Sexual Offences Bill [H.L.]

HL Deb 01 April 2003 vol 646 cc1170-247

3.15 p.m.

The Minister of State, Home Office (Lord Falconer of Thoroton)

My Lords, I beg to move that the House do now again resolve itself into Committee on this Bill.

Moved, That the House do now again resolve itself into Committee.—(Lord Falconer of Thoroton.)

On Question, Motion agreed to.

House in Committee accordingly.

[The CHAIRMAN OF COMMITTEES in the Chair.]

On Question, Whether Clause 1, as amended, shall stand part of the Bill?

Lord Ackner

I have received indirectly a message from the Chief Whip that if I intend to speak to the Question that the clause stand part I should do so expeditiously. Despite the dulcet tones of the Chief Whip, I intended to do so in any event.

What I wish to say I can put very shortly. Clause 1 is without redemption. We have two matters to consider. First, the clear-cut issue; namely, whether the existing law, which requires the proof of a guilty mind as in all serious offences, subject, of course, to a measure of objectivity—because by statute the jury is told that the reasonableness or otherwise of a belief is evidence of whether the belief was genuinely held—should stand having been in existence for some 40 years without any complaint. Alternatively, we should consider whether the golden thread, as that obligation is known, should be cut and in its stead there should be put in place a new obligation which results in the accused being guilty of rape if he is negligent. That is the clear-cut issue.

The second matter is the feasibility—the practicality—of what is now proposed. In that regard I wish to refer to one and only one quotation. It has already been referred to by me on Second Reading but it is particularly apposite in view of the debate yesterday. It is from an essay of Professor Hogan, written in 1978, and given in honour of Professor Glanville Williams, who was virtually a permanent member of the Criminal Law Revision Committee of which the noble and learned Lord, Lord Lloyd, who gave such an admirable speech yesterday, was also a member. He stated: The least that can be said— he was referring to the existing law on sexual offences— in its favour is that it is accessible and even with the accretions of case law, it may fairly be said that a layman possessing ordinary powers of comprehension is not at all hard put to make both head and tail of it. Since the layman, and sometimes the lawyer, is sometimes hard put to make either head or tail of much modern legislation these attributes should never be undervalued. Whether or not a man likes the law that he reads, it is a signal advantage to him to be able to understand it … Again, when in Morgan v. D.P.P. the House of Lords decided that an honest belief in consent was a defence to a charge of rape, the opposition was so considerable that it seemed only a matter of time before the decision was overturned. But in the end much of the opposition was brought round to accepting the essential good sense of that decision". That is what I believe has happened as a result of yesterday's debate.

Baroness Noakes

I want to say a few words on clause stand part as it gives an opportunity to reflect on the many important issues debated yesterday. I reiterate that we on these Benches are open to change on the definition of rape and the other sexual offences, but we have always said that those changes need to be demonstrably workable and effective. If one thing was demonstrated yesterday, it was that there were considerable doubts about workability and effectiveness.

We need to be clear that any changes that we make will result in better outcomes. One of the striking facts that came from the Minister yesterday was that the rape conviction rate for those who went to trial by jury was 41 per cent, compared with 73 per cent overall. That shows that there is a problem. Whether we have the right result in the formulation in the clause is very much open to doubt after yesterday's debate.

One of the problems with the way in which the grouping worked out yesterday was that I did not have a chance to sum up in our debate on Clause 78, although the Minister offered to withdraw his amendment at one stage, if I recall. Nothing that we heard during yesterday's debate led us to believe that Clause 78 was workable in any real sense. We will want to return to that on Report.

I hope that the noble and learned Lord, Lord Ackner, will not press his opposition to Clause 1 stand part today, because we still have some way to travel in terms of how we can improve the Bill. I hope that the Minister and his officials will engage in constructive dialogue, in particular with the noble Lord, Lord Thomas of Gresford, based on his constructive amendments that we discussed yesterday.

Lord Thomas of Gresford

I entirely agree with the noble Baroness, Lady Noakes, that it may be wise to press any opposition to Clause 1 on Report and give the Government time to reconsider. The debate yesterday demonstrated that the clause as drafted is completely unworkable and will cause enormous problems. Not only is it unworkable, but it is bad in principle.

I have my own bone to pick with the Minister, who suggested that at Second Reading I had, proposed that the right way to deal with the matter was for there to be a date rape offence—that is, an acquaintanceship rape offence—and another offence".—[Official Report, 31/3/03; cols. 1151–52.] When I intervened and said that I had never said anything of the sort, the Minister pressed the matter and said that it appeared that I had changed my position since Second Reading. He went on to reiterate that point.

I have read what I said on Second Reading in case I happened to say something that could remotely justify that comment yesterday from the Minister, but there is nothing to do so in it. I did not refer to date rape or acquaintance rape. In no correspondence or discussions—I have had discussions with and sent memorandums and drafts to him—have I ever suggested that I or we on these Benches draw any distinction between date rape or acquaintance rape and marital rape and stranger rape. That has never been my position. Why did he suggest that it had?

Lord Lucas

I should be most grateful if the Minister could take the opportunity of the debate to tell us how the offences are intended to mesh. What sort of behaviour will lead to a person being charged with one offence or another?

Almost the only difference between rape under Clause 1 and assault by penetration under Clause 3 is that one can rape in the mouth but not commit assault by penetration in the mouth. I am bemused as to why that is. On what occasions would the Minister expect the prosecution to prefer a charge under Clause 3?

I should also be grateful for some enlightenment as to what sort of behaviour we are looking at under Clause 5. Does pinching the passing bottom count as an assault of the relevant type? Where is the boundary drawn? Common sense may be thought to apply but, given some of the actions sought to be outlawed by provisions from Clause 70 on, I am not entirely sure that the drafting of the Bill has had common sense in mind at all times.

To what extent are the offences in Clause 7 separate from those in Clause 3? I do not see how they will mesh. We had so much debate about whether "oral" belonged in one or the other and what the proper compass of such offences was. No other amendment addresses the matter, so I should be very grateful if the Minister would cover it now.

Lord Campbell of Alloway

I have no questions to put to the Minister on the long debate that we had yesterday, which he entertained with great courtesy and patience. All that I want to say is that, having moved amendments to Clause 1(3), I hope when we return to the matter on Report to be able to persuade the House that that is the right approach. I had very large support yesterday. I am therefore grateful to the noble and learned Lord, Lord Ackner, for not preempting that outcome today.

Lord Falconer of Thoroton

So far as the opposition of the noble and learned Lord, Lord Ackner, to the Question that Clause 1 stand part of the Bill is concerned, he rightly identified the issues that we went through yesterday. I do not think that I can assist the Committee by repeating my points in relation to reasonableness or workability. We had a long debate on that.

I agree with the noble Baroness, Lady Noakes, that we need to reflect carefully on what was said yesterday. I would find it useful to have conversations with her and the noble Lord, Lord Thomas of Gresford, to discuss the detail. From yesterday's debate, I take the point that several Members of the Committee firmly opposed the idea of introducing an element of reasonableness into the consent issue. In particular, I identify the noble and learned Lord, Lord Ackner, the noble Lord, Lord Campbell of Alloway, and the noble Baroness, Lady Mallalieu, who is not in her place at the moment.

I understood the vast range of other Members of the Committee who spoke, including the noble Lords, Lord Alexander of Weeden and Lord Thomas of Gresford, and the noble Baronesses, Lady Noakes and Lady Walmsley, to take the basic position of exploring whether to put reasonableness in. Some were committed to it, and some tried to put it in in a different way from that used by the Government. We obviously need to reflect on that approach before Report.

I said that the noble Lord, Lord Thomas, proposed a lesser offence of date rape because that was my recollection of his speech at Second Reading. I completely apologise if I am wrong. I have not had a chance to read it again My noble friend Lord Bassam has drawn to my attention the fact that the noble Baroness, Lady Walmsley, certainly thought that a more limited offence was proposed by the noble Lord, Lord Thomas of Gresford, if not in his speech then somewhere else. Both of us came away with the wrong impression. I apologise in relation to that.

3.30 p.m.

Baroness Walmsley

I should clarify for the Minister's sake that I said that I was happy with the clear range of offences laid out in my noble friend's amendment. That was workable for the courts and understandable for the general public. It also takes account of the problem expressed by some noble Lords yesterday about the difficulty associated with rape in the mouth, which is labelled differently but which is just as serious and just as much of an offence against the privacy and dignity of the person. My noble friend's amendment takes account of that problem and many others.

Lord Falconer of Thoroton

As I say, I apologise unreservedly to the noble Lord for having the wrong impression in that respect.

The noble Lord, Lord Lucas, asked me to identify what is involved in the main generic sexual offences that will be created. Rape, which we have already discussed, involves penile penetration of the anus, vagina or mouth. Assault by penetration is penetration of those areas but not with the penis. Sexual assault is any non-consensual assault of a sexual nature. Sexual assault of a child under 13 is different because the consent of the child is no longer an issue. Any child of 12 or under is presumed not to be able to consent. Causing a person to engage in sexual activity without consent would occur where, for example, a woman forces a man to have sex with her. I could go through those points in much greater detail but I do not believe that it would assist the Committee.

Lord Ackner

I am somewhat surprised that the Minister did not include in his honourable mentions the speech of the noble and learned Lord, Lord Lloyd of Berwick, whose speech on the desirability of retaining the law as it is was outstanding.

Lord Falconer of Thoroton

I apologise to the noble and learned Lord, Lord Lloyd of Berwick. I entirely agree with the noble and learned Lord, Lord Ackner, that the speech was outstanding—it was so outstanding that it blinded me to the extent that I completely forgot that it had been made. Now that the noble and learned Lord reminds me of it, I remember that it was a truly excellent speech.

Lord Lloyd of Berwick

I was blinded to the extent that I thought that the noble and learned Lord had mentioned me!

Lord Falconer of Thoroton

I apologise.

Lord Ackner

In future, I shall test the extent to which I have succeeded in making speeches by their effect on the eyesight of the noble and learned Lord. That is a strange way of judging the merit of what one puts before him.

It is clear that the feeling of the Committee is that it wants more time in which to consider the matter. I understand that, although it is certainly not my feeling; matters are clear cut. In those circumstances, I should not dream of opposing the Question that the Clause stand part of the Bill, although I reserve the right to do so on Report.

Clause 1, as amended, agreed to.

Clause 2 [Rape of a child under 13]:

Baroness Walmsley moved Amendment No. 9: Page 2, line 2, after "person" insert "aged 16 or over

The noble Baroness said: In moving this amendment, I shall speak also to Amendments Nos. 20, 31 and 47.

We turn to a group of amendments relating to very young people. The purpose of these amendments is to prevent the prosecution of boys under the age of consent or 16 years old who participate in sexual activity of any kind with a girl under 13 with her consent. The amendments are not intended to prevent the prosecution of children under the age of 16 where they have committed rape, sexual assault or any other sexual offence in which the victim did not consent because those offences are dealt with under Clauses 1, 3, 5 and 7 and because the age of neither offender nor victim is specified in those clauses.

The amendments are about bringing some common sense, humanity and justice to this important new law, which is designed to protect children from abuse. The Home Secretary said in the White Paper that the existing law was, archaic and incoherent—it is also discriminatory". Without the amendments, the law may remain all of those things. It could produce appalling injustices. For example, a boy of 12 who had sexual intercourse initiated by a girl of the same age would be automatically guilty of rape and liable to a life sentence. It also poses risks to children's health and welfare. One can easily imagine that girls under the age of 13 might avoid approaching doctors because they know that all sexual activity is defined as serious child abuse when those who are under 13 are involved and that the doctor must report to social services; it is also, of course, a criminal offence. Their boyfriend may get into serious trouble and they would fail to get contraceptive and other health advice. I am sure that that is not what the Government intend.

The Government should follow the example of Finland. In 1998, the Finnish Government decided to update their penal law on sexual offences. As in England, 16 was set as the age of consent. However, Section 6(2) of Chapter 20 of the new Finnish penal code provided that sex with an under-16 year-old, shall not be deemed sexual abuse of a child, if there is no great difference in the ages or the mental and physical maturity of the persons involved". Germany and other countries also followed that course. In countries where the age of criminal responsibility is high—15 to 17 years, unlike 10 years in our country—under-age sex is automatically decriminalised for that age group. Many European countries, such as Sweden and Norway, fall into that category. Surely the Finnish approach shows an appropriate modernisation of the law. We may not like young adolescents having sex but it happens, and it does not involve the criminal child abuse that the Bill is supposed to be tackling.

The noble and learned Lord the Minister may say that if we have an age of consent we must stick to it. However, it should be noted that the Bill already allows a defence of consent if someone is charged with raping 13 to 15 year-olds and they are also under the age of consent. So it would not introduce a legal anomaly to say that for under- 16s who are charged with raping under-13s, a defence of consent may also be available.

I hope that the Minister will accept that it is inappropriate to use the full weight of the criminal law in cases where young people who are close in age are experimenting. Educational and health advice—and, in some cases, the child protection system—are much more appropriate ways of addressing that issue. I beg to move.

Baroness Noakes

I shall briefly clarify the position of those on these Benches. We will consider the broad issue again in relation to child sex offences, when we will debate in particular whether we should criminalise that activity or whether the dominant issue is one of social and medical support.

Let me be clear about our approach to those who are under 13. We believe that a cut-off age of 13 is appropriate and practical. The issue of consent should not be relevant in relation to such young children. We believe that regardless of the age of the defendant. To have anything less on the statute book would involve a broad assumption that there are circumstances in which it is appropriate or acceptable for a young child to be involved in sexual activity. We do not believe that and therefore accept that the offence should exist in law. I do not suppose that every 14 or 15 year-old who has sexual intercourse with a 12 year-old will be prosecuted but I do not believe that it is right to remove that possibility from the statute book in all circumstances.

Lord Falconer of Thoroton

As the noble Baroness, Lady Noakes, stated, a fundamental justification for the under-13 offence is the age and vulnerability of the victim. We do not think it is right that where the victim is 12 or under the question of consent should arise. There will be many cases where it would be utterly invidious for a 12 year-old or under to have to give evidence in relation to consent. We therefore think that there needs to be a cut-off period. We think we have got the cut-off period right.

The amendments proposed by the noble Baroness, Lady Walmsley, seek to provide that it would not be possible to charge a defendant aged under 16 at the time of the alleged offences with any of the under-13 child sex offences. The noble Baroness prays in aid the Finnish experience in relation to that. The amendments would mean that where the evidence did not support charges for any of the under-13 non-generic offences—that is, rape, sexual assault and so forth—the defendant would have to be charged with a child sex offence which, as the noble Baroness knows, makes no distinction as to the age of the victim.

I recognise, as stated by the noble Baronesses, Lady Walmsley and Lady Noakes, that children under 13 engage in mutually agreed sex. I have listened to those who argue with real conviction that it is completely unfair for the law to make it possible for a boy aged 14, for example, to be charged with raping a 12 year-old girl following mutually agreed sexual intercourse. It is worth pointing out that prosecution is certainly not the inevitable outcome where two minors of the ages I have described engage in sexual activity. In those cases where sexual activity between minors is truly mutually agreed and there is nothing to suggest that the activity is in any way exploitative, we would not expect and would not want the full weight of the criminal law to be used against them. Our overriding concern is to protect children, not to punish them unnecessarily.

Where sexual relationships between minors are not abusive, prosecuting either or both children is highly unlikely to be in the public interest; nor would it be in the best interests of the children involved. In such cases, protection will normally best be achieved by educating the children and providing them and their families with counselling services. Even where the sexual activity is abusive, the Crown Prosecution Service may consider that it was not in the public interest to prosecute someone under 16 if other courses of action were likely to be more effective. The CPS has a discretion about whether or not to prosecute in such cases. We would expect it to continue to use that discretion wisely.

I fully understand the legitimate concerns raised by the noble Baroness as regards agencies giving advice to children in those circumstances, and her profound and deeply held desire, shared by many, that that should not raise the risk of criminalisation. As the noble Baroness will know, we will propose an amendment later in these proceedings which seeks to deal with that issue. Perhaps we may deal with that more fully at that point.

Having said all that, if the law is to be effective, there will be cases in which under 16 year-olds commit such crimes where prosecution is appropriate. We must remember that not only children aged 12 and 14 but also children very much younger will be protected by this provision against teenagers of 16 and under. That is where we need the clarity and protection of the criminal law. That is why we believe it would be wrong to accede to the amendment and to say that a person under 16 could not be prosecuted for one of these offences. As we have been told by the agencies dealing with this issue, there are cases in which prosecution of children is appropriate.

I hope I have dealt with the particular concerns raised by the noble Baroness. We believe that this should be covered by criminal law but we recognise that a whole range of alternatives may be more appropriate in particular cases.

Baroness Jay of Paddington

My noble and learned friend has helpfully tabled Amendment No. 74 in Clause 15 which would exempt health professionals and others from liability to prosecution under the Bill in the way he described. As he said, we shall discuss that later. However, does he not feel that perhaps in practice there will be difficulties for people working in such agencies who are exempt from prosecution under Amendment No. 74 if the criminal offence he described remains on the statute book as it could prevent people being open in their dealings with young children who they may feel they are advising but who, as he rightly says, may be liable for prosecution in extreme cases?

Lord Falconer of Thoroton

The provision in Amendment No. 74 is designed to try to remove as much as possible any fears by health professionals in that regard. It goes beyond health professionals and includes anyone seeking to give advice, including a parent. Will the position nevertheless cause the child or young person not to be full and frank because of fear of the law? We believe that probably it will not. In many respects this reflects the current law in the sense that there is still criminal sanction in relation to a whole variety of sexual activity covered by the new law. We do not believe that that leads to inhibition when there should be frankness.

Baroness Jay of Paddington

I hope that my noble and learned friend did not misunderstand me. I find Amendment No. 74 extremely helpful. As he says, it goes beyond health professionals in a way which I am sure will be useful. I am concerned only by what may be a practical tension between Amendment No. 74, if agreed by the Committee, and the remaining inhibitions about something being a statutory criminal offence even though the people dealing with it are exempted in this way.

Lord Falconer of Thoroton

I understood that and I hope I have made clear the kind of circumstances in which it would be appropriate to use the criminal law. I hope that in practical terms there will not be that tension.

3.45 p.m.

The Earl of Listowel

Can the Minister explain to the Committee what form of assessment he would expect to take place if there were prosecutions under this particular part of the Bill? Does he expect that a psychologist would be involved to consider the level of learning development of the child? Perhaps the details may wait until we debate Clause 14, but it would be helpful at this point if the Minister could advise the Committee on how he sees assessment coming into practice under this part of the Bill.

Lord Falconer of Thoroton

I believe the question is directed to those cases in which a person aged 16 years or under is prosecuted in this regard. The issue of young people who sexually abuse or commit sexual crimes is complex. In the past it has not received the focus and attention it should. Young people who sexually abuse are a diverse group. Many may have been victims of sexual abuse or may have witnessed domestic violence. In addition, we know that a large number may also have learning difficulties and some may have mental health problems. So there is a real need to address the problems which have contributed to the offending, including providing any specialist intervention that may be required.

As this area has been neglected in the past, there seems to be a lack of knowledge and expertise about how to deal with such young people, including the kind of assessment and treatment methods which are most appropriate. Various bodies within the family of government are considering this issue. The Home Office and the Youth Justice Board have set up an interdepartmental working group with the Department of Health and the Department for Education and Skills to consider the whole issue of young people who sexually abuse. The group has covered a number of areas where further improvement is needed.

Baroness Howarth of Breckland

I thank my noble and learned friend for giving way. Having been involved 10 years ago in the work initiated by the NCH and then with the Department of Health following the report on children who abuse other children, I am deeply concerned that any work that is undertaken now is carried through. As the Minister explained, this is an offences Bill rather than a welfare Bill. There are real difficulties about getting on to the face of the Bill which kind of assessments and treatment programmes would work. There is a large amount of knowledge among professionals about what would work, but that is re-examined on every occasion.

Lord Falconer of Thoroton

I agree with the comments of the noble Baroness. It is not appropriate to put on to the face of the Bill how we deal with the problem of a sexually abusive child or young person. I appreciate that this does not bring much comfort, but the problem is recognised. There are gaps in our knowledge and in the approach that we take. There are also gaps in particular parts of the country and in the kind of help available. We need to consider how we fill in such gaps. That is what we are seeking to do.

There must be a twin-track approach; that is, clarity as regards what is the criminal law but also a commitment to deal with the problem much more widely than simply by considering the criminal law. I always feel that when dealing with a criminal offences Bill, the other part of the story tends to become lost. However, I am glad that the noble Earl has given me an opportunity to describe the other side of the process, perhaps more fully than I would have done otherwise. I have also indicated that there are gaps and problems that we need to look at. I am sorry to have talked for so long, but it may help later on.

