professional person such as a doctor has been accused of inappropriate behaviour and the matter goes to court. Once that person has been charged, his name will be besmirched by all sorts of newspapers—scurrilous and otherwise—which will do irreparable damage to his reputation, even if he is subsequently found innocent. Will my right hon. Friend consider those difficult situations in which a professional person who is accused of something that he is subsequently found not to have done, nevertheless has significant damage done to his reputation by the reporting of the case in the newspapers?
§ Mr. Blunkett
This is precisely the area in which we have to be very cautious. We are talking to the Association of Chief Police Officers and to the newspaper industry about strengthening the existing guidelines to protect individuals. We would need anonymity not only all the way through the criminal process but all the way through the professional process. In the instance that my hon. Friend has given, that would obviously involve hearings before the General Medical Council, because there would be professional concerns involved, and a judgment would have to made in relation to the knowledge of patients in those circumstances.
§ Mr. Grieve
I recognise that this is an area of considerable difficulty for the Home Secretary. I note that he highlighted the differences between anonymity pre-charge and during the trial process. I also noted his view that there might be an argument for tightening up the rules on pre-charge publicity and anonymity. One problem is that, all too often, there is evidence that the police collude with the media to reveal information on those who are under investigation, when there is no justification whatever for them to do so.
§ Mr. Blunkett
I am not going to enter into the vigorous debate that took place in the Select Committee on Culture, Media and Sport a couple of months ago. Historically, however, people have believed that information has rapidly been passed to newspapers by those who should know better. There is no point in trying to duck that issue. In consultation with the Association of Chief Police Officers, representatives of the newspaper industry and others, we need to examine how we can get some sense in this context, because it is ail affront to the rights of an individual if they are named and their reputation is sullied in circumstances in which there is no evidence against them.
§ Vera Baird (Redcar)
Is not the anonymity issue one for the criminal justice system as a whole, across many offences? I doubt that it would be worse for someone to be named in connection with an allegation of a sexual offence than with an allegation that they had robbed an old lady of 80 and seriously injured her, or an allegation 184 that they were a murderer. I doubt that there is any gravity that requires special protection in relation to sexual offences.
Before my right hon. Friend rises to respond, may I make one more point? Clause 2, as drafted, states:The defendant in rape etc. cases shall enjoy the same right to anonymity as is enjoyed by the complainant.As I recall, the right to anonymity of a complainant is lifelong. This provision would therefore mean that a defendant would be entitled to anonymity even after conviction.
§ Mr. Blunkett
My hon. and learned Friend has drawn attention to the flawed drafting of the clause, which needs to be considered very carefully. I agree with her first point, which is that a whole range of offences that do not have anonymity attached to them cause grave concern to individuals, not just those with public standing or a professional reputation, but people in general who find themselves in such circumstances. That is why there is a need for a great deal more care to be taken when reporting takes place in this context, as well as a need to address this specific issue.
Clauses 6, 7, 8 and 9 deal with the age below which there should be no question of a child being presumed to have consented to sex. This measure is long overdue, and I am glad that we have been able to reach agreement on it. It will ensure that those aged 12 and under cannot give and should not ever be presumed to give consent. I am pleased that we have been able to make common sense out of this.
Clauses 10 to 16 cover both direct physical activity and the kind of action that was highlighted last year that leads youngsters to be brought into a situation in which, although they are not being physically abused, they are being encouraged to take off their clothes and engage in other activities that are totally unacceptable. We obviously have to ensure that youngsters are protected from such activities, and I am glad that we have reached agreement there. As mentioned a few moments ago, differential penalties also apply in these clauses in respect of different ages.
§ Vera Baird
Am I right in understanding that, for an offence under clause 10, which outlaws sexual activity with someone under 16, no defence of consent applies? If, however, someone under 16 is raped under clause 1, does the defence of consent still apply? I assume that it does, so I do not follow the line of logic that separates the two.
§ Mr. Blunkett
I will happily come back to my hon. and learned Friend if I inadvertently misled her or the House, but it is not our intention that that should be the case, and if the drafting is inadequate, we will certainly put it right in Committee.
Clause 17 was referred to earlier, together with clauses 121 and 127, in the context of grooming. Clauses 18 to 26 are about the re-enactment and extension of the law covering 16 and 17-year-olds. In other words, 16 and 17-year-olds are brought under the provisions on trust, where professionals hold positions of trust in a range of circumstances and we need to ensure that young people 185 are protected. Children's guardians and those responsible for discharging care or supervision orders would fall under those provisions.
Clauses 27 to 31 deal with abuse within the family, replacing the current law on incest with children. Again, the issue is about dealing with those who have and gain the trust of young people, and relevant provisions are extended to 16 and 17-year-olds.
Clauses 32 to 46 deal with the difficult area of offences against adults with learning disabilities or with mental health disorders. That is an area of substantial abuse and it again includes people in a position of authority. It is estimated that those with learning disabilities are three times as likely to have been abused than other members of the population. We face grave difficulties in securing credible evidence from the individuals affected. Many people within and outside the House are deeply concerned, and we are very happy to be able to move forward on that front.
§ Mr. Grieve
I agree with everything that the Home Secretary has just said. It was brought to my attention and probably to his, and it may need to be dealt with carefully in Committee—by care workers who deal with learning disabilities, that certain areas of sex education pose peculiar problems for them. They are afraid of being exposed to prosecution on account of the way in which they deliver such education. I hope that the Home Secretary will be open-minded about that when we come to deal with this extremely difficult area in Committee.
§ Mr. Blunkett
Yes. In fact, clauses 47 and 48 deal with some of the difficulties faced by law enforcement agencies in replicating photographs. That fits into a similar category, where we do not wish to prevent professionals from doing their job of providing advice, support and help. The police obviously need to use certain material in order to obtain a conviction. On either front, I am happy for us to debate how best to ensure that people can get on with their jobs free from the fear of unwarranted prosecution—or even allegations, which would probably be more relevant, because the Crown Prosecution Service, as we mentioned at the start of the debate, is likely to use common sense in these matters.
§ Dr. Evan Harris (Oxford, West and Abingdon)
I would like to probe the Home Secretary further on the question of the marriage exemption, particularly in respect of the abuse of trust. An exemption for marriage exists for relationships between people who are 16 and 17 and older people. Being married obviously provides a defence. However, does that not create a difficulty in being discriminatory, since marriage is available as a defence only in heterosexual relationships? Parental consent is required in that case, so is there not an argument for exploring whether obtaining parental consent for relationships in those narrowly defined areas could be a way of ensuring that homosexual relationships of the same depth and strength as married heterosexual relationships are available to provide the 186 same protection? I realise that it is a difficult area, but would be grateful if the Home Secretary would at least allow that issue to be explored.
§ Mr. Blunkett
It is probably the first time in six years of being in the Government that I have said it, but I do wish the hon. Gentleman had given me notice of that question. The sensible thing would be for me to write to him. I would also be happy for the hon. Gentleman to meet the Under-Secretary of State for the Home Department, my hon. Friend the Member for Wythenshawe and Sale, East (Mr. Goggins) to discuss the matter. I have not dealt with it so far in my discussions on the Bill over recent months, but I shall certainly take what the hon. Gentleman said seriously.
Clauses 49 to 61 deal with commercial exploitation for sexual purposes. The provisions are long overdue and in common with subsequent clauses complement our work on the Nationality, Immigration and Asylum Act 2002, which dealt with trafficking across the world. The clauses deal with the difficult issues surrounding prostitution. I spoke, together with the Under-Secretary of State for the Home Department, my hon. Friend the Member for Don Valley (Caroline Flint), who has responsibility for drugs and organised crime, at a recent conference in Leeds, at which parents of children who had been inveigled into prostitution appealed to us to move rapidly and extensively to prevent that massive exploitation. The difficulties of prosecution have been made worse by the need to protect children and the fact that the provision will now include 16 and 17-year-olds. It was rightly pointed out that some youngsters drawn into this activity at 14 and 15 had somehow been left to their own devices at 16 and 17, which is a travesty. We should extend the law, whether on pornography or prostitution, to make it easier to take decisive action to protect people against exploitation for commercial gain.
§ Mr. Hilton Dawson (Lancaster and Wyre)
I am grateful to my right hon. Friend and I commend him for introducing this important legislation. Can he confirm that we have now reached the moment when it is possible to say that children who have been involved in prostitution or pornography are removed from any criminal liability whatever?
§ Mr. Blunkett
Children are, and the intent behind the clauses is to get round the difficulty that in the past A had to be proved that the person exploiting the child did so for material gain. That was much more difficult to prove than the suspicion itself. We are now removing that difficulty and we are also for the first time criminalising the payer for sex with a child. Amazingly, that was not in itself a criminal offence. As I made clear earlier, the penalty where children under 13 are concerned will be life, and it will be 14 years for similar offences with older children. That sends out a clear signal.
§ Mr. George Osborne (Tatton)
The clauses on trafficking are welcome, but they are the only clauses in the Bill where no distinction is made in recognition of the fact that the victim could be a child. UNICEF raised the issue with me and, no doubt, other hon. Members. What is the Home Secretary's logic for failing to make 187 a distinction for where the victim is a child? Surely the seriousness of cases involving children should be reflected in the Bill.
§ Mr. Blunkett
As I argued earlier, it is possible for someone to be charged with more than one offence. The penalties levied would be commensurate with the combined offence. I am sure that my hon. Friends would be happy to consider in Committee whether, when trafficking offences that apply to adults as well as children are combined with offences involving children—to which certain penalties would apply independently—the penalties are sufficient to reflect the heinousness of the offence of trafficking in young people. In other words, if we determine that combining the offences is not enough. we need to decide whether the aggravation of the offence should carry additional penalties. My ministerial colleagues will take a look at that matter in Standing Committee.
In fact, the Standing Committee process will ensure that an improved Bill comes back to the House. The Government will listen and respond, as we do not pretend to have the handle on everything or to be the fount of all wisdom. We do on some occasions, but not on this matter. For the information of the House, and of Hansard, that last remark was an example of irony.
Clauses 62 to 64 deal with drug rape. I think that the House agrees on this matter. The Bill raises the penalty to 10 years. It is an outrage that people should be abused in that way.
Clauses 65 and 66 are about adult incest, which is another very difficult area.
Clauses 67 to 72 are about sex in public. Now, I want to make it clear that the coverage that has been given to this issue would be impossible to make up. The then Parliamentary Under-Secretary, now the Minister of State, Department for International Development, my hon. Friend the hon. Member for Leeds, Central (Hilary Benn), gave a perfectly reasonable explanation at a press briefing of what was intended. An interesting debate was initiated, which led people to believe that the Bill would reduce rather than strengthen the law in relation to matters such as sex in toilets.
I want to make it absolutely clear that sex in toilets is illegal. It will remain so. The offence will be enforceable under existing public order legislation, but there will be additional protection as well. Given the confusion, I do not intend to remove the amendment passed in the House of Lords. Instead, I shall seek to ensure that it is operable and that it makes sense. I invite Conservative and Liberal Democrat Members to ensure that we get the matter right, as no one wants any form of sex to be taking place around them in a toilet, whether in or out of a cubicle. That goes for petting as much as for more unacceptable forms of behaviour. I doubt whether any hon. Member would disagree with that.
§ Mr. Grieve
What the Home Secretary has just said is extremely welcome. There are a number of ways in which to tackle the problem. The right hon. Gentleman has plainly taken on board the concerns expressed in another place and I am sure that we can arrive at a satisfactory formula on which we can all agree.
§ Mr. Blunkett
I am grateful to the hon. Gentleman. That indicates that common sense will be applied in common cause.
§ Simon Hughes
I have spoken to the hon. Member for Beaconsfield (Mr. Grieve) about this matter. Like Conservative Members, the Liberal Democrats are very keen to sort this matter out once and for all. The wording of clause 67 is not right yet, so will the Home Secretary look at the proposal from the Home Affairs Committee that the public order legislation should be amended and clarified? I am very tempted by the idea of making the activity a public order offence. I share the Home Secretary's objective absolutely, but there may be a way to achieve it by means of the Criminal Justice Bill rather than this Bill.
§ Mr. Blunkett
The point about the interplay between the Criminal Justice Bill and this Bill is important. I have spoken in strong terms about the potential for incorporating the common law in statute law. I am very happy to continue to explore that. My hon. Friend the Parliamentary Under-Secretary has spent more hours than he cares to reveal looking for a way forward on this matter to which hon. Members of all parties can agree. We all want a lasting rather than a temporary solution.
The Bill contains a number of clauses dealing with bestiality. I do not intend to go into them this afternoon. The House of Lords did so at considerable depth, so I shall spare hon. Members details of the activities involved.
Before concluding, I want to say that the spirit in which the proposals have been received shows that every hon. Member wants there to be lasting legislation in this area. Over the past century, securing change in respect of some matters has taken a long time. We want the legislation to last, but we also know that the law is not sufficient. Changing the law is important, as are the penalties set down and the signals given out, but we must also change the way people live their lives. We are dealing with matters such as how young people are brought up, how they are educated in schools, and how they come to understand what is acceptable and what is not.
It is also a matter of trying to spot mental health problems at an early age. Some of the activities covered by the Bill can only be carried out by people who are severely mentally ill. They need help at an early stage in their lives, and I hope that we will be able to set the law and carry out those other functions.
§ Dr. Evan Harris
During debates on the Bill that became the Sexual Offences (Amendment) Act 2000, I raised the question of offences that had been decriminalised but in respect of which people were still subject to sex offenders registration and orders. My proposal was rejected at the time by Ministers, but Lord Falconer said in the House of Lords that he was confident that the Government might be able to table an amendment during the Commons stages of this Bill to ensure that work could be done to identify people subject to the sex offenders regime in respect of acts that 189 had effectively been decriminalised by the 2000 Act. Those acts included gross indecency offences and age-of-consent offences. Will the Home Secretary give the House an update on his thinking on whether such an amendment will be forthcoming as this Bill goes through the House?
§ Mr. Blunkett
We are minded to introduce such an amendment, as long as we can find a way around the difficulties associated with consensual sex in terms of the position in which people find themselves historically. That is the really difficult challenge, as the hon. Gentleman will know from his work on this matter. We have to trawl back and ensure that an act was consensual. We have given an undertaking to those who have approached us that we will try and find a way forward on this matter. The change in the law means that it would be quite wrong for people to be registered as guilty for an act that is no longer a crime.
The cross-party and no-party task force to which I referred earlier has been very helpful. We intend to set up a new, cross-Government ministerial committee to monitor the implementation of the legislation and associated measures. It will also look at prevention, early intervention and support, so that we can get the matter right across the piece. That would apply to issues to do with rape, for instance. We intend to set up a rape helpline as quickly as possible, as we promised in an earlier debate.
Given the discussion this afternoon, and the content of the Bill, I hope that we can all go forward—
§ Mr. Blunkett
My goodness! I will give way, but only because my hon. Friend has a privileged position on the all-party committee.
§ Mr. Dawson
I am most grateful to my right hon. Friend, and I welcome the new ministerial group on sexual offending. Will he confirm that it will look at the treatment of sex offenders? Well-developed models now exist for addressing the dangerous and abusive offending behaviour of adults. If we provide the means for people to be treated, we can protect children.
§ Mr. Blunkett
Yes, it is precisely because we need to take non-legislative measures for prevention and early intervention that the group will be looking at the matters that my hon. Friend has set out. I am sure that hon. Members of all parties will join me in appealing to the press to understand that it is better, and safer for the public, to treat someone than to leave that person untreated and unsupported on a register. Such a person is in danger of committing sexual offences again. Treatment has to be the right approach, although it is always difficult to find locations that will not offend local residents, or make them feel threatened. We all understand that because we are all constituency MPs, which is a great strength of this House.
Before anyone else intervenes, I commend the Bill to the House.
§ Mr. Dominic Grieve (Beaconsfield)
I welcome the way in which the Home Secretary opened the debate and presented this matter to the House. I disagreed with his position only when he provided his own analysis of the pitfalls that may have beset those in another place, including my hon. Friends and the Baroness Noakes, in particular, when they presented the various matters to the Lords. There may be a tendency to squeamishness in this place. No one is more capable of robust humour than my noble Friend. In those circumstances, to think of her comments as an unintended pitfall may do her less than justice. As I found in my days as a law student, one need only go to the law reports to the case of R. v. Collins, which fell open at the page describing what constituted an effective and substantial entry for the purposes of committing burglary with intent to rape because of the number of times that it had been read, and which caused general hilarity because the facts of the case were so bizarre. On what is a sombre matter, the Home Secretary should forgive my noble Friend for introducing a note of hilarity to the proceedings, which we sometimes badly need.
One of the key features of the Bill is the extent to which it has been improved in the other place. When it was first published, the key definitions in clauses 1, 76 and 77 of what constitutes rape and how it should be proved gave me serious cause for concern. I feared that there would be a substantial issue of principle between both sides of the House and perhaps between individuals as the Bill proceeded. I feared that changing the presumptions and changing the test for consent from an objective to a subjective test would cause us real problems. I am happy to be able to say that those problems have evaporated. The way the Lords approached the matter and applied their expertise to a particularly difficult problem, as well as the fact that we have maintained the presumptions but made them evidential and not probative, have made a substantial difference to preserving proper civil rights and fairness in trials while bringing about changes that were long overdue.
I have never understood the subjective test in rape. Indeed, I suspect that few jurors understood it either. I do not know whether the changes will make a significant difference, but I am content that they will provide art objective test of whether consent has been provided.
§ Mr. Cameron
Does my hon. Friend have any concerns about the fact that while the other place has done a great tidying-up job, in particular with clauses 75 and 76 on consent, those provisions are still complex and will still require the judge to lead the jury through complicated legal hoops when what really should be at issue is putting the facts before the open court?
§ Mr. Grieve
My hon. Friend makes an important point. A number of judges have told me that they remain concerned about how they will sum up a case properly to the jury on the new tests. The old tests had the merit of considerable simplicity. That said, that task is not necessarily impossible. My field of practice, which was far removed from this area of the law, although I did deal with it, was health and safety at work, where there are precise reversals of the burden of proof in certain areas. I have not normally seen it as a great difficulty for 191 the judge to explain that to members of the jury in a way that is fair to the defendant and enables the jury to understand. I certainly undertake that we will not allow this key matter to pass through the Committee without further consideration.
§ Vera Baird
The hon. Gentleman referred to clause 76, which seems to have been simplified considerably in the other place. My right hon. Friend the Home Secretary referred to the reverse presumptions coming into play if a person had been drugged. The only situation that is almost akin to that in clause 76 is that those presumptions come into play when a complainant is asleep or otherwise unconscious at the time of the sex act. Some rape drugs do not make a person unconscious; they paralyse or stupefy them. Given that the offence of administering such a rape drug is included in the Bill in clause 62, does the hon. Gentleman think that it would be a good idea to say that the presumptions in clause 76 should apply where such a drug has been administered?
§ Mr. Grieve
The hon. and learned Lady makes an important point. The short answer is that that is precisely the sort of matter we must consider in some detail in Committee. It would be foolish of me to attempt to go into such detail in a Second Reading debate. I accept that there are areas in which the legislation could be improved. We should not say that we are satisfied until the Bill has cleared all its stages in this House. I will be happy to look into that aspect of it.