We are consulting practitioners and experts in the field to help inform the inter-departmental working group. It will report to Ministers later this year; but how much and how quickly we can continue to improve work with this group will depend on resources—in particular the outcome of the next spending review.

Lord Skelmersdale

It occurs to me that the noble and learned Lord relied, both in his wind-up on Second Reading and today, on the good sense and discretion of the CPS. Is that entirely satisfactory? I understand exactly what he said about the difficulties of getting the right words into the Bill. However, I hope that when he comes to look at this with his advisers and perhaps other noble Lords, he will bear that in mind, because it does not seem to be satisfactory.

Lord Falconer of Thoroton

I understand the point. It is difficult to deal with, save on this basis—there has to be a clear criminal offence. One cannot have something that seems to reflect shades of grey. It has to be clear what is criminal. As there needs to be that criminal offence available for an appropriate case, to some extent one has to trust to the good sense of the police and the prosecutors.

Baroness Blatch

I hope that the noble and learned Lord's reputation will not be damaged by my saying that I am pleased that he is going to resist the amendment. First, the amendments in effect legalise all consensual activity between people under 18, which would otherwise be caught by an age of consent offence under Clauses 9 to 13. It would also almost completely abolish the age of consent. It would therefore remove key protection for children, which the Government have recognised in devising the clauses for this Bill. The other amendments would leave cases to be dealt with under Clause 1—that is regarding small children. It would mean that children would have to go into the witness box to be cross-examined, which they are protected from under other provisions in the Bill, on whether they consented to sexual intercourse with an accused person under 18. It would become one of the central aspects of that trial. There could be quite an aggressive procedure for eliciting whether the child either gave consent or even understood what that meant. If the child did consent, then the case would have to be dismissed with no case to answer, because that would be the whole point of the trial. Under the present law, that is thought to be unacceptable.

The Minister will argue that the Government have recognised that in the Bill. Under the amendments a 17½ year-old who repeatedly had sex with an uncomplaining 12 year-old could not be prosecuted. Clauses 1, 3, 5 and 7 cannot be used, because they all require proof that the victim did not consent. He could continue with impunity, as long as she indicates her consent. The evidence is that a considerable amount of child abuse is carried out by young people.

Finally, a 17½ year-old who brutally and repeatedly sexually assaults a seven year-old, should be liable to the same penalty as an 18 year-old who does the same thing. Under the Liberal Democrat amendment the 17½ year-old would face the maximum sentence of five years in prison, and the 18 year-old would face life imprisonment. There is an inconsistency.

Whatever else we do, we should continue to keep the key protection for children, which the Bill, as it stands, provides.

Lord Campbell of Alloway

I support the carefully considered speech of my noble friend. I wholly agree with the Minister that there has to be a criminal provision. It seems to be common ground that there are gaps that have to be filled. Could the Lord Chancellor's Department, in consultation with the Home Office, provide a paper for this House to consider how those gaps can be filled? It is only an idea. Does it attract the Minister?

Lord Falconer of Thoroton

Yes, I will certainly consider it. We have tried in the Bill to provide, as it were, a seamless series of criminal offences that cover everything. The gaps that I referred to in my response to those behind me were the gaps in provision on a public service or other basis for those children and young people who do sexually abuse. Could the state take any measures? I understood that the request of the noble Lord, Lord Campbell of Alloway, related to the legal gaps in criminal law provision. I could certainly agree to provide that, but I do not think that it would be the Lord Chancellor's Department, I think it would be the Home Office and the Department of Health. Let me see what I can do that might help.

The Earl of Listowel

I thank the noble Lord, Lord Campbell of Alloway, for his helpful suggestion. If the Minister was prepared to do that, I would certainly find that most helpful.

Lord Carlisle of Bucklow

The noble Baroness, Lady Walmsley, in moving this amendment, limited her remarks to Clause 2 and the rape of children under 13. I understand what my noble friend Lady Noakes has said and the position taken by the Opposition—and what the Minister has said.

However, I notice that two other amendments are being taken here—in particular Amendment No. 31. That deals not with a clause that defines rape, but with Clause 6 dealing with a sexual offence with a child under 13. It states that a person commits an offence if he intentionally touches another person, if the touching is sexual, and that other person is under 13. Are we really sensible 10 legislate to make it an offence for a child of, say, 14 or 16 to touch sexually another child who happens to be under 13? I can totally appreciate my noble and learned friend's views on Clause 2 and those of the Government. However, what is meant by "a sexual touching"? Is a kiss a sexual touching? Is a pinch of the bottom a sexual touching? Are we really sensible to legislate to a degree that we are making an offence for any child to pinch another child's bottom, without at least putting some restriction that it should not apply if done by a young boy under 16? It should not be a criminal offence.

Lady Saltoun of Abernethy

I entirely agree with the noble Lord who has just spoken. There are many problems in that area, which should not be lost sight of. One is that girls aged 12 to 16 or even under not only can be the most appalling of flirts, but are also nowadays very often dressed up in such a manner as to lead people to suppose that they are a great deal older. Those problems need to be kept in mind.

Lord Falconer of Thoroton

I say to the noble Lord, Lord Carlisle, "sexual" is defined in Clause 18 and "touching" is defined in Clause 81. It covers a huge range of sexual touching, and one can identify minor cases where one would not remotely think that it would be appropriate to bring proceedings. That is particularly the case where the ages of the children involved are close and the activity is patently consensual. But without being too graphic, the definition in Clauses 80 and 81 also embraces extremely abusive behaviour of children who might be 15 and whose victims might be seven, eight, nine, 10, 11 or 12. Just as in the other examples that have been given, one needs to be clear about what the criminal offence is so that it exists and can be used in the appropriate case. As was said by the noble Baroness, Lady Blatch, one does not want the child to have to go through the process of proving that he or she did not consent. One would then hugely undermine the effectiveness of the crime and hugely reduce the willingness of people to complain.

The position under the current law is that indecent assault is the same. Any physical contact can form the basis of an indecent assault charge, but the good sense of the Crown Prosecution Service ensures that an absurd charge is not brought.

4 p.m.

Lord Mayhew of Twysden

Does not the noble and learned Lord recognise that there is a slight danger in placing the reliance that he does on good sense—not that I doubt that the Crown Prosecution Service is entirely sensible? What about the danger of a private prosecution brought by a person less well-endowed with good sense? Plenty of people take an extreme view of these matters, and how does one deal with that and the immense stress and distress that that can occasion?

Lord Falconer of Thoroton

In practical terms, I do not believe that that causes much of a problem. In balancing the risk of a private prosecution against having clarity in the law so that it can be used in the kind of case I have described, the balance falls on the side of having it there because the other side of the coin is not giving rise to problems in practice.

Lord Northbourne

The noble and learned Lord put a stress on clarity in the law. Clarity is precisely what there is not in the definition of "sexual" touching. We shall come to that under Clause 80 and the Minister may wish to leave the matter until then, but I wanted to make the point now.

Lord Falconer of Thoroton

There is clarity in relation to the ages and in relation to those who cannot give consent. There is no sensible way of seeking to embrace in a legal definition every single sort of sexual behaviour and every single sort of sexual assault. Even the noble Lord, Lord Northbourne, has not attempted any amendment to try to define sexual touching—

Lord Northbourne

On the contrary, I have.

Lord Falconer of Thoroton

I was hoping that the noble Lord would not mention that. It seems to me that a great difficulty is exposed in this area.

Lord Thomas of Gresford

If it assists the noble Lord, the current definition of "indecent assault" comes from the case of Court in which I appeared for the appellant, my noble friend Lord Carlile of Berriew appeared for the respondent and the noble and learned Lord, Lord Ackner, gave the leading judgment—so it is all in-House. In that case, the issue was the smacking of the bottom of a 12 year-old girl. Was that an indecent assault? When arrested, the defendant, when asked why he had done it, said, "I don't know. Bottom fetish, I suppose". And the issue was whether that coloured what was otherwise a simple assault and made it an indecent assault.

The arguments of both myself and my noble friend Lord Carlile were rejected in the judgment of the noble and learned Lord, Lord Ackner. I recall a discussion taking place about the mental element, when Lord Fraser of Tullybelton inquired whether, if six undergraduates from Balliol debagged an undergraduate from New College—

Lord Mayhew of Twysden

No, from Trinity!

Lord Thomas of Gresford

All right, from Trinity. I am not too familiar with that place. The question was whether if they did that it was an indecent assault. He decided that it depended upon whether some of them gained sexual satisfaction from the debugging, which would turn it into an indecent assault.

The point I am making is that, as always, it is extremely difficult to try to define all the circumstances which will arise in a criminal case in a statute. One cannot ever define everything exactly: it must be left to common sense.

Lord Campbell of Alloway

The point I would make is short. My noble and learned friend Lord Mayhew of Twysden took a valid point, which was not wholly answered. But ought there not to be some safeguard against a private prosecution? Ought not that safeguard to be other than with the consent of the Attorney-General?

Baroness Blatch

I hope that the noble Baroness, Lady Walmsley, will forgive me for spotting an irony here. We are talking about not having a criminal offence in terms of touching and, as the noble Lord, Lord Thomas of Gresford, mentioned, smacking a little girl's bottom. However, in another context, the very same noble Baroness is advocating that smacking a little girl's bottom should be an offence.

Lord Falconer of Thoroton

The noble Baroness, Lady Walmsley, can reply to that irony. I do not know what the noble and learned Lord, Lord Mayhew of Twysden, might think, but in my view the idea that the Attorney-General should spend his time reading papers to see whether someone should be privately prosecuted is a complete waste of the Attorney-General's precious time. I can see the point that the noble and learned Lord makes, but we trust to people's good sense. That is not causing a problem at the moment, so let us not solve something that is not causing a problem.

Baroness Walmsley

I thank all Members of the Committee who have contributed to this short debate, in particular the common sense of the noble Lord, Lord Carlisle, about sexual assault.

I want to draw the attention of the Committee to the fact that these amendments are about under-16s and would not affect 17½ year-olds. It is intended to bring the under-16s out of Clauses 2, 4, 6 and 8, in particular in situations where there was consent. I believe that cases in which there was not consent would be dealt with in other parts of the Bill.

I welcome the reassurances that the Minister has been able to give me. In particular, I welcome the interdepartmental working group on the issue of children who exhibited harmful sexual behaviour. But I fear that the agencies and organisations which have supported the amendments would have much more confidence in the status quo if it were consistent. We need a consistent framework of assessment before a young person was even charged with any kind of sexual offence; and a consistent arrangement of pre-sentencing reports and assessments available to the courts when they have been charged and convicted; and consistency in the availability of high-quality professional services across the country. We do not have any of those things, which is why I felt obliged to table some amendments, which I am afraid the Public Bill Office would not accept, about issues such as pre-sentence reports and pre-charging assessments. I was told that the Bill had been so tightly drawn that they were not within its bounds.

The Minister spoke about the CPS and its discretion and good sense. However, in order to satisfy those of us who are concerned about these young people, will he provide written guidelines to the CPS that they can use, and not rely only on its common sense and discretion? That would give a great deal more comfort to those of us who are concerned about these damaged young people, whom I shall speak more about when we come to our debate on Clause 14 stand part. In the meantime, I beg leave to withdraw the amendment. No doubt we shall return to it later.

Amendment, by leave, withdrawn.

[Amendment No. 10 not moved.]

Clause 2 agreed to.

Lord Campbell of Alloway moved Amendment No. 11: Before Clause 3, insert the following new clause—

"ASSAULT BY ORAL PENETRATION Subject to the provisions of section 1(2), intentional penetration of the mouth of a person by a penis without such person's consent is an offence to be tried on indictment for which the maximum sentence is 10 years' imprisonment.

The noble Lord said: I spoke to this amendment yesterday. The noble and learned Lord, Lord Lloyd of Berwick, took the view that the better way to deal with this offence was to amend Clause 3. Having read Hansard this morning it seems to me, subject to the view of the House, that he was right. It would be simple to include the amendment on oral penetration in the first line of Clause 3. That would have the effect of differentiating—the point made by the noble Baroness, Lady Mallalieu—between the two offences. That would mean that Amendment No. 1 could be carried on the basis that oral penetration is not sex.

If this offence were included in Clause 3 it would be a specific offence that would carry a maximum sentence of life imprisonment. Having listened with great attention to what the noble and learned Lord, Lord Falconer of Thoroton, said—I did not know about the police information and other information about the gravity of the offence—I was beginning to think that a life sentence could be appropriate, whereas originally I would have thought that 10 years was appropriate. So in those circumstances it would not have been my intention to move the amendment on Report. On that basis, I ask leave to withdraw it.

The Deputy Chairman of Committees (Lord Ampthill)

The noble Lord has spoken to Amendment No. 11 for over two minutes. Therefore I must ask him to move it as other noble Lords may wish to reply to him.

Lord Campbell of Alloway

I am obliged. I thought I had said that I wished to withdraw Amendment No. 11. The mistake was mine. I apologise to the Deputy Chairman and I apologise to your Lordships. We can all make mistakes. I beg to move

Baroness Noakes

I am grateful to my noble friend for saying that he will not move Amendment No. 11. We debated the matter yesterday, when I said that I could not support the creation of the lesser offence of oral penetration, although we accept that it is capable of being formulated in a different way from that in the Bill. My noble friend did not speak to the other amendments in the group, Amendments Nos. 42 and 43. For the avoidance of doubt, I see no reason for those amendments which exclude oral penetration from the offence of causing a person to engage in sexual activity.

Lord Campbell of Alloway

I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 3 [Assault by penetration]:

Lord Lucas moved Amendment No. 12: Page 2, line 12, after "or" insert "causes or allows it to be penetrated by

The noble Lord said: Under this amendment I am concerned with looking at the scope of offences in the Bill. I am interested to know where this fits in: a person using not an object that he manipulates or a part of his own body but a living animal. The noble Lord may have a better spam filter than I have on my House of Lords e-mails, but perhaps he does not look at them. If he looked at the unsolicited e-mails that I receive he would realise that there is a great deal of activity taking place between young women and animals. The suggestion in some e-mails is that the women do not take part entirely willingly. The Romans were similarly inclined, as doubtless the noble and learned Lord knows.

Looking at the offences in Clauses 1, 3, 5 and 7, I do not understand how a person using an animal in that way without a woman's consent will be classified. The only place that I can see for such an offence is Clause 7, but I am not sure that it is in a high enough bracket as regards the sentence. I beg to move.

4.15 p.m.

Lord Falconer of Thoroton

The offence of assault by penetration is designed to cover cases where one person intentionally penetrates the vagina or arms of another person with a part of his body or another object without that person's consent. It will cover cases where a person forcibly inserts his hands or fist into a woman's vagina or a bottle or a knife into a man's anus. That is extremely serious offending behaviour that can inflict as much, if not more, pain and physical damage on a victim as penile penetration and is likely to result in similar psychological trauma. No one would disagree with the seriousness of such an offence and the penalty that is provided for there would be life imprisonment.

I believe that the noble Lord refers to what happens when a human uses an animal to penetrate, without the consent of the person involved, somebody else's body. Clause 72(2) deals with the situation in which a person commits an offence if he, (a) A intentionally causes, or allows, A's vagina or anus to be penetrated, (b) the penetration is by the penis of a living animal, and (c) A knows that, or is reckless as to whether, that is what A is being penetrated by". That is a maximum period of imprisonment of two years which the noble Lord may consider too short a sentence. I am unsure whether the examples quoted by the noble Lord are living or dead animals.

Lord Lucas

Living animals.

Lord Falconer of Thoroton

I would need to check whether that clause covers live animals. I suspect that it is covered by Clause 72(2), but it may not be. I shall write to the noble Lord.

Lord Campbell of Alloway

The noble Lord raised the point as to how this would fit with the amendment to which I referred. After the word "anus" there would be the words "or mouth". That would constitute the specific offence. I do not think it would be affected by my noble friend's amendment. I am afraid that I am not very good with e-mails. My computer is out of action at the moment—I have a new box and cannot work it. So I am not able to comment or deal with that situation.

Lord Lucas

I am grateful to the noble and learned Lord for promising to write to me. I hope that this matter is not something that most noble Lords come across. As we rarely have the opportunity to talk about such subjects, it seems right to ensure that any possible imperfections in the wording are covered, however difficult it may be to talk about them. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Campbell of Alloway had given notice of his intention to move Amendment No. 13: Page 2, line 15, leave out "or (3)

The noble Lord said: Amendments Nos. 13 and 14 are a replay of the actions of yesterday on Amendments Nos. 2 and 3 to leave out Clause 1(3). We had a long debate yesterday and we are to have a definitive debate on Report. With the leave of the Committee I shall say no more about the matter today.

[Amendment No. 13 not moved.]

[Amendments Nos. 14 to 17 not moved.]

Lord Falconer of Thoroton moved Amendment No. 18: Page 2, line 24, leave out "Section 78 applies" and insert "Sections (Presumptions about the absence of belief in consent) and (Conclusive presumptions about consent) apply

On Question, amendment agreed to.

[Amendment No. 19 not moved.]

Clause 3, as amended, agreed to.

Clause 4 [Assault of a child under 13 by penetration]:

[Amendment No. 20 not moved.]

Lord Northbourne moved Amendment No. 21: Page 2, line 34. leave out "life" and insert "a term not exceeding 14 years

The noble Lord said: Amendment No. 21 and Amendment No. 33, which are grouped, are probing amendments about offences against children. I have not gone through the Bill and tabled the consequential amendments that may be appropriate, because I want first to test the Government's views and the opinion of the Committee about the level of sentences provided for in Clauses 4 and 6.

I accept that the levels of sentencing within the Bill have a certain coherence about them, but I am surprised by those levels. In the case of offences against children, we must consider the comparative sentences for other activities that may be equally damaging to children.

Clause 4 provides for a sentence for penetration of up to life. I understand that life is also the sentence for murder. My view is that murder might reasonably be regarded as a more serious offence. Clause 6 provides for sexual touching a maximum sentence of 14 years. I am advised that the maximum sentence for violence against children is 10 years.

It is right to ask the Minister to give the Committee the Government's reasons for those seemingly high maximum sentences. Your Lordships may well ask why it matters what are the maximum sentences, because the court will apply the right level of sentence. There are three reasons. First, good and decent men working in the caring professions—caring for children as professionals or volunteers—are already seriously concerned about the risks to their families, careers and liberty of false accusations of sexual abuse. The long sentences proposed cannot but exacerbate that problem.

My second concern is that it has been put to me by learned counsel working in this area of the law that if the sentences for sexual abuse and for murder are or seem to be the same, some men, having committed the offence of abuse, will be more tempted to try to destroy the evidence by murdering the child.

The third reason is that those who have worked with families that have often for generation after generation been sad and inadequate know that such families' problems are complex. It is perhaps not surprising that the main bar to disclosure by a child is its fear of the terrible effect that that will have on the family. The family often represents the only security and love that that child has ever known, however inadequate and perverted it may be.

This is not the time to discuss what society ought to be doing about those problems, but I suggest that dramatic increases in sentences for familial child abuse will not solve them and may even make them worse. I should like to hear the Minister's explanation of the Government's reasons for setting those sentences so high. I beg to move.

Lady Saltoun of Abernethy

I support my noble friend's amendment, for more or less the reasons that I mentioned a few minutes ago. Very young girls can fall in love and, if they have had no proper upbringing and have no idea of restraint, they may throw themselves at the object of their affections to such a degree that they make it difficult for him—especially if the child appears to be considerably older than she really is. A judge should have considerable discretion as to whether to imprison at all. There are occasions when it is not the chap's fault, it is the child's fault.

Lord Skelmersdale

That is all very well, but the clause covers a potential assaulter of any age, who may well be a serial assaulter, in which case a very high penalty is indeed appropriate. As I understand it, imprisonment for life is a maximum and therefore an appropriate sentence could be given for the particular offence, once it is proven.

Baroness Howarth of Breckland

I support my noble friend Lord Northbourne, but should like to ask the Minister a question. I take the view that the appropriate sentence for such behaviour must be available and that there must be a clear distinction and boundary between the young woman and the adult. I therefore disagree with the noble Lady, Lady Saltoun.

In my long experience in Childline and working with the Lucy Faithfull Foundation, my concern has been with the dozens of youngsters who will not come forward because they are determined that they will not put the adults in their lives through that process. That process means them being on child abuse registers, probably being imprisoned, and often takes the breadwinner out of the home.

As the noble Lord said—I am terrible at knowing the correct nomenclature—there is a clear difference in the spectrum of abuse. On one end, there are those who should never be let out of prison—I am a great believer in indeterminate sentences with continuous assessment. At the other, there are people for whom prison is an entirely inappropriate solution to a family problem.

The great problem that we have with the Bill, because it is insufficiently sensitive to the issues with which it deals, is how we assure ourselves that that spectrum and framework is present, so that the lawyers among your Lordships, when in the courtroom, will be able to achieve the right sort of sentence for the circumstances after assessment and having thought through the question of treatment programmes.

Baroness Blatch

Am I right in my understanding that the sentence is not mandatory but a sentence of up to life imprisonment? When one considers the relatively minor offence described by both the noble Baroness and the noble Lord, Lord Northbourne, and the much more serious offence alluded to by my noble friend Lord Skelmersdale, it is right that they should both be accounted for. It will be for the courts, as they do in other offences where life is a possible sentence, to take account of the severity or relatively minor nature of the case and ensure that the sentence is appropriate. Many who know what is the maximum sentence are greatly frustrated when the courts dispense a much lesser sentence, but we have always taken the view that that should be a matter for the judge and the courts.

Lord Northbourne

I am not clear which minor sentence I mentioned. I mentioned violence against children. If we consider the Victoria Climbié case, if that child had not died, the maximum sentence would have been 10 years. I am saving that we must get the balance of the maximum sentences right.

Baroness Blatch

I must apologise to the noble Lord if I misunderstood what he said. I thought that the thrust of what he said was that if the maximum possible sentence is life, the temptation on the part of the person committing the offence might be to murder the child rather than be guilty simply of that initial offence against the child, and that the sentence of life is therefore inappropriate.

Lord Northbourne

Yes, indeed, I did say that, but that was another point.

4.30 p.m.

Lord Carlisle of Bucklow

The purpose of Parliament setting a framework for sentencing is to give an indication of the seriousness with which it regards the offence. To replace the words "life imprisonment" with "a maximum of 14 years" may be taken as implying to the judiciary that for some reason an offence under Clause 2 is less serious than one under Clause 1. I cannot believe that there are not offences of penetration of a horror, degree of bestiality and distress to the victim for which it would be wrong to have a different maximum sentence from that which applied to the rape case, even if the provision were used only seldom.

Lord Northbourne

Would it not be possible to bring such a case under Clause 1?

Lord Carlisle of Bucklow

With respect, I do not think that it would. Clause 1 defines rape specifically as penetration by penis. Clause 3 describes penetration of various natures. It may be penetration by an animal, a knife or a fist. It would not be right for Parliament to attempt to send a message to the judiciary that in some way such offences are less serious than the offence of rape. As someone who is bitterly opposed to mandatory sentences, as the Minister knows, I believe that it is Parliament's duty to set the framework in which a penalty should be imposed.

Lord Campbell of Alloway

I agree with my noble friend. We seem to be forgetting that the importance of the life sentence is not the time spent in prison but the fact that you are under licence from the time you are released. In these sex cases, that is an important factor. Listening to the debate, it seems to me that it is far better to keep a life sentence because if it is the kind of case where the man should be kept under constant supervision you can award the maximum sentence, the life sentence, and protect everybody. If it is not that kind of case, the judge can impose four years or five years and deal with the circumstances. To throw away the safeguard to the community which exists in the life sentence—the protection of people—would be wrong.

Lord Cameron of Lochbroom

I hesitate to intervene, having been a judge in another jurisdiction just over the Border from England, Wales and Northern Ireland. However, perhaps the Minister will agree that this part of the Bill endeavours to distinguish between acts of rape of the child under 13 who is the victim, and others. Likewise, Clauses 3 and 4 make precisely the same distinction because consent is not a necessary part of the offence; and likewise in Clauses 5 and 6 where, in Clause 6, consent is not a necessary part of the offence.

From my own experience, I believe that the kind of conduct which is struck at by Clause 4 can extend to just as serious conduct as is contained in Clause 3. As regards Clauses 5 and 6, it might properly be said that a distinction is made in the maximum sentence which can be imposed between conduct aimed at the child under 13 and someone over 12. I should have thought that that could certainly be said to be a proper way to proceed. Under Clause 4(2) the sentence must be fixed to include those who have offended in the past as well as the first time convicted offender. I understand that that is the manner in which all sentences are fixed by statute; namely to have regard to the full circumstances which may arise with regard to the offender by the sentence imposed. I may be wrong in my understanding of what is intended by Clauses 2, 4 and 6 as distinguished from Clauses 1, 3 and 5.

Lord Falconer of Thoroton

The account of the circumstances by the noble and learned Lord, Lord Cameron of Lochbroom, is exactly right. The noble Lord, Lord Northbourne, asks, quite legitimately, for an explanation of why we have adopted these sentences. The noble and learned Lord's approach is broadly right. Clause 1, rape on someone over 13, not an adult, attracts life imprisonment as the maximum. I emphasise "maximum" because it has been said that it is for the discretion of the judge to determine where, below the maximum, sentence is passed. No noble Lord has suggested that it is not appropriate to have life as a maximum for rape.

Clause 2 relates to rape of a child under 13. It is inconceivable that one would have a lower maximum for rape of a child under 13 than for a rape of someone over 13. Therefore, there can be no distinction there about the maximum.

I believe that the mood of the Committee is to recognise that assault by penetration can, in certain circumstances—particularly if done more than once—be so damaging as to attract a sentence of life imprisonment. That involves a case where the victim is 13 or over.

If life imprisonment is right in those cases, it is again inconceivable that one could have a lower maximum sentence when the victim was 12 or under. For sexual assault, the maximum is 10 years. Should one have a higher maximum when the victim is a child under 13? I should have thought that common sense would suggest strongly that one should.

That is how we have constructed the maximum sentence. The noble Lord gives three reasons why the sentences may be too great. First, he says that good and decent men are already concerned about false accusations. If serious sexual offences are committed, the issue is not whether they should be given a low sentence because they are worried about false accusations. The focus should be on ensuring that before a conviction there is proper evidence and proper process but, once convicted, an appropriate sentence should be passed. That will not mean necessarily the maximum but in the appropriate case one should be able to impose the maximum.

Secondly, the noble Lord raises the possibility that if the sentences are too long it would encourage murder. Again, with respect, I am not sure that that is necessarily right. If the range involves maximums of life, 14 years or 10 years, I wonder whether those distinctions are being drawn in the cases we are discussing.

Thirdly, the noble Lord is right to identify that all too many victims, in particular child victims, are fearful of coming forward because of what may happen when the case is brought to court. I suspect that that issue does not relate to what the criminal law provides. It is inconceivable to say that the criminal law should not exist in this area. The issue is about how one provides support and makes contact with people in that specific circumstance. That is the basis upon which we have approached the matter.

The noble Baroness, Lady Howarth, said that this is too crude an instrument to deal with the whole range of cases that I believe she would recognise as stretching from the most vicious sort of sexual offender who, she would say—quite apart from any other reasons—should be locked up for as long as possible, to those committing much less serious offences. The noble Baroness is absolutely right. But, again, this is the criminal law part of the story where the crime should be defined with clarity, with the right range of sentences being available to the judge.

In the light of my explanation, I hope that the noble Lord will feel able to withdrawn the amendment.

Lord Northbourne

I stated earlier that this is a probing amendment. I shall, therefore, withdraw it. It seems to me that I shall never be able to argue with the phalanx of lawyers present in this Chamber. I understand the logic from a lawyer's point of view, but my worry relates to the unintended outcomes of the legislation. I believe that the noble and learned Lord referred to "proper process". However, we need to ensure that the unintended consequences of the Bill do not operate seriously to the disadvantage of children with there being nothing like enough male teachers in schools; too few male workers in the youth service; and not enough men prepared to become involved in residential social care. The latter are important consequences that could prove to be extremely damaging to a wide range of children.

I ask the Minister to consider how this problem can be overcome. I wonder whether other amendments could be introduced in that cause. Perhaps the noble and learned Lord could ask his officials to consult the Department for Education and Skills and the relevant departments concerned with local authorities. I am sure that he will find that grave difficulties are already being experienced in the recruitment of men to work with children in the care and social work community.

Baroness Blatch

Before the noble Lord concludes, I do not want anything that I said during the course of this debate to be seen as an argument against some of the points that he has just made. We have made life very difficult for male teachers, for step-parents; and, indeed, for very many people.

Perhaps I may quickly recount a story regarding the experience of a young teacher, just out of training, who was working in a primary school. The children under his charge were out on what we would have called in my day "a nature walk", studying trees, leaves and collecting samples to take back to school for identification, drawing and colouring purposes. A little girl in the group ran ahead and fell on a gravel path. She grazed her knee quite badly. The male teacher picked up the little girl, dabbed her knee with his handkerchief, and put her on his shoulders to carry her back to school. As a result, he later found himself in very serious trouble. He subsequently left teaching, never to return to it again.

The noble Lord, Lord Northbourne, has made some very serious points. However, I am not convinced that they fit into our deliberations on this Bill as regards someone facing a serious charge in court. I do not want the noble Lord to feel that the points he has made and the concerns that he has expressed are falling on deaf ears. That is certainly not so in my case.

Lord Northbourne

I am most grateful for the noble Baroness's support. I accept that the way I have perhaps addressed the question is the wrong way. However, I had to raise the issue somehow. We may be able to discuss better ways to approach the problem at the next stage of the Bill. I beg leave to withdraw the amendment.

Clause 4 agreed to.

Clause 5 [Sexual assault]:

[Amendments Nos. 22 to 28 not moved.]

Lord Falconer of Thoroton moved Amendment No. 29: Page 3, line 9, leave out "Section 78 applies" and insert "Sections (Presumptions about the absence of belief in consent) and (Conclusive presumptions about consent) apply

On Question, amendment agreed to.

4.45 p.m.

Baroness Noakes moved Amendment No. 30: Page 3, line 11 leave out paragraph (a).

The noble Baroness said: In moving this amendment, I shall speak also to Amendments Nos. 32 and 45. This is the first of a number of groups of amendments that I have tabled on a probing basis to discover the Government's intentions as regards the circumstances in which certain offences under the Bill could be regarded as appropriate for summary conviction, and the much lower penalties that attach to summary convictions.

Clause 5 deals with sexual assault. Conviction on indictment can carry up to 10 years' imprisonment compared with six months' imprisonment, or even a fine, on summary conviction. The offence of sexual assault is widely drawn. It covers a spectrum ranging from the act of kissing at one end to penetration at the other. Potentially serious matters certainly fall within the ambit of Clause 5. Can the Minister say what the Government believe should affect whether a summary conviction or a conviction on indictment is thought appropriate? Can the noble and learned Lord say what guidance will be given to the Crown Prosecution Service?

Clause 6 raises even more concerns, because it deals with the sexual assault of under 13 year-olds. There is the possibility here of a summary conviction, even though conviction on indictment can carry the maximum determinant sentence of 14 years. Can the Minister say under what circumstances such a case might be dealt with on a summary basis?

Clause 7 deals with the offence of causing a person to engage in sexual activity without consent. Where penetration is not involved, there is the possibility of six months' imprisonment or a fine on a summary basis, or 10 years' imprisonment on indictment. What kind of non-consensual sexual activity could fall within the category that would appropriately be dealt with on a summary basis?

These amendments seek the clarification from the Government on the points raised. I look forward to hearing the Minister's reply. I beg to move.

Lord Falconer of Thoroton

Amendment No. 30 is designed to probe what is appropriate in relation to indictment. In effect, the noble Baroness answered her own question on sexual assault under Clause 5. This can cover very serious offences but can also cover cases that are very much less serious. In relation to the less serious offences, the noble Baroness asked what approach the Crown Prosecution Service would take in such circumstances. I cannot give the Committee a comprehensive answer. The CPS must make such a decision based on the seriousness of the offence. It would be quite misleading to try to lay down strict criteria in relation to such matters. Such decisions must be left to the good sense of the CPS.

Clause 6 deals with sexual assault of a child under the age of 13. Where, for example, an 18 year-old kisses a 12 year-old with his or her consent, I am not convinced that it would always be necessary for such a case to be tried in the Crown Court. I can envisage circumstances where it might be appropriate for it to be dealt with in a magistrates' court. Again, the CPS would have to make a judgment about the seriousness of the offence.

Finally, Clause 7 relates to, causing a person to engage in sexual activity without consent". Here, too, there could be circumstances where one man causes another to touch his naked body in a sexual manner—behaviour that could well fall within the power of summary trial. But, again, that would depend upon the facts of the particular case. Underlying this perfectly legitimate probing amendment is the fact that there will be a great range of conduct. The question is whether we should always ensure that the case goes to the Crown Court. In each of these offences, we believe that there could be circumstances for which summary trial would be appropriate.

Baroness Noakes

I thank the noble and learned Lord for his reply. However, it was lacking in specificity because it gave examples of extremes that would not offer the kind of guidance that might be required. In particular, the Minister referred to the possibility of an 18 year-old being dealt with by summary conviction. That may be a difficult area and we shall seek the Minister's further guidance.

Lord Falconer of Thoroton

I referred to an 18-yearold because where the accused is under 18, the proceedings will start in a youth court anyway.

Baroness Noakes

I was just making the point that the issues are whether or not one should prosecute, then the appropriate place. I will carefully read the Minister's remarks. Other amendments raise more substantive issues than this group, so I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 5, as amended, agreed to.

Clause 6 [Sexual assault of a child under 13]:

[Amendments Nos. 31 to 33 not moved.]

Clause 6 agreed to.

Clause 7 [Causing a person to engage in sexual activity without consent]:

[Amendments Nos. 34 to 40 not moved.]

Lord Falconer of Thoroton moved Amendment No. 41: Page 3, line 40, leave out "Section 78 applies" and insert "Sections (Presumptions about the absence of belief in consent) and (Conclusive presumptions about consent) apply

On Question, amendment agreed to.

[Amendments Nos. 42 and 43 not moved.]

Baroness Walmsley moved Amendment No. 44: Page 4, line 7, leave out paragraph (d).

The noble Baroness said: In moving this amendment, I shall speak to Amendments Nos. 44, 46 and 65. This group of amendments is about the appropriate way of dealing with teenagers close to each other in age who participate in under-age sex. The purpose is to ensure that there is a defence of consent for under-18s who participate in sexual activity with someone between 13 and 15 and to ensure that the penalty for non-consensual sex committed by under-18s is consistent in the Bill at a maximum of five years. For example, Clause 14 determines that the maximum sentence shall be five years.

We want to prevent the prosecution of, say, a 17-yearold boy who has sex with his 15-year-old girlfriend with her consent but where her parents make a complaint to the police. The amendment would not prevent the prosecution of a 16 or 17-year-old if there has been no consent. Then the offender can be prosecuted under the provisions of Clauses 1, 3, 5 and 7. While we may not wish to encourage under-age sex, we must be realistic, accept that it happens and take appropriate measures.

Young people close together in age cannot be viewed in the same light as a much older man who takes advantage of a young girl. The law should not present a barrier to a young girl who may wish to receive sexual health or contraceptive advice but fears doing so in case she gets her boyfriend in trouble. Again, it is a matter of unforeseen consequences. We should be in the business of harm reduction and the law should play its part. I beg to move.

Lord Skelmersdale

Clause 7 is rather curiously worded. It is entitled "Causing a person to engage in sexual activity without consent". That does not necessarily mean that only two people are involved. A third person could be involved and hence is prosecuted. One has in mind a man encouraging another man to have sex with a woman of whatever age. Under Clause 7, that seems perfectly possible.

I have nothing to say about the amendment itself but I am confused by subsection (6): Unless subsection (5) applies, a person guilty of an offence under this section is liable". That is fine but what happens if subsection (5) does apply? I have got lost.

Lord Falconer of Thoroton

I cannot quite follow the noble Lord's question. Is it about Clause 6?

Lord Skelmersdale

I was referring to Clause 7(6).

Lord Falconer of Thoroton

If subsection (5) applies, the maximum sentence is life. If it does not, the maximum sentence is 10 years.

Amendment No. 44 is much more wide ranging than the noble Baroness let on. It is grouped with Amendment No. 65, which states that for all sex offences in Clauses 1 to 8—including rape, assault by penetration or sexual assault—the maximum sentence for someone age 18 or under should be five years. Once that is clear, I can easily put our case.

Of course the defendant's age will have an effect on the sentence passed in many cases but a number of sex offenders aged 18 and under commit serious sexual offences—for example, rape—and do so more than once. For example, there are 14-year-old and 15-year-old serial rapists. It would be wholly inappropriate to say that the maximum sentence in those cases should be five years—which would be the effect of the amendments.

We return to the question that we have examined before—set a maximum, recognise that age will plainly play a significant part in the penalty but acknowledge that courts need the flexibility required to impose a sentence that fits the crime. We strongly oppose the amendment.

Baroness Walmsley

I thank the noble and learned Lord for his comments. It all boils down to the concern felt by myself and other noble Lords, many children's charities and agencies such as the Family Planning Association, as to the way in which young sex offenders are dealt with and the danger of criminalising young who have sexual activity with consent—which is entirely different from the sexual abuse that the Bill attempts to address. If we were more satisfied about the framework, consistency, quality and availability of services for young people, we would be much happier with the Minister's intentions in setting down criminal activities and maximum sentences. It is a matter of practice.

Many young people commit such offences because they have themselves been victims and are damaged. They must be dealt with in a way that is appropriate to them. Society has failed many of those young people and we should try to put things right. We should help and bear in mind their welfare by providing appropriate treatment—and by doing so, protect other young people from inappropriate sexual behaviour. We shall return to this issue later today and at other stages in the Bill. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 45 and 46 not moved.]

Clause 7, as amended, agreed to.

Clause 8 [Causing a child under 13 to engage in sexual activity]:

[Amendment No. 47 not moved.]

Clause 8 agreed to.

Clause 9 [Sexual activity with a child]:

Lord Falconer of Thoroton moved Amendment No. 48: Page 4, line 36, leave out paragraph (d) and insert— (d) either—

1. (i) B is under 16 and A does not reasonably believe that B is 16 or over, or
2. (ii) B is under 13."

The noble and learned Lord said: This group of amendments in effect suggests the deletion of Clause 76 and makes consequential amendments. The policy intention behind Clause 76 was to ensure that where someone engages in sexual activity with a child under 13, he must be found guilty of one of the specific offences designed to protect children under 13. They are Clause 2, rape of a child under 13; Clause 4, assault of a child under 13 by penetration; Clause 6, sexual assault of a child under 13; or Clause 8, causing a child under 13 to engage in sexual activity.

Our purpose was to ensure that anyone engaging in sexual activity with a child under 13 should be charged with an offence of strict liability, where any ostensible consent of the child is legally insignificant, there can be no defence of mistaken belief in age and a guilty verdict results in a serious penalty that reflects the gravity of the crime.

However, we have realised that, despite our best intentions, there are difficulties with the way that Clause 76 would operate in practice. For example, where a defendant had engaged in ostensibly consensual sexual intercourse with a child who was believed to be 14 at the time, the Crown Prosecution Service would charge the defendant with the offence of sexual activity with a child under Clause 9. However, should it emerge during the trial that the child was, in fact, aged only 12 at the time of the alleged offence, the prosecution would, because of the effect of Clause 76, have to apply to the judge to amend the indictment to include a charge of rape of a child under 13, pursuant to Clause 2.

Judges have the discretion to amend an indictment during a trial but can be reluctant to do so, especially in circumstances such as these in which the indictment would be amended to reflect a more serious offence. Depending on the lateness of the amendment, the later it is, the less likely the judge is to agree to it.

If, in such a case, the judge were to refuse to amend the indictment, the unfortunate result would be that the defendant would have to be acquitted because the wording of Clause 76 has the effect of making it impossible for him to be convicted of an offence under Clause 9 if the victim was under 13. That would lead to a serious injustice since the defendant would be acquitted on a technicality despite having engaged in sex with a 12 year-old. That is clearly not the effect that we intended and I ask Members of the Committee to approve the changes to the Bill to rectify this position and to ensure that the law provides maximum protection for children under 13.

I oppose Clause 76 standing part. That is with a view to striking Clause 76 from the Bill. This would have the effect that, should it transpire during a trial for an offence under Clause 9—sexual activity with a child—that the victim was under 13 at the time of the offence and that the judge is not minded to allow for the indictment to be amended to a charge of rape of a child under 13, the defendant could at least be found guilty of the offence of sexual activity with a child.