I do not wish to survey the Bill in its entirety as the Home Secretary did—it is not necessary and would take up too much time—but I shall highlight one or two areas that still need some attention. The right hon. Gentleman mentioned naturists and their concerns about the exposure offences and the offence of voyeurism in clause 69. Although the other place seems to have dealt satisfactorily with exposure, naturists' concerns about what might constitute voyeurism, which might interfere with their legitimate activities, bears some consideration owing to the odd use of the word "structure" in that clause. If naturists decide to go into a garden behind a high wall where they are invisible from any surrounding buildings or any person and someone puts a ladder against the wall and climbs it to photograph them, are the naturists protected by the definition of "structure"? That may be an area in which we can improve the legislation. It seems to me that the term "structure" might protect them only if it refers to a building.
The Home Secretary mentioned sex in public lavatories and I do not need to say any more about that in view of his helpful comments. However, on the principle behind this, which I think he accepts, the concern expressed in the other place was not homophobic. From experience at the Bar, I know of a number of cases involving heterosexual activities in public lavatories that are as antisocial and unpleasant in every way as any other form of activity. I put that on the record because concern has been expressed that the provision was an expression of a return to homophobic fears; it is not.
The Home Secretary rightly highlighted recent worrying events in relation to sexual grooming. I join him in expressing sympathy to Shevaun's family and I hope that she may soon be reunited with them. The Home Secretary may have slightly misunderstood the 192 point that I was trying to make. I apologise, as I may not have been as clear as I should have been. I think that a seven-year sentence is provided for in the Bill, not five as the Home Secretary said. Whether it is seven years or five, the point at issue is that, in a sexual grooming case, the person arrested may not have had the opportunity to commit any of the other offences set out in the measure. In those circumstances, if the intervention was rapid enough, people would breath a sigh of relief.
If there is no more to the matter than that, I accept that the seven-year sentence might be appropriate, but if someone is arrested and the evidence of intent for sexual grooming is overwhelming—for example, if he is found in possession of material that is clearly linked to committing a serious sexual offence and he has a past record of having committed such offences—is there sufficient upward flexibility to allow the judge to protect the public from further offences? That is the point that I was trying to make.
§ Mr. Blunkett
First, the hon. Gentleman is correct to note that the sentence is seven years. I am grateful to him for drawing attention to my mistake.
The hon. Gentleman's second point is valid. I had slightly misinterpreted his remarks. If there is a definable further act that would warrant a much more substantial sentence, the Crown Prosecution Service should bring that charge. I take his point, however: we may need a cumulative way of reflecting the severity of what has been done, in the light of previous convictions for similar offences. I think that is the point that he was making and I have a great deal of sympathy with it.
§ Mr. Grieve
I am most grateful to the Home Secretary. That, too, is a matter that we can look at constructively in Committee to see whether we can provide some improvements.
§ Sir Paul Beresford
My hon. Friend might reflect on the recent case of an individual who had no record but arrived at a meeting expecting to buy a 10-year-old girl for sex; he was armed with wire cutters, tape, condoms and all the works. Fortunately, he met a six-foot-something burly Metropolitan policeman, but the crime that he intended to commit could have been taken into account in the sentence.
§ Mr. Grieve
My hon. Friend makes a good point, which we shall have to consider carefully. At the same time, it is also right that we should not sentence to huge terms of imprisonment people with no track record of having committed an offence, even though some evidence of preparatory intent has been found. The dividing line is difficult to draw. Public protection is important, and I am sure that in Committee, with the help of my hon. Friend, we can make some progress on such issues.
The proposed risk of sexual harm orders are a cause of concern not only to me but to some outside organisations. Although I entirely accept the principle, one must also bear in mind that they could be imposed on people who had never been convicted of any offence whatever, even though that might be unlikely to occur in practice. In those circumstances, the prescribed five-year period seems somewhat draconian. There may be 193 greater scope for flexibility in the other direction while still allowing for a maximum period. We hope to be able to look into that matter, especially as there is also a provision for interim orders, which can be obtained quickly.
The Home Secretary has an unenviable task: balancing the need to protect the public with the need to protect the liberties of the individual. I certainly do not criticise him for the way in which the Bill has been put together in respect of those matters. I hope, however, that we can provide further scrutiny of that aspect.
The Home Secretary rightly said that the issue of anonymity goes much further than sexual offences. People's lives can be ruined through having their identity revealed at the time of an investigation, while they can be equally damaged by the trial process. I have noted that commentators have said that there is no equivalence between the alleged victim, who is giving evidence, and the person on trial, but I take a slightly different view.
In this country, the general principle has been that allegations are made openly and that, as a general rule, people stand by them in the sense that they are willing to accept the publicity attendant on making them. Equally, those against whom the allegations are made must suffer the consequences of the trial process, however unpleasant that may be and however difficult if they are subsequently acquitted. We have rightly provided anonymity for victims; if we had not done so, we should be doing a grave disservice to the interests of justice in such cases. The exception that we made for such victims was correct. However, there is another side of the anonymity coin, which relates to the accused, both in the period before a charge is made and thereafter.
The Home Secretary made some interesting comments this afternoon. He seemed to indicate that the Government might be minded to look more generally at the issue pre-charge, across the whole spectrum of offences. That might be one approach, but we should not simply allow an issue that was considered soberly and at great length in the other place to disappear. There is overwhelming evidence that individuals tried for alleged sexual offences frequently suffer disproportionate publicity and, if acquitted, there are serious consequences when they try to rebuild their lives.
For a period of 12 years, we provided for the anonymity of such people. When I was first called to the Bar, that principle still operated and I cannot remember anyone saying that the administration of justice was seriously inconvenienced or handicapped as a result. Mindful as I am of the comments that have been made—that there may be circumstances in which the lack of publicity means that other victims may not come forward—there is an established track record to show that the principle has operated, or appears to have operated, reasonably well in the past. There might be circumstances in which an exception could be made, such as a submission by the prosecutor that the offences were serial and thus that further publicity was required.
§ Vera Baird
I am glad that the hon. Gentleman has noted that if there were to be any such provision, there would have to be exceptions. I was reading an article in 194 a 1986 copy of The Times recently, when there was anonymity for rape defendants. One of the problems in a number of cases then was that if such a defendant absconded before he came to trial, no publicity could be used to try to apprehend him.
§ Mr. Grieve
I am grateful to the hon. and learned Lady for that contribution. I hope that she understands that I accepted that there was an issue, although not one that is necessarily insurmountable. A measure of protection might still be provided.
In relation to the provisions on under-18-year-olds, the Home Secretary pointed out, in some of the final comments in his speech, that some of the problems were related to mental health. The Home Secretary has read the briefing available to other Members and to those who take an interest in the subject. The evidence is pretty overwhelming; in many cases, paedophile behaviour starts in adolescence, in those under the age of 18. If it could be tackled at that age, it could be dealt with successfully, whereas the evidence shows that although it is possible to achieve cures in adulthood, through treatment and rehabilitation, it is much harder.
I am sympathetic to the principle that has led the Home Secretary to place a lot of emphasis on under-age sexual behaviour, including that which may take place between two people who are both under age or very close in age; but the consequences are bizarre in places.
Although the Home Secretary is right to highlight the fact that substantial change to the principle of the law has not been proposed, things appear in a pretty stark light when we end up with five-year penalties for those who go behind the bicycle sheds to engage in some French kissing—that is what it really boils down to even with two 15-year-olds. That is a very odd state of affairs.
Speaking as a Conservative, I have an inherent anxiety about administrative discretion. I accept that administrative discretion may be the only remedy in cases where the CPS will not charge. Nevertheless, when such matters are put on to the statute book in such stark terms, I always fear that, at some point, something will not work properly and that we will end up with prosecutions that cause serious problems. I admit to the Secretary of State that I am not sure that I know the answers, and I suspect that, if he had known the answers, he would have already put them on the statute book.
It is an odd state of affairs—the hon. and learned Member for Redcar (Vera Baird) also highlighted the oddity of the situation in an earlier intervention that it is possible for someone under the age of 16 to consent to rape, thereby reducing it to the alternative offence, which is a sexual act to which no consent can be given. I think that that is how I read the Bill. So if one has sexual intercourse with a 14-year-old, it may be possible to escape the full penalty of the law, but there is no possibility of that 14-year-old consenting to much lesser behaviour, even though she may consent to the more serious one. That is a curious state of affairs, and all I can say to the Home Secretary is that I shall do my best, as will my hon. Friends, to try to improve on matters, but I am by no means certain that we will be able to do so.
§ Mr. Blunkett
I make this generous offer: I will buy a flagon of champagne for anyone who comes up with a satisfactory answer. [HON. MEMBERS: "A flagon?"] Not a flagon—
§ Mr. Blunkett
Well, those who come from the north of England need civilising, don't they? We will settle for a magnum of champagne. The hon. Gentleman is entirely right: it is an ass, but we have to deal with the ass by providing a carrot, rather than a stick.
§ Mr. Grieve
I am grateful to the Home Secretary for the offer. I think that a flagon would have suited me very well, but I fear that I may not obtain it. However, he has certainly fired me into finding out whether I can provide any improvement.
I wish to deal with the abuse of positions of trust, about which I have to tell the Home Secretary that there is something rather strange. A schoolmaster who has fallen in love with a 17-year-old pupil is constrained from having sexual relations with her. I have no problem with that whatsoever. People who are in positions of trust must not abuse the trust, otherwise the whole system collapses. Parents are entitled to know that their children will not be abused at school. However, I find it strange that the word "regularly" has been introduced, not so much in relation to the abuse, I hasten to tell the Home Secretary, but in relation to the person's status in an educational establishment.
I find it rather difficult to understand why, if a supply teacher is at a school for only a week, the responsibilities and duties that fall upon him should be any different from those for someone who is there permanently; nor do I understand the downside problem, although it might be necessary to tinker slightly with other words in the relevant clause to ensure that, when that person ceases to teach, the constraints placed on him having a sexual relationship with the 17-year-old are rapidly removed. That is something that we can achieve, and I am not very happy with the way things stand at present.
I mentioned to the Home Secretary the question of those with learning disabilities, and I do not want to go into that further now. We will consider those issues later.
Finally, I wish to refer to a completely separate matter, which does not appear in the Bill, but to which the Government are giving some thought. There is a great deal of evidence that, as well as photographs being taken of children, paedophile pornography consists of other images that may not be of victims, but which are nevertheless very pernicious in their dissemination. The Bill makes no mention of those images, but I understand from correspondence that I have seen that the Home Secretary is alive to that issue and has indicated that he would be minded to consider that matter, while the Bill is considered in the Commons.
§ Sir Paul Beresford
Will my hon. Friend also consider including in that list the written word because paedophile pornography in the form of the written word is also circulated among those of that inclination?
§ Mr. Grieve
My hon. Friend raises another very big issue—which, in turn, raises some very big issues in 196 relation to censorship. What is unusual about paedophile pornography is the clear linkage that appears to have been established between the consumption of the pornography and individuals subsequently committing offences. The stirring of the imagination by either works of literature—if that is the right title—or, for that matter, by images is such that it can lead, on a fairly identifiable path, to the commission of offences against children. That is the point, not the suppression of the ordinary exchange of information. That raises a difficult issue.
If the Government wish to consider the written word, we will certainly do so as well, but given that the Home Secretary seems to have given an undertaking to consider the visual image—I suspect from everything that I have seen that it appears to be one of the worst forms of such pornography, but my hon. Friend the Member for Mole Valley (Sir Paul Beresford) may know much more about such things—we will certainly be sympathetic to that and we will give it close scrutiny in Committee. However, I very much hope that we will have an opportunity to consider it in Committee, rather than at a later stage.
§ Mr. George Osborne
On the point about the written word, may I caution my hon. Friend that it is a quagmire? In previous generations, people have been dragged into debates about works of literature, such as "Lolita", or works that do not quite qualify as literature, such as those by the Marquis de Sade, and Parliament should not be drawn down that avenue again.
§ Mr. Grieve
I have great sympathy with my hon. Friend's remarks, and I hope that he noted from my reply to my hon. Friend the Member for Mole Valley that I saw the issue as a possible quagmire, which is why the Home Secretary was not preparing to venture into it. I would probably be happy if he were simply to venture into what is already a bit of a quagmire: the visual image, which already goes much further than taking photographs of under-age children. In fact, it involves images of children who do not exist and are simply the concoction of the imagination. If the Home Secretary thinks that that is a real issue because of the information and evidence that he has been given by experts in the field, the House will have to consider it, and we will provide such assistance as we can in doing so.
I am sure that other parts of the Bill will need to be considered carefully. I have never been involved with a Bill that has attracted more flyers from nongovernmental bodies and other organisations on a host of issues, some of which are very interesting, but probably rather peripheral to the matters under consideration, although they may be very worthy. I will certainly try to take up those that appear to be relevant during the consideration of the Bill.
The Home Secretary is to be commended greatly for taking on a difficult task that has certainly been ducked previously. I very much hope that, given the huge measure of agreement on both sides of the House, we can ensure that the Bill leaves the House in very good order.
§ Ms Sally Keeble (Northampton, North)
I am very grateful to have the chance to speak in the debate on this very important Bill, which deals with some very sensitive 197 issues that bridge the generation gap and involve changing attitudes to sex and personal relations, which is perhaps partly why the Bill also runs into some difficulties. The Bill includes some welcome and important safeguards for some of the most vulnerable people and updates legislation to deal with new criminal activities, particularly in relation to internet crime, which will surely become increasingly important in the coming years. Some formidable measures are needed to tackle that.
I also welcome very much the range of measures to provide further safeguards for children. Jason Swift, who was one of the unfortunate victims of a notorious paedophile ring some years ago, originally came from my constituency. His family have campaigned vigorously over the years for improvements to the protection of children and had some contact with the Home Office in the preparation of some of this legislation. I very much welcome, too, the changes to honest belief as a defence for rape and the need for this belief to be reasonable, for which my hon. and learned Friend the Member for Redcar (Vera Baird) has also campaigned strongly, both outside and inside Parliament.
My comments will be focused, however, on clauses 61 to 63 on trafficking, and on the clauses on child pornography and prostitution. Trafficking issues get less attention in the Bill, but from my experience as a constituency MP, and from looking at some of the international development issues, it is a problem that is considerably more extensive than we often assume. That also means that we must consider more protections for the victims of trafficking, particularly children, and perhaps some tighter legal safeguards to protect children from trafficking than are included in this legislation.
In my constituency, there has been a trafficking problem in relation to both women and children. At one of my first advice surgeries after I was elected, people came to complain to me about a couple of massage parlours—they put it more bluntly, and said that they were brothels. Among their complaints was that the Thai women working there had been brought over specifically for the purpose of working in the sex trade, and that they were being kept against their will, and so it turned out when the police finally took action and found that the brothels were at the centre of a big international network in trafficking women for the sex trade.
Since then, I have also had to deal with a number of children who have been brought into the country on a financial basis—whether it is people smuggling or trafficking depends partly on the definition, and is probably debatable. Some of the children have been exceptionally vulnerable, and I have had great fears about the level of protection provided for them and what has subsequently happened to them. One of them was almost certainly trafficked for domestic work, and that is one of the areas in which this legislation needs tightening up. Others have told me some information about how they came here—brought in by agents, with documents shown at passport control, being handed over to other agents and then brought up to Northampton. Because the children are with adults—albeit not their parents—they are not taken into social 198 service care, nor given what I would regard as adequate protection. What will happen to them I do not know, but I would have thought that at the very least they are vulnerable to being used or abused, or if circumstances change, of finding themselves in a worse position.
To give an idea of the numbers, over the past year I have dealt with about 10 children who fall into this category, from southern and east Africa. South Asia is also a major area of concern in relation to trafficking and child pornography. The legislation will certainly help with some of those areas of concern. When I was in Cambodia earlier this year, I had the opportunity to speak to people who were trying to combat the growth of trafficking in children for prostitution and pornography, especially for internet porn, and some of the information was horrific. Children were being sold—and, sometimes, rescued, returned to their parents and resold by them—for as little as $20 into paedophile rings that included men from Europe and the UK, with the children being used to produce internet porn.
To make matters worse, efforts to counter the trade were often undermined by official corruption. I want to pay tribute to the heroic work being undertaken in Cambodia by the non-governmental organisations and by our UK ambassador to strengthen the resolve of the Cambodian Government to deal with the problems, as well as to provide practical help and support for the victims. I am sure that this legislation will also be of great support and use to them in their work.
Researchers into the subject of child trafficking find it very hard to determine precise numbers. Staff at the high commission in Lagos have estimated that they have detected more than 200 cases of possible child trafficking, and there are estimates of up to 10,000 unaccompanied minors in the UK. Home Office research found that in 1998 up to 1,400 women were trafficked for sexual exploitation. Some recent research done by ECPAT—the organisation that campaigns to end child prostitution and trafficking—found that trafficking had moved outside the big cities and the south-east where the authorities are more aware of the problem. My experiences as a constituency MP would certainly support that, and I completely agree with their conclusions about the need for more active support for the victims throughout the country.
That brings me to my second point, which is about support services for the victims, to support the excellent provisions of this Bill, and to make sure that those are made a reality for some of these very vulnerable children. I am sure that some of my colleagues will want to talk about the need for the safe house in West Sussex. I also feel, however, that there is a real need for protection and support throughout the country. That means ensuring that there is a legal framework for the provision. Many of the children—and, I suspect, the women—who are trafficked do not have proper immigration status here. My experience has been that while existing legislation can be used to provide support, even for those without status, it is incredibly difficult to get local authorities to recognise the needs of these children and their responsibilities for providing for them. There is also the problem that the children are treated as asylum cases, rather than child protection cases, which makes a difference to the way they are treated. They are sometimes joined to the asylum 199 applications of adults, which means that they are not assessed in their own right and on the basis of their own needs.
§ Mr. Dawson
Does my hon. Friend agree that clear cases exist in which asylum legislation and the threat of removal under that legislation can empower the trafficker and give them a greater hold over the adult or child whom they have trafficked?
§ Ms Keeble
I completely agree with my hon. Friend, and I was going to deal with that point later in my remarks.
The system is perhaps not intended to work in that way, but it often does at the practical level. In preparing for the implementation of this legislation, will Ministers give some very careful consideration to the support for victims? I see that the Home Office, as is mentioned in the background documentation for today's debate, has a working party on unaccompanied children, and perhaps this matter, including trying to capture information and scope the size of the problem, can be dealt with by that group, as the problems of unaccompanied and trafficked children blur at the edges.
It would also be helpful if clear guidelines were sent to local authorities, so that they knew what to do. At present, the only realistic way to get access to the support that should be provided under the Children Act 1989 is to go to court. However, the victims are the least likely to do that, so in many cases nothing happens.
I also want to deal with areas in which the Bill's provisions, excellent though they are, could be improved. One is the provision of a statutory reflection period, which is the point mentioned by my hon. Friend the Member for Lancaster and Wyre (Mr. Dawson). It was also raised in the other place. If we are seriously to deal with trafficking, we need to be able to prosecute the traffickers. That is difficult, not least because of the vulnerability of the victims and their unwillingness immediately to give information. Indeed, there are sometimes difficulties in trying to get information from them, given differences of language and culture.
In the example of the Thai massage parlours in my constituency, Northamptonshire police did an outstanding job in difficult circumstances, as there were problems with getting evidence once the women had been dispersed, or in some cases deported. These rings are often enormously sophisticated, and the resources that we are able to pit against them are quite small in terms of numbers. Also, I cannot think of how it would be possible to get information from children who are trafficked without providing good time to build their confidence and to win their trust.