Amendments Nos. 48, 50, 100, 101, 113, 114,176 and 177 amend all those offences which, as a result of Cause 76 being dropped, could be charged in relation to sexual activity involving a child under 13, to provide that where the child is under 13 there shall be no defence of mistaken belief in age.

For completeness, Amendments Nos. 49, 51, 76, 106, 119, 183, 216, 219, 222, 223, 228 and 237 all have the effect of removing references in other offences to the application of Clause 76 which will no longer exist. Together, these Government amendments will preserve our policy that the law should provide maximum protection for children under 13. For these reasons, I invite the Committee to accept the amendments. I beg to move.

5.00 p.m.

Lord Rix

I thank the Minister for proposing Amendments Nos. 216, 219, 222, 223, 228 and 237. It saved me the trouble because they apply to learning disability. I am grateful to the Government for listening to our pleas. I have the greatest possible pleasure in supporting these amendments.

On Question, amendment agreed to.

Lord Falconer of Thoroton moved Amendment No. 49: Page 4, line 37, leave out subsection (2).

On Question, amendment agreed to.

Clause 9, as amended, agreed to.

Clause 10 [Causing a child to engage in sexual activity]:

Lord Falconer of Thoroton moved Amendments Nos. 50 and 51: Page 5, line 6, leave out paragraph (d) and insert— (d) either—

1. (i) B is under 16 and A does not reasonably believe that B is 16 or over, or
2. (ii) B is under 13."

Page 5, line 7, leave out subsection (2).

On Question, amendments agreed to.

Clause 10, as amended, agreed to.

Clause 11 [Inciting a child to engage in sexual activity]:

Lord Falconer of Thoroton moved Amendment No. 52: Page 5, line 19, leave out from "indictment" to end and insert "—

1. (a) where subsection (3) applies, to imprisonment for life;
2. (b) in any other case, to imprisonment for a term not exceeding 14 years.

(3) This subsection applies if the offence was against a person under 13 at the time of the offence and the activity incited involved—

1. (a) penetration of B's anus or vagina,
2. (b) penetration of B's mouth with a person's penis,
3. (c) penetration of a person's anus or vagina with a part of B's body or by B with anything else, or
4. (d) penetration of a person's mouth with B's penis."

The noble and learned Lord said: Under existing legislation, sexual intercourse with a child below the legal age of consent is unlawful, even if the child willingly engages in the activity or even encourages it. It is our intention that this situation should be maintained, but that the protection offered by the law should be extended to protect children not only from sexual intercourse but from all forms of sexual activity, including those that do not involve physically touching the child.

We have therefore introduced a range of child sex offences to protect children under 16 from all forms of sexual activity. The offences of sexual activity with a child and causing a child to engage in sexual activity are designed to protect children aged 13 and over, but under 16. The maximum penalty for these offences has been set at 14 years to reflect the fact that the sexual activity covered by these offences is ostensibly consensual. Where activity is non-consensual, the offence would fall to be charged under one of the generic non-consensual offences; that is, rape, assault by penetration, and so forth. In relation to children under 13, we have adopted the policy that they are not capable of giving legally significant consent to sexual activity in any circumstances.

Physical sexual activity involving a child below that age will therefore be charged as one of the specific offences relating to children under 13. They are rape of a child under 13, assault of a child under 13 by penetration, sexual assault of a child under 13, or causing a child under 13 to engage in sexual activity.

The maximum penalties for the offences of rape of a child under 13 and assault of a child under 13 by penetration are the same as for the generic offences; that is, life imprisonment. The offence of causing a child under 13 to engage in sexual activity also carries a maximum life penalty where the activity involves sexual penetration of, or by, the child.

As currently drafted, the offence of inciting a child to engage in sexual activity at Clause 11 carries a maximum penalty of 14 years, regardless of the age of the child or the type of sexual activity that takes place.

Amendment No. 53 tabled by the noble Baroness, Lady Noakes, and the noble Lord, Lord Astor of Hever, would have the effect of introducing a maximum penalty of life imprisonment for this offence. I cannot accept that amendment because I consider that a maximum life penalty is too severe for an offence that covers ostensibly consensual activity with a child aged between 13 and 15.

However, I accept that the current penalty attached to the offence is inconsistent with our policy on providing maximum protection for children under 13 who are deemed incapable of giving legally valid consent. This offence is different from the Clause 9 and 10 offences as there is no equivalent under-13 offence. Therefore, this offence will be used where a person incites an under 13 year-old to engage in sexual activity.

I am therefore proposing government Amendment No. 52 that will bring the maximum penalty in relation to victims under 13 in line with that for the offence of causing a child under 13 to engage in sexual activity—that is, life imprisonment for cases involving the incitement of sexual penetration, otherwise 14 years. In the light of my comments, I hope that in her amendment the noble Baroness, Lady Noakes, will accept the approach that we are adopting. I beg to move.

Baroness Noakes

We come to one of those areas of the internal consistency of the Bill. Amendment No. 53, which proposes a maximum life sentence for the offence of incitement, is based on a comparison to the corresponding offence in Clause 35, under which the incitement involves a person with a mental disorder or learning disability, because that offence carries a possible life sentence.

The comments made by the Minister are partially welcome. They align the potential penalties between Clauses 11 and 35 where the offence involves both a child under 13 and penetration. But I remain mystified by the lack of alignment on the incitement offences. I do not understand why incitement of a child under 13 to non-penetrative sexual activity or for other children is less heinous than with a mentally disordered person.

Looking forward in the Bill, Clause 35 makes no distinction between penetrative and non-penetrative sexual activity. I understand what the Minister said about the logic in regard to offences described earlier in the Bill but I have been looking forward in the Bill to offences involving mentally disordered persons. I should be grateful if the Minister would explain the logic in those kinds of cases.

Lord Falconer of Thoroton

I shall need to come back on the point of why Clause 35 makes no distinction between penetrative and non-penetrative offences.

On Question, amendment agreed to.

[Amendment No. 53 not moved.]

Clause 11, as amended, agreed to.

Clause 12 [Engaging in sexual activity in the presence of a child]:

Baroness Noakes moved Amendment No. 54: Page 5, line 32, leave out paragraph (a).

The noble Baroness said: I shall be brief. This group of amendments concerns summary proceedings and indictments. Amendment No. 54 relates to Clause 12 and the offence of engaging in sexual activity in the presence of a child; and Amendment No. 63 relates to Clause 13 and the offence of causing a child to watch a sexual act. As the Bill is currently drafted, there is the option of a summary conviction even where the child involved is under 13. I find that difficult to understand.

Amendment No. 77 relates to Clause 15. Can the noble and learned Lord indicate the kind of circumstances that would lead to the conclusion that a summary conviction was appropriate? This group of amendments is particularly concerned with the under-13 category and the interaction with Clauses 12 and 13. beg to move.

Lord Falconer of Thoroton

The Bill makes provision for the offences of "engaging in sexual activity in the presence of a child", "causing a child to watch a sexual act" and "arranging or facilitating commission of a child sex offence" to be tried either way. The effect of Amendments Nos. 54, 63 and 77 would be that these three child sex offences would be triable on indictment only.

The noble Baroness is aware that these offences cover a wide range of offending behaviour and, as I have said before, I do not accept that trial in the Crown Court will always be necessary. For example, although sexual gratification is a key element of the offence of "engaging in sexual activity in the presence of a child", where the relevant act is an 18 yea r-old masturbating in front of a 15 year-old the case might be more appropriately heard in a magistrates' court.

Similarly, if a 15 year-old were to be charged with the offence of "arranging or facilitating commission of a child sex offence" because he has made arrangements for his 17 year-old cousin to have sexual intercourse with a 15 year-old friend at his house while his parents are out, it would not seem necessary for such a case to be tried in the Crown Court.

By the same token, causing a child to watch a pornographic movie might be considered serious enough to merit trial in the Crown Court where the defendant is an adult and the complainant is a 10 year-old, but the circumstances surrounding an 18 year-old causing a 15 year-old to watch the same movie might make the case more suitable for trial in a magistrates' court. Similarly, where the child is 12 the case might be suitable for a magistrates' court.

It is not appropriate for the Sexual Offences Bill to add unnecessarily to the workload of our Crown Courts. It would increase delays and overburden the system with cases that could equally be heard by magistrates.

These are probing amendments. The difficulty is that there is a range of offending behaviour and the seriousness with which cases are treated will have to depend on the facts. I fully appreciate and accept why the noble Baroness has tabled the amendments. I hope that she accepts that there is a range of such behaviour. We shall not make much progress on this issue unless she accepts that there has to be discretion.

Baroness Noakes

I thank the noble and learned Lord for that answer. I shall read what he said in detail. He indicated that age would influence whether an offence was directed towards the magistrates' court rather than the Crown Court. I shall want to reflect on that in regard to these clauses and others. In the mean time, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 12 agreed to.

Clause 13 [Causing a child to watch a sexual act]:

5.15 p.m.

Baroness Thornton moved Amendment No. 55: Page 5, line 38, after "gratification" insert "or for gain

The noble Baroness said: In moving Amendment No. 55, I shall speak also to Amendments Nos. 57, 58, 59, 61 and 62, which all relate to Clause 13. They stand in my name, with support for some of them from the noble Baroness, Lady Noakes, for which I thank her.

Clause 13 concerns causing a child to watch a sexual act. The amendments are logical and sensible and seek to update the Bill in that they recognise that images are available in many forms.

Amendment No. 55 seeks to add the words "or for gain". The reason for this is that it seems odd that the Bill, as currently drafted, proposes to make it an offence for an adult intentionally to cause a child under 16 to watch a third person engaging in a sexual act or to look at a photograph or pseudo-photograph of the same where obtaining sexual gratification is his reason for so doing, but if the same person did it for gain it would not be an offence. So you can sell the stuff and that is okay. Surely not. That is not the intention of the Bill.

I appreciate what has been said elsewhere about the provenance of the Bill but I none the less consider it important to continue to promote an amendment which seeks to put similar conduct done for gain on the same footing as conduct done for sexual gratification. The intention behind the amendments is to raise the duty of care which online publishers will be expected to observe in relation to pornographic material—that is, that, at the very least, no website should present pornographic images on its home page. Anyone selling or promoting such material should, at the very least, interpose a warning page which, if you click on to it, will warn you that are about to see adult material. The standards I have in mind in relation to the display are those in the Indecent Displays (Control) Act.

Amendments Nos. 57 and 61 seek to add the word "recklessly" at different points. This means that publishers will be expected to take steps to verify the age of people to whom they might be selling or promoting material. Amendment No. 58 seeks to add the words "or allows" to make it clear that a person would be guilty of an offence if he simply failed to take reasonable steps to prevent someone watching a video or seeing a picture of a sexual act.

Amendment No. 59 is intended to catch not only pornographic photographs but other kinds of pornographic images—for example, cartoons. There is an increasing amount of such material in circulation through, for example, Japanese Manga and Anime. This should be caught by the Obscene Publications Act but this clause would avoid the necessity of having to go via that more complicated route. Amendment No. 62 seeks to include obscene texts but only in the context of an adult selling them or promoting them to children for gain or for sexual gratification. I beg to move.

Baroness Noakes

I shall speak to my Amendment No. 56 and to Amendments Nos. 57, 58 and 59, to which I have added my name to that of the noble Baroness, Lady Thornton. I agree with almost all the points raised by the noble Baroness. There are many issues of concern about the way in which the clause has been drafted.

Amendment No. 56 is a probing amendment. It seeks to delete the word "intentionally" from subsection (1)(a). "Intentionally causes a child to watch a sexual act" has connotations of coercion. The Explanatory Notes refer to a person who forces a child to watch a pornographic film. We have had helpful discussions with members of the Metropolitan Police who have told us that paedophile behaviour is often much more subtle. Paedophiles will leave pornographic material lying around in the hope that children will look at it out of natural curiosity.

We support Amendment No. 57, which seeks to add the words "or recklessly". Our amendment is in an alternative format. It does not inquire into the mind of a defendant; it merely states that if by his action of leaving material lying around he causes a child to see it, he will be guilty of the offence on the basis that those who are involved in exposing children to this kind of material should beware.

We wholeheartedly support Amendment No. 59 which seeks to extend the material to any other visual depiction. Again, we have received clear advice from the Metropolitan Police that we need to include cartoons, tracings, drawings and other visual representations which, in the view of the police, are often very much more disturbing than photographic pictures and so forth.

I hope that the Minister will feel able to accept the majority of this group of amendments.

Baroness Walmsley

I rise to express my general support for the amendments. They are sensible and it is absolutely vital that the law keeps up with new technology. If the provisions place a small extra burden on those with Internet businesses, I really do not care, as long as the law protects children. Given the technology now available, every effort should be made to keep such material away from young people.

I agree absolutely with Amendment No. 59. As the noble Baroness, Lady Thornton, pointed out, cartoons can be just as distressing and damaging as studio photographs. I hope that the Minister will feel able to accept the amendments.

Baroness Blatch

I, too, rise to support the amendments. They go a long way towards protecting children from what might be called 21st century technology. I shall pick up on a point made by my noble friend: the subtlety with which some people operate is astonishing. We know that they are some of the most manipulative people in the world. They are extremely clever and will resort to new techniques to bring awful material before children.

I wish to make a further point, one which I make given my experience of serving on the Government Front Bench. When departments produce a Bill and lay it before Parliament, they are loath to see it tampered with in any way whatever. They will go to enormous lengths not to accept amendments. However, I think that the amendments before the Committee are unarguable. While it is possible for the Minister to say that, while he agrees with them, the wording is not right in every sense and so government amendments will be brought forward to make them technically correct, there is no argument for rejecting them. I hope that the noble and learned Lord will fight the corner in his department to ensure that this change is made. Indeed, I think that it would also be welcomed in another place.

One matter that does not divide Members of any party in either House is the belief that we should do everything we can to protect children, without being overly burdensome or bureaucratic. These amendments go a long way to achieving that.

Lord Skelmersdale

I certainly go along with all that has been said. However, this clause does not cover only the Internet and access through that medium to these particularly pernicious pictures and pseudo-pictures—or whatever they are called nowadays—but also material left lying around at home, in an uncle's home or in the home of the babysitter. I should like to ask the noble Baroness, Lady Thornton, whether the term "other visual depiction" includes videos and compact discs. If it does not, it jolly well should do.

Baroness Thornton

It is my intention that the amendment should cover such material.

Lord Falconer of Thoroton

The purpose of the offence of, causing a child to watch a sexual act", is to protect a child from being an unwilling witness to sexual activity, whether live or recorded. I fully agree with what has been said by all noble Lords; namely, that such material is frequently used to sexualise young people with a view then to taking advantage of them.

As drafted, the offence covers any situation where an adult intentionally, for his own sexual gratification, causes a child to watch a third person engage in a sexual act, whether that act is live or recorded and whether that recorded act is a still or moving image. Since the provision refers to pseudo-photographs, it also covers the situation where the adult causes the child to look at pornographic material which does not involve a real person.

Amendment No. 55, proposed by my noble friend Lady Thornton, would make it an offence for someone to cause a child to watch a sexual act "for gain". The purpose of the provision as presently drafted is to criminalise the actions of anyone who makes a child watch a sexual act because doing so gives him, the defendant, sexual pleasure. This is deviant behaviour of a personal and intimate kind that merits being treated as a sexual crime and in relation to which it is right that the perpetrator should be regarded as a sex offender.

The "for gain" element, which I assume the noble Baroness suggests is an alternative motivation, would suggest that we should criminalise, for example, the film company that uses an image of a naked couple in a sexual embrace in order to advertise the film and to encourage people to pay to see it, or even the publication of a newspaper that includes photographs of models in various stages of undress. Plainly that would be going too far.

Equally the amendment would cover a teacher who is paid to deliver sex education and who distributes perfectly appropriate illustrated material or shows videos as a part of the lessons that he is providing.

Baroness Thornton

I thank my noble and learned friend for allowing me to intervene. The point of the amendment is that if someone uses as a defence the fact that they were being paid or doing this for gain, at the moment it appears that that will not be covered by the Bill.

If the acts were committed for sexual gratification, possibly and probably they would be caught by the legislation, but what if a defendant says, "Well, actually I wasn't doing it for sexual gratification. I was being paid to do it"?

Baroness Blatch

Perhaps I, too, may intervene at this point. Where teachers are doing the decent thing by children, of course they will not be caught by the amendment. Furthermore, I do not believe that that is what the noble Baroness intends in her proposal. However, under an amendment tabled by the noble and learned Lord that we shall discuss later in our proceedings, a whole raft of people are to be given immunity from prosecution simply because they will be able to claim that they did something for educational reasons. It is possible that some people will take advantage of that.

I have on file for the purposes of our discussions on this Bill some horrendous material, including videos, to which children have been exposed for so-called educational purposes. People who do that cannot be allowed to claim immunity from prosecution simply because they say in defence that what they were doing was only for educational reasons.

If someone is caught in these acts for sexual gratification, for personal gain or for commercial gain, the noble Baroness has a real point with her amendment.

Lord Falconer of Thoroton

I understand the argument, but the effect of the amendment would be this. If someone depicted any act of a sexual nature for money and children saw it, that would be made a crime. I understand entirely the point being made by my noble friend Lady Thornton; namely, that certain people, for bad motives, will seek to show children sexual activities in live or recorded forms. I have no difficulty with the concept of "for sexual gratification", but the term "for gain" is more difficult.

I think that both my noble friend and the noble Baroness, Lady Blatch, are trying to target those who do it for money, but have in the background a sexual motive for their actions.

Baroness Thornton

It is quite possible that the wording may not be correct. Perhaps the Minister has another form of words to express the matter. However, as it stands I do not think that the Bill covers all eventualities; that is, it does not cover all the reasons why people may depict sexual acts to children.

Lord Falconer of Thoroton

I think that there may be a fundamental point here. What both noble Baronesses are proposing is that, while we all agree that the motive of sexual gratification is covered, we should also cover circumstances where it is done only for money. Thus, when a person sells a magazine or a film which depicts a sexual act in order to make money, and to some extent the material could be targeted at children, that would become a crime. Is that what is intended? If that is the case, I respectfully submit that that would be going much too far. Some limit needs to be put on what the words "for gain" are intended to cover.

I am not remotely unsympathetic to the paint, but if my noble friend has in mind some form of limitation, I invite her to help us to identify how to define it precisely. I say that because I do not think that the House would thank the Committee if we sought to make the Radio Times or a perfectly legitimate children's magazine depicting a sexual act guilty of doing something criminal.

I have a sense of what the noble Baroness seeks to achieve here—

Baroness Walmsley

In supporting the noble Baroness, Lady Thornton, perhaps I may call the noble and learned Lord's attention to line 38 on page 5. It refers to a person committing an offence if, for the purpose of obtaining sexual gratification, he intentionally causes another person … to watch a third person". Surely "intentionally" would remove the possibility that the Minister has raised of a film made mainly for adult consumption falling into the hands of a child by accident or a newspaper publishing an advertisement for a film in which a couple with no clothes on engaged in sexual activity. The provision would not catch them either because they would not be intentionally aiming their products at children. I think the noble Baroness, Lady Thornton, is trying to catch those people who are intentionally aiming their products, services or images at children. That is possible, as long as the Bill is amended in line with the noble Baroness's proposal.

5.30 p.m.

Lord Falconer of Thoroton

Let me deal with that important point. A film specifically aimed at and sold to children could contain the depiction of people kissing. We certainly do not want to criminalise that, but that appears to be the consequence of including the words "or for gain". Can the noble Baroness give me an example of what she wants? That is really what I am after.

Lord Cameron of Lochbroom

Will the Minister look at this again? He quite rightly says that the clause is aimed at a person carrying out these acts for his personal sexual gratification. The point is that that may sometimes be accompanied by a gain. I am speaking off the top of my head, but perhaps a phrase such as, "whether for gain or not" could be included in relation to sexual gratification, rather than making gain an alternative. As an erstwhile prosecutor, I think it would cause considerable difficulties to add an element to sexual gratification as an alternative and not an addition, which is what the amendment may be striving to achieve. I make these points for the Minister to think about; perhaps he could look again at the clause.

Baroness Howe of Idlicote

As I read the amendment, I thought there was a distinct point to it. I may be quite wrong, and it may not be the point. What if a person shows a child a video, a film or something on the Internet not just for his own sexual gratification but to attract someone who has paid him money for it? I could be wrong and that may not be what is meant. However, I have in mind some of the horrors that have been going on in America via the Internet. There is grooming, not to mention the list of about 6,000 potential paedophiles resulting from a case that was exposed there. That certainly was for gain, as those people made millions. The whole area needs amending, in the Communications Bill as well as this one. This will be very important in the future.