I see that a reflection period forms part of a Home Office pilot project, and verbal assurances have been given on deportations in cases of trafficking. That needs to be clearly set out in the legal framework or there could be inconsistency in practice. That could set back the efforts to deal with this pernicious problem.
The hon. Member for Tatton (Mr. Osborne) took up the point that there should be differentiation between the trafficking of adults and of children. I have seen the record from the other place, where the argument against that involved the penalty. To pick up the hon. 200 Gentleman's point and considering the other offences dealt with in the Bill, there are differences between offences committed against adults and those against children. There will be an inconsistency if the same distinctions are not drawn in relation to trafficking. I would argue that the age or youth of the person trafficked should be an aggravating factor, and it should influence how the offence is regarded and the offender treated. I hope that the assurances that my right hon. Friend the Home Secretary has already given will make it possible to deal with that issue. I urge the Government to draw differences between the trafficking of children and of adults.
Also, I see that trafficking is confined to that for sexual exploitation. I realise, of course, that the Bill relates to sexual offences, but it appears that some trafficking is for other purposes, in particular domestic work or, to be more honest, slavery. Some trafficking involves financial exploitation in the form of charges and benefits. Will my hon. Friend the Minister consider some of those other purposes and whether it might be possible to provide protection for people, especially children, who are the victims of such trafficking?
Whatever shape the Bill ends up in, it will be a huge improvement on the situation now. It will strengthen the arm of those who seek to end the trafficking and exploitation of some vulnerable people, and it represents a huge step forward in protecting some extremely vulnerable children from sexual crimes that have shocked us all over past decades. I welcome the Bill and commend it to the House.
§ Simon Hughes (Southwark, North and Bermondsey)
I am happy to follow the hon. Member for Northampton, North (Ms Keeble). I hope she will allow me to call her my hon. Friend, given our previous lives when she was leader of Southwark council. We always co-operated strongly, in spite of our party differences. She is right to draw the House's attention to the fact that we are dealing, for the first time in sexual offences legislation, not only with the domestic position and domestic law, but with the terrible abuse and exploitation that can happen internationally. Those can be dealt with quite effectively by domestic legislation, as long as there is collaboration across boundaries.
There is a blunt truth: people who 50 years ago would have made their money from armed robbery, 30 years ago would have made their money from pornography in its early days, and 10 or 20 years ago would have made their money from drugs, have decided that there is money to be made from exploiting people. They are completely ruthless and reckless in the harm that they can cause. It is important that we address that issue in this context, and the debate has given us a welcome opportunity to do so.
The Minister will have the task of steering this somewhat complex legislation through consideration in Committee. Mercifully, as my hon. Friend the Member for Romsey (Sandra Gidley) said to me, he will do so without some of the heat that, apparently, was generated in the House of Lords over many a long day and night.
I say to the Minister that we pay tribute to the fact that before the last election, when the present Foreign Secretary was the Home Secretary, the Labour 201 Government grasped a nettle that needed to be grasped by saying that the sexual offences laws of this country needed to be reformed. The laws had been effectively untouched by a full review since the 1950s and some pieces of legislation dated back to earlier than that. A thorough reform was needed, although it was always thought that that would be difficult and controversial.
§ Vera Baird
Should not the Government also be commended on their earlier step in 1999 to abolish the admissibility of previous sexual history to show consent during rape trials?
§ Simon Hughes
Yes. The Government faced up to the need to take the files off the shelf in the Home Office and established the "Setting the Boundaries" review in 1999. They appointed good people to the review body, and the report, which formed the basis of the Bill, was completed after substantial work. The wide-ranging report tried to suggest up-to-date law that would be much clearer than before and non-discriminatory. This country had never before recognised that much of the existing law had been based on prejudices and assumptions that dated back to Victorian ages when, for example, the monarch did not believe that women could have same-sex relationships, so such relationships were never referred to. It was decided that the law needed to be brought up to date, and we should all be grateful for that.
I pay tribute to Members of the House of Lords who laboured long and hard on the Bill, especially our colleagues Lord Thomas of Gresford and Baroness Walmsley. The Home Secretary said that the Bill was a long time in the making—it was certainly a long time in the Lords. After hearing and reading several of the debates, one discovered that people such as Lady Saltoun of Abernethy appeared to have an unusual interest in such legislation—far be it for me to comment on whether she also has unusual expertise. The Bill seemed to preoccupy Members of the House of Lords, but they grasped several difficult nettles and managed to tease out answers that have led to a greater consensus. There is much more consensus on the Bill now than there was when it started its passage. The Home Affairs Committee and the Joint Committee on Human Rights have added sensible recommendations.
The Bill deals with four types of protection in particular: the protection of children; the protection of vulnerable adults, especially those with mental disorders or learning difficulties; the protection of all individuals who might be the target of unwarranted sexual approaches; and the protection of the public. I hope that we all share the view of the public at large that those who abuse children, young people and the vulnerable are, in colloquial terms, sad and sick individuals whose violence and perversion is revolting to society. We must protect the vulnerable against such people's activities. They are often in need of help and treatment, but none the less their actions must be minimised and people must be protected against them at all costs.
It has not yet been said that sexual abuse happens most often in the broader family context. It is next most likely to happen among people who know each other. Sexual abuse is least frequent among people who have 202 never previously had contact. Unless we understand that fact, we fail to grasp the difficulty of dealing with the problem. Most such activity occurs between people who know each other all too well, not between people who have never met.
The Home Affairs Committee identified the controversial issues of how rape should be defined, what protection should be given to a defendant and how consent should be defined. There is a question of what we should do about the controversial issue of exposure, including activities that should be permitted and when people should be allowed to walk around without clothes on. Thankfully, we have got rid of the nonsense of convicting people of an offence because someone under 16 has seen them walking around at home with no clothes on. Mercifully, that has been sorted out.
Protecting children involves orders and registers, and we must ensure that offenders abroad are registered here. There is general agreement that the issue of the day—grooming for sexual purposes—should be an offence. That is welcome. There is, however, the caveat that we should not imply the commission of a further offence just because of a grooming prelude.
The final general issue is that of anonymity, which is the most difficult general problem that we still face. The hon. Member for Beaconsfield (Mr. Grieve) alluded to that.
I shall go into detail on only one aspect of the second tier of issues. We have to try to win the Home Secretary's magnum or flagon of champagne—I expected it to be bitter. It is nonsense that we criminalise young people between 13 and 16 for what may be minimal sexual activity that is not of a predatory nature—when it is effectively consensual—and is part of the natural process of an adolescent growing up. We all have to sort that out. There are enough crimes on the statute book and enough people criminalised without adding to it. Let us not be prudish and old fashioned. Throughout the history of the world, teenagers have explored themselves and each other, and that will continue. There is all the difference in the world between that and ensuring that activity with under-13s is unacceptable. That is what the Bill says, which is a good thing. There is no defence or excuse for interfering with under-13s. We should be clear that that is understood outside this place. That is why the event reported today, if it is true, of an adult running away with a child who is under 13 is serious and needs to be brought to a quick and satisfactory conclusion.
Liberal Democrats share the view that we are right to be clear about the need to deal with abuses of positions of trust. That has never been clear before. It does not matter who abuses that trust—whether it is the sports coach and a person in the team, the teacher and a person in the class, the priest and a person in the church, or the voluntary sector leader and a person in the group. That abuse is wrong and the relationship must not be taken beyond what is acceptable. We welcome the fact that the Bill picks up on that and tries to extend the principle to the abuse of people through prostitution and pornography.
I pay tribute to those who do the unglamorous work of tracking down people who commit such offences. In my previous life, I was involved in prosecutions on behalf of the police of people involved in those offences.
203 It is a gruesome, unpleasant and sordid business. Police officers will often only do it for a couple of years before going on to other work because they cannot stand the grotesque horror of it. However, it is important that it is done. The charities and the voluntary sector that help with it are extremely valuable.
On another point, I have a friend who has an adult daughter with learning difficulties. The mere fact of a child having learning difficulties does not mean that he or she should not have physical relationships with other people, although there used to be that presumption. I remember my friend telling me that when she was looking at a residential centre for her daughter, the person who ran it said, "Don't worry, Mrs. So-and-So, we'll make sure that your daughter doesn't get up to any hanky-panky", to which she said, "In that case, she's not coming, because I want her to live a full and fulfilled life Like everyone else." It is important not to say that people with a mental disorder or learning difficulties should be precluded from normal sexual activity. The Bill is about riot exploiting people; it is not about forbidding them from having a natural and normal life.
I told the Home Secretary that we needed to ensure that information is shared across continents and borders so that those who abuse in one country cannot get away with moving somewhere else.
It is important to get the rape issue right, not just because it is the most serious offence and the conviction rate is inadequate, but because it goes before a jury. I hope that that way of trying someone will be supported and upheld by the House of Lords when it considers the Criminal Justice Bill today. We must not change the presumption of innocence and the right to a fair trial just because of the sort of offence. That is why people laboured so hard to get the definition right, and I pay tribute to them. It may not be perfect, but the combination of clause 1 and clauses 76 and 77 is much clearer and will allow juries to receive much clearer guidance.
The best way in which to deal with a high level of acquittals is to try to grasp the nettle of anonymity. There should not be party views on the issue. The argument for the anonymity of the defendant, the complainant or the witness is that it is less damaging if identity is not revealed. Even though a defendant may be acquitted, the reputation gained does not go away. We can all think without much prompting of television personalities and people in the arts, sports or public life who, as a result of an unproven allegation, have not escaped from under a black cloud for many years. Alternatively, there is the argument that, as a result of a trial and those participating being in the public eye, other people come forward having realised that they ought to say something too and that others should be convicted.
The biggest danger is the press abusing its position. The hon. Member for Beaconsfield and his colleagues and my hon. Friend the Member for Somerton and Frome (Mr. Heath) and I have been to see Ministers to say that we must prevent the publication of stories about prospective defendants—such stories are often leaked by the police—that take over the tabloids in particular and mean that there can be no fair trial. There have been some crude examples of that over the past year. I therefore hope that we can agree on provisions that offer 204 protection from such exploitation. The issue goes wider than sex offences, although such cases are often the most vulnerable in that respect.
My preference is that we adopt the proposal of the Home Affairs Committee: from the moment of arrest at the latest to the moment of charge, anonymity rules should apply for all parties. After that, they should not, but the courts should be able to receive applications in either direction. A court should be able to agree to a request for the continuing anonymity of a defendant, witness or complainant, or it could decide, on receiving an application setting out why it is not in the public interest to apply the anonymity rule, that there is a good case for not doing so.
In the light of much constituency experience, I know that it is equally important that witnesses—not necessarily the complainant—receive the same protection, as they will often not come forward when they could substantiate a case because of the public embarrassment of doing so. The case might relate to a professional colleague or someone in the same family. We must bring everyone within such a remit.
I repeat that convicting for grooming for sexual purposes is fine, but we must not presume that that means that people have committed the intended offence. The intended offence must be separately proved; presumption is not enough.
I want to say a word about naturists. I do not know how many there are, but they have been making a lot of noise over recent months. Some of us accept that for many people nudity is not beautiful, although for others it is—all power to them and long may they celebrate it. I hope that we have struck the right balance in allowing people who want to walk around with nothing on to do so without prosecution while respecting that on some occasions that causes some people difficulty.
That brings me to the protection of the public. I hope that we have reached a common-sense solution. If one goes behind the sixth hillock with somebody on a warm, summer afternoon, it is not the job of the state to send people in blue to find them and prosecute. If one goes behind the 28th sand dune on the left on the east English coast on a rare warm, summer day, that is not the business of the state either. However, places such as public conveniences, which are meant to be used by the public, should not be no-go areas for the citizens of this country when they need to use them for the purpose for which they were intended. That is not a sexist, homophobic or anti-gay point—public conveniences are meant to be safe places, but often they are taken over and have become thoroughly unpleasant places. When the Bill has completed its passage, there should be a sign on each one saying that they are to be used for the purposes for which they were intended, and other activity will be dealt with. I hope that we proceed by the means of public order legislation, which would be a better way of tackling the problem than sexual offences legislation.
My hon. Friends the Members for Mid-Dorset and North Poole (Mrs. Brooke) and for Romsey have volunteered to serve as Liberal Democrat members of the Committee considering this difficult Bill. In Committee, they will not be able to secure the provision of better treatment for people whose mental and psychological problems lead to sex offences, so that is a 205 battle that we must continue to fight elsewhere. Providing centres to treat people with such disorientations is just about the least popular cause in the country, but it has to be addressed. In the meantime, I hope that my hon. Friends will try to make sure, along with me and all our colleagues in the House, that we end up with a Bill that is modern, non-discriminatory, clear, enforceable and effective. I think that that is within our grasp, and it is a prize well worth attaining.
§ Mr. Neil Gerrard (Walthamstow)
I find myself in the unusual position of welcoming a Home Office Bill—I have not been too happy with the last two or three Home Office Bills that I have spoken about. The Bill deals with some difficult areas but, as we have already seen in our debate, there is a lot of general agreement about its direction. It is now a question of looking at the detail and getting it right.
I want to say something about the provisions on trafficking but, before I do so, I will comment on what the hon. Member for Southwark, North and Bermondsey (Simon Hughes) said about the difficult argument about anonymity in rape cases. I do not think that anyone is now arguing that there should not be anonymity for the complainant. The need for such anonymity has been generally accepted for some time, as it encourages reporting. We know about failure rates in the system and the low rate of conviction, but should the defendant have the right to anonymity? I believe that the Bill as it stands goes too far—we ought to look at what happens before a charge is made, not after. What the hon. Member for Southwark, North and Bermondsey said about publicity is the key to the problem. It is often the police who pass information on. The News of the World discovers that a particular individual is being taken to a particular police station on a particular day because it has been told by someone in the police force, who has probably done it for a fairly small amount of money. Money often changes hands when such information is passed on, and we have to look at ways of dealing with that through the police service and the press, rather than start to extend anonymity provisions, as the amendment in the Lords has done.
§ Sir Paul Beresford
The hon. Gentleman may be gratified to hear that most of the senior policemen I have talked to would back what he is saying, as they have had many a case destroyed by publicity. If they could catch the individuals who have released that information to the papers they would be gratified and there would be heavy repercussions.
§ Mr. Gerrard
I am sure that is right. There can be nothing more frustrating for a senior policeman who has been investigating a case than to have it damaged or destroyed by someone leaking what is happening.
The question of trafficking was addressed my hon. Friend the Member for Northampton, North (Ms Keeble), and I shall try not to repeat what she said. I have been interested in the subject for some time, as there are links with the smuggling that goes on in immigration and asylum cases, which are one of my major areas of interest. Two or three years ago, like a 206 number of other hon. Members, I took part in the parliamentary police scheme, and spent a little time with the Chinese unit and the vice unit in the Metropolitan police. It was interesting to hear what police officers, particularly those in the Chinese unit, had to say about the amount of smuggling and trafficking of people that was going on.
There is a distinction between smuggling and trafficking, as the Government now recognise. If someone who is trying to get into the country for immigration purposes or to work illegally pays someone to bring them here, it is almost a commercial transaction. They pay to be brought in and that is the end of the business, whereas trafficking is quite different and ends up with people being exploited when they get into the country. It is a modern form of slavery, involving debt bondage—debts that they can never pay off, and perhaps with a family back in the country of origin still paying off a debt.
As the Bill deals with sexual offences, I understand why it refers to trafficking for sexual exploitation, but I hope we will not lose sight of the fact that a considerable amount of trafficking goes on for labour purposes. That involves not only children, but adults, and it is not just for domestic service. There are other areas, especially in some service industries, where a significant amount of trafficking for labour purposes goes on. That is just as bad as trafficking of the sort addressed by the Bill.
Many of the people—certainly, many of the adults—who have been trafficked may well come to the UK thinking that they are going to work in a legitimate job. They may even come knowing full well that they are going to work in the sex business. People are told that they can earn good money working in a club, in a strip club or as a prostitute, but they may not understand what is really going to happen to them when they get here.
Some poor countries—for example, Thailand—have an indigenous sex industry. I recently saw it suggested that because of the extent of the sex industry in Bangkok, the amount of money sent back to poor families in the rural areas of Thailand by women working in the sex industry in Bangkok exceeds any Government aid to those areas. Working in the sex trade is almost an accepted way of getting some money to the family, so we can understand how somebody might think, "If I could go to London, I could make a lot of money", but when they get here, they find that they are not making any money at all and are virtual slaves.
It is probably as profitable a criminal activity internationally to traffick people as to deal in drugs. There is not a huge amount of hard evidence about what is happening in the UK. My hon. Friend the Member for Northampton, North mentioned the ECPAT study and the study that was reported in the police research paper published in 2000. Those papers suggested that there might be 1,500 women a year being trafficked into the UK to work in prostitution. The police research paper reported on a check carried out by police on 50 flats in Soho. In those 50 flats, the majority of the women were migrants—125 of the 148 women were from the Balkans, mostly from Albania. There is clearly organisation there. Very few English women now work in the flats in Soho. The work has been taken over. 207 Although some of those women may not have been trafficked, there is little doubt that a significant number would have been.
My hon. Friend the Member for Northampton, North is right—the key to dealing with the problem is not just introducing legislation that imposes penalties, but making that legislation work. We will make it work only if the people who have been trafficked are genuinely regarded as victims and are given the support that they need to be prepared to give evidence. The pilot scheme is under way and it has Home Office funding. I think that it has 11 places for women who have been trafficked. That is a small number, but it is a beginning. West Sussex social services have been running a safe house specifically for child victims. We have got to get the links with our policies on removal and asylum right. If the message that goes out to victims is, "If the police find you, you will be deported," it is highly unlikely that many of them will be willing to risk giving evidence. Deporting somebody may mean that they go back to the people who trafficked them in the first place and fall back into risk.
I know that some work has been done, particularly through the Metropolitan police, to look at ways of getting more evidence for prosecutions through intelligence gathering. We need to encourage such work and put more effort in so that cases do not depend so much on individuals being prepared to act as witnesses. There are other information sources, but there is no question but that a lot of police forces do not give much attention to them. They do not have much knowledge and experience in such things and assume that they do not happen in their area. Northampton is a good example; it is clear that not only London is affected and that such activities could be happening anywhere in the country.
Furthermore, if we are going to make the legislation work, we will undoubtedly need prevention campaigns in countries of origin. In many cases, countries of origin are poor and countries of reception, such as the UK, are rich. The reason why trafficking operates in that direction is obvious. The movement is not always from poor to rich, but that is very often the case.
I am pleased that we have made progress. It was back in 2000 that we signed the European Union protocol stating that we would introduce legislation on trafficking. We have got to make the arrangements work and I hope that my hon. Friend the Minister will consider how we can extend them into the areas that the Bill does not cover.
I wish to raise two other issues of concern. The hon. Member for Oxford, West and Abingdon (Dr. Harris) referred to people who are on the sex offenders register in respect of acts that are no longer an offence. For example, a gay man who was convicted for involvement in sexual activity with a 17-year-old will have ended up on the register. I understand the difficulties that are involved in dealing with this issue. At the time of conviction, there may not have been much questioning a s to whether an act was consensual if it was an offence anyway. The Home Office may have reservations about taking people off the sex offenders register when the act was not consensual—a matter that might not be easy to distinguish. I hope that my hon. Friend the Member for Rhondda (Mr. Bryant) follows my point. If the offence was involvement in sexual activity with someone under 208 18, the court may not have concerned itself with the issue of consent. Nevertheless, even if we cannot agree to an amendment that wipes people off the register, I hope that we can consider mechanisms enabling people to apply for removal and put forward the facts of their case.