Baroness Walmsley

Perhaps I could make one more point before the Minister replies. The Minister referred to a film aimed at children in which a couple of people might be kissing. Clause 80 gives a definition of what is sexual and says of various activities that, a reasonable person would consider that it may (at least) be sexual", and that, a reasonable person would consider that it is sexual", in this particular context. I am sure that that is what it means. Given that definition, the example that the Minister raised would not fall prey to the amendment. Besides which, surely the CPS would not bring a case against a film-maker in those circumstances. A little earlier, the Minister was praising the common sense and discretion of the CPS. Perhaps we could rely on that common sense and discretion in a situation such as this.

Baroness Noakes

I was going to make the same point about the definition of "sexual". If the Minister has that problem in relation to minor acts under this clause, the problem will exist in relation to virtually every other offence in the Bill. If we hit that problem here, perhaps we should look again at the definition of "sexual".

Lord Falconer of Thoroton

There is obviously great enthusiasm here, and I understand why. We need to work on defining what we are looking for. The intervention of the noble and learned Lord, Lord Cameron of Lochbroom, was helpful, as was that of the noble Baroness, Lady Thornton, in defining what that is. But if two hurdles have to be overcome, that will not ultimately help anybody. We must be quite careful about exactly the activities we want to catch. I would find it helpful to have a conversation with the noble Baronesses, Lady Thornton and Lady Blatch, to identify precisely what conduct we are trying to catch that is not covered by "sexual gratification". I cannot give any guarantees that it will produce anything, but it is well worth making the effort to find out whether there is something that has not been caught.

There is some help in relation to pornographic and unsolicited commercial e-mail which I do not think is the only thing that the noble Baronesses who have spoken are after. There is an issue that needs to be addressed. The Department of Trade and Industry is consulting on unsolicited commercial communications in Chapter 6 of its wider consultation on the EU directive on privacy and electronic communications. I believe that that is one of the bodies to examine the problem of pornographic and unsolicited commercial e-mail.

Amendment No. 56 is in the name of the noble Baroness, Lady Noakes, the noble Lord, Lord Astor of Hever, and, I think, the noble Baroness, Lady Thornton—no, she is denying it. This would remove the intentional element of the offence. It would mean that a person who obtained sexual gratification from accidentally causing a child to watch a sexual act would be captured by the offence. It is quite difficult to conceive of a situation in which someone could accidentally cause a child to watch a sexual act for the purpose of obtaining sexual gratification. If one carries out an act for a purpose, that must mean that one has acted with that intention—in other words, intentionally. The deliberate leaving around of pornographic material in the hope that a child will find it is plainly an intentional act.

Perhaps the thinking behind the amendment is that it is unnecessary to say that the causing must be carried out intentionally, given that it must be carried out for the purpose of obtaining sexual gratification. Removing "intentionally" on this basis would mean that the offence was no longer consistent with all the other child sex offences, all of which require the activity in question to have been carried out intentionally.

Amendment No. 57, which I suspect goes with Amendment No. 56, proposes a different amendment to the state of mind necessary to commit the offence. It would mean that a person would be guilty of this offence if he were reckless about letting a child witness a sexual act, even if it was not his intention that the child should witness the act. Is that desirable? For example, such a provision might cover parents who leave their bedroom door unlocked so that their child can seek comfort during the night. The child comes into the room quietly and unnoticed while they are having sexual intercourse. Any parents who, having noticed the presence of the child, continued their lovemaking, would fall within the meaning of the term "intentional" and would be covered by the offence, but we would not wish to catch those who are unintentionally observed.

A recklessness provision would also catch anyone who mistakenly, rather than intentionally, left videos or photographs in a place where a child could find them. It is not unreasonable to expect adults to take care to keep sexually explicit material out of the reach of children. However, I do not think it would be right to bring the full weight of the criminal law against someone in cases where a child finds and looks at such material.

Our offence requires defendants to take positive actions that cause a child to watch a sexual act. It should be possible to be found guilty of this offence only if it can be proved that it was their intention that a particular child or children should be subjected to such activity.

In a similar vein, Amendment No. 58 is intended to broaden the scope of this offence to cover those who intentionally allow (as opposed to cause) a child to watch a sexual act. Our purpose is to criminalise those who purposefully expose a child to pornographic or sexual images purely for their own sexual gratification. Do we want to criminalise, for example, parents who consider that it is acceptable for their 15 year-old child to watch an X-rated movie or to look at a pornographic magazine and knowingly allow him to do so? That is where some of the amendments we are discussing would lead.

The effect of Amendment No. 61 would be to import an element of recklessness about the age of the child into this offence. I can see no justification for treating the question of the defendant's knowledge or belief about the age of the child any differently in relation to this offence than it is treated in relation to all other offences in Part 1 of the Bill.

Where a defendant has intentionally caused a child to witness a sexual act and he is able to prove, on the balance of probabilities, that he reasonably believed the child to be 16 or over, he should be acquitted of this offence. In any event, if a defendant is reckless about the age of the child and it transpires that the child was under 16, he is extremely unlikely to be able to satisfy the jury that he reasonably believed the child to be at least 16.

The effect of Amendment No. 59 would be to bring visual images other than photographs and pseudo-photographs within the scope of this offence. That plainly requires consideration. I hope that I shall be able to help in that regard.

Amendment No. 62 would extend the scope of the offence to cover written material of an obscene nature shown either for gain or sexual gratification, intentionally or recklessly. I have already mentioned what seem to me to be the problems in relation to the concept of "for gain" although I have indicated that we need to consider that further. As regards the concept of "recklessness", I have indicated what I think the dangers are in that regard. Obviously, we cannot accept the amendment as it is drafted.

The amendment also introduces the idea of, text which a reasonable person would be likely to understand to be obscene within the meaning of the Obscene Publications Act 1959". That would mean that the court would have to find that a "reasonable person" would be likely to understand that the material was liable to deprave and corrupt, which is likely to add complication and difficulty to making out the criminal offence. However, we need to consider the principle of whether intentionally showing text to a child for the purpose of gaining sexual gratification—which I suspect is broadly what the noble Baroness seeks to catch—should be covered in the same way as we propose showing photographs or pseudo-photographs should be. I do not believe that the noble Baroness is particularly wedded to her drafting. The drafting is not the problem; we need to look a t that along the lines that I have indicated.

I hope that I have indicated that we can consider much of what has been said. I can give some assistance in relation to the material I referred to at the end of my speech. As regards the other matters, we need to look at them and try to define precisely what we are trying to cover. I hope that in the light of those remarks the noble Baroness will feel able to withdraw the amendment.

5.45 p.m.

Baroness Thornton

I thank all Members of the Committee who supported me so wonderfully. One innocently tables a measure that appears sensible. That just shows what happens when one "mixes it" with lawyers. I thank my noble friend the Minister for his comments. I shall certainly beat a path to his door to discuss certain issues. I am certainly not wedded to the words of my amendment but I am grateful for the discussion which has taken us a long way. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 56 to 59 not moved.]

Lord Bassam of Brighton moved Amendment No. 60: Page 5, line 40, leave out second "a" and insert "any

The noble Lord said: Amendment No. 60 is grouped with Amendment No. 140. They are purely technical and make no change of substance. Instead of referring to "a" person engaging in sexual activity, the Bill will now refer to "any" person engaging in sexual activity. The amendments are intended to bring Clauses 13 and 22 into line with the parallel offences in relation to those with a mental disorder and learning disability at Clauses 37, 42 and 47.

Amendments Nos. 60 and 140 will simply change the phrase, to look at a photograph or pseudo-photograph of a person to, to look at a photograph or pseudo-photograph of any person in the two relevant offences and will thus make it perfectly clear that it is an offence for a person to cause a child to look at a photograph or video of himself engaged in a sexual act.

I invite the Committee to agree the amendments. I beg to move.

On Question, amendment agreed to.

[Amendments Nos. 61 to 63 not moved.]

Clause 13, as amended, agreed to.

Clause 14 [Child sex offences committed by children or young persons]:

Baroness Noakes moved Amendment No. 64: Page 6, line 11, after "18" insert "(A)

The noble Baroness said: In moving Amendment No. 64, I wish to speak also to Amendments Nos. 66 to 68 and to Amendment No. 71 with which it is grouped.

In our earlier debates we touched on the issue that is at the heart of these amendments; that is, whether consensual sexual acts involving teenagers should be criminalised by the Bill. The issue attracted a number of comments during the Second Reading debate. Many noble Lords who spoke were concerned that the Bill was out of touch with the realities of modern day teenage life. Several of the groups that have provided briefing, notably various children's charities, support the case for amending the Bill.

The Minister said on Second Reading that in order to protect children, That will mean, as it does now in relation to current offences, that one must criminalise certain activities that, on the facts of a particular case, would never merit a prosecution because it would not be in the public interest for there to be one".—[Official Report, 13/2/03; cols. 875–876.]

I challenge that proposition. I do not believe that it is always necessary to criminalise activities where it would not be in the public interest to prosecute. Indeed, I think that it is dangerous for the criminal law to be written in a way which criminalises activities that are regarded as normal activities.

We are not talking about exceptional activity whether or not Members of the Committee approve of teenage sex. It is a fact of life that it takes place. We should get the matter in context. Clauses 9 to 13 deal both with full sexual intercourse and with sexual touching, for example, kissing and all the activities that make up heavy petting, which Members of the Committee may remember from their youth.

The Bill could criminalise a game of postman's knock, or whatever it is that teenagers play nowadays. If two 15 year-olds were involved, both could be guilty of an offence under Clause 14. The offence of causing a child to watch a sexual act could catch a couple of 15 year-olds looking at a dirty magazine together, as I understand that 15 year-old boys down the ages are wont to do. If a Martian came down to Earth, I do not think that we could rationally explain why activity which is widespread and barely condemned in society is made illegal by this Bill.

The Minister will doubtless say that the Bill makes no changes to the current position where underage sex is a criminal activity. But I have to say to the Minister that we should not miss the opportunity offered by the Bill to ensure that the criminal law reflects society as we find it today and not, for example, as it might have existed when the Sexual Offences Act 1956 was passed.

I turn to my amendments. Amendments Nos. 64 and 66 do not give a blanket exemption for teenage sexual activity. They provide that a person under 18 can be charged with something that would be an offence under Clauses 9 to 13 unless the other person involved—the child under 16—has the capacity to consent and does consent. We defined capacity to consent in Amendment No. 66 as the child under 16 being capable of understanding the nature, implications and reasonably foreseeable consequences of the activity or conduct.

These amendments draw no distinction between those who are under 13 and those who are between 13 and 16. I have already said in relation to the amendments to which the noble Baroness, Lady Walmsley, spoke earlier that we accept a threshold of the age of 13. If the Minister were minded to accept the thrust of the amendment, I should be happy to see a restriction on the ability of under 13s to consent.

Although I hope that the Minister will see that the amendments are rational and in keeping with the facts of life today, I have tabled two further amendments in case he dashes my hopes. Amendment No. 67 seeks to leave out the sentencing provisions in Clause 14(2), and Amendment No. 68 seeks to delete only Clause 14(2)(a). They are probing amendments to try to find out how the Government would seek to apply the wide-ranging offences via the CPS. We have had some discussion on that today. We understand that much would be left to the CPS, which might make it difficult for such a wide range of potential teenage sexual activity to be handled. There would be no clarity for those young people as to what they could and could not do.

It is not easy to identify the extremes in relation to children. I expect that the Minister would say that consensual petting, consensual looking at pornographic magazines, and perhaps even consensual intercourse without aggravating circumstances should not be prosecuted. However, the dividing lines are important. We need a greater understanding. If the Minister is unwilling to amend the Bill, we need to press the Government to be much more specific about the kind of circumstances in which they think that the offence would be prosecuted.

My final amendment in the group is Amendment No. 71, which requires the Attorney-General to issue guidance to Crown prosecutors when considering whether to prosecute those under 18 for sexual offences. That continues the theme that, if we have to have the law as drafted in the Bill, we should be clear about what guidance is to be given to Crown prosecutors for applying that. That amendment is supported by the Law Society, various children's charities and Liberty. If the Government are wedded to the Bill as drafted, we believe it extremely important that guidance be publicly available to young people so that they know when their activities would be regarded as criminal, and when not. I beg to move.

Baroness Blatch

It grieves me to take issue with my noble friend because I know how thoughtful she has been on the subject, and that what I shall refer to is not what she would intend for the amendments. However, we have an age of consent. We argued long and hard about it, and Parliament decided that there should be one. The effect of the amendment, like previous amendments, would be to abolish it. As a Parliament, we have to think hard about simply removing the age of consent.

Amendment No. 66 effectively abolishes the age of consent where both parties are under 18. It allows the defendant to claim that his victim consented to the activity. The amendment imports the concept of the "Gillick competence" into the age of consent offences in Clauses 9 to 13. It does not affect the non-consensual penalties, but for the age of consent offences it has much the same effect as the earlier amendments tabled by the noble Baroness, Lady Walmsley. Amendment No. 71 would require the Attorney-General to issue guidance to Crown prosecutors about how to decide whether to prosecute under-18s for sexual offences.

The amendments open up the possibility of endless courtroom arguments about whether the child victim had the capacity to consent to the sexual activity and whether the child in fact consented. That would place a huge burden on the child, who would have to give evidence of her capacity and try to persuade the court that she could not or did not consent. On an earlier amendment, I said that it would be grievous to have a child in court to defend their position as to whether they gave consent.

Many prosecutions would be dropped simply because prosecutors fear getting bogged down in a defence argument that the victim was competent to consent. The whole purpose of an age of consent offence is that the law assumes that a person under the age cannot consent. If it is proved that sexual activity took place when the victim was under 16, the question of consent is irrelevant. Amendment No. 66 demolishes that.

It is true that the clauses allow the perpetrator to argue that he reasonably believed that his victim was over 16, but that is easier to resolve than questions of consent. Furthermore, the Bill, combined with government amendments, will not allow that argument to be raised where the victim is under 13.

Amendment No. 66 does not recognise the under-13 age limit. That would allow a 17-and-a-half year-old to have sex with a 12 year-old and then claim that she was "Gillick competent" and gave her consent. An 18 year-old would not have that option. The amendments have some side effects that need to be thought through.

Amendment No. 71 suggests further scope for undermining the age of consent by requiring extra guidance on prosecuting under-18s. Presumably the intention is that the guidance will indicate that prosecutors should be more lenient on under-18s.

I know the area of concern of the noble Baroness, Lady Walmsley, and my noble friend Lady Noakes, but this is free-voting territory and I believe that we speak as individuals in the Chamber. I certainly speak as an individual who fought very hard against lowering the age of consent. Having lowered it to 16, I think that we should do what we can to preserve it.

Baroness Walmsley

The Committee will perhaps not be surprised to hear that I generally support the amendments, as I generally oppose the inappropriate criminalisation of young people, particularly those of proximity in age who experiment in a sexual way. However, my main purpose in speaking is to oppose the Question that Clause 14 stand part of the Bill, which is part of this grouping. In a way, that is a protest about how tightly the Bill has been drawn with regard to young people who commit sexual offences, thereby preventing us tabling amendments about their treatment. Opposing the Question is the only way in which we can have that debate.

It seems to me that young people who demonstrate sexually harmful behaviour are very damaged. The noble Earl, Lord Listowel, the noble Baroness, Lady Howe, and I recently visited a centre where such people receive expert help from a highly-trained multi-agency team of professionals. It became apparent to us as we listened to some of the case histories that society had failed each and every one of them. Every one had suffered neglect, physical or sexual violence, or severe deprivation of some sort. Research shows a very high correlation between being subjected to physical violence as a small child and the development of some sort of sexual dysfunction or aberrant behaviour later in life.

How inappropriate then to deal with such young people by the criminal law. They are victims themselves. The more I looked into the research, the more it became very clear to me that a great deal could be done to help those children to avoid reoffending. The earlier the treatment is begun, the more successful it will be. Sadly, there are not enough centres such as the one that we visited and those run by the NSPCC all over the country.

It is also sad that there is currently no obligation on the police to consult a multi-disciplinary professional team about the best action to take, with regard to both the welfare of the child and the safety of society, when a complaint is made. In addition, if the case goes for prosecution and the child is convicted, there is no obligation on the youth offending panel or court to obtain a professional assessment before deciding on the sentence.

There is some very good practice, however. In Greater Manchester there is a protocol for such cases, and an initial assessment is carried out to decide what is in the best interests of the child and society before proceedings get under way. That is getting very good results but is not happening everywhere, despite the guidance on the final warning scheme issued by the Home Office juvenile offenders unit. The guidance encourages prior assessment by the youth offending teams to inform the police decision about whether to reprimand, issue a warning or prosecute. The police themselves welcome that approach, as they do not feel able to make such decisions. They should obviously be made by specialised professionals.

Similar arrangements already exist for adult sex offenders when they have been convicted. Given the importance of the welfare of the child, however, it is important that those arrangements are made prior to prosecution everywhere in the country.

"Prosecution" and "sentence" are inappropriate words in respect of those cases. "Treatment" is a much better word. Treatment—either in a residential or non-residential situation, depending on the properly assessed risk—is much more effective than putting such a child in the normal youth custody situation, where he may not receive the specialist help that he needs. Surely our objective must be to put right the damage that the parents or society at large have done to those children and prevent re-offending. That would protect other children from possible future predation. Surely they have a right to expect that. That should be mandatory, not optional. We have failed them, which is bad enough. However, to compound their misery by punishing them instead of treating them and helping them to put their lives in order is appalling in a society that calls itself civilised.

I beg the Minister to find a way of reassuring me and of ensuring that children in this situation will have a right and an entitlement to have their welfare taken into account if they offend. We should keep them out of the criminal justice system wherever possible and put them into the child protection system instead when they commit acts that society rightly abhors.

6 p.m.

The Earl of Listowel

I will speak to the Question whether Clause 14 stand part of the Bill. I will also briefly speak to Amendment No. 67, which stands in my name. Before doing so, I thank the noble Baroness, Lady Walmsley, for speaking so eloquently about the need to treat children as children in this regard.

We are well aware of what needs to be done. The Minister earlier made it clear that we know what needs to be done, although it is not now being done. In, I believe, 1991, the NCH produced a report clearly laying out the range of services and interventions necessary with this group of children. In 1999, I believe, the Department of Health produced guidance about safeguarding children which clearly laid out the range of services needed by those children, who are at risk and are children in need. That depends on close co-operation between many different agencies. Each child behaving in that way needs an assessment. The Minister kindly wrote to me—

Baroness Blatch

It is right to be concerned about vulnerable children and children in need and those needing a great deal of support. However, does the noble Earl agree that this catch-all group of amendments also involves robust and extremely mature—sometimes not mentally mature, but certainly physically mature—14, 15 and 16 year-olds, and very immature seven, eight, nine and 10 year-olds? In this context, there can be extreme wilfulness and the understandable situations—one would expect the Crown Prosecution Service to take them into account—described by the noble Earl.

The Earl of Listowel

I thank the noble Baroness for her intervention; what she says is quite true.

One must bear in mind that some of those young people are deliberate about what they do, have no remorse and are very unattractive. A range of children is involved. Most of those children are of the sort described by the noble Baroness, Lady Walmsley; they have experienced abuse and neglect. Even those who demonstrate such a lack of compunction for what they do have often also had very poor experiences. All the same, it is important to make it clear that they are responsible for their actions. It is therefore acceptable and desirable for a small minority to be entered on the sex offenders' register.

This is a complex area and I do not seek to argue that there should be only one approach. The research clearly shows—this is well evidenced—that often in cases of children abusing other children, the children who abuse are often themselves in need. I have spoken to therapists who have worked with such children, and they say that it is quite difficult to like them and to want to work with them. They do not demonstrate any compunction for buggering several children, for example. Perhaps that is one of the reasons why there has been admitted slippage in this regard; I believe that the Minister will admit that this area has been neglected for many years. I have heard that from many organisations working in this field. One reason for that is because so many of the children are so unattractive.

We know what needs to be done. Are the services that are necessary to address the needs of those children out there? We should also consider the risk that those children involve; we cannot have them continuing to abuse other children. We should remember that while many of those children grow out of such behaviour, many adult sex offenders report that their behaviour began in their adolescence. This is an important matter of public protection.

If we intervene early and effectively, the great consensus of professional opinion in this area is that if one wants to stop adult offending behaviour, it is best to get in there as early as possible—perhaps even before adolescence starts—with an effective, multi-agency approach to the problem and to the child. It is imperative that there is a clear strategy in this area. That has been lacking for many years. The National Organisation for the Treatment of Abusers made that clear in literature that it sent to me.

This matter involves public protection and child welfare elements. To illustrate that, I give the example of Darren, a five and a half year-old boy, who was, I believe, severely neglected when he was less than two. His brother had abused two girls and at the age of five and a half Darren was displaying severe difficulties with concentration and unacceptable sexual behaviour. One worries about his welfare very much. Another example is that of 14 and a half year-old Neil, who was having sex with animals, who had buggered many children and who was displaying very distressing modes of behaviour. Despite that, he was allowed to continue until he successfully abducted, raped and killed a child. No intervention was made to protect other children by assessing him and making available the right sort of treatment.

I was grateful to the Minister for acknowledging earlier the gaps in service provision in that area and the need to give more thought to the needs and risks associated with the children and an appropriate response. What timescale does he have for pulling together what must be done to address those children's needs, and who is responsible? Responsibility falls principally between the Department of Health and the Home Office, but several other agencies can be involved, such as the Department for Education and Skills. Is Hilary Benn, the Minister who has taken over from John Denham as the Minister responsible for children, now responsible for that area?

Amendment No. 67, which also appears in my name, would leave out subsection (2). It is a probing amendment; more specifically, my concern is that there should be a preliminary assessment in nearly every case where a child abuses another child. That assessment would inform the decision taken by the Crown Prosecution Service if the case goes that far. Such an assessment would ensure that the welfare of the child is borne in mind as he goes through proceedings, if that is the course of action which is decided on. If there is a question of the child being included on the sex offenders' register, there should be a more thorough assessment. That assessment should involve a child psychologist, because many of the children concerned have learning disabilities and only a child psychologist is equipped to detect them. I look forward to the Minister's response.

Baroness Jay of Paddington

At Second Reading and, indeed, in the short debate on the White Paper, I was one of those who raised the question of whether we were attempting in this way to overcriminalise acts which were more appropriately dealt with by the kind of multi-agency approach referred to by the noble Earl. In both those instances the Minister replied that, indeed, he saw the force of that argument and that such an approach was desirable but that that was not the point of this piece of legislation.

I agree with the general tenor of the remarks by the noble Baroness, Lady Walmsley, concerning the difficulties which may ensue precisely because of the kind of points raised in earlier debates today about relying in this instance on, for example, the discretion or good sense of the criminal justice system, and in particular the CPS, in deciding whether or not to prosecute such cases as may come before them.

I am sure my noble friends will say that discretion will be used in such instances. However, difficulties may arise because of a disjunction between what is formally proposed and enacted and, as the noble Baroness, Lady Noakes, said in her opening remarks, the general behaviour of many young people who would fall into the category of criminalisation if this were carried out to the letter of the law. I remind the Committee that we are talking of a society in which the average age of sexual experience in the way we have discussed, not necessarily sexual intercourse, is now 14 for girls and 13 for boys. So, we are talking about general behaviour, not aberrant behaviour.

I believe that problems will arise in a situation where this kind of behaviour may be investigated, even if not formally prosecuted, because we will create an environment in which it would be difficult to take the kind of multi-agency approach vividly described by the noble Earl in relation to children with particular difficulties and special needs but also more generally with children who simply behave in the way their peers in 2003 may behave. As several noble Lords have said, such behaviour may not necessarily be something we congratulate on or approve of, but it is undoubtedly the case that it takes place.

I hope my noble and learned friend will not simply say that he accepts that a multi-agency approach is appropriate, but that that is not the remit of this piece of legislation. In addition, perhaps he could comment on another point raised at Second Reading, I believe originally by the noble Lord, Lord Rix, in the context of mental disability but also by me in relation to under 13 year-olds; that is, the present inquiry by the Department of Health into the legal concept of capacity—I am not sure of its formal title—which is relevant to under 13 year-olds.

Baroness Howe of Idlicote

I support the general points raised by the noble Baroness, Lady Walmsley, and my noble friend Lord Listowel, even though they are a "pretence", if I may use that word, for bringing forward such matters for discussion. I also support the amendments tabled by the noble Baroness, Lady Noakes.

We must realise that the extreme forms of behaviour which lead ultimately to the kind of centre I visited the other day with two colleagues are horrendous. By the time the 15 year-old whose case we discussed had arrived at that age, there was practically no hope for him. Without doubt, he will be one of tomorrow's sexual offenders on the sex offenders' register. Equally, the centre was struggling with a five year-old who had abused a three year-old.

Many such children are in care, and we should think of the added risks of multiplication of such offences. These are children about whom we should be particularly concerned and with whom we should be taking particular care. I believe that the suggested form of treatment has an important part to play, but not for all the offences referred to. By the time such children reach the age of 16, or 13 in the case of those who abuse under 13, the offences committed will be horrendous.

As a juvenile court chairman over many years, such children have come before me. There have been various methods of taking them into care and. not dealing very effectively with them. However, I have seen the specialist at the centre I referred to as a professional over many years and, my goodness, she is a professional. When the children are really difficult they are brought to that centre and begin to make a relationship. Then, what happens? The local authority thinks that that costs too much and withdraws the child, thereby making the position even worse in the long term.

Whereas I disagree with some of the points made, some cases in which matters have been left for too long will have to be brought before the courts and there will have to be a criminal record. I would rather like to see followed a suggestion made by the noble Baroness, Lady Walmsley, on our tour. If that point is reached, there should be an entitlement to treatment, which may be compulsory. Before that stage is reached, at pre-court assessments, if permitted there could be an opportunity for the family and children to consent to that rather than a criminal case being brought.

There is much that can be done. I refer back to a point I made earlier. There is an increase in pornography and the extent to which paedophile material is available via the Internet, and so forth. This situation is not likely to get better. It will get worse if we do not nip in at an early stage. The noble Lord, Lord Northbourne, insisted that we get to these families at an early stage and give them the support and help they need. That is where the emphasis should be. I am glad to say that that is where the Government are beginning to put a lot of emphasis and resources. I hope that those points will be borne in mind.

6.15 p.m

Baroness Blatch

Perhaps the noble Baroness will answer this question. As I said earlier, many sexually active young people are healthy, worldly and extremely streetwise. What would happen in the case of three to four very bright 15 year-olds, who gang rape a much younger girl? If the amendments are agreed to, the only way that child could defend herself would be by going to court to give evidence that she did not give consent. It is possible that she would be so frightened she simply would not argue with the boys who had defiled her in such a way.

It seems to me that there is no allowance. Once this is decriminalised for this age group it is decriminalised. If one is to nip in the bud such terrible, abhorrent behaviour there needs to be a mechanism through the courts to declare that the behaviour is wrong is law and then to deal with such people in the way suggested by the noble Earl. If appropriate, that could be through treatment. The courts are free to leave someone to go back into the community just for treatment or to pass a custodial sentence together with treatment. It seems to me that to decriminalise would leave many young people extremely vulnerable.

Baroness Noakes

I remind my noble friend that these amendments deal only with consensual sexual activity, and so the issue of a 15 year-old being gang-raped by some teenagers is exactly the same as far as that girl is concerned. It is taken that it is non-consensual, as is the basic offence of rape in Clause 1. I do not see what the problem is in relation to the points my noble friend has just put, because my amendments are about consensual sexual activity between teenagers, not non-consensual activity.

Baroness Blatch

I know what my noble friend Lady Noakes means. However, existing law deems that a child under 16 cannot give consent. Therefore, it is possible for the boys to say that they believed the person consented. In some strange cases, it could be that the girl did consent. However, if the amendments are accepted, the only way that the girl can defend her own position is to go into court and have to prove that she did not give consent, rather than consent being deemed not to have been given for being a child of that age.

Baroness Howe of Idlicote

Perhaps I may reply as the question was addressed to me. I do not believe that there is any doubt about common sense in that case. I should be glad to hear that confirmed, or otherwise, by the Minister. If there is a case of gang rape involving three young men and a woman, it is clearly a case that has to go for prosecution, as long as the girl is under 13. Over that age, with consent, maybe.

Baroness Blatch

That was my point. The case would be heard under Clause 1 conditions, and the child would have to be cross-examined in court, sometimes very aggressively. I think that a child of that age deserves the protection of the law. Consent should not be deemed to have been given at all.

The Lord Bishop of Guildford

I have some sympathy with the points that have been made about the age of consent. We should not drift into changing the law, without confronting that issue head-on and properly. We have been around that circle a number of times in this House. I have a great deal of sympathy with the noble Baroness's argument. The Minister could help by recognising that sometimes the courts can be of assistance by using their authority to summon agencies to ensure that the right services are brought to bear when children and young people have particular and special needs. The family courts are well able to do this over the placement of children. I should have thought that with the right skills and development, it would be possible to ensure that we developed services that did exactly what people have asked for; namely, using the authority of the courts to ensure that the services are provided for children in these situations. We could square the circle if the Minister would indicate how we might more effectively use the system as set out in the Bill. Sometimes the courts can help, and may rescue us from the label "criminalisation" by the way in which we as a society use them to address the issues.

Baroness Howarth of Breckland

I am grateful to the noble Baroness, Lady Walmsley, for allowing me for the third time in this debate to say that this Bill is not sensitive enough to deal with these issues. I am not dealing with the issue of consensual sex with young people. We have to keep that clearly separate— recognising that young people will engage in sex. There is a debate about the age of consent, which, I agree with the right reverend Prelate, we should not be mixing with this present debate. That is because the issues of non-consensual sex and dealing with the range of abuse are so important. I shall not repeat all of the speech given by my noble friend Lord Listowel who put the issues so well. I want to raise one or two other matters.

There is a body of research about these children, over what works in their treatment, and what needs to be provided. I repeat that if, having gone through all of that research, yet another committee is to examine this, we will simply delay the possibility of providing services. I know the issue is about resources. This is not cheap. Another issue is that in providing for abusers, one also has to make sure that there is provision for victims. That is what the noble Baroness, Lady Blatch, was trying to make us face up to. If we give good provision for those who have committed the offences, but fail to remember the victims, that causes us great difficulty.

The sensitivity of assessment is crucial. That will tell us the range of services that someone will need. It will also tell us the likely problems that will be faced over reoffending. I am vice-chair of the Faithfull Foundation, which treats adult offenders with clear behavioural problems. We know that behaviour can be changed, even in adult serial abusers, if the right steps are taken. As I have said, some men cannot be changed and I hope that one day they receive longer sentences, because it is the only way to give protection.

If the services could be developed, that would be good child protection. Whatever we say, these abusers are going to go back into the community. I should like to disabuse the Committee of the myth that all such people are contained. Large numbers of such children are in ordinary children's homes where the people in charge are going quite mad over how to prevent those youngsters harming other youngsters in their care. This has been going on for 10 years, and we still do not have proper provision or advice for those carers in institutions who are still struggling to deal with such youngsters. They give those difficult youngsters a great deal of care. Some of them are extraordinarily difficult to like. They are painfully difficult to get through to; they do not listen and—as one carer recently said to me—they would sell their grandmothers. Yet one has to care for them and turn their behaviour around. It takes skill, understanding and endurance.

My only other point is about getting the right kind of orders for those children. I have picked up the point in the wider debate made by the right reverend Prelate about the court system. It is not equipped to listen to the issues, to make assessments and to take the planning through. An adversarial system will not get to the truth. That is because, as the noble Baroness, Lady Blatch, said, many young women will not go to court and tell of their experiences. I know of dozens of young women, who have been hurt in sexual ways, who will not go to court—frankly because the court process is more painful than what they endured in the sexual offence.

If we are really serious about making a difference, we must do so at the structural end, at the court end—and I recognise how long term that may be. We have to look also at the resource end to ensure that there is good treatment, and at the societal end also by making sure that there is good education. Public health education programmes aimed at understanding child sexual abuse—like the "Stop It Now!" programme—need to be extended throughout the country.

6.30 p.m

Baroness Walmsley

Perhaps I may make one or two more points before the Minister replies. Those of us who have been pressing for changes to be made in the Bill as regards young people are not arguing for any kind of drift in the age of consent. That is not what we are about. Nor are we suggesting that many of the offences to which we are referring should be ignored.

Despite its complexity, the Bill does two things. It outlines the offences and the consequences: five years; seven years; 14 years; life; custodial sentence; and so forth. It is right that society draws a line in the sand and says, "This is not acceptable. We don't want you to do it". There is a consequence. But as regards young people, there is potential for intervening in a way that will stop them ruining the rest of their lives and protects society. That is what we are trying to do. That was the name of the White Paper.

We must have appropriate consequences, and they are not seven years, 14 years, life imprisonment, or lock them up and throw away the key because that is not a positive way of dealing with the offences. It is a negative way and it will not stop re-offending, as the noble Baroness, Lady Howarth, rightly said, when young people return to society.

Some of us have been struggling with the Bill, trying to amend it to include provisions appropriate to young people and to achieve the positive outcomes that we all want. But the Bill does not allow us to do that. Can the Minister indicate that the law can be drawn in a way that will allow young people to have the appropriate treatment, thereby preventing the abuse of potential victims? That will take a programme of many years because it takes time to train people in that work. We need a national strategy for that.

Young people in these situations need an entitlement to treatment but we cannot provide that tomorrow. We need a national strategy to produce the people with proper professional training to deal with these serious offences. This is a growing problem, it is not diminishing, because society is becoming more overtly sexualised. Any child who has been suffering the neglect and abuse to which we have referred in this mini debate, and who tends towards harmful sexual behaviour, will be encouraged in that behaviour by everything that he sees around him.

It is a growing problem and we must grasp this nettle. We must have a long-term national strategy to produce the professionals who can undertake the work. We must give young people, for their own sake and for the protection of the rest of society, an entitlement to that treatment. It is possible and it works. The noble Baroness, Lady Howarth, referred to plenty of research—good quality, peer-reviewed research and we must get hold of it. I hope that the Minister will help us in that respect.

Lord Northbourne

I want to intervene only briefly. The noble Baroness and many other noble Lords have spoken about the therapeutic treatment of these problems shortly before, at the time of or after the offence. The reality is—and it is a matter to which research should be devoted—that at a fraction of the cost one could prevent many children ever reaching the state of impoverished relationship ability, lack of self-esteem and an inability to relate to others which make them assert themselves through sexual activity.

I believe that the Government's strategy ought to be to ensure that 50 or 70 per cent of children who commit these crimes never do so through support for their parents and improving the environment in which they live. Another 50 or 70 per cent of the balance should be treated as the noble Baroness recommends. The noble Lord will be amazed how the cost of putting children in prison will drop. I suspect that it will probably finance the whole operation.

Lord Falconer of Thoroton

This has been an interesting debate which raises two separate issues. The first is raised by the amendment tabled by the noble Baroness, Lady Noakes. In effect, it states that many people under 16 are committing various acts of sexual activity which no one would remotely regard as criminal. Therefore, the noble Baroness proposes that even though this might be sexual activity between two 12 year-olds, if it were truly consensual it would not be an offence under the child sex activity offences. It might be an offence under Clause 1, but it would not be criminalised by the child's sex activity. She is saying that we should abandon the age of consent except where the sexual act is committed by an adult with a child.

Baroness Noakes

My amendment certainly implies that, subject to the offences at the beginning of the Bill. I modified that when I introduced it and would prefer to see it restricted to the age of 13.

Lord Falconer of Thoroton

I understand why the noble Baroness is saying that. What is the right way to approach it? Assuming that one raises the age to 13, the amendment provides that the age of consent does not apply to activity between minors. It is a difficult issue but one of the underlying principles of our reforms is better protection for all children and the vulnerable.

Research estimates that adolescents commit about one-third of all sex offences and it is likely that many of the victims of those sex offences—I use that word advisedly and I mean offences which people would regard as serious offences—committed by adolescents will be other adolescents and children. In framing the Bill, we must have regard not only to the needs of those who commit the offences but also the victims.

It would be misguided to provide coherent sanctions to protect children from sexual abuse by adults but not provide adequate sanctions for protection from abuse by other children or young people. To be effective in this respect, the law has to be clear about the age of consent and that sexual activity below this age is not lawful. If it is not achieved, as everyone will agree, we are damaging a fundamental plank in our raft of child protection measures.

Any lack of clarity in this area will bring uncertainty and open the way to further change. For example, if we decide that sexual activity is lawful in some circumstances—say, between consenting children—what about young adults? We will be losing the ability as far as the law is concerned to draw the line in a firm and justified place. The noble Baroness, Lady Walmsley, said that it is important to have a line somewhere.

However, we must recognise that this unlawful activity will include a wide variety of circumstances. Where the sexual activity is mutually agreed between two people below the age of consent and it is genuinely consensual, it is extraordinarily unlikely that the CPS will decide that prosecution is in the public interest and there is no problem about this issue at the moment. The number of children in 2001 aged below 16 who were prosecuted is as follows: 368 children were cautioned for sex offences; 593 were prosecuted, of whom 273 were found guilty; of those 273, 42 were sentenced to custody; and 193 were given community sentences.

I fully accept that the law must be relevant, but as regards the idea that there is a problem or an issue in the way the current law operates which makes unlawful sex below the age of consent, I am not hearing people saying that there are wrongful prosecutions.

Baroness Walmsley

Can the noble and learned Lord tell the Committee how many of those young people receive treatment?

6.45 p.m.

Lord Falconer of Thoroton

I do not know the answer. I am sure that not enough are receiving treatment. The second problem that we have to deal with is what we are doing about those children. The noble Earl, Lord Listowel, and the noble Baronesses, Lady Howarth and Lady Howe, have graphically described what children in those situations are doing. We want to stop them offending. Should we say that the criminal law has no part in that? The second part of the debate poses that question. The first part of the debate is that, in order to avoid criminalising those things that should not be criminal—and most of us would agree that there is a lot of activity here that the criminal law has no part in—do we in effect make the age of consent optional, which is what the proposal involves?

As I have indicated, the CPS can make decisions. There is no indication that there is a problem at the moment. Where it is agreed that sexual activity has taken place—that would be covered by the amendment of the noble Baroness, Lady Noakes—but there are clearly abusive circumstances—for example, one child is engaged in sexual activity with a number of other children or has pressurised the other children into agreeing—it is possible that the most effective way of preventing the child causing harm to children in the future may be psychiatric help or child protection procedures. But the criminal law has to be available for that to be the most effective option in such cases, particularly where it will enable the child's behaviour to be tackled properly.

The amendment of the noble Baroness, Lady Noakes, talks about consent and consent where the non-defendant—if I may use that phrase—has a full understanding of what has happened. How are those problems to be resolved when one is dealing with possibly abusive circumstances, where there is peer pressure or pressure by the defendant that may have caused what is, in effect, abusive conduct? There is such a wide range of circumstances that one does not want to make the law much more complex and make it harder to intervene where necessary.

We all agree that there may be cases in which the behaviour is so serious and so abusive that the criminal law has to intervene, even when those committing the abuse are children. How are we to define those circumstances? We cannot take such decisions in Parliament. We cannot capture the complexity of each case that may arise. Such decisions need to be taken on a thorough assessment of the circumstances of each case. The criminal law cannot provide a tailor-made response, which is why the Crown Prosecution Service takes and continues to take a decision on whether a prosecution is in the public interest in every case. Where prosecution is appropriate, I am sure that it is wrong to have a situation where nuance and difficulty—the result of the amendment of the noble Baroness, Lady Noakes—become the order of the day in relation to what happens in court.

The age of consent most certainly has benefits, but only if it is clear. That is the effect of the current position. If public protection for children is one of our aims, and there is not a real difficulty in the way in which the law operates in what may be regarded as innocent circumstances at the moment, surely we should err in favour of the protection of children. The criminal law needs to provide a strong framework to deal with the most serious behaviour, but a prosecution does not have to be pursued in every case. That is exactly the same as the current position. It does not remotely mean that the criminal law will be invoked in every case if an alternative course of action will be more effective in protecting children. That will apply to circumstances in which it is patently abusive behaviour. But maybe the invocation of the criminal law is not the right course. I hope it goes without saying that it certainly does not mean that a prosecution will be pursued in cases where the behaviour is genuinely and mutually agreed.

Recognising the difficulties of the problem that the noble Baroness, Lady Noakes, seeks to deal with in her amendment, we believe that the right course is a clear age of consent. Not putting either the courts or children in difficulties in certain circumstances is the best way to approach the matter. One then has in one's armoury the power to deal with it when there is a problem. If at the moment it is not proving to be a problem in practice, we do not want to cause other problems in relation to public protection.