§ Mr. Chris Bryant (Rhondda)
I am grateful to my hon. Friend for giving way, not least because I have not been present in the Chamber for most of the debate, although I have seen it on television. He is making a very important point. Does he share the belief of many people that taking some of the names off the register will make it a more reliable source of information in the hands of the police and local communities?
§ Mr. Gerrard
That is absolutely right. I understand the logic of the argument that we cannot retrospectively remove an offence. If somebody committed an act that was illegal, the conviction cannot be wiped off the slate. However, it is clear that if somebody is not a danger, it is pointless to include them on a register that will be used to check whether a person is a danger.
The other point about the sex offenders register that concerns me somewhat is that it is possible that somebody's name could be put on the register when they have merely been cautioned for an offence. If the police did not regard what was happening as serious enough to merit a charge, there is a question mark over whether that person should appear on the register.
§ Ms Debra Shipley (Stourbridge)
I thank my hon. Friend for giving way, particularly as I was unable to attend earlier. As he knows, because he took part in that debate, I was responsible for the Protection of Children Act 1999. So-called soft information was to be put on to the register because otherwise young people would be at risk and because it gave the opportunity to check for more information. The reason for keeping somebody who has been a convicted offender on the register for ever is that if they had made a serious sexual attack on a child, say, 20 years ago, they may well offend again, and the law should not permit them to do so.
§ Mr. Gerrard
I have no difference of view about somebody who has attacked a child—that person is on the register and should stay there. Rather, I am concerned about a relatively small number of cases involving particularly people who, as a result of the change in the age of consent, would not now be regarded as having committed an offence.
Clauses 121 to 127, which were mentioned by the hon. Member for Beaconsfield (Mr. Grieve), could have wide implications. The police can apply for a risk of sexual harm order on the grounds that the defendant has, on at least two occasions, committed one of a number of acts. One of those acts is to give a child anything that relates to sexual activity, which, as the notes to the Bill state, could include a condom. We should remember that a child is defined in this context as someone who is under 16. I can imagine that in a number of situations a person might feel that it was in the best interests of a child of that age to give them a condom. This part of the Bill allows orders to be issued against someone who has not been convicted of anything. When it becomes known that a person has had a risk of sexual harm order placed 209 on them, they will find it almost as bad as having had a conviction, because they will still be seen as a paedophile. One of the arguments about anonymity in rape cases is that people say that there is no smoke without fire—that if a person has been charged, there must be something to it. That argument applies at least equally strongly in this case.
It might be argued that the police and courts will not apply for orders on trivial grounds—although I can think of one or two ex-chief constables whom I would not have trusted not to do so—but we should not afford them that opportunity. I hope that when we reach this part of the Bill in Committee we can debate an amendment or, at the very least, ensure that the guidance that goes to the police and the Crown Prosecution Service makes it absolutely clear what sorts of cases the provision should be used for. It has the potential to catch a very wide range of activities, at least some of which most people would not regard as problematic.
Overall, the Bill makes considerable progress. It reforms the law on some difficult subjects in a way that receives broad consent. That is an achievement and I hope that we can sort out the problems in Committee and end with a measure that will work.
§ Sir Paul Beresford (Mole Valley)
It is interesting to follow the hon. Member for Walthamstow (Mr. Gerrard). If he serves on the Committee, I hope that he will accept an offer that I have already extended from Detective Chief Inspector Sarti of the paedophile unit at Scotland Yard to attend a brief teach-in. I have spoken to a Home Office Minister about the subject and she believes that it is a good idea.
The hon. Member for Walthamstow is right that there are problems, but we need to know where the taskforce came from to understand how it reached its current position, so that if the Committee wants to improve on its suggestions, it does not lose sight of the objective.
The Bill is unusual for several reasons. First, as my hon. Friend the Member for Beaconsfield (Mr. Grieve) said, most people who examine the measure—including some of my constituents who knew that I aimed to speak about it—become squeamish and are horrified. The attendance in the Chamber suggests that everybody supports the Bill and wants something to be done, but no one wants to read about it in the newspapers or get too close to the issues.
The second rarity is the considerable co-operation between members of all parties who show an interest in the Bill. When the White Paper was announced, the Home Secretary asked for co-operation, and I asked for it to be two-way. To a great extent, that has happened in the other place and I hope that that continues in Committee and on Report here.
We have a rare opportunity that we must not miss. It has taken a long time to introduce such a Bill and I suspect that there will be no similar measure for a long time. We have an opportunity to take pre-emptive action in the Bill. The police have been considering some of the changes, especially those in IT, for a long time. Whatever we think of paedophiles, they are not thick. I 210 watched an interview of a paedophile under treatment who was a rocket scientist. His understanding of IT and opportunities to use it to confound the police were considerable.
I shall restrict my comments to the provisions that deal with sexual offences against children and with those commonly known as paedophiles. Like the hon. Member for Walthamstow, I did the police parliamentary course in 1999–2000. I was lucky enough to do it with the Metropolitan Police Authority, which covered everything, such as fast cars, guns, criminal intelligence, kidnapping and police dogs. That was all immensely instructive. However, I was scarred by the day I visited the paedophile unit. I did not know that individuals with such incredible desires existed. I did not have the benefit—if that is the right word—of being a barrister and of having practised in the courts. I am surrounded by members of the legal profession again today. I was stunned by the information on the internet, the links through it and paedophiles' use of it to stimulate their activities. I was shocked that the paedophile information exchange used it to stimulate other activities and that members of such organisations frequently required "fresh", as they put it, photographs. That meant the abuse of yet another child or children to produce them. I could barely imagine the harm that was done to children. Some photographs and films are of children who are young enough to wear nappies.
The police's conservative estimate is that there are approximately 230,000 active paedophiles in the country—one for every street. They also estimate that one in nine are female. Rose West and Myra Hindley are the best known examples. Public interest was stimulated by three brave programmes that BBC 2 broadcast. Those who cared to watch or could stand watching them found that the practice had gone on for many years. I remember some of the interviewees saying that, as children—they were now grandparents—they could remember seeing men with cameras at the swimming pool photographing the kids. This has been going on for years. The first two programmes focused on one particular group of paedophiles who had been grooming—engaging in "the hobby", as they put it—since 1957. That gives us an idea of how many children those four or five men must have damaged.
The other thing that stood out in the programmes was the fact that many paedophiles need to record their activities. They do so—for their own use—using the written word, photographs, tape recordings, videos, computers, CD-ROMs and, latterly, DVDs. Of course, what they are recording is the abuse of children, and if anyone has any doubt about that, they should watch the third programme that the BBC put out, which was quite startling and really thumped home what these people were recording. I will not go into details, because there is no watershed here and we must remember that there are people in the Strangers Gallery.
My reaction was to ask the police why, if they knew about all these individuals, more of them were not put away. They said that they needed changes in the law, and that they had been told that such changes were coming. I decided, along with an American researcher, Michael Hansen, who is now a law student in the US, to get stuck into seeing what was being done here and in the 211 rest of the world. We used the internet and talked to people in a large number of places including Canada, Australia and New Zealand.
Under the aegis of the Conservative Front Bench, I then introduced a number of new clauses when the Criminal Justice and Court Services Bill was being considered on Report. I was delighted that the right hon. Member for Brent, South (Mr. Boateng), who was then a Minister of State at the Home Office, was very positive about my proposals. That was not really a surprise, as he is a family man and a Methodist. I thought that his reaction was quite normal. Some of the proposals that were put forward in another place were accepted, but there was also an acceptance that these matters would be looked at in this Bill. Many of them have been. It is vitally important—we need to remember this in Committee—that it was recognised that we should be proactive rather than reactive in these matters, as I mentioned in an earlier intervention. If we are reactive, a child—if not more than one—has already been damaged.
I also had the pleasure of being put on the taskforce, on which some really imaginative proactive thinking took place. The core legal changes on internet grooming are down to that group, which contained everyone across the range including the police, the NSPCC and many other organisations that are deeply concerned with freedoms and rights. What came out of those deliberations was an amalgam, and we need to remember that when we consider the Bill in Committee.
I have been talking recently to some Americans who were over here for a case led by Valeria Spencer, an assistant attorney at the United States Department of Justice. They are watching what we are doing in the Bill with considerable interest. This morning, the "Today" programme took a shot—as is its wont—at the Bill, suggesting that it is all very well us doing this here, but that the internet is international. I was sorry that I could not ring up and intervene. The Bill is being considered right across the world, and many other countries that are looking into these matters are watching to see what happens here. If this legislation works—and I think it will—they will adopt such measures themselves. Equally, there are one or two things being done in other countries that we ought to seize the opportunity to consider in Committee.
I say that because I believe that this is a one-off chance. In Committee and on Report, we shall discuss a number of difficulties that my hon. Friends and Labour Members have already touched on. For a change, that will be done in the right atmosphere. Our deliberations will not be aggressive, and they will provide an opportunity to make a real change, bearing in mind that it will be our last chance to do so for a number of years.
The issue that I really want to touch on in Committee is encryption. The taskforce and the Home Secretary know that I have an interest in this. Technology is moving very fast, and the paedophile internet exchange group had a ringleader who dodged prosecution because the police could not break the encryption on his disk. It was a fairly simple form of encryption bought for about $50 in the United States, but it could not be broken by the police or the security forces. An approach was made in the Regulation of Investigatory Powers Act 2000 to change that. Unfortunately, that aspect of the legislation was not implemented and it would be 212 inappropriate, sadly, to apply it to paedophiles or abuses against children. I hope that we can now start to examine the problem further.
In the United States a considerable amount of child porn is sold encrypted on DVDs and CD-ROMs. Much of it comes from Russia, but the police cannot break into it. If it is bought by individuals and put on their computer files—the material may appear from the outside to be about Robin Hood and his merry men—until the encryption code is obtained, access to it cannot be gained. Paedophiles previously recorded their activities on video, but they now use DVDs and CD-ROMs in encrypted form. Often the opportunity for the police to nail individuals for some absolutely horrendous crimes—they could do it before, because videos could not be encrypted—is no longer there. We will find it very difficult indeed to deal with that obstacle.
The Home Secretary said that much could be done beyond the Bill, and he is absolutely right. Much has already been done—by the Home Office taskforce, organisations such as the National Society for the Prevention of Cruelty to Children and others, and by the Metropolitan police, in conjunction with Crimestoppers. An effective interactive programme has been developed to take into schools for the appropriate age groups, and it will be polished up and developed. It engages the children in internet activities, explains their importance, but also brings in warnings. The children are brought into what they believe is a chat room, but next door there is really a large and ugly policeman who is typing in the name of Alice or some other name. The children react to it; they give their telephone numbers and addresses; a meet is arranged. The children all fall into that, but of course the mobile telephone of one of the children in the room then rings, the door opens, and the biggest, ugliest, tallest, largest Metropolitan policeman who can be found enters the room declaring that he is Alice. It brings the message home to the children.
We will have to follow this matter up and reflect further on it, but what often happens is that the children start to talk to their teachers or the police about their experiences. Many children have already had them, though their parents do not know it and the children have often not told anyone else. If this form of education can continue and develop, we can move on through Crimestoppers to the police, who can then take action. I suspect that the public and perhaps even the police are unaware of the extent to which such internet grooming goes on.
I welcome the Bill; I welcome the fact that it is nonpartisan, and I hope that we can keep it that way. I also hope that we do not do what The Economist did in a recent article on child porn—forget that for every single photograph of a child, a child has been abused. I hope that the author of that article thinks a little further. How would he have felt if a photograph of him or his mother, son or daughter had been put on the internet for ever? I welcome the fact that the Bill will be dealt with in Committee with an open mind. I hope that we make the most of our limited opportunity, and that we are proactive and think forward—particularly in respect of the internet and information technology.
§ Mr. Hilton Dawson (Lancaster and Wyre)
It is good to have the opportunity to participate in this important debate, particularly to follow the hon. Member for Mole Valley (Sir Paul Beresford), who made such an effective and serious contribution. We have all been informed, instructed—and, indeed, shocked—by what he had to say.
I do not think that the Bill's importance can be overstated. I am sure that all of us acknowledge that sexual abuse can have the most devastating consequences, and that it can undermine and destroy people's lives.
The Bill is important in another way. It covers areas of law and policy that are complex and sensitive, and which test a difficult area—the shifting balance between private lives and the proper concerns of Government. The problems are especially acute for young people at different ages and levels of maturity, who are bound to test the boundaries set for them by concerned parents and by Governments.
Like my hon. Friend the Member for Walthamstow (Mr. Gerrard), in recent years I have sometimes criticised the Government and the Home Office for legislating in haste, but it is clear that the care, thought, discussion and listening that have gone into the Home Office review of sexual offences and the White Paper were carried on in the debate in another place. On the evidence of today, that process will continue in this House. The rewards of that excellent consultative and participatory approach will be evident in legislation that will be thorough and well balanced.
I commend the Government on the Bill, and look forward to its further improvement. I commend them too on their determination to protect the public from dangerous offenders, and on their courage and humanity in their approach to modernising and equalising the law on sexual offences.
I could go on for some time about those matters, but I will confine my remarks mostly to the Bill's impact on children. I am extremely grateful to Lisa Payne and Alison Lindsay of the National Children's Bureau for their production of a child impact statement on behalf of the all-party children group.
It is important that the Bill carries a statement by the Home Secretary to the effect that he considers its provisions to be compatible with the European convention on human rights. I look forward to the day when Governments place statements on all Bills asserting that they are compatible with the UN convention on children's rights. Legislation will be much better and more effective if we make a close assessment of the impact of proposals on the lives of children.
I welcome the Bill's emphasis on certain issues, including the age of consent at 16. The Government have brought about the equalisation of the age of consent at 16, and I consider that to be very important. For a host of reasons connected to child protection, it is very important that we give out consistent messages about the age of consent and that we reaffirm the significance of the age of 16. I welcome the proposal to increase to life imprisonment, in certain circumstances, the sentence for people convicted of the sexual abuse of 214 a child. The new offence of sexual activity with a child under 16 is important, and I very much welcome the new offence of sexual grooming.
We have seen some real progress on child prostitution. We can only estimate the scale of that problem, but I have no doubt that it is considerable. For the first time, we have a specific set of offences to deal with the commercial sexual exploitation of children, again with the most severe penalties for people who abuse children through prostitution. I also welcome the extension of legislation to children of 16 and 17. The more we recognise and reaffirm that children are children until the age of 18, the better our legislation will be.
I was pleased to hear my right hon. Friend the Home Secretary affirm that children who are abused through prostitution will not be liable to prosecution for any criminal offence. That is an essential child protection measure. I hope that the impact of the provision will be reviewed throughout government. I am worried that the guidance that still prevails in some parts of government reflects old legislation and the old status, when children were criminalised when they should have been protected.
We have already heard some effective speeches on trafficking. This Bill is an opportunity for the Government to get to grips with that horrendous problem. I welcome the new offence. With other hon. Members I question the fact that no separation is being put in place between adults and children. That means that someone could be convicted of trafficking a child to this country, abusing the child and enabling others to do so, and could end up with a sentence of six months' imprisonment. That is inappropriate and needs to be tackled.
An even bigger issue is the fact that we simply do not know the scale of trafficking in this country. In West Sussex, where much work has been done around the safe house project and with immigration authorities at Gatwick airport, we know that hundreds of children are coming through the airport, largely from west Africa, on their way here or to other European countries to be sexually abused. There is no reason to suppose that any port in the country is free from the problem. As we heard from my hon. Friend the Member for Northampton, North (Ms Keeble) it crops up in places that do not have ports or airports.
The Government need to face up to that problem. It needs to be taken out of the arena of asylum and immigration legislation and located within child protection. We need some thorough research to find out the extent of the problem; some good work on ways to deal with children who are trafficked to this country; and some effective models of good practice.
We need to ensure that such children are not sent straight back into the hands of traffickers. When they come to the attention of the authorities in this country, they must not be simply returned to their country of origin, back into abusive situations where they might be killed. We need to ensure that they are protected in this country. That should be one of the Government's first duties.
Although the safe house project is not the perfect model for dealing with children in such circumstances, it has done good work, yet it is under threat of closure. 215 There are examples of local authorities elsewhere in the country taking similar initiatives, but because they are under pressure from lack of resources and heavy work loads, they have largely turned a blind eye to the problem. The Government need to take a lead in dealing with the problem by identifying good models of practice and resourcing them effectively. Trafficking needs further consideration.
Other Members have referred to the new offence of sexual touching and the problems that could arise in relation to mutually agreed behaviour among peers. When I attended debates on another Bill, bottles of wine were offered as a challenge to people to pronounce the names of Welsh constituencies but, so far, I have not been offered large quantities of champagne by a Secretary of State for a contribution to a Bill. It cannot be beyond the wit of the House to come up with an amendment along the lines that nothing in the Bill should criminalise behaviour that, in the eyes of an ordinary, reasonable person, would constitute normal adolescent experience. In reaffirming the significance of 16 as the age of consent, it behoves us all us to find a sensible way of dealing with the ordinary experiences of adolescence and mutually agreed behaviour among peers.
The strong prohibition against any activity involving children aged under 13 is of enormous significance. In legislating for children, we face a dichotomy: they are seen as either victims or villains. If we set such store by the age of 13, we should also consider raising the age of criminal responsibility to that age, as the implication of the proposals is that we would still be criminalising the disturbed behaviour of under-l3-year-olds who abuse other children.
We should not ignore the estimate that about a quarter of all rape victims are children, and that about a quarter of the offences against them are committed by other children. We need to address the issue thoroughly, and to deal with it therapeutically rather than by criminalising the disturbed behaviour of children who commit such offences. As has been said already, if we can deal with that behaviour at a very young age, we might be able to stop young people developing into serious offenders when they become adults.
Using the sex offenders register for young children is not appropriate; we need to develop a range of assessment and treatment services for them. It is important that we adopt a strategic approach to children who display sexually harmful behaviour, and I very much welcome the Home Secretary's reference to establishing a ministerial committee on sex offending, which will give us the opportunity to take an holistic approach to prevention, protection and support in this very disturbing area of social policy.
As I have said, the Bill raises issues apart from the age of consent vis-à-vis the age of criminal responsibility and children's legislation vis-à-vis asylum legislation, and we also need to adopt an holistic approach to the treatment of adult offenders. Since becoming a Member of Parliament, I have had the opportunity to visit a treatment centre for men who have sexually abused children. Some of them have been convicted of very serious offences against children. Some of them have recognised that their behaviour was extremely worrying and possibly extremely damaging. I found it a challenging experience to meet those people and to hear 216 about some of the things that they had done. I was incredibly impressed by the work done to encourage and challenge those men and to make them face up to the reality of the abuse that they had carried out.
The Government have faced a very difficult issue, very bravely. As a society, we simply have to face up to the fact that there are a lot of sex offenders out there and that there are effective ways to deal with their behaviour, but this is a real, big issue for all hon. Members and for all those who represent communities. We need a really good network of treatment centres for people who sexually abuse others, particularly children. Until we have those centres, we will not have an holistic approach that takes in legislation and the development of a range of policies. Until we treat those people and deal with their extremely aberrant, dangerous and horrific behaviour, we cannot say that we are protecting children. I welcome the Bill; it has some way to go, but, on the whole, it is extremely positive.