The second issue raised fairly and squarely by many noble Lords is what we are doing about those who are plainly guilty of abusive, criminal behaviour. Are we providing enough for them? I touched on that in answer to the noble Earl, Lord Listowel, earlier. It is a complex issue. I repeat that it has not received the focus and the attention that it should. Young people and children who abuse are a diverse group. From the interventions made in this short debate it is plain that many noble Lords have greater experience than I. as many have recently visited somewhere that provides treatment for such people. We need to look at that; there needs to be a strategy. It is an area that has been neglected in the past.

We have taken some steps to address the problem. We are funding a dangerous and severe personality disorder study to look at the characteristics of children and young people who commit sexual offences. The National Probation Directorate funded a two-year pilot project developing assessment and treatment tools. The Youth Justice Board has issued effective practice guidance and is evaluating the effectiveness of an initial assessment tool for practitioners; and together with the National Organisation for the Treatment of Abusers and the NSPCC, the Youth Justice Board is funding a national research project that is mapping the nationwide availability of services for young people who sexually abuse.

As I have indicated, the Home Office and the Youth Justice Board have set up an interdepartmental working group with the Department of Health and the Department for Education and Skills to look at the whole issue of young people who sexually abuse. I accept that a strategy is required. The group will report to Ministers later this year. I openly indicated that the strategy will depend in part on resources and, in their turn, resources will depend on the result of the spending review in 2004. I recognise the problems, I have said that officials are looking at them and I have explained that more needs to be done, but I cannot give any assurances as to what may be done.

A theme that came through many of the speeches was that as early as possible we should identify children who are at risk of becoming inappropriately sexually active as sexual abusers and at risk of being abused themselves. I thoroughly and wholeheartedly agree. It is not simply a matter of identifying children but of having an effective process by which intervention can take place. Those who are involved know full well that the interventions required will not be just the social services or just health or just the criminal law or just the Connexion service. We need to make all the agencies work together and focus on the individual to achieve the best result for him or her and for society. We need to consider ways whereby someone is responsible for ensuring that all agencies are brought to bear for individual children at risk, whether victims or offenders.

The Children at Risk Green Paper is due to be published in May. It focuses on three key outcomes: maximising the potential disadvantage to children in terms of educational achievement, employability, life skills and mental, sexual and physical health; preventing children from becoming victims of crime, abuse and neglect; and reducing offending by children and young people. The group about which we are talking is a small group within that wider group. The Children at Risk Green Paper will seek to address all those issues.

That is our answer in policy terms to the second range of issues posed. The noble Baroness, Lady Howarth, said twice, in the most hurtful way imaginable, that the Bill is too insensitive to deal with the problems. She is right in the sense that the Bill does not seek to embark upon the problems. It seeks to provide a framework of criminal law that is able to deal with the most serious cases, providing protection for victims. That means that high maximum sentences have to be available and that the process by which a crime is made out does not involve great difficulties of brief. There are also the points that the noble Baroness, Lady Blatch, rightly made about secondary victimisation in court, where a child victim of another child abuser is forced to go through a prolonged cross-examination of precisely whether or not he or she did consent to the activity. I fear that would be the consequence of the amendment. I do not believe that the noble Baroness was asking me to defend all of all Clause 14 but was seeking a debate.

Amendment No. 71 would place a statutory obligation on the Attorney-General to produce supplementary guidance specifically in relation to the prosecution of children under age 18. The code for Crown prosecutors and other CPS documents contain detailed guidance about the circumstances in which prosecution would be in the public interest. Those will be updated as a matter of standard practice following the Bill's enactment—though the problems that current law raises, in terms of lots of activity that one would not remotely think of criminalising, are set out in the code.

In those circumstances, the statutory obligation on the Attorney-General to produce the guidance envisaged in the amendment is not necessary. It is standard procedure for prosecution guidance to be updated whenever existing legislation is changed in any way. Once the Bill has been given Royal Assent, the guidance will be updated in respect of prosecuting not only children but all offenders.

The Earl of Listowel

Before the noble and learned Lord sits down, I welcome his clear acceptance of the lack of action until now and his commitment to doing something in the future. Does the Minister agree that more could be done—and soon—to spread best practice?

Lord Falconer of Thoroton

The noble Earl will forgive me for interrupting before my noble friend Lady Jay leaves the Committee. The Lord Chancellor's Department has done work in respect of mental incapacity. I cannot say when it will be published but will write to my noble friend.

Baroness Jay of Paddington

I apologise for being about to leave the Committee but the amendment has been debated for more than one hour and I have an unbreakable engagement at seven o'clock. I thought that my noble and learned friend had ignored my point and I was going to take it up with him privately. I am grateful to him for responding.

The Earl of Listowel

Can the Minister give some indication of whether there can be more action now in terms of spreading best practice? He mentioned that the CPS assesses children who sexually abuse others. My reading of Manchester was that one quarter of the children prosecuted for sexually abusing other children did not receive an assessment. The good people of Manchester working in that area took the matter into their own hands and have introduced an assessment process over the past two years, which is widespread and has been well received. While we await the Comprehensive Spending Review and for the wheels of Government to turn, what can be done to spread best practice more widely?

Lord Falconer of Thoroton

I hope that I did not imply for one moment that nothing happened until then. The Youth Justice Board has issued effective practice guidance on young people who sexually abuse, which has been sent to youth offending teams and others to support consistency of assessment and work. In addition, the board is currently evaluating the effectiveness of an initial assessment tool for practitioners based on multi-agency working. A number of local areas are already using that model and as it develops, the YJB will decide how best to spread good practice. That does not meet all the noble Earl's points but he is right to say, "Do not wait—do what you can."

Baroness Noakes

I thank all members of the Committee who took part in this useful debate about the way that damaged children are handled by the system. I am sure that noble Lords will continue to pursue that matter, though that is difficult in the context of the Bill.

The Minister rightly identified that consensual teenage sex was the subject of my amendment. There may be a distinction to be drawn between the age of consent that applies to sexual intercourse between children and a range of activities that parts of the Bill criminalise—including looking at dirty magazines.

I remain concerned that we are potentially criminalising certain acts. I referred on the first day of Committee to guidance for schoolchildren sponsored by the Department of Health, which teaches them about levels of intimacy—something other than full intercourse—and therefore encourages young children to experiment sexually other than by full sexual intercourse. I am sure that there are good public policy grounds for pursuing that approach. We have an environment in which we are encouraging children to participate in sexual activity of that nature. On the other hand, we are saying that it is potentially criminal. I will reflect on the Minister's comment that it will never be a problem in practice because such activities would never be prosecuted. I thank the noble and learned Lord for his comprehensive reply and beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 65 to 68 not moved.]

Baroness Noakes moved Amendment No. 69: Page 6, line 14, leave out "imprisonment" and insert "detention

The noble Baroness said: My understanding is that the word "imprisonment" is not used for custodial sentences on persons age 18 or under. The word used is "detention". The Minister's officials, in the helpful briefing that they gave me and my colleagues prior to Second Reading, agreed that was the case and said that nothing was meant by the use of "imprisonment" rather than "detention". I hope that the Minister will confirm that there is no hidden intent behind using "imprisonment". If that is the case I hope he will be able to agree that it would be less confusing for all concerned if the Bill used conventional terminology. I beg to move.

7 p.m.

Lord Falconer of Thoroton

The amendments would provide that children and young persons convicted of such offences should be sentenced to detention rather than imprisonment. That technical change would be a total departure from the way in which all other criminal legislation is drafted. The appropriate punishment for children and young persons aged under 18 convicted of a criminal offence is governed by the provisions of the Powers of Criminal Courts (Sentencing) Act 2000, which applies to all criminal offences. Section 89 of that Act provides that a person shall not be sentenced to a period of imprisonment if he is under 21 at the time of sentence; and Section 92 makes provision relating to the place in which he is to be detained.

There is no reason to suppose t hat the provisions of that Act will not continue to operate effectively in relation to new sexual offences legislation and we do not want to include in the Bill any provisions that might be seen to cast doubt on the way in which the provisions of the Act should be applied.

We have special measures in place to ensure that children and young persons who abuse are treated fairly by the criminal justice system. Although children and young people who commit sexual offences should clearly be held responsible for their abusive behaviour, we recognise that they are likely to have considerable needs themselves—we have discussed that. Our aim is to achieve a co-ordinated approach on the part of youth justice, child welfare, education and health agencies. The lower maximum penalties for children who commit any of the child sex offences are part of that strategy.

So, yes, I give the assurance that there is nothing sinister.

Baroness Noakes

I thank the Minister for that reply, but I shall have to read it in Hansard, because he read it so fast that I could not take in the words. I shall consult my legal adviser who suggested that I table the amendment but, in the meantime, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 70 and 71 not moved.]

Clause 14 agreed to.

Baroness Walmsley moved Amendment No. 72: After Clause 14, insert the following new clause—

"SENTENCE REVIEW Where a young person under the age of 18 has been convicted of an offence under this Part, the Court or Youth Offending Panel shall review the sentence when the young person reaches the age of 18.

The noble Baroness said: Given all that has been said about the importance of treating young children differently from adults when dealing with sexual offences, it seems only right that when young people have been convicted and sentenced, the sentence or treatment should be reviewed when they reach adulthood. We hope that some treatment will have been made available to them, in whatever situation they find themselves after conviction. It would be good—especially where such treatment has been lacking or unsatisfactory—for the court to reconsider their case when they reach 18. An assessment could then be made of how well the young person has responded to treatment, what risk he now poses to society and whether his welfare and the safety of society would be better served by changing the arrangements for his treatment or custody.

When a young person is in care, new arrangements are made for him when he turns 18. The same thing should happen to a young person serving any kind of sentence for a sexual offence. In Sweden, which I recently visited to view their arrangements for dealing with young offenders, all young people who have offended up to the age of 21 are deemed to be in the care of social services. Appropriate treatment and care is provided with humanity and professionalism. We can learn some lessons from that system.

A young person who commits an offence at 14 may well be a different person when he grows to be 18. We should have arrangements in place to take account of that. I beg to move.

Baroness Blatch

I am baffled as to why there should be such sympathy for some of the cases that we are discussing. I do not know whether the noble Baroness, Lady Walmsley, can even imagine the nature of the offence that could elicit from the courts a sentence of, say, seven years. It would be extremely serious. The child could be aged 15 and a half when receiving that sentence. In awarding that sentence, the judges would have considered the age of the child and would certainly have given a great deal of consideration to the nature of the offence.

Anyway, at about the halfway point of the sentence, it would be reviewed. For the concern of the noble Baroness for a review at 18 to be real, if the child were 13 or 14 when receiving such a sentence, the mind boggles at what sentence he would have been given still to be in prison at the age of 18. But if the child is aged 15 or so, which is much more likely, if he has committed something serious and is sentenced, the judicial system allows for proper review of sentences and, indeed, proper parole arrangements for those who can be released from prison.

In my view, it should be left to that process. There should not be any special arrangements for someone who is 14 or 15 who receives a sentence in the courts in the full knowledge of the child's age and the nature of the offence. The amendment certainly does not receive my support.

Lord Skelmersdale

It is even worse than that, is it not? The young offender may well be aged 17 and a half. Why on earth would one want to review a sentence that has been running for only six months?

The Earl of Listowel

The amendment allows me the opportunity to raise a point that I should have raised earlier—the Committee will tell me whether I am in order. That is the issue of registration on the sex offenders' register. Although young people aged under 18 who are registered may end up with only half the tariff of an adult sex offender—so they would get seven years if the adult were to get 14 years—there is concern that if a 14 year-old, say, were entered on the sex offenders' register for seven years, he may change a lot in two or three years. Children change at a faster rate than adults. It may then be appropriate to review his presence—his enrolment—on the sex offenders register.

Will the Minister tell us whether consideration is being given to how the sex offenders' register is applied to children—to the review of their registration, to how a child is placed on the register and to involvement of professional groups in advising on the appropriateness of including a child on the register?

An especial concern of mine is that the use of the sex offenders' register may change in future and that it may become a much more public document. I also understand that it may be useful to have a child on the register—because the child is dangerous or to make clear to the child that it has committed a serious offence for which it is being held responsible.

Baroness Noakes

It may help the noble Earl, Lord Listowel, to know that we have tabled later amendments that specifically concern children and the sex offenders' register. He may welcome a debate on that issue when we reach those amendments.

Baroness Howarth of Breckland

I support the amendment moved by the noble Baroness, Lady Walmsley, for two reasons. First, all children in prison should be covered by the Children Act 1989 and be given the proper care and concern that children have under that Act. Secondly, when a case is reviewed, the programme of treatment that may or may not have been given is reviewed, as is the level of dangerousness. So that is not only for the welfare of the young person but for the protection of society. One may decide that the young person is so dangerous that other action needs to be taken before the young person is released back into society. So the provision is both ends on: it protects victims as well as the welfare of the young person.

Lord Falconer of Thoroton

The noble Baroness, Lady Blatch, is right: if, as a very young person, one is sentenced for a very long period in prison for a sexual offence, it would be an incredibly serious offence. In considering the length of sentence, the court will have regard to the age of the defendant and the seriousness of the offence. That judgment must be made at the beginning. It would not be appropriate in relation to any offence for the sentence to be reviewed when the person reaches the age of 18, unless that is in accordance with the normal parole arrangements. It is important to have regard to society as a whole, but especially the victims and what they would feel about that. It is difficult to see justification for the amendment in relation to the long sentences.

With regard to the shorter sentences, the noble Lord. Lord Skelmersdale, is right. It is inappropriate to sentence someone at, let us say, 17½ and then to have a review shortly thereafter. It would make the position of the sexual offender unique as regards a particular concession in sentencing. I believe that the right course is to leave the matter to sentencers. While understanding the reasons for the amendment, we cannot support it.

Baroness Blatch

The Minister did not respond to the point raised by the noble Baroness, Lady Howarth. The amendment asks for the sentence to be reviewed, not for an assessment of the treatment given or the handling of the case. I agree with almost every noble Lord who has spoken: that someone sentenced to prison at the ages we are discussing should be subject to treatment and proper remedial programmes. However, the amendment seeks review of the sentence.

Baroness Walmsley

I thank noble Lords who have both opposed and supported the amendment, and thank the Minister. Perhaps I may reassure the noble Baroness, Lady Blatch, that in bringing forward the amendment I have no lack of sympathy for the victims; indeed, quite the opposite. I accept that the approach underlying my amendments relates to the offenders themselves because they are damaged young people whom society has failed. However, in treating them appropriately it is to be hoped that we shall prevent them from reoffending, thereby protecting other children. If those young offenders are released into society without treatment, other children may be abused by them. If we deal properly with the situation, there are children who will never suffer the anguish of sexual abuse. That is why I seek review at appropriate stages, appropriate treatment, expert assessment and all the other matters I have been arguing for.

I see no reason why the age of 18 should not be significant. It is a significant age for children in care. For example, better treatment may have become available since the original sentence. I argue for special arrangements for these young offenders because of the special nature of the offences. In 99.9 per cent of cases, the offences are the result of mental and emotional problems brought about by years of neglect, abuse and violence against those young people. At the end of the case history, those of us who visited the centre to which I referred earlier asked, "Do you have any patients who have not been subjected to some of these terrible situations?" The answer was, "No. They may not manifest themselves when the young person comes to us but when we dig a little deeper we always find them".

These are special, unfortunate young people who commit appalling offences; I am the first to accept that. I want to protect other young children from their predations. However, I ask the Committee to bear in mind that a review at 18, half-way through the sentence, or whenever the court thinks appropriate, will be a positive factor, moving things in the right direction. Research and treatment programmes are moving on all the time. If we can review periodically what is happening to these young people, there is a better chance that they will leave custody able to enter society with the absolute minimum of risk. That is what we all want. In the meantime, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

7.15 p.m.

Clause 15 [Arranging or facilitating commission of a child sex offence]:

Lord Bassam of Brighton moved Amendment No. 73: Page 6, line 19, leave out subsection (1) and insert— (1) A person commits an offence if —

1. (a) he intentionally arranges or facilitates something that he intends to do, intends another person to do, or believes that another person will do, in any part of the world, and
2. (b) doing it will involve the commission of an offence under any of sections 9 to 14."

The noble Lord said: The purpose of the amendment is to make clear that the offence of "arranging or facilitating commission of a child sex offence" can consist of arranging or facilitating child sex either for oneself or for others. The amendment also makes clear that the offence applies wherever in the world the sex is intended to take place. I beg to move.

Lord Brennan

I welcome the amendment introduced by the Government, first, because it deals with a most serious international problem affecting children, especially those in the poorest countries. I declare a connection with the organisation in this country, Consortium for Street Children; and with Anti-slavery, an NGO which has a particular interest in protecting children in those poor countries from sexual exploitation by those deviants in the developed world who go to those countries to take advantage of children and in doing so commit offences ranging between those set out in Clause 9 up to that in Clause 14. That is a commendable objective.

Secondly, although the clause refers to anywhere in the world, it embraces equally the commission of the offence in this country. Anyone who has served on the Criminal Injuries Compensation Board, as I and others have, will readily confirm that organised paedophilia, nationally and internationally, is a major source of damage to children here and abroad. I commend the Government's amendment.

I note that it is to be associated with two related courses of action that I understand the Government are presently considering. The clause attacks the organisers but the offenders directly involved would be sex offenders if convicted. And the Register of Sex Offenders, I understand, is subject to review as to how long a trip abroad can be undertaken by a sex offender, within which time he is required to give notice of the trip abroad to the local police in this country. At the moment, because of regulations passed in 2001, a foreign trip of eight days or more qualifies for the giving of notice. If the Government's intention is carried through, I understand that that period is to be reduced to three days, which makes it effectively impossible to get to the countries in question.

What is the consequence of that for sex offenders? It curtails their activities abroad. That fits in with Clause 15 and the people organising those trips. If we add to that another intended government action—that the sex offenders' register will embrace in future the commission of offences abroad, not just in this country—the register will be effective for crimes committed anywhere against children; the timescale will be short; and Clause 15, coupled with that, will give much greater protection to children than we have been able to give in the past.

I close my welcome to the clause with one comment. It is to be noted in Clause 15 that the penalty on indictment for the commission of the organising of paedophilia is up to 14 years' imprisonment. I confidently expect the courts to impose draconian sentences against the organisers of this kind of national or international paedophilia, against which offences this clause is commendably directed.

Lord Bassam of Brighton

There is very little for me to say in reply. However, I should like to confirm the two points made by the noble Lord, Lord Brennan. We are consulting on shortening the period from eight days to three days. We are also very urgently reviewing the issue of offences committed abroad and their applicability to the sex offences register.

I am most grateful to the noble Lord for his support. As he said, this amendment will sharpen up the clause in the way that he outlined. I commend the amendment to the Committee.

On Question, amendment agreed to.

Lord Falconer of Thoroton moved Amendment No. 74: Page 6, line 24, at end insert— (1A) A person does not commit an offence under this section if—

1. (a) he arranges or facilitates something that he believes another person will do, but that he does not intend to do or intend another person to do, and
2. (b) any offence within subsection (1)(b) would be an offence against a child for whose protection he acts.

(1B) For the purposes of subsection (1A), a person acts for the protection of a child if he acts for the purpose of—

1. (a) protecting the child from sexually transmitted infection,
2. (b) protecting the physical safety of the child, or
3. (c) preventing the child from becoming pregnant,

and not for the purpose of causing or encouraging the activity constituting the offence within subsection (1)(b) or the child's participation in it.

The noble and learned Lord said: Many of the offences in the Bill are designed to protect children from those who seek to abuse and exploit them. We have no wish to interfere with the work of those who seek to protect young people from pregnancy and sexually transmitted disease. Under existing law, we believe that such people will not be viewed as aiding and abetting a criminal offence while working within professional or agreed policy guidelines.

It was firmly established by the House of Lords in the case of Gillick in 1986 that a doctor exercising his bona fide judgment about what he honestly believes to be in the best interests of his patient would not be criminally liable if he prescribed contraceptives for a girl under 16 years of age. That judgment would provide a defence to anyone who was acting within the guidelines it establishes, known as the Fraser guidelines, and giving legitimate contraceptive or sexual health advice to a young person under the age of 16. This will apply to doctors, other health professionals, and anyone exercising his or her bona fide judgment within the Fraser guidelines to provide legitimate contraceptive and sexual health advice and treatment.

I listened very carefully to the significant number of people who have made representations to me in recent weeks about the concerns that still exist, and the fear that people will be deterred from providing advice and treatment to children under 16. I am sympathetic to those concerns. We have come to the view that the matter needs to be settled by clear statutory provision.

A statutory exception needs to provide protection from prosecution for the offences of aiding, abetting, or counselling, the offences that cover sexual activity with children—the child sex offences, the familial child sex offences, the abuse of trust offences, the offences relating to those with a mental disorder or learning disability who are children, and the specific offences relating to sexual activity with children aged under 13. The exception also needs to cover the offence of arranging or facilitating child sex.