§ Mr. George Osborne (Tatton)
This has been one of the most constructive and interesting debates in which I have been fortunate enough to take part during the two years that I have been a Member of Parliament. That constructiveness was exemplified not only by the contribution that we have just heard from the hon. Member for Lancaster and Wyre (Mr. Dawson), but particularly by the powerful speech made by my hon. Friend the Member for Mole Valley (Sir Paul Beresford), who obviously spoke with enormous experience and passion on the subject.
I also commend the Home Secretary, first, for his willingness to accept most of the improvements that were introduced in the House of Lords and, secondly, for saying that he will consider some of the proposals not only from my hon. Friends on the Opposition Front Bench, but from Back Benchers. I want to restrict my remarks to the issue that I raised in an intervention during the Home Secretary's speech: child trafficking and clauses 59 to 61.
Of course, the trafficking of human beings has gone on since the dawn of time, and has involved unimaginable human misery and suffering. These days, it usually, although not exclusively, involves women and children and a highly sophisticated and lucrative network and business that affects every country in the world. I want to pay tribute to the work of UNICEF in bringing this issue to our attention, and to its campaign and publication, "End Child Exploitation: Faces of Exploitation", which I hold up to show Members—not something that I have done before, but there is always a first time. I pay tribute in particular to Jenny Willott and her team for bringing these issues to the attention of Members of Parliament.
As a number of Members have said, it is difficult to estimate the number of victims of trafficking, because, almost by definition, it is a clandestine activity. In 1997, the US State Department made a stab at estimating how many people were involved, and suggested 700,000. The United Nations now thinks that the figure is closer to 1.2 million, and I am delighted that UNICEF is doing more work in this area and hopes at the end of this month to 217 come forward with more research giving us a better idea of the scale of the problem that we face. We do not need that research to tell us, however, that it is a very serious problem. For every single victim involved, it is a human tragedy, especially when children are affected.
As the hon. Member for Northampton, North (Ms Keeble) said in her speech—of course, she speaks with some authority on these issues—much of the trafficking about which we are talking takes place within certain regions of the world, such as west Africa, in relation to trafficking for forced labour and forced domestic service, and south-east Asia, in relation to trafficking of children and women for sexual exploitation.
What I want to focus on—as we are most likely to have a direct impact on it—is those who are trafficked into the UK, either as an end destination or when passing through. One of the aspects of the Bill that I welcome particularly is that its scope is broad enough to catch people who are involved at all stages of the supply chain: those responsible for the feeding of people, the provision of transport and so on. That is all spelled out in the explanatory notes, which is very welcome.
As I said, it is difficult to know how many people are involved, but there are many signs that this is a growing problem for this country. As the hon. Member for Walthamstow (Mr. Gerrard) has already told us, whereas three years ago 85 per cent. of the sex workers in Soho were British, 85 per cent. of them now are foreign, most of them from central and eastern Europe. Some of them, of course, will be children, who are treated with a cruelty and brutality that we find difficult to comprehend, involving everything from beatings to gang rapes to enforced drug dependency. As a society, we recognise the particular heinousness of crimes when they involve children, which is what much of this Bill is about. The press release that came out when the Bill was published said that the protection of children was at its heart. That is the case, with one exception: the clauses relating to trafficking.
That was the point that I made to the Home Secretary, because I think that those clauses are a mistake. Under the Bill as it stands, as the hon. Member for Lancaster and Wyre pointed out, trafficking offences involving children could attract the lower sentence in a magistrates court of a maximum of six months imprisonment or even just a fine. That does not reflect—I probably speak for other Members in saying so—the seriousness of trafficking offences involving children. In my view, those cases should only be referred to a Crown court and should attract the higher maximum sentences set out in this legislation.
The Home Secretary, in his response to my intervention, was incredibly positive and helpful in the sense that he said that he would look specifically at this issue and at whether a distinction should be made for offences involving children. I hope he does so. I am pleased that others who have spoken, including the hon. Members for Lancaster and Wyre and for Northampton, North, raised that point. I hope also that the Minister, who is my constituency neighbour and a good and reasonable person, takes that issue on board. As he will probably be doing the spade work in Committee, he might address it there.
218 Passing the trafficking legislation, welcome though that is, will not in itself be enough. First, the legislation has to work. This is a key aspect: the child's point of entry to the UK—either an airport or elsewhere—clearly represents a critical moment, because it is almost certainly the best and often the only opportunity to rescue them from exploitation and the lifelong damage that will follow.
It is vital that immigration officials and others who may come into contact with trafficked victims have the right training. The Home Office has set up a working group, and there is a "tool kit" and all sorts of jargon for people who are involved, but all this comes down to a simple thing—getting the right training so that our immigration officials and others can recognise vulnerable children, spot the tell-tale signs showing that a child might be being trafficked and intervene.
As other Members have said, we must ensure that the care provided for those vulnerable children is adequate. Most are placed in ordinary social services accommodation, but they often escape or simply walk out of the door. Also, they often make contact with the person who trafficked them in the first place. That may seem strange on the face of it, but it is not. Think about it: these children are far from home and frightened. Probably the only person they know is the person who brought them into the country. Of course, they might not be aware of what is in store for them on being trafficked, so that leads them to make contact again with their trafficker, which leads to horrendous circumstances.
§ Mr. Cameron
Like others, my hon. Friend is making a powerful speech on the problems of trafficking, but is not part of the problem the fact that our asylum system invites traffickers to abuse it? Although it is clearly right to tighten up the criminal law and do all the things that the Bill is doing, will it ever be possible to clamp down on trafficking of children and prostitutes while we have an asylum system that does not consider having a quota of asylum seekers coming to this country who could be processed properly nearer to their countries of origin? That would enable us to bring over to this country vulnerable people fleeing persecution, rather than leave so much of the asylum system as it is—in the hands of the traffickers.
§ Mr. Osborne
I am grateful to my hon. Friend for that intervention. I shall not be drawn into a discussion of the asylum system, but, of course, he is absolutely right. Many of the criminal gangs involved in the asylum trade are also involved in the trafficking trade. Those are distinct problems, as people who use criminal gangs to seek asylum are conscious of what they are doing whereas often people being trafficked are not conscious of what is in store for them. My hon. Friend is right that we shall leave a gaping hole in the protection that we offer people who face trafficking until we tackle the abuses of the asylum system.
We need to consider what is called a statutory period of reflection, which countries such as Sweden, Italy and the United States have pioneered. It would give victims a certain period in which they would be allowed to remain in the UK while options for their future were considered. I am talking about a period of around six months. Obviously, simply returning a child to the 219 country of origin places that child at tremendous risk of being re-trafficked and exploited. Indeed, the UNICEF document contains some pretty horrific case studies.
§ Mrs. Annette L. Brooke (Mid-Dorset and North Poole)
Do not the countries that provide such extra care and a period of reflection have more successful prosecutions of traffickers?
§ Mr. Osborne
The hon. Lady is exactly right because that is exactly what the evidence suggests. I do not know whether there is a direct link because the statistics perhaps show that those countries are better at handling the issues in general and are on top of the trafficking problem.
A period of reflection would be a great advantage because it would enable us to give victims real counselling and help, which must be our first priority, and make it more likely that victims would give evidence and testify against traffickers. One of the biggest problems that the police face when dealing with the crime is finding people, who are often scared and frightened children or young women, to stand up in a court of law and give evidence against powerful criminal gangs, many of which have links with the community or village in the country from which they came. Other countries have tackled the traffickers more effectively, which has restricted the trafficking trade and caused the criminal gangs to turn their attentions elsewhere.
I agree with what several hon. Members said and hope that the Government will introduce legislation to deal with trafficking for purposes other than sexual exploitation, such as forced labour and domestic service. The matter was raised in the House of Lords and the then Minister, Lord Bassam, said:Work is in progress on developing an offence of trafficking for labour exploitation. As yet no legislative vehicle has been identified for taking that forward"—[Official Report, House of Lords, 13 May 2003; Vol. 648, c. 222.]I understand that the Bill is not such a legislative vehicle and that there are pressures on fitting legislation into the Government's programme. However, I urge the Minister to address the issue, not least because we have pretty serious international obligations. We have signed the United Nations convention on the rights of the child and the UN protocol to prevent, suppress and punish trafficking in persons, especially women and children—I had to write that one down although it is pretty important. The framework decision on trafficking that the European Union adopted last year compels member states to incorporate trafficking legislation in domestic law within two years.
Let me get it absolutely straight that the Bill is a huge step in the right direction. There is an opportunity to do more and I urge the Minister to make trafficking involving children a distinct offence. If he introduces legislation to address trafficking for purposes other than sexual exploitation, he will have done a truly good job.
§ Vera Baird (Redcar)
I congratulate the Home Secretary on a Bill that will significantly clarify and update the law on sexual offences. I am pleased to follow the hon. Member for Tatton (Mr. Osborne), who said that legislation on its own is not always the complete 220 answer. That is true when one considers rape. However, before I contextualise the new changes and outline what I hope the changes to rape law will bring, I congratulate the Home Secretary on the insight that underpins the new way in which the Bill defines the offence of rape.
Rape is an important and serious problem in our society. It is thought that one in five women and a number of men suffer rape or sexual violence at some time during their lives. Although it is well understood that rape is under-reported, rape reporting is currently at an all-time high. There were 3,391 reports of rape in 1990 and the figures for 2001, which are the latest figures that I have been able to get hold of, show that there were 9,008 reports in that year. The number of reports has more than doubled and almost tripled during a decade. However, the conviction rate was 25 per cent. in 1990—no one suggested that that was too high. Given that the conviction rate was only 5.8 per cent. in 2001, I think I can say that the conviction rate has slumped.
Last April, Her Majesty's Crown Prosecution Service inspectorate and Her Majesty's inspectorate of constabulary produced a joint report on the way in which rape is investigated and prosecuted. The report said that rape was the most traumatising of offences and noted the profound impact that it has on victims' lives. It is, indeed, a travesty that so few examples of that serious offence result in a conviction. There is, of course, no deterrence in a very low conviction rate, so the changes to the law are especially important.
However, compared with other crimes, far fewer complaints about rape get to court. There is a big dropout rate, some of which is due to women withdrawing their complaints. A lot of research confirms that part of the reason for that is that they fear that the details of previous sexual history—true or false—will be put to them. They are also worried about being asked whether they were wearing a short dress or scarlet lipstick, with the intention of showing that that licensed the attack or that they are promiscuous and not worthy of belief. As I said to the hon. Member for Southwark, North and Bermondsey (Simon Hughes), the Government wisely and effectively sought to abolish the admissibility of previous sexual history to show consent as long ago as 1999, but it is still admissible, even as we discuss clause 1, to show that the defendant believed that the complainant was consenting.
On the drop-out rate, there is much less point in changing the law if we cannot get women to court to sustain complaints to trial. I acknowledge that the Government have done much to get more women to court, but for clauses 1, 75 and 76—the rape-related clauses—to be effective, there is more that they should do. They have encouraged excellent police initiatives to train front-line staff to be supportive to rape complainants in a way that they were not before. Project Sapphire, run by the Metropolitan police, has an active investigation policy for rapes. As well as giving support to complainants, the key to rape convictions is to find corroborative evidence so that the deadlock of his word against hers, and vice versa, is broken. The Government have encouraged that approach through excellent initiatives.
However, the amount of moral support and help a complainant—male or female—gets at the outset is in direct proportion to his or her ability to sustain a 221 complaint to prosecution and for it to be held up in court. Although that is well known, when we discuss clauses 1, 75 and 76, we will have to face the fact that four rape crisis centres have closed for want of funds in the past 18 months. If the Bill is to work, and as women will only sustain complaints if they are given support at the outset and throughout their trauma, it is essential that the Government establish a clear, strong and well-resourced policy of support for rape complainants.
The Government should do more to encourage the creation of sexual assault referral centres. Those are usually adjacent to hospitals. The units are run by specialists for the benefit solely of the victims of sexual assault. A woman can go there with the police, or on her own, or she can phone and be brought to it. She is treated as a patient rather than a witness. No decisions are forced on her and no detailed statements are taken; just enough to allow the relevant health checks. She is encouraged to give samples in case she wants to prosecute, but with no obligation to make the decision to do so then. She is examined by an expert who has the expertise to give evidence about findings, going way beyond that of most forensic medical examiners at police stations who are GPs with generalised experience. Counselling can be arranged. A change of clothes can be arranged. She can be taken home. The police can be brought in the next day to take a statement if that is what she wants. It will, of course, be a specialist-trained officer who liaises with the sexual assault referral centre.
SARCs offer the best kind of support. One in every major urban centre would reduce the drop-out rate significantly and enhance the impact of the changes in the law. At the moment, however, there are only six sexual assault referral centres in the country, so in many areas such as mine on Teesside, complainants cannot receive the support that such resources can supply.
Cleveland police—my local force—and I are organising a conference of stakeholders for September in order to consider creating a Teesside SARC. That requires input not only from the police, because such centres aid detection, but from health trusts, because the after-effects of rape are a major health issue. Most of all, there is a need for finance or a definite prioritising by the Home Office of police and health funding. Not a large amount of money is needed to run a centre. REACH, the excellent centre in Newcastle upon Tyne, runs on about £250,000 a year.
SARCs should be linked to the national rape helpline, to which my right hon. Friend the Home Secretary rightly referred, so that by calling a single number, a woman can receive local help wherever the traumatising crime occurs. Project Sapphire, which works closely with The Haven, a sexual assault referral centre in south London, is sure that its next figures will show a lower drop-out rate and a better conviction rate owing to that liaison.
Getting women to court requires such a step to be taken, and to be taken now. There is little point in improving the law on rape, which ought to encourage more women to come forward, if they are not given support when they do so. If what has been done and what is still to be done succeeds in getting women to court, what happens? At the moment, there is a 45 per cent. conviction rate for rape cases that arrive in court. 222 For all other offences, there is a 73 per cent. conviction rate. In all judgments made, from the woman involved deciding whether to proceed, to the judgment of police on whether to proceed, to the Crown Prosecution Service deciding whether to proceed, what will happen in court plays a major part. The low conviction rate becomes a self-fulfilling prophecy.
Clause 1 can make a significant difference in court. As most people are beginning to realise, 90 per cent. of rape is committed by people who are acquainted with the complainant—not by strangers. That means that, inevitably, the issue is consent and whether the defendant believed that she was consenting. It is to the second test that clause 1 brings a change.
At present, the second test is totally subjective. "Are you sure", the jury is asked, "that he did not, however unreasonably, believe that she was consenting?" Owing to comments made in the other place, I want to make it clear that the defence of believing in consent is always—I repeat always—run at court. Doubt was cast on that by some of their lordships. Such a defence is especially run since the admissibility of previous sexual history was limited in 1999 to supporting the defence of consent. The way to get round the prohibition is to run belief in consent because previous sexual history is still admissible in order to support it. If, in a rape trial, a man goes into the witness box and says, "She was consenting," which of course he must do in every case, the defence that he believed that she was consenting as automatically raised and the judge has a duty to leave that belief to the jury for its consideration.
The present law allows that to happen. A woman may say that she had sex forced upon her and protested at the time, and a jury can believe her. However, if the defendant says, "I'm sorry, I honestly believed that she was consenting," it is difficult to gainsay that and convict him. There is therefore a situation in which women have had sex forced on them, but no one LS convicted. The current rule—I do not think that this is putting it too strongly—licenses the assumption of consent by the defendant, irrespective of the complainant's wishes. She, of course, has a duty to make herself clear, but in those cases she will have done so. He, however, has a duty to ascertain that the sex is mutually consensual, and the current rule does not impose such a duty on a man.
If the Bill is enacted with clause 1 in its current form—I compliment those who have had input in refining it and making it better in the other place—when the issue at court is whether the defendant believed that the complainant was consenting, he can still say that he did, but will now have to show that that was a reasonable belief. That will have an impact that goes beyond court cases—it will become a normative or standard requirement. Men who get to know about the rule will understand that they have to behave reasonably when involved in sexual relations and must ascertain properly that the woman is consenting. I have to say that that is not much to ask.
The structure of clause 1 is excellent because in assessing whether the defendant's belief is reasonable, all the circumstances have to be looked at, including a scrutiny of any steps that the defendant took there and then to ascertain whether the complainant was consenting or not. The requirement that the defendant is to be asked in court about the steps that he took to 223 ascertain consent will have another excellent impact on the way in which cases run in court. It will diminish the admission of previous sexual history to support an honest belief in consent. At present, for example, someone can argue, "If my friend told me something about her and what she likes, or if I heard it on the grapevine, that might have influenced me to believe that she would consent, and helped to close my mind to what was actually resistance."
Imposing a slight duty on the man to behave reasonably, and making him aware that he will be asked about the steps that he took, even though he believed that consent had been given, to check that his state of mind was correct at the time, ought to focus the court's attention much more on the situation in the bed, on the floor or wherever. What he heard about the complainant's previous sexual history and the way in which she might react if he approached her will be far less central to his state of mind at the time and, in many cases, will be so remote from the here and now that it will not be relevant enough to be admitted at all.
Clause 1, buttressed by clauses 76 and 75, is a good move in three ways. It has the two advantages at court that I have explained—first, it will require reasonableness, and secondly, it will diminish the admissibility of previous sexual history. Thirdly, it will establish a norm for the way in which men are expected to behave. Because it has that normative quality, it is important to publicise the change in the law if and when it occurs so that, in all fairness, men know that there is a further test and so that women are encouraged to appreciate that they have the extra protection provided by those first two changes.
Two years ago, I had a conversation with the then director of the major female equality pressure group in the UK and with a famous woman broadcaster—virtually a household name. We discussed whether we would report a rape done by somebody we knew. We were not convinced that it would be worth the cross-examination, perhaps about a fictional previous sexual history; the possibility of the man saying, "Okay, she didn't consent, she was protesting, but I thought she did consent," and being acquitted; or the thought of having to go it alone, perhaps with a disbelieving police force and a disinterested Crown Prosecution Service, facing the near-inevitability of an ultimate acquittal. We all agreed that if we had been raped by somebody we knew, we would not report it—middle-class, middle-aged, confident women like us. How much worse is the predicament for the less articulate, less confident, less secure younger women who live on the poorer estates—for example, in my constituency, Redcar?
When clauses 1, 75 and 76 come through, and the other good steps that I mentioned which the Government have taken start to bear fruit, and in particular if they drive forward the policy of rape support embodied by sexual assault referral centres, I think that reflecting on the position, I and my two friends would change our minds. We would say that it would now be worth making a report. It would not only change our minds but it would enable us to encourage those less advantaged women to do the same.
For those reasons. I believe my right hon. Friend the Home Secretary has greatly taken forward the cause of justice for women through these changes to rape law. In fact, I can go a little further. For the women 224 campaigners who have campaigned for the 27 years since 1976 to reverse the ruling in the case of R v. Morgan that allowed an honest, even if unreasonable, belief in consent to be a defence, there is a real possibility that this Home Secretary will become a feminist hero.
§ Sandra Gidley (Romsey)
I add my congratulations to the Government. The Bill is welcome and, in many ways, overdue. It spent an inordinate amount of time in the other place. I am told that there is nothing that peers like quite so much as talking about sex. Clearly, that must be true, as they have been talking about it for six months. A peer recently said to me, "Don't hang on to the Bill for too long. We want it back."
That diligence has resulted in a Bill that is much better than the original. The improved wording of the clause on rape, which has been more than adequately described by the hon. and learned Member for Redcar (Vera Baird), will hopefully be more workable and result in more convictions. I was struck by the fact that the hon. and learned Lady said there was a 45 per cent. conviction rate. I do not know whether we have been reading different figures, but I read recently in a briefing by the Rape Crisis Federation that the conviction rate had dropped to 7 per cent. That may be from a different baseline.
§ Vera Baird
In respect of the cases that get to court, there is a 45 per cent. conviction rate. In respect of those where a complaint is made, there is only a 7 per cent. conviction rate, because there is a massive drop-out on the way to court.
§ Sandra Gidley
I thank the hon. and learned Lady for that clarification. I assumed that that was the explanation, but the briefing that I read did not make it clear.
People are happier with the rape laws as they now stand. The naturists in my constituency are happier. Some of the sillier initial suggestions, such as making it illegal to advise the under-16s on matters sexual, have long since disappeared. That does not mean that we in the Commons have an easy ride. There are still a number of aspects of the Bill that give cause for concern, and a number of small matters that seem to have been overlooked.
My main concerns about the Bill as it stands can be loosely summed up as relating to issues involving exploitation. Trafficking, offences against persons with a mental disorder or learning disability, and child sex offences all involve some measure of exploitation. If we as a society and as a Parliament fail to protect the weak and the vulnerable, we fail in our most important duty.
I share the sentiments of those in the Chamber today who seem to believe, as I do, that above all, we must protect our children. When I use the phrase "our children," I do not solely mean British children, as I include those who are victims of horrors such as sex tourism and trafficking. None the less, I should like to start off closer to home and examine the Bill as it affects many children this country. Hon. Members should bear it in mind that I also start from the premise that it is completely unacceptable for an adult to sexually abuse 225 a child, particularly if they are placed in a position of trust. It follows that it is absolutely right that the Bill deals with such behaviour.
I share the concerns of the Chairman of the Select Committee on Health and the hon. Member for Lancaster and Wyre (Mr. Dawson), who find it deeply worrying that the Bill appears to criminalise the sexual activities of all young people, regardless of whether they take place with or without consent. In my kinder moments, I wondered whether I was seeing the dawn of a new age of joined-up government and whether such provision was the Home Office's contribution to reducing the teenage pregnancy rate by saying "It's simple: let's make it illegal."
The Health Committee's recent report on sexual health, however, highlighted some of the problems in the sex education that our young people currently receive and recommended that greater emphasis be given to relationships and sex education so that young people feel more comfortable and can discuss their sexuality in a non-sniggering manner. Sadly, I must conclude that we have not seen an example of joined-up government, as the measures in the Bill will serve only to reinforce the attitude that teenage kissing and experimental petting are somehow smutty and dirty and should be done behind the bike sheds—a place that has been mentioned already—almost as an underground activity.
Not all adults are comfortable with the idea that teenagers are sexually active, but we need to reflect on what is happening out there in the real world and ensure that our laws do not attract ridicule. The matter definitely needs careful review in Committee. Indeed, I thought that that was the case even before the magnum of champagne was offered. What we do not need is a law that cannot be enforced.
Other European countries have tackled the problem by decriminalising sexual activity between under-16s. I am not suggesting that we should necessarily take that route, as I am not convinced that it is the right way forward. Finland, for example, has taken a different approach. Sex with under-16s is not deemed an offence in Finland if there is no great difference between the ages or mental and physical maturity of the persons involved. That strikes me as the beginning of a pragmatic approach that we might consider. Criminalising consensual activity between adolescents devalues the suffering of genuine victims of child abuse. I strongly believe that we have to find some way of differentiating the two issues. The problem was acknowledged in Committee in the House of Lords, as it has been today. I think that the Government are well aware of it and I like also to think that they genuinely do not know quite how to take it forward in a practical way.
I was slightly alarmed that, on Third Reading, the Minister in another place proposed safeguards against inappropriate prosecution by suggesting that guidance would be issued by the Director of Public Prosecutions. Such guidance would be implemented by officials, who may have widely varying moral standpoints that will impact on their decisions. That does not seem fair to 15-year-olds throughout the country who are doing what 15-year-olds do naturally. I feel that we need to deal with that matter in the Bill.
226 I turn now to situations in which the vulnerability of a child is exploited. In particular, I welcome the attempt to deal with sex abusers who use the internet to groom. That issue has been more than adequately dealt with today and I shall not repeat what has been said; there ts a huge amount of agreement in the House. I want to concentrate on an area of particular difficulty. While I call for common-sense measures to deal with the problem of consensual teenage activity, I believe that we have to admit that there is a darker side to life and that a number of child sex offences are committed by children and young people. Research shows that 25 to 40 per cent. of all alleged sexual abuse involves young perpetrators. Of 6,400 people cautioned for, or found guilty of, a sexual offence, 23 per cent. were aged between 10 and 21. It has been estimated that in 1994 more than 10,000 children were sexually abused by another child or young person. It is not a small problem, and we need the courage to tackle it. The law needs to protect innocent children from abuse, whatever the age of the abuser. We firmly believe, moreover, that abusers who are children cannot be dealt with in the same way a s abusers who are adults. We recommend a child-centred approach to tackling the problem of young abusers, then rehabilitating them.
As a society, we must recognise first and foremost that children and young people are still developing both physically and emotionally. Children who abuse often do so because they have themselves experienced a form of sexual, physical or emotional abuse. It is a complex picture. We owe such children help and support, which must be of a specialist nature. It is inappropriate to treat those damaged children in the same way as adult sex offenders, because often they do not fully understand the consequences of their actions. That said, some children and young people do pose a risk to others, and their behaviour requires careful management.
In 2002, the National Society for the Prevention of Cruelty to Children produced a report called "I think I might need some help with this problem", which concluded that Government policy regarding that group of children remained unclear and that services remained sporadic and largely unco-ordinated. In 1998, a report by Her Majesty's inspectorate of prisons concluded that fewer than half of the 10 probation services inspected made any provision for juveniles displaying signs of sexually harmful behaviour.
We are in desperate need of a strategy and the resources to achieve it. It is disappointing that the Bill does not explicitly provide that assessment and treatment should be available on a statutory basis as soon as children and young people come to the attention of local authorities. We believe that assessment should be on a case-by-case basis—a one-size-fits-all policy is not appropriate, because the range of children and their problems is wide and complex—and that it should go hand in hand with an assessment of the child's need for protection. Those measures would ensure that the possibility that the child may himself have been the victim of abuse is taken into account and that the necessary counselling and support is provided. We shall table amendments to that effect in Committee.
Another area of concern, which I share with the hon. Member for Lancaster and Wyre, who is no longer here, is the sex offenders register, covered in clauses 81 to 93. It may not be right to force young people to register in 227 the same way as adults, even though there is a reduced notification period; we must think carefully about whether that is the best approach. There is a strong case to be made for putting the child or young person at the heart of the process and dealing with them individually. If the child has been abused, that must be taken into account before any decision is made as to whether to put him on to a sex offenders register, which will have a huge impact on a very young life in terms of family, friends, and education or work. It is not a measure to be taken lightly: it should be based on recommendations by trained professionals, who are the best people to decide whether the young person is a risk to the community. As the Government have been unwilling to address those issues in the Lords, we intend to raise them in Committee.
Many hon. Members mentioned trafficking. I pay tribute to UNICEF for its effective lobbying campaign on that subject. Again, I shall stress the most important points. There should be a distinction between adult and child trafficking. Most victims are 13 to 17, and that highlights the need for strong measures to deal with the problem. It should not be tackled in a magistrates court.
The Government are obliged under the United Nations convention on the rights of the child to protect the rights of vulnerable children. The hon. Member for Tatton (Mr. Osborne) listed all the protocols that reinforce that point and I shall not try hon. Members' patience by repeating them. The United Kingdom police stated that there are two main obstacles to prosecuting traffickers. First, there is a lack of a specific law—the Bill deals with that problem. Secondly, there is a lack of victims who are willing to testify. That obstacle will remain unless we change the Bill. The Government have a moral duty to protect innocent children but that is absent from the face of the Bill. Earlier, it was said that the four countries that provided periods of reflection and introduced strong measures to deal with the problem had the highest conviction rates. Perhaps the Minister will tell us in his winding-up speech the way in which the UK intends to match the conviction rates of countries such as the United States, Italy and Sweden if we do not provide the necessary period of reflection. Several pilots show that the Government have some commitment to tackling the problem. However, it would be useful if they could put on record their commitment to assessing the pilots and the subsequent implementation of any schemes as a result of recommendations from them.
We also support the case that the hon. Member for Northampton, North (Ms Keeble) made for victim protection at the same time as the period of reflection, during which problems can arise. It takes time for the child to develop a relationship of trust with authorities, such as the police. Without time for trust to develop, it is impossible to get a prosecution. Even worse, children who are sent straight hack to the country of origin are much more likely to fall into the hands of traffickers. To remain oblivious to that and claim that it is not our problem is a dereliction of duty.
I was delighted that the Government have already tabled amendments to deal with the problem of sex tourism. They would close the loophole that previously meant that those on the sex offenders' register who went on holiday for less than eight days could disappear to countries such as Thailand and Cambodia and abuse 228 children there. I have visited Cambodia and witnessed the extent of the problem, and the amendments are welcome.
Abuse is also a severe problem for those with a mental disorder or learning disability. Clauses 32 to 46 deal with such offences. The charity Turning Point says that 1,400 people with learning disabilities are victims of abuse every year. Any law must be carefully drafted because it must recognise that people in that category have as much right as others to engage in sexual activity. However, that must be counterbalanced with measures to guard against exploitation by those in positions of trust and authority.
The charity Sense, which deals with deafblind people, raised some especially sensitive issues. It makes the point in a paper that it is difficult to provide sex education for a deafblind person with some form of learning disability without touch, which is fundamental. Sometimes there is no alternative. Are we to deny people in that category the benefits of some sort of sex education? The message must also be given to people such as these that they need to be able to differentiate between appropriate and inappropriate behaviour. It is beyond my skills to say how we should deal with this in practice, but it is worth keeping the issue in the back of our minds as the Bill progresses.
Some progress was made in the other place, but a number of issues relating to people with a learning disability remain outstanding. Of most concern are those relating to the capacity to consent. It is a puzzle to me and to many who work in the field that clause 32 uses the wordsunable to refuse because of a mental disorder or learning disability",while the remainder of the Bill almost universally refers to "consent". To my mind, there is a fundamental difference between the two concepts, and I would welcome an explanation of the Government's thinking on this. Why cannot the wording in clause 32(1)(c) be altered toB is unable to consent because of a mental disorder or learning disability"?We need to be consistent with the provisions relating to rape at the beginning of the Bill.
One interpretation of this matter is that the current definition risks people with learning disabilities being seen as never able to consent to sexual activity. I am sure that the Government have not done this intentionally, and that they will seek to put the matter straight in Committee. It would also be useful if the Government were to issue a code of practice, alongside the Bill, on the provision of sex education and therapy to people with learning disabilities. This would protect care workers who legitimately provide such services.
My other major concern surrounds the Bill's provisions relating to care workers. We wholeheartedly support the thrust of the amendments on those issues, but we are concerned that the definition of a care worker includes the phraselikely to"—have—regular face to face contact".229 This could cause two problems. First, there is no provision for dealing with a care worker who abuses as a result of a one-off contact. The most obvious example that springs to mind is the use of agency staff, because many places are understaffed and need to resort to the use of agency staff from time to time. There need to be checks and balances in place in those circumstances. The Government have recognised this, but I am not sure what they plan to do about it. The second scenario is one in which abuse could be repeated on several occasions but over a long period of time, making such contact difficult to define as "regular". I flag this up as another issue that needs to be discussed in Committee.
I had hoped to complete the theme of protecting the vulnerable by mentioning rape, but the subject has already been dealt with. I have little to add to the comments made by the hon. and learned Member for Redcar, and I would like to give everyone else time to speak. We have here a Bill that could command support in most parts of the House. The Lords have performed a huge task in successfully making it better, and I look forward to working with other hon. Members to make it better still.
§ Stephen Hesford (Wirral, West)
I am grateful for the opportunity to speak in this debate. It might have been suggested that I, along with the hon. Member for Witney (Mr. Cameron) and others, should expand our speeches ever so slightly. Perhaps my hon. Friend the Minister also realises how much time we have available. I welcome that, because my hon. Friend—to whose winding-up speech I look forward—will have as much time as he needs in which to address all the very relevant points that have been raised throughout what has so far been a very good debate.
Before I move to the main part of my speech, I would like to reflect on what my hon. and learned Friend the Member for Redcar (Vera Baird) said about the support mechanisms that exist to assist the victims of rape in coming forward. If we cannot actually get them to come forward, we want them to be able to deal with the problem and feel able to come forward to receive treatment, counselling or the like. I did not originally intend to speak about that aspect of the Bill but having heard what my hon. and learned Friend said, I realise that it is a key issue. The Bill does not deal with it directly, but without the additional features referred to by my right hon. and learned Friend, some of the important measures that we pass may not be as effective as we want them to be.
I am a patron to the Zero centre, a rape crisis centre in my own constituency, so I well recognise the issues about which my hon. and learned Friend spoke. In my short time in the House, that centre—together with a sister organisation that deals with similar issues of family distress, rape and child abuse—has on several occasions been under threat from lack of funding. I am pleased to say that lottery funding has helped the Zero centre to get on its current firm footing. I greatly commend the work of such centres throughout the country. I also echo what my hon. and learned Friend said about the need for co-ordination between such 230 centres so that women can have a one-stop shop for reporting incidents, medical assistance, counselling and so forth whenever they need them.
I greatly welcome the Bill. It has rightly been said by my hon. Friends that it has been a long time in the formulation. From my knowledge of the process, it started in the previous Parliament. I took part in a series of seminars at an early stage in the consultation process before the last election. I shall say more about definitions in due course, but at those seminars I was not filled with hope that we would reach this stage, mainly because the legal profession highlighted the major problems associated with redefining the law of rape.
The fact that we have reached this point from that small beginning is a measure of the determination and commitment on the Labour Benches—through my right hon. Friend the Home Secretary, his predecessor and current Ministers—to keep the process in train. I have noticed various points during the past three or four years at which we could have run out of steam. That should make us reflect. As my hon. and learned Friend pointed out, 1976—20-odd years ago—was the second to last time that rape law was examined in a major way. Why? The key reason is that it is such a difficult area in which to legislate. That makes the present legislation even more welcome.
The Bill is in line with the Government's whole approach to legal and constitutional affairs. It sits well with our willingness to put victims first. Like other Members, I have had the pleasure of speaking to several such Bills, on the Floor of the House and in Committee. The Proceeds of Crime Act 2002 put victims first in trying to get at the drug dealers when existing legislation was not as effective as it should have been. The Courts Bill 2002 is about modernising the courts to make them work better for victims. The Criminal Justice Bill 2002 is still going through Parliament, but will hopefully soon become an Act. There has been a series of measures and it is no coincidence that, under this Government, the commitment in the Home Office and the new Department for Constitutional Affairs to ensure that the court system works for victims is there for all to see. I want to talk about a particular set of victims, as my remarks are addressed specifically to part 1 of the Bill.
A series of seminars in 1999 led to the report entitled "Setting the Boundaries". What are the modern boundaries in sexual activity? Some activities are private, or involve consenting adults or people of the same sex, but the problems of definition are difficult to resolve. I am delighted to say that a measure of agreement has been reached.
I commend the back-room staff at the Home Office for the way in which they have brought this Bill and other measures forward. Had the process been handled less well, the degree of agreement evident in today's debate would not have been achieved.
The hon. Member for Romsey (Sandra Gidley) pointed out where problems could have been encountered had the Bill not been as successful as it is—helped, of course, by the changes and amendments passed in another place. Even so, the hon. Lady made several criticisms of the Bill. I consider some of them to be misplaced and, if I am lucky enough to be a member of the Standing Committee, I hope that she and I will be 231 able to debate the matter. That just goes to show how much hard work it took to achieve the degree of agreement about the Bill that has been secured.
That hard work resulted in the White Paper "Protecting the Public", which was extremely well received. The hon. Member for Beaconsfield (Mr. Grieve) mentioned how many briefings hon. Members have received, and that shows how much interest the proposed reforms have aroused. The briefing from the Rape Crisis Federation caught my eye, as it deals with the idea of the female victim. If the definition of rape in clause 1 was badly wrong, that organisation would be the first to point it out. An inaccurate definition would compound the problem with the old law that my hon. and learned Friend the Member for Redcar detailed. I shall return to that matter shortly.
In my experience of dealing with sexual offences and serious crime before I was elected to the House I have seen juries deliberate on rape cases I have seen how they react to rape victims and I have witnessed at first hand how problems that have been described in the debate play out in a court.
There is no doubt that the Bill is overdue. It is worth repeating, as has been noted already, that the change proposed in clause 1 introduces the idea that the belief is reasonable. I say that because of the awfully low conviction rate. Whether it is the 7 per cent. of cases reported, or the 45 per cent. that go to court, as against well over 50 per cent. for other offences—I think that my hon. and learned Friend the Member for Redcar said that it was 70 per cent.—that rate is atrocious.
It is atrocious for a number of reasons. It is a denial of civil liberties to that class of victim. One reason why there is a high drop-out rate is that the victims have no confidence in the system, which cannot be right. It cannot be right for us to think, as practitioners, which I used to be, or as legislators, that there is a class of victim that has no connection with or belief in the process that would secure justice for them in what is one of the most serious offences, which is a grave violation of a human being.
I think my hon. and learned Friend the Member for Redcar said that it might be normative to make people reflect on their actions. I hope that that may be the case. I want to describe how it may impact on the practitioners in criminal courts and how they approach rape cases—how a judge and jury may better understand a rape trial.
On consent, one reason why there was a low conviction rate was that if that was the issue at trial, and given, as my hon. and learned Friend said, that most rapes are committed by someone the victim knows, which I believe to be correct, added pressure is placed on the jury. How do they differentiate between the case in question and the usual dealings between the two people. And how does the victim do that? Even a wife must be able to say no. In the past 10 years, the law has changed and a wife can now say no. We no longer have the Victorian attitude that, as part of the marriage contract, the wife has to say yes in every circumstance. In the sort of rape case that usually comes to court, involving people who know each other, the reasonableness test is classically designed to make the jury reflect much more strongly on the circumstances and the acts under review.
232 I have not been involved in many rape cases. The cases that I witnessed that resulted in acquittal brought to mind what older practitioners told me about murder trials when we had capital punishment, when a number of murder cases resulted in acquittals simply because if the jury said, "Guilty", the defendant would hang—it is not an exact parallel, but I hope the House will find it useful to reflect on it. In many cases, the verdict was manslaughter simply because the jury could not face the consequences of a guilty verdict.
In rape cases, there seems to be a sort of parallel. Juries would take the easy way out. I am obliged to the hon. Member for Woking (Mr. Malins), who seems to be agreeing. It was the easy way out because of the way in which the law was framed—it might have been an unreasonable belief, but it was one that was honestly held. A more objective standpoint might have brought a different result.
It may be instructive for the House if I depart from my usual practice and remind hon. Members of a situation that illustrates the difficulty of securing a conviction under the law as it was. Again, I am grateful to the Rape Crisis Federation for its briefing. I hope that that organisation will forgive me for pointing out that one of the two case studies in the briefing was much less useful and convincing than the other.