I am of the firm opinion that we need to draw the exception more widely than the Gillick case, to provide protection for people other than doctors and health professionals who should be able to act in the best interests of a child without fearing prosecution—for example, parents, teachers and voluntary youth workers.

Government Amendments Nos. 74 and 375 will make it absolutely clear, in statute, that those who act with the purpose of protecting a child from sexually transmitted infection, protecting the physical safety of a child, or preventing a child from becoming pregnant, are not liable to prosecution so long as they do not act to cause or encourage the sexual activity to take place. I believe that the provisions we are making provide effective protection for those who are genuinely acting in the best interests of a child, but they do not protect anyone whose actual purpose is to bring about the commission of the child sex offence.

I am most grateful to the noble Baronesses, Lady Noakes and Lady Walmsley, and to the noble Lords, Lord Astor of Hever, and Lord Thomas of Gresford, for tabling Amendments Nos. 75, 459 and 78. These amendments would introduce an exception to the offence at Clause 15 of arranging or facilitating a child sex offence, and to the making of a risk of sexual harm order, where someone is involved in the provision of sex education, sexual health advice, or contraceptive services for a child under 16. However, I cannot accept the amendments as they stand. As I explained, they are not drawn widely enough to provide the protection from prosecution that is sought in relation to the offences in Part 1 of the Bill.

The risk of sexual harm orders will be made only where a person has actually, on at least two occasions, carried out one of the acts listed in Clause 110(3) and there is reasonable cause to believe that it is necessary for such an order to be made for the purpose of protecting children. In view of these criteria, I cannot see how someone who was acting in the best interests of the child could ever be the subject of one of these orders. Therefore, I consider it unnecessary for the exception in this context. I beg to move.

Baroness Noakes

I thank the Minister for introducing his amendments. As he said, they respond to a number of concerns expressed to him regarding those involved in sex education, the provision of sexual health advice, and contraceptive services. Had the Bill remained as originally drafted, there would have been a danger that those who have never accepted the Gillick judgment could have used this Bill to make life difficult for those providing advice to young people.

Several questions arise as a result of the Minister's amendments. Can the noble and learned Lord clarify the position of a person providing sex education or information to a child who then goes on to commit an offence under the provisions of Clauses 9 to 14? Further, does the provision of sex education always fall within the "protection of the child"? If it does not, can the Minister tell us what would not be included? In all the circumstances, I am unsure whether sex education or information would fall within the terms of protection from sexually transmitted infections, protecting physical safety, and the prevention of pregnancy provisions. We need to be absolutely clear that matters covered by sex education would fall within that category. If the Minister's response to that is positive, my much more modest Amendment No. 75 will be superseded.

I heard what the Minister said in respect of Amendment No. 459, which relates to sexual harm orders. I toyed with degrouping this amendment in order to discuss it later tonight, but I have allowed it to be dealt with now in the interests of speeding up the proceedings. I understood the Minister to say that it would be unlikely that a risk of sexual harm order would be taken against such a person. However, the provision of sex education and contraceptive advice would fall within paragraphs (c) or (d) of Clause 110(3). We would not want the people who provide such advice to fall unwittingly within the basic criteria, which could trigger an application for a risk of sexual harm order. That is the reasoning behind the tabling of this amendment. I look forward to the Minister's response.

Baroness Walmsley

I very much welcome the Government's amendments, which I believe move us in the right direction. However, my worry is that they may be a little overcomplicated in that they are too prescriptive. I fear that they may trap someone who, with the best of intentions, may be advising a young person, say, about the emotional side of sexual relations, which is not listed in the purposes specified in Amendment No. 375.

My amendment would protect not only teachers and health professionals but also bona fide nonprofessionals, and workers employed by agencies such as the Brook Centres, which provide sexual health advice and distribute condoms to young people. Such people have expressed considerable concern about whether they would be trapped by the provisions of the Bill while going about their bona fide work. Although they are not health professionals, they provide a valuable service, supervised by professionals working for a competent and well-regarded organisation. Can the Minister reassure both myself and those agencies that, under his amendment, they would not be liable for prosecution if they continue with their valuable work in the best interests of young people?

Increasingly, in order to reach out to those young people most at risk of unwanted pregnancy, AIDS and other sexually transmitted diseases, agencies such as Brook and the FPA have to take part in outreach programmes, meeting youngsters in their home environment—such as clubs, community and youth groups, and even on the streets. Young people working in their own communities are often the most acceptable to the young in providing such services. It would be a tragedy if such work had to be curtailed. Perhaps the Minister can reassure me and people from agencies like the Brook Centres.

Baroness Blatch

Amendments tabled by all Members of the Committee are certainly well intentioned. Indeed, it is not my intention to knock them. However, I believe that these amendments would create a paedophile's charter; and I say so with some feeling. Perhaps I may explain why. Many have supported the Bill because it will achieve a great deal as regards protecting children from sexual abuse—an objective that we all applaud. However, I seem to be on my own in the Chamber in seeing protection for children as being absolutely paramount. It is disappointing that the Government are seeking to amend their own Bill in a way which will reduce that protection.

I understand the motives of the Government and others, including my noble friend Lady Noakes, in proposing amendments relating to sex education. They want to protect those people who are honestly working with young people and doing a job that we all applaud—a job that, sometimes, parents will not do. But this is a totally catch-all set of amendments.

Government Amendment No. 74 gives a blanket exemption from Clause 15 if a person can make a case that he was protecting the child from sexually transmitted infection, protecting the physical safety of the child or preventing the child becoming pregnant. That becomes a total defence. Anyone can say, "That is what I was doing". They do not have to be a professional, as the noble Baroness, Lady Walmsley, said. Anyone can say, "I was dealing with a sexual difficulty", or, "I was dealing with sex education in some way".

Therefore, an act that was clearly facilitating the Clause 13 offence of causing a child to watch a sexual act could escape prosecution if the perpetrator claimed to be protecting the child. He could he facilitating an adult who acts on the words of Clause 13, for the purpose of obtaining sexual gratification", and causing a child, to watch a third person engaging in an activity, or to look at a photograph … of a person engaging in an activity", that is sexual.

It is extraordinary that the Government should be trying to create such a broad exception. There is no requirement that the person be a doctor or a nurse. The defence is effectively available to anyone who claims that he or she is giving sex education or giving advice on contraception or sexual health. It even covers facilitating actual sexual activity between an adult and a child, under Clause 9, or facilitating a person who engages in sexual activity in the presence of a child, under Clause 12. The mind boggles at that.

What kind of sex education necessitates facilitating sexual activity in the presence of a child? What kind of sex videos are to be shown to young people which require special exemption from prosecution? It would not matter how pornographic the video was. Clause 15 gives a blanket exemption to the person who allows someone to show a video to a child so long as the person can make out a case that he or she acted to promote safer sex under Clause 15(1B)(a) and (c).

The Government appear to have drafted the amendment to give an exemption to a person of any age, including those under the age of 18. Therefore, why is it necessary for children to have this special exemption from Clauses 8 to 14 for the purposes of sex education?

Amendment No. 75 stands in the name of my noble friend Lady Noakes. It has a similar goal. It seeks to amend Clause 15 to state: Nothing done only for the purposes of providing sex education, sexual health advice or contraceptive services shall be treated as an offence". Anyone saying that that is what they were doing has a defence for all kinds of dreadful activities that we have been describing today. That very broad wording would exempt even more behaviour from the ambit of Clause 15. A defendant need claim only that sex education was his "purpose" in order to escape conviction. That is an even easier test than that in government Amendment No. 74.

Amendment No. 78 stands in the name of the noble Baroness, Lady Walmsley. It is less broad, but still it would present a potential defence to a paedophile who gets a sexual thrill from talking to children about sex or showing them books or photographs on the subject.

7.30 p.m.

Baroness Walmsley

I thank the noble Baroness for giving way. Why can doing something in the child's best interests be a paedophile offence?

Baroness Blatch

Because that is what the person could claim to be doing. I have some examples which I shall turn to in a minute. A person befriending the family or befriending the young person could say to the parents, "Your child is sexually confused. You allow me to work with your child and I will help them with their sexual confusion". Their motive could be completely dishonourable but they would have a defence, in law, because of the way in which these amendments would work.

Of course, no one wants to see an adult who acts in the genuine best interests of a child—the point just made by the noble Baroness—convicted of a child sex offence with all that that entails. Any professional teacher taking a sex education lesson would never need any immunity from prosecution, such as that offered by the amendment. No sensible court would entertain such a case, let alone convict.

I ask myself: why would any professional person want to facilitate activity in front of a child which is so sexually explicit that for any ordinary person it would constitute a criminal offence? Surely, questions must be asked about whether such an activity is appropriate in the first place.

Those who believe that legitimate sex education is in danger of becoming criminalised by Clause 15 have fears and concerns which are unfounded. I simply cannot imagine that the police would entertain a case against a respectable professional acting in the normal course of his employment. I certainly cannot imagine a court convicting such a person. I should like to think that some action could be taken against the Marie Stopes clinic which is inviting young people to contact it on the Internet to receive free condoms—at the age of 11, 12 and 13. That is inappropriate and even parents are not in a position to control that kind of offence. But the clinic would have complete exemption under these amendments.

If this special exemption from sexual offences is granted, paedophiles will exploit it as a loophole. We all know that they infiltrate scout and youth groups and work with children with disabilities. They are the most clever, manipulative people. These provisions, allowing them to say that they were helping a person with their sexual health or their sexual education or helping them through the difficult pubescent years, would hand them a defence on a plate.

Paedophiles commonly seek to get themselves into positions where they are responsible for young people. A paedophile who gets a thrill from talking about sex to young people could rely on the defence provided by these amendments. It is well known that paedophiles seek to break down the resistance of young people by talking about sexual activity or by facilitating someone who shows them pornographic images. It is known that paedophiles seek to put themselves in positions of responsibility over young people. This amendment provides a strong incentive for a paedophile to take up employment in the field of sex education.

Of course, there are checks on those who take up positions with young people. But those checks are completely useless if the paedophile's activities are undiscovered. In many cases, they go undiscovered for a very long time. At the primary school that my children attended, one young girl was abused over a very long period because the teachers were afraid to say anything. When the parents came together and the local policeman went into the school and confronted the headmaster, it was discovered that a young girl had been taken into the stock cupboard over a period. The defendant received only a fine. The defendant was the headmaster. When he went to court, his defence was that the child needed support because the child was having difficulties at home. That example is not exactly the same and that person would not be caught by these amendments. But the defendant need only say that he was helping the child with her sex education and that would be a defence.

The government amendment removes the protection of the criminal law from young people. Parents have a right to know why this is thought to be necessary. If such exemption was ever needed, surely it could be justified only for a qualified medical professional, such as a doctor. Under the amendment, a paedophile who worked as a teacher could satisfy the condition in subsection (1A) by saying. I would much rather the children in my class didn't have sex with anyone. But, since you can't stop them, I just try to make sure that, whatever they do, they do it safely. That is why I talk so explicitly about sex. I tell them to be careful. What more can you do?"

Teachers have never needed special exemptions from sex offences with children. To suggest that this is necessary calls into question the very activities which are proposed. Sex education carried out by professional people does not need to be exempt from a charge of arranging or facilitating a child sex offence. The amendment is unnecessary and an insult to the professionalism of those who work with young people and the good sense of the police, the prosecutors and the courts.

Government Amendment No. 375 relates to aiding, abetting and counselling the commission of sexual offences against children. It uses the same formulation to do with protecting the child from sexually transmitted infections, physical harm or pregnancy.

The same convoluted form of words is used in Amendment No. 74, which states, he arranges or facilitates something that he believes another person will do, but that he does not intend to do or intend another person to do As long as the defendant can say that he did what he did because "children will have sex whether we like it or not" and that he was acting to provide sex education, the amendment provides a defence.

It applies to the non-consensual offences: the rape of a child under 13 in Clause 2; the assault of a child under 13 by penetration in Clause 4; the sexual assault of a child under 13 in Clause 6. It applies also to Clause 9, sexual activity with a child; and, where the victim is under 16, to Clause 18, abuse of a position of trust. It also applies to Clause 28, familial child sex; to Clause 33, sexual activity with a person with a mental disorder or learning disability; and to other offences.

It is astonishing that anything which genuinely amounts to aiding and abetting such offences should escape prosecution. Once again, what kind of sex education is envisaged? It depresses me that I am the only person speaking up for children in this area because it is where entrapment and activities of this kind can take place.

For the benefit of the noble Baroness, Lady Walmsley, I shall quickly name some people. A trainee church minister was gaoled for 12 months. The man's name was Gregory—so it is in the public domain anyway—and the court heard that his duties as a trainee minister at Kings Heath Baptist Church, Northampton, included giving a course of sex education lessons to a youth fellowship entitled Faith and Sexuality— Let It Be Real. That case ended up in the courts. Under the amendment the offender would have a defence because he was dealing with the sex education of young people.

I could go on but I have spoken for long enough. If the Committee requires further examples, I have cutting after cutting after cutting in which people profess to be dealing with sex education, sexual confusion, the sexual problems of young teenagers—all of whom, under the amendment, would have a defence. It is outrageous that we should hand such a defence to people who are genuinely looking to obtain self-gratification from our young people.

Baroness Gould of Potternewton

I shall not attempt to reply to the noble Baroness, Lady Blatch, except to say that all of us who support the Bill, and who are considering it in great detail, arc looking to the care, protection and support of children. It must be clearly understood that that is our aim That is why we are working so hard on the Bill.

I should also say to the noble Baroness that all that Amendment No. 74 seeks to do is to create the situation that already exists. Rather than believing that the amendment is an insult, the organisations concerned asked for it to be tabled to enable them to continue the valuable work they currently do to help and protect young children. I do not believe that they will feel even a little insulted by the amendment; rather the reverse.

I declare an interest, again, as president of the FPA. Unlike the noble Baroness, Lady Blatch, I welcome the amendment. The Minister has listened to the concerns of the organisations that provide contraceptive and sexual health advice and education to young people and has introduced this statutory provision. It was very clear that neither the Gillick case nor the Fraser guidelines were sufficient to provide those organisations with the protection and support they needed to be able to continue their important work.

I should say to the noble Baroness, Lady Blatch, that there is an urgent and continuing need for realistic education to reduce teenage pregnancy and to avoid the spread of HIV/AIDS and sexually transmitted diseases among young teens. Not to have the organisations doing this work would ensure that all those problems occur in excess. We are trying to prevent that happening. I am sure that the noble Baroness would not wish that to happen.

My understanding of Amendment No. 74 is that it is designed to protect adults who seek to arrange or facilitate something for children who they know will engage in underage sex and who might otherwise be guilty of an offence. It gives them protection against prosecution in two ways. First, although they know that sex is likely to occur, they do not intend to take any action to cause or encourage that sex; and, secondly, the purpose of their actions is to protect children from sexually transmitted diseases, to ensure their physical safety or to prevent them from becoming pregnant.

I make these points because, while the first defence is fine, the second is a little narrow. The noble Baroness, Lady Walmsley, made the point about a child's emotional health and wellbeing. There is nothing in the list of provisions which covers that issue. We all know that when young people come to these organisations for help, they have problems with large emotional and social components. The organisations need to be able to deal with those problems and one worries that the clause is not wide enough to enable them to help the physical and emotional health of the child.

I do not understand whether the words "arranges" and "facilitates" cover also the giving of advice and information as suggested in the amendment of the noble Baroness, Lady Walmsley, Amendment No. 78. It has been suggested to me that the words do not cover talking to a child and that it may be possible for a litigious group or parent to use the omission to sue a well-intentioned adult who had simply talked to a child about that child's problems in regard to underage sexual relationships but had not given him or her any other advice. Do the words "facilitates" and "arranges" cover the question of a professional or someone from any of the organisations which provide support having a chat with a child? I am sure that the organisations would like an assurance that there are no loopholes in the amendment.

Lord Skelmersdale

We cannot all wax as lyrical as my noble friend Lady Blatch but we can all—and have done so throughout the day—condemn paedophilia. To say that the government amendment—or, to an extent, the amendment of my noble friend Lady Noakes—is a licence to promote paedophilia is not how I and the noble Baroness, Lady Gould, have read the amendment.

I take great comfort in the words at the end, and not for the purpose of causing or encouraging the activity constituting the offence within subsection (1)(b) or the child's participation in it". That covers the issue raised by my noble friend about the churchman and his particularly disgusting form of sex education.

As regards sex education, I am not sure whether the Government's amendment covers the issue of teachers in a classroom. The amendment of my noble friend Lady Noakes mentions it, as does the amendment of the noble Baroness, Lady Walmsley. Proposed new sub-section (1A)(a) may cover the point but I should like to see it made much more obvious in the amendment. If the noble and learned Lord will consider adding something to the amendment to deal with the issue of properly constituted sex education by teachers, we would all go home very happily indeed.

Baroness Howarth of Breckland

I should like to ask a simple question. As currently set out, will the amendment cover Childline volunteers? I declare an interest as the former chief executive of Childline. Volunteers answer numerous questions about sex and sex education put to them by young people. Indeed, a high percentage of the work of Childline is devoted to responding to young people with such concerns.

I should say that many of those concerns result in paedophiles being identified and caught, because young people are prepared to talk openly about those issues with Childline volunteers.

The Lord Bishop of Guildford

I, too, wish to put a question to the Minister. Having put the first part of the new subsection into an international context, does the second part apply to those working for international aid and development agencies in other parts of the world? Will it affect workers from agencies based in this country who may be working with child prostitutes, offering education to children with HIV/ AIDS or working with street children? Will the clause extend by implication, through the changes already made, to aid and development agencies and their workers?

Baroness Walmsley

Perhaps I may reassure the noble Baroness, Lady Blatch, that she is not alone in speaking up for children. I believe that all noble Lords in the Chamber are speaking up for children.

I would not want to provide a paedophile's charter, but I believe that any child's best defence against paedophiles is a good quality sex education. If children understand the issues surrounding sex, if they are confident in themselves and in their own understanding and develop a good relationship with their parents or professional advisers about these matters, they are much more likely to be able to come forward and speak to a responsible adult, should they be approached by someone with harm in mind. Knowledge is a child's best defence and that is why good quality sex education is so vitally important, and the people who offer that education need to be protected.

Lord Falconer of Thoroton

I shall deal with the questions that have been raised. First, I turn to the question put by the noble Baroness, Lady Noakes, about sex education. Where a person provides sex education to a group, we do not consider that he would normally commit an offence of aiding and abetting child sex. That is because to aid and abet, which is what the provisions seek to deal with, a person needs to have a certain amount of knowledge about the offence that is to be committed. While that may arise where, for example, a child tells his doctor that he is planning to have sex with his under-age girlfriend and asks for contraception, it is difficult to see how it could arise in the context of group education.

If, however, the teacher gives one-to-one advice to a pupil about sex matters, then it is possible that he would commit an offence of aiding and abetting. If so, the exception would apply to him if he had given advice in regard to one of the three permitted purposes and did not intend to cause or encourage under-age sex, but not otherwise. So he would be protected if the one-to-one advice concerned how to prevent pregnancy, but not if it concerned how to have enjoyable sex. That seems to be the correct place to draw the line.

The noble Baroness, Lady Walmsley, asked whether physical safety is too limited; what of emotional and psychiatric needs. She asked me whether I would consider that. My noble friend Lady Gould of Potternewton mentioned the same point. I shall think about it.

The noble Baroness, Lady Blatch, was kind enough to describe these measures as "well-intentioned-. She also said that she was the only person in the Chamber who was speaking up for child protection. In my own case, I do not agree with that. Like all noble Lords in the Chamber, we are seeking to deal as best we can with child protection. It may be, therefore, that certain noble Lords who have been deeply involved in child protection matters during their lives may not have been that impressed by the noble Baroness in her comment that they were not concerned about child protection.

Baroness Blatch

I think that I have said on a number of occasions during our debates today that I believe that, in that sense, all noble Lords are very concerned about children. However, I said that it was rather depressing to note that I would probably end up the only noble Lord concerned about the kind of person who thinks that if an educational context could be used as a defence in law, then becoming a part-time teacher in a school—with no protection under the abuse of trust clauses in the Bill—or working in the Scout movement will provide such people with a defence that they were simply concerned about the sexual education or sexual confusion of a child. That can be used as a defence to justify activities such as showing videos and engaging in other acts set out in the Bill.

I do not refer to all those bona fide teachers and so forth who are doing a good job in ways that have been described and praised by many noble