In brief, the first case study concerned a 16-year-old girl whose mother heard her screaming in her bedroom. The mother found a man on top of her daughter having sex with her. The circumstances seemed to be that the girl met the man as she was coming home, worse the wear for drink. She could remember nothing about the evening. When the man was arrested, he initially denied meeting her but he was caught on closed-circuit television using his credit card, which linked him to the scene. He then came up with an amazing story, which the jury accepted. He said that he had bumped into the girl, who agreed to have sex with him later on the basis that he looked Italian. In his neck of the woods, it was well known among his mates that all girls said "yes" to a man who looked Italian.
I see that some hon. Members are laughing, but it was no laughing matter for the distressed mother and daughter in that case. The case study offers an almost ridiculous example of how someone charged with rape in such circumstances can maintain an honest, even though unreasonable, belief. Under the new law, the jury would have been asked to deal with a different set of questions.
The second element that I want to discuss is anonymity. I understand the arguments put forward by the hon. Member for Beaconsfield (Mr. Grieve), who is not in his place. The Opposition have concerns about anonymity and they would support a version of clause 2, which, I understand, was inserted by Lord Ackner in the other place.
I welcome the Secretary of State's assurance that the Government will amend the provision so as to take the sting out of it, although removal would be my preference. I say that because if a form of anonymity applied to a serial rapist to the extent that the public had less access to the identity of that offender, it would hinder the prospect of other victims coming forward to say, "Yes, I had contact with that person and he did the same thing to me, but I thought I was the only one, so I 233 didn't report it. Now that I know that other women are coming forward, I am emboldened". That would change the case, but such a situation would be much less likely if there were anonymity. If the House is determined to make conviction for rape easier in the right circumstances, removal of anonymity would be the right way forward. I support the Government in that.
Finally, I want to turn to a slight amount of detail. In some senses, this has been mentioned before, but it is important and, again, if I serve on the Committee, we may return to it. I have not spoken about the important part of the Bill that deals with the protection of children. Some elements of the Bill are welcome, especially the new proposals on grooming and arranging or facilitating the commission of child sex offencesin any part of the world",but I want to be sure that we take a consistent line.
I ask the Government, in advance of the debates in Committee, to reflect on the fact that clause 15, entitled "Arranging or facilitating commission of a child sex offence", will apply only to offences under clauses 10 to 14, not to clauses 6 to 9, which relate to the very serious sex offences on children under 13. Clause 17, entitled "Meeting a child following sexual grooming etc.", deals with the same kind of issue, but the offence under clause 17 is aimed atan offence under this Part.So the offence of meeting a child following sexual grooming is aimed at offences under clauses 6, 7, 8 and 9, which relate to the very serious sexual offences, yet the offence of arranging or facilitating the commission of child sex offences, which is more serious in some ways, is treated differently.
I shall give an illustration. In another branch of the law, it is often thought that theft is less serious than handling offences, which carry a greater maximum penalty because those offences often facilitate the theft—one is done for the other—and a parallel relationship is involved in arranging or facilitating the commission of a child offence the arranging makes the offence more likely if someone engages in commercial activity of that type or something similar. I ask my hon. Friend the Minister to consider the effect of the Bill, given that, first, there will be no life imprisonment for the most serious offences and, secondly, they will not be fully covered.
I congratulate my right hon. Friend the Home Secretary and his colleagues on introducing the Bill, which is in a usable form. It represents a major step forward in treating a special class of victim and in reclaiming civil liberties for females in a number of different circumstances. They can go out and have a drink if they want, without being accused of overdressing outrageously or whatever, and people in domestic circumstances can say no if they want. The Bill will assist both classes of potential victim, and I commend it to the House.
§ 6.3 pm
§ Mr. David Cameron (Witney)
It is a pleasure to follow the hon. Member for Wirral, West (Stephen Hesford) in the debate. As a former barrister, he brings 234 great experience to this issue. It is always difficult speaking at the end of a long debate, such as this. I went home the other night and told my wife that I had just made a speech in the House of Commons and she said, "What was the point of that? I expect you sat there for six hours and then made all the same points that everyone had made before you"—very perceptive. I shall try to avoid doing that tonight.
Like other hon. Members, I welcome the Bill. It is right to codify and bring together the law on sexual offences. It is right to update the law, as the Bill does in a range of ways. It is also right to introduce the new offences that many hon. Members have spoken about, not least to keep pace with technology. Much has been made of the offence of internet grooming, and the hon. Member for Leigh (Andy Burnham), who is not back an his place, spoke about it powerfully. The police have told me that they need changes in the law to keep up to date. Everyone in the House is clear that paedophiles, rapists, those dealing in child pornography and traffickers need to be hunted down and punished, and this Bill helps us to do that, which is why, I am sure, it has all-party support.
As a member of the Home Affairs Committee, I also welcome the way in which the Government have handled this Bill. They have listened at each stage: they listened in the other place, and they listened to the Select Committee report. We had some difficulty, as we were trying to conduct pre-legislative scrutiny while the Bill was in the other place, and we often found that we were dealing with a moving target—we would come up with a powerful argument, but it would not matter any more because the provisions had been amended. We came to many of the same conclusions as the other place.
It is also a difficult area because we are dealing with awful crimes, and we are also dealing with sensitive areas in which we must choose our words carefully. The Home Secretary gave us some good examples of that from the debate in the other place. It is worth saying, however, that what we are trying to do is criminalise that which is wrong. I hope, however, that the Government are also trying not to draw into the criminal law those things that are harmless but of which we may disapprove. One or two problems may still exist, such as those relating to clause 14 and 15-year-olds having a snog. I am not claiming that I am going to win the bottle of champagne, but it is nice to know that, under new Labour, it is a bottle of champagne and not a pint of lager, so we can all work on it.
The Home Affairs Committee looked in detail at three areas that I want to mention. The first issue was sexual activity in public, which was dealt with in clause 74 of the old Bill, but that clause has now gone. That decision was absolutely right, as the clause was far too widely drawn. It was in danger of making the law look an ass, as the Home Secretary said earlier. I hope that it will not be reintroduced to deal with the problem that the Government perceive in relation to sexual activity in public lavatories. It is worth remembering why the clause on sexual activity in public was included in the first place: it was an honest attempt to be comprehensive and gender-neutral. What happened was that we found that it would end up criminalising a couple of people in a car, halfway up a mountainside, having a fumble on the back seat. That was clearly the wrong result and that is why the Government rightly dropped the clause. I hope 235 that they will not reintroduce it in any form to deal with the other problems that they are having, as harmless activities should not be criminalised
The second area was the question of exposure and the concerns of British Naturism. I suggested that we bring in representatives of British Naturism to present evidence and answer questions, which it did extremely well. It had real concerns about the Bill, which have been partly dealt with, about which I want to make a few comments. British Naturism says that it has 20,000 members and that 2.5 million people in this country take part in naturist activities. While I was listening to the debate. I worked out that that is 5 per cent., which, if the House is representative, must include at least 30 Members. I can only think of one or two who take part—[HON. MEMBERS: "Name them."] I will not go that far, as I am just starting out. Calm down, as Michael Winner once said.
This matter was dealt with by clause 70, now clause 68. The old test as to whether one was guilty of this criminal offence was knowingly exposing oneself and being reckless as to whether that would cause offence, which was wrong. The naturists rightly said that sometimes one cannot know whether one is being reckless, as one cannot know the state of mind of the other person. In my constituency, people sometimes go punting along the Cherwell, and—for those who know Oxford well—when they reach Parsons' Pleasure, they sometimes find a few dons in a state of more than partial undress.
§ Mr. Cameron
I am sure that my hon. Friend was in the punt and not on the bank. The point is that we should not criminalise that sort of behaviour. In addition, the test as it was drawn would have caught someone who was changing their swimming trunks on the beach and who tripped over—they would be reckless as to whether someone might see them and be caused offence.
The new test in the Bill is better. First, it is that one intentionally exposes oneself, and, secondly, that one knows or intends that someone will see and will be caused alarm or distress. That sounds much more sensible, and the naturists, including those from my constituency who have written to me, should be more relaxed about it. However, they are still not happy and I hope that the Minister will listen to them.
The naturists are still making two points. One is reasonable, the other less so. The less reasonable point is their request that there should still be a reference to sexual gratification—that is, that it should be a crime for someone to expose themselves only if they do so for that purpose. That presents a problem, because surely there are cases involving deliberate exposure to cause offence, but no sexual motive. That probably should be a criminal activity, so the suggestion is not helpful.
The second point has more merit. The naturists would like the test of a reasonable person to be introduced to the clause on exposure—that is, a reasonable person would be caused offence by seeing someone without any 236 clothes on. The Criminal Bar Association gave evidence to the Home Affairs Committee—I refer the Minister to it—and it seemed to think that approach sensible.
The Select Committee sitting was a sketch writer's dream, as Members might imagine. I have referred to the point about British naturists all carrying passports saying that they are bona fide naturists, which caused the question to be asked, "Where do they keep their passports?" However, it came over loud and clear that those people are, on the whole, law abiding and not a nuisance. Their idea of fun might not be ours, but they have a right to be heard and listened to. I hope that the Minister will listen to their concerns in Committee, particularly the point that I have tried to put across.
The third issue examined by the Committee was rape and consent. The hon. and learned Member for Redcar (Vera Baird) made an excellent speech. She is a real expert on this. I will not repeat the figures that she gave on the dreadful rape conviction rate, except to refer Members to page 7 of the Home Affairs Committee's excellent report, which sets out in detail the number of alleged rapes taking place each year and the number going to court. That will give the hon. Member for Romsey (Sandra Gidley) the full picture, but the figures are truly awful.
It cannot be said too many times that this is a dreadful crime. That goes for date rape, stranger rape and any sort of rape. Also, it is absolutely right that the Government have a target for getting the conviction rate up. As the hon. and learned Member for Redcar said, that should be partly about police work, partly about improving the record of the Crown Prosecution Service, partly about reforming how the courts work and partly about encouraging people to come forward.
I am not going to get into the debate about anonymity, as I do not think that I agree with what the Select Committee said about it, but we must remember that what is right is anonymity for the person who has been raped. One of the reasons for introducing that was to encourage people to come forward, which is absolutely what we should keep.
It is difficult to get to the bottom of the crime of rape and work out exactly what happened between two people, but, as the hon. and learned Member for Redcar said, it has not become five times more difficult, yet that seems to be what has happened to the conviction rate—it has got five times as bad. In this context, we must ask ourselves how much a change in the law will address the problem of the conviction rate. I agree absolutely with the hon. and learned Lady about clause 1, which is the right way round the Morgan case. The clause says that reasonable belief in consent has to be shown. It will not be good enough to say, "I thought that she consented." The hon. and learned Lady was extremely clear about that.
However, less clear are clauses 75 and 76, which set out the so-called rebuttable presumptions, when it is presumed that consent is not given. Clause 76 deals with conclusive presumptions, when it is conclusively proved that consent is not given. If that sounds complicated, that is because it is complicated. It was even more complicated before the House of Lords got at it.
237 Our report says thatClause 78"—as it then was—was probably the most confusing provision in the whole Bill… the drafting was cumbersome and attracted much criticism from judges and lawyers.
The measure has been improved but I hope that in Committee the Minister will think about the concern about complexity. Rebuttable presumptions, which are made when one presumes that consent was not given, will apply if violence was threatened or if a person was trapped in a room. One might say that it would be common sense to reverse such a presumption of consent. There are only two narrow conditions for conclusive presumptions. For example, if a rapist impersonated another person, the Bill states that it must be conclusively presumed that consent was not given.
I am not a lawyer but I served on the Committee that considered the Criminal Justice Bill. When there were previous changes to criminal law such as to the rules of hearsay, to the rules on previous convictions and to the right to silence—a change made by the Conservative Government—the argument was made that the court should hear all the evidence and that a jury in an open court should be trusted to reach the right decision—we should let the dog see the rabbit, as it were. However, the rebuttable and conclusive presumptions about consent seem to write into law detailed provisions on how a judge should direct a jury.
I showed the Bill to a criminal QC this morning, and he said that there is a danger of introducing complexity with no added value. I want the Minister to think about that when the Bill reaches Committee. Let us consider what would happen if Miss A, the victim in a rape case, said that someone impersonated another person.
§ Stephen Hesford
I am listening with care to what the hon. Gentleman is saying and I understand his perspective. From a practitioner's point of view—I tried to address that in my speech—if the presumptions work and are workable, more guilty pleas might well be entered for such cases because defendants would not be able to see a way out. That is why the provisions might come into their own.
§ Mr. Cameron
I am about to address precisely that point. If the hon. Gentleman is right—I have an open mind about that—we should go ahead with the provisions as drafted. However, he should think about this possible situation. A victim could say, "My attacker impersonated someone else and then threatened to hit me," but the defendant could say, "I didn't impersonate someone else and I didn't threaten to hit her." Under the Bill, I understand that the judge would have to say to the jury, "If you believe that he was impersonating someone else, that is a conclusive presumption that no consent was given, and if you believe that he threatened to hit her, that is a presumption that on balance no consent was given. However, if you don't believe those things, you take a different view about consent." The provisions will make judges undertake a complicated process of explanation. What we really want is a jury to consider the case and decide that if the defendant impersonated 238 another person, obviously there would be no consent. The provision is an attempt to write down common sense.
Let me quote what Mr. Rook of the Criminal Bar Association said about the proposals:What you are doing here is putting judges into strait-jackets, if you like, legislative strait-jackets, where they have to go through these various directions. So, in those circumstances, we feel that actually the importance of a clear summing-up may be last because of having to go through these assumptions, shifting burdens of proof and so on.I admit that he was talking about the provisions before the Lords amended them, but the measures are still rather complex and the Minister must have a think about them.
I do not think that I shall win a magnum of champagne from the Home Secretary, but attention must be given the Family Planning Association's question of whether the Bill will make kissing a crime for 15-year-olds—it is not actually just kissing that is at issue, I think that the Government would call it kissing plus. The problem is not clauses 10 to 13 but the relationship between clause 14 and clauses 10 and 11. I thought for a moment that the answer might lie in clause 14, which says: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.
I thought the solution might be to ensure that that does not apply in the narrow circumstances of clauses 10(1)(c) and 11(1)(c) when both individuals duly consent. The problem is, however, that there is no concept of consent for under-18s. The hon. Member for Romsey mentioned what happens in other countries, and that may provide the answer. We could also consider the suggestion by the hon. Member for Lancaster and Wyre (Mr. Dawson) for a common-sense provision to state that nothing in the Bill should criminalise what a reasonable person would think of as normal behaviour.
In sum, good law should march with common sense and we should criminalise what we know to be wrong. There is still a danger of trying to be so comprehensive that we sacrifice some common sense and draw things into criminal law that should lie outside it. I know that the Government are listening to our points. I hope that with their good will in Committee, we will ensure that the Bill becomes good law.
§ Mrs. Annette L. Brooke (Mid-Dorset and North Poole)
I, too, welcome the Bill. The intention to protect individual adults and children, and the updating of legislation to reflect today's society and attitudes, are to be applauded. As we have seen from today's news, it is essential to provide effective protection against crimes such as those stemming from the internet.
We also owe an enormous debt to our noble Friends in the other place who spent so many hours scrutinising the Bill. On the whole, they have made it much more workable. The co-operation there shows us how Parliament can work well and our constructive debate augurs well for Committee. However, concerns do remain. In touching on a few of them, I shall try not to be repetitive.
239 It is important that people across the spectrum of sexuality are treated equally under the law. What consenting adults do in private is their own affair. Children and people with mental disabilities should be dealt with appropriately. The human rights of victims and the accused should be protected. I want to restate our position on anonymity. I am convinced that we need to change the way in which people's lives can be destroyed by the media, even though a charge may never be made against them. That does not apply just to rape cases, but to child abuse cases and many other offences, too. There has to be a balance if someone whose identity is protected makes an allegation that just may be entirely false. If the accused is never charged, there is no possibility of the individual being publicly vindicated by an acquittal.
It is right to revisit clause 2 in Committee and to consider the case of witnesses, as my hon. Friend the Member for Southwark, North and Bermondsey (Simon Hughes) said. I hope that the Government will not simply try to delete the clause, but instead will listen both to the conclusions of the Home Affairs Committee, which suggested that anonymity of the accused be protected for a limited time, between allegation and charge, and to those who conclude that there should be anonymity until the point of conviction. I hope that with a spirit of co-operation in Committee we will get the right balance between the need to protect potentially innocent suspects from damaging publicity and the wider public interest in retaining free and full reporting of criminal proceedings, including the benefits that that publicity can bring by encouraging other victims to come forward.
Liberal Democrats welcome the measures to protect children from sexual abuse, but as my hon. Friend the Member for Romsey (Sandra Gidley) said, there are concerns about how the Bill treats young people. Publication of the children at risk Green Paper before the debate would have helped our discussions. I hope that it will be published before we discuss the Bill in Committee so that we can use it as a basis on which to build.
Although I welcome the approach to protecting children from abuse, there is a danger of criminalising children for innocent activities on their part. We know that sexual activity between the ages of 13 and 16 is fairly common. Surveys show that it is as high as 30 per cent. for males and 26 per cent. for females. We must accept life as it is today, although it is of course important that precautions are taken against unwanted pregnancy and advice on the prevention of sexually transmitted diseases is provided. Yes, we must be concerned if kissing and petting become a criminal offence.
I was rather struck by the statement made by my noble Friend Baroness Walmsley in the other place when speaking on this issue. She said that there is a paradox: the Bill stipulates that a child under the age of 13 cannot understand the implications of sexual activity sufficiently to consent to it, but can simultaneously be expected to understand its implications sufficiently to be held criminally liable for it. There is much that we need to consider carefully and sensitively in Committee.
Along with other Members, I hope that someone wins the champagne. It is essential that we try to amend the Bill to reflect the real lives and needs of young people today. We will badly let them down if we leave the Bill 240 in a mess. We must ask ourselves whether it is necessary to criminalise normal adolescent behaviour in order to achieve our overall objectives.
As my hon. Friend the Member for Romsey pointed out, between 25 and 40 per cent. of all sex offences against children are perpetrated by juveniles. I should like to reflect on a very sad case that was brought to my attention in one of my surgeries. I shall call the person David, although that is not his name. David's parents came to see me. About 17 years ago, it was identified that David was experiencing a difficult adolescence. Perhaps he and his parents were struggling to come to terms with his emerging homosexuality. The parents commissioned a psychiatric report, which concluded that there was no danger of him harming anybody. Subsequently, he was fined £10 for a minor sexual assault. At the age of 19, he was convicted of a serious offence against a 10-year old. Thirteen years on, he is still in prison in the north and has no hope of release.
I was in frequent communication with the Minister's predecessor about the matter and I am sure that I will be so again. We must realise that lack of early identification and treatment led to tragedies for two families. That brought home to me the need to recognise that there are always two sides, and to work on the preventive side. Although not all words will be appropriate in the Bill, we must carry that culture with us.
Many points have been made, but I am running out of time so I shall end by addressing the issue of trafficking. I, too, congratulate UNICEF and all those who have worked in the area. Just a short time ago, I was privileged to be taken to Moldova with UNICEF representatives. There, sadly but usefully, I learned a huge amount about the trafficking of children and women. I saw the problems of trying to overcome trafficking due to huge poverty and the tremendous push factor, the like of which I had never seen. Even when young women were returned to Moldova and helped in a refuge, they were still likely to return to trafficking if given the chance—just as we would buy a lottery ticket. What a tragedy.
We in the western world—the destination countries—have a responsibility to bear. I therefore welcome the fact that there are clauses on trafficking in the Bill, and that so many hon. Members have ably put all the points that need putting on the issue. I hope that we can change the approach to the problem and try to do something about it. The way in which UNICEF has raised awareness of the issue must be applauded, as must the Robbie Williams film and so much more.
So much can be said and we have an awful lot to do in Committee, but overall I welcome the Bill and look forward to the careful consideration of the detail.
§ Mr. Humfrey Malins (Woking)
This has been an interesting and thoughtful debate, with helpful and constructive contributions from Members on both sides of the House. I join my hon. Friend the Member for Beaconsfield (Mr. Grieve) and other hon. Members in welcoming the Bill, which is a thoughtful, wide-ranging and coherent piece of law in the making. We all agree that it left the other place a much better Bill than when it arrived there. Credit for that is due in part to the Government—their approach has been helpful and 241 constructive throughout the passage of the Bill—but also to peers in the other place. I wish to mention in particular my noble Friend Baroness Noakes, who took a thoughtful and eminently sensible approach to controversial issues in the Bill. She, like many other Members of the Lords, offered wise and reasonable arguments and amendments. The House owes her and the other place a debt of gratitude. It also owes a debt of gratitude to the Joint Committee on Human Rights and the Select Committee on Home Affairs. I pay tribute to the work that my hon. Friend the Member for Witney (Mr. Cameron) has done on the latter Committee, including his work on this issue.
We have had a good debate, with contributions from Members on both sides of the House. The hon. Members for Northampton, North (Ms Keeble) and for Walthamstow (Mr. Gerrard), who have experience in the field, both tackled the issue of traffickers and unaccompanied children, and referred to the vulnerability of young persons and their exploitation. Their contributions were helpful for the House, as indeed was the contribution of the hon. Member for Lancaster and Wyre (Mr. Dawson), who made a speech about similar issues.
We need to revise and reform the law on sexual offences, much of which was made in a different era when attitudes towards sex and personal relationships were very different. The world is also very different, especially in terms of travel and technology. However, having accepted the need to change the law, we must accept that the fundamental principles of our criminal justice system, which were right in the past, continue to be valid today. Any reform must have regard to those principles.
I shall touch on a few issues on which further debate and perhaps amendment is needed in Committee. Before I do so, I pay tribute to my hon. Friend the Member for Mole Valley (Sir Paul Beresford) for his contribution. He talked about sexual offences against children and paedophile activity on the internet. The taskforce greatly appreciated everything that he said and contributed to its work, and we look forward to his expert help as the Bill progresses through Committee. Before leaving the issue of trafficking, I thank my hon. Friend the Member for Tatton (Mr. Osborne) for his powerful speech. He, too, referred to the significance of the issue, rightly praised UNICEF and spoke about the importance of training immigration officials.
Clause 1 is a vital provision, and deals with the issue of rape, that most grievous offence. I very much agreed with the hon. and learned Member for Redcar (Vera Baird), who talked about the vital need for support for victims in this area of law and practice simply to enable more cases to come to fruition, so to speak. She was right to stress the importance of that issue, and spoke, in my respectful view, very helpfully indeed about the law on consent generally, on changes in society, and on the difficulties that we face in relation to that. She rightly referred to the Morgan case, which tells us that in a rape trial the defendant's subjective belief that the victim consented to sexual intercourse affords him a defence, even if he has no reasonable grounds for that belief, and pointed out problems arising from that.
242 The hon. Member for Wirral, West (Stephen Hesford), who is a barrister by background, also referred to the matter, which has been troublesome. The Bill brings before the House a change for the better— an understandable change. What was first suggested in the other place was not so good, but as the Bill has progressed, we have reached a stage where, even if we d o not find clause 1 entirely satisfactory, we know that we are on the right lines, and we can discuss the clause constructively in Committee.
I wonder whether the new reasonableness test can be improved. Concern has been expressed by a number of knowledgeable groups, including the Bar Council, that the new test may not let in for consideration the defendant's particular features—his characteristics including, for example, his youth or his mental health. We may need to examine that—[Interruption.] I may have said something wrong and I could be in serious trouble, but I will press on, as I shall not be barked down by the Home Secretary's dog.
I come briefly to clauses 76 and 77 and the presumptions about the absence of belief in consent. It was pointed out in another place that there may be some gaps in the provision. It can be a little unwise to list circumstances giving rise to a particular situation, because inevitably one leaves out other circumstances that may be relevant. In the context of clauses 76 and 77, physical violence and the presumptions, we may have to consider in Committee the possibility of economic threat, which is sometimes as powerful as physical violence or more so—for example, a comment such as, "I'm not going to pay your rent any more unless…"—or other abuses of a relationship of power. That aspect merits sensible discussion, but I am pleased that round the House today there has been a spirit of constructive debate. There is a real prospect that we can take these matters forward.
I shall make a general point about rape. I am conscious of time, and the need to enable the Minister to have proper time to respond to the debate. It is a sad fact of life that the drug that results in many rapes and on so many occasions when informed consent may be in doubt, and the drug that causes many instances of women's lives being damaged beyond repair, is alcohol. Sadly, heavy binge drinking, in the past associated with young men only, is rapidly becoming fashionable among young women. Increasing numbers of young people of both sexes drink regularly to excess and often have little or no memory of what went on the night before. That makes for difficulties for juries, who have to make judgments about situations that were alcohol-dominated and poorly recollected. It is an issue in life that troubles me considerably and of course brings much grief to many people.
I understand the problem that clause 14 seeks to address, but is it the right way to do it? The clause, I think—I hope I will be corrected if I am wrong—makes criminals out of two 15-year-olds, both aware of each other's age, who with the consent of each other engage in sexual touching and no more than that. If they are guilty, they are liable to conviction on indictment to five years' imprisonment. The hon. Member for Lancaster and Wyre expressed concern about that, as did the hon. Member for Romsey (Sandra Gidley) and my hon. Friend the Member for Witney. My hon. Friend also rightly expressed some of the concerns of naturists about another aspect of the Bill.
243 What about clause 14? The Home Secretary was extremely helpful in his opening speech. In response to an intervention from the hon. Member for Wakefield (Mr. Hinchliffe), he may have said that he was considering a formulation and that no one would be prosecuted in the circumstances outlined by his hon. Friend. He said, in effect, that he came to the matter with good will, which I know he does, and that he is prepared to consider the issue. [Interruption.] I am prompted to remember that he also offered a magnum of champagne. If he adds a bottle of gin, I shall have the answer by 10 pm.
§ Mr. Malins
It is a problem among young drinkers. If I qualify as a young drinker then, as Clint Eastwood might say, "You've made my day."
Clause 14 is troublesome. One must consider the increasing maturity of girls and the way in which young people experiment. One is tempted to be flippant, but I do not want to be. Does anybody remember the back row of the cinema, where 14 and 15-year-olds would have a little bit of fun falling well short of an activity that might be thought harmful? Such young people will face five years on indictment under the clause if they are taken to court. It is a shame that that is the case. Yes, we have some sort of duty to send messages to teenagers about how they behave and to say that having sex at too young an age is wrong, but youngsters are growing up and they will experiment.
I am worried that if the clause were enforced, it would send an unhappy message to worried teenagers and parents. Even a decision by the Crown Prosecution Service or the police not to prosecute could be taken only after the child had already been traumatised by a series of questions from somebody, perhaps under caution. That is a tough experience to put a 15-year-old through. I feel unhappy about the clause, but I shall say no more at the moment except that we hope to return to the matter in Committee.
I am bound to say that clause 10 also troubles me a little. It provides that somebody who is just over 18 commits an offence if he touches sexually a person under 16. I am a little troubled by an aspect of that provision. If a mature 15-year-old girl and an immature 18-year-old boy engage in some form of sexual touching, falling short of intercourse, with mutual consent, it is odd that they should be subject to a clause providing that the guilty person will be guilty of an offence that carries 14 years on indictment. There will be no prospect of being tried in a magistrates court—it is on indictment. We need to consider that provision, as the criminal law is not the best tool to deal with teenagers having consensual contact falling short of intercourse, which is part of growing up and experimentation.
Time is against me, Madam Deputy Speaker, so I shall move past three excellent pages of my speech and turn very briefly to the latter part of it. We all agree that abusing a position of trust for the purposes of obtaining sexual gratification must be punished and taken seriously. It is right to punish such activities, as a position of trust must not be abused. A relevant parallel is theft, which is a criminal offence, but is heavily aggravated when it involves a breach or abuse of trust, as this offence should be.
244 Let us take a look in Committee at the list of areas of abuse of trust. Let us consider what happens to the sports teachers in the summer holiday camps and the young man who leaves his school in the summer term aged 18 and goes back in the autumn term in his gap year, still aged 18, as a part-time games teacher and starts, when he is potentially in a position of trust, a relationship with a sixth-form girl whom he has known all his life but with whom he has not previously had a relationship. That is a small Committee point, but I believe that we would do well to consider it.
My hon. Friend the Member for Beaconsfield spoke about the anonymity of the defendant in rape cases, which is an important issue, as did the hon. and learned Member for Redcar. The hon. Member for Mid-Dorset and North Poole (Mrs. Brooke) also made helpful remarks about the anonymity issue. Some, like the Bar Council, believe that the anonymity of the defendant should remain until conviction, rather than until charge. There are strong views on that and I understand that they have been expressed. It is a matter that is well worth considering further, and we shall do so in Committee.
For my part, I think this has been an enjoyable and constructive debate. I look forward to the further passage of the Bill and thank all hon. Members for their contributions.
§ The Parliamentary Under-Secretary of State for the Home Department (Paul Goggins)
I begin by thanking all hon. Members who contributed to this excellent debate. I am pleased with the level of agreement that we achieved, because a mature consensus is vital as we try to devise legislation that strikes a balance between the need to protect children and vulnerable adults and the aspiration, which we all share, to continue to live in a free and open society.
In a powerful and generous speech, the hon. Member for Beaconsfield (Mr. Grieve) referred to a number of matters that he hoped we would be able to discuss in some depth in Committee. He talked about the abuse of positions of trust, the need for a range of appropriate penalties, and the inclusion of visual images in the range of child pornography. I am sure that those and many other issues will be discussed; the hon. Members for Woking (Mr. Malins) and for Romsey (Sandra Gidley) added to the list. As regards the magnum of champagne, I propose that if we manage to crack the problem, we should share it among all members of the Committee.
In a powerful speech, the hon. Member for Mole Valley (Sir Paul Beresford) urged those of us who will serve on the Committee to root our deliberations in the reality of abuse. The knowledge that he brought to bear will stand us in good stead if he, too, serves on the Committee.
Sexual crime and the fear of sexual crime have a profound and damaging effect on the lives of individuals and communities, and it is the responsibility of Government to protect everyone in society from such crimes, especially those, such as children and persons with a mental disorder, who are particularly vulnerable to abuse. I appreciated the comments of my hon. Friend the Member for Lancaster and Wyre (Mr. Dawson), who spoke strongly in favour of exercising that responsibility.
245 I thank my hon. Friend the Member for Wirral, West (Stephen Hesford) for highlighting the hard work and dedication of many people who worked behind the scenes on introducing the Bill—not only campaigners, Members of Parliament and Ministers, but hardworking officials.
The hon. Member for Witney (Mr. Cameron) reminded us of the important role that is played by Select Committees in the development of ideas and the framing of legislation; I thank him for the work that he and his colleagues have put in.
We believe that the new framework of sexual offences, notification requirements and orders in the Bill will provide the protection that we need. Part 1 is a major piece of modernising law reform. The hon. Member for Southwark, North and Bermondsey (Simon Hughes) reminded us that much of the existing law in relation to sex offences goes back to the Sexual Offences Act 1956, which was itself largely based on 19th-century legislation. The Bill represents a timely review and much-needed legislation. The current law does not reflect the major changes that have taken place in our society over the past 50 years, and it is widely considered to be inadequate and out of date. The Bill will modernise the law and provide an effective response to the new dangers that we face in today's world.
Several hon. Members raised the issue of consent, which is central to establishing whether a sexual offence has taken place. It is vital that the law is crystal clear about what consent means and in what circumstances sexual activity is simply unacceptable. Our changes to the law on consent will provide juries with a clear framework within which to make fair and just decisions. It is not enough for a defendant to hold an honest belief that someone consented to sexual activity; the Bill makes it clear that that view must also, given all the circumstances, be reasonable.
My honourable and learned Friend the Member for Redcar (Vera Baird) asked my right hon. Friend the Home Secretary in an intervention whether the rape drug would be included in the list of presumptions in clause 76. I confirm that we are considering that.
The Rape Crisis Federation and the Campaign to End Rape have endorsed the Bill's aims and robustly defend it as a feasible and important advance for women in the justice system. I endorse the remarks of my hon. and learned Friend the Member for Redcar to the effect that legislation alone is not enough. We must do far more to develop support systems and ensure better investigation of rape cases and better case preparation. I was especially impressed by my hon. and learned Friend's remarks about the sexual assault referral centres, and I intend to visit one of them before we reach Committee stage. I was about to give my right hon. Friend the Home Secretary some news, but I believe that he already heard it before returning to the Chamber. It is that my hon. and learned Friend the Member for Redcar described him as potentially a feminist hero.
§ Paul Goggins
Many hon. Members mentioned anonymity and my right hon. Friend made it clear that, in Committee, we intend to overturn clause 2, which grants the same right 246 to anonymity to defendants as to complainants. Of course, we understand the distress that can be caused to people who are accused of a serious offence, especially when they are subsequently acquitted. Nevertheless, we have an open justice system and the fact that someone has been charged with a serious offence can sometimes encourage more victims to come forward.
The disclosure of personal details before charge is especially worrying. My hon. Friend the Member for Walthamstow (Mr. Gerrard) and the hon. Member for Mid-Dorset and North Poole (Mrs. Brooke) raised that issue. We are in discussion with the police and the newspaper industry about tightening up the existing guidelines on disclosing and reporting the names of people under investigation. Again, in a spirit of co-operation, we should be pleased to hear ideas from any hon. Members about the way in which to tighten the guidance further and make it effective.
§ Simon Hughes
We accept the work that the Government have done and are continuing to do. Does the Under-Secretary accept that there is genuine scepticism about whether guidelines will work, because they have not in the past, and that it may be necessary to have a stricter framework that would make it illegal to go public about prospective charges against people?
§ Paul Goggins
The issue has been widely discussed and has implications that go beyond the Bill. It is our job to ensure that the Bill works. In that spirit, we shall try to tighten up the guidelines in the way that I outlined.
Overall, we profoundly hope that tightening the law on consent will deal with the justice gap whereby only 5.8 per cent. of reported rapes currently end in convictions. The Metropolitan police involved in Project Sapphire told us that they believe that the proposals on rape will enable us to secure more convictions and get more justice for victims.
The Bill plugs several loopholes in existing law. For example, hon. Members may remember the case last year of an estate agent who managed to convince two young children to undress in front of him. One of the children told her parents what had happened and they went to the police. To everyone's consternation, no offence could be found with which to charge the man. Clause 11 therefore introduces a new offence ofCausing or inciting a child to engage in sexual activity".It carries a maximum penalty of 14 years' imprisonment.
The Bill also deals with discrimination and removes from the law on sexual offences discrimination against homosexuals. Several hon. Members made that point. Some existing offences criminalise consensual sexual activity in private against men that would not be illegal between heterosexuals or women. I confirm that we are considering a system whereby those who engaged in consensual acts with 16 and 17-year-olds and have been convicted of buggery or indecency can be deregistered.
The Bill ensures that everyone, regardless of sexual orientation, is treated equally by the law. The new offences will help to protect the public, especially those groups that are actively targeted for abuse, such as children and adults with learning disabilities.
Paedophile grooming of children, especially online, has been mentioned by many hon. Members, and is an increasingly high-profile area of concern. We must be 247 ready to respond to the new challenges that are posed by the advances in technology. That is why we are introducing the new offence of grooming in clause 17, which will make it an offence to use the internet to groom a child and then arrange to meet them with the intention of engaging in sexual activity. I can reconfirm that the penalty for this offence will be up to seven years' imprisonment.
This new offence would have been relevant in a recent case involving a man who met two young girls online in an internet chat room, subsequently communicated with them by mobile phone, then met them and engaged them in a variety of sexual acts. Furthermore, although we do not know the full facts of the case of Shevaun Pennington, this is probably the right moment for me to add my comments to those of my right hon. Friend the Home Secretary and my hon. Friend the Member for Leigh (Andy Burnham) on that case, and to reiterate our hopes for her safe return.
The sexual offences review that preceded the drafting of the Bill heard disturbing evidence about the extent and nature of the targeted sexual abuse of people with a mental disorder or learning disability. I know that all hon. Members will be distressed to learn that research has estimated that the incidence of abuse among persons with learning disabilities is much higher than it is among the general population. There is much to suggest that those with a mental disorder are targeted for sexual abuse by offenders because the offenders believe that their victims will not be able to give credible evidence against them.
Existing legislation offers inadequate redress when such people are sexually abused. First, current offences use demeaning and outdated language, requiring the prosecution to prove that the victim is a "defective". Furthermore, this offence carries a maximum penalty of only two years imprisonment. The Bill will provide additional protection for such people, while recognising the right of people with a learning disability to enjoy a full life, including a sexual life. The hon. Member for Southwark, North and Bermondsey (Simon Hughes) spoke powerfully on that issue, drawing on the experience of the daughter of a friend of his.
Several hon. Members, including my hon. Friend the Member for Walthamstow, welcomed the steps that we are taking to strengthen measures to combat the sexual exploitation and trafficking of children. My hon. Friend the Member for Lancaster and Wyre spoke of the West Sussex safe house, and the good work that is being done there. My hon. Friend the Member for Northampton, North spoke powerfully about the need for support for victims, and both she and the hon. Member for Tatton mentioned the need for time for reflection. We appreciate the principle behind the need for time for reflection, but we believe that having a set period might be too inflexible. We would prefer an approach that was tailored to an individual's needs.
The hon. Member for Mole Valley is clearly very knowledgeable on these issues, and spoke to us about encryption. I hope that we shall have further opportunities to learn more about that in Committee. I would like to reassure the hon. Gentleman that clause 13 will cover causing a child to watch a sexual act, which will include looking at photographs. I hope that he will 248 be encouraged to learn that we are considering extending this provision to cover other visual representations.
Now we come to the kissing question, or, as we may come to refer to it in our further deliberations, the champagne challenge. Almost every hon. Member commented on this issue, and concerns were raised that the Bill would criminalise teenagers under 16 who, as part of their normal development, engage in kissing. That is not the intention of the Bill; nor will it be its effect in practice. Strictly speaking, sexual activity between under-16s is already illegal, because the age of consent is 16. It would be irrelevant that both people were under 16. There have, however, been no prosecutions simply for kissing; nor will there be in future. I would say to the hon. Member for Romsey that if we find no other way to deal with this question—if we do not win the magnum of champagne—we shall be able to trust the Crown Prosecution Service to ensure that that intention is followed. The Bill will, however, ensure that, when one young teenager seeks to exploit or abuse another, we shall be able to act. The protection of children must come before all else.
When sexual crimes occur, the law must provide justice for victims and penalties for perpetrators that reflect the seriousness of the harm caused. The Bill demonstrates our commitment to doing both, and I commend it to the House.
§ Question put and agreed to.
§ Bill accordingly read a Second time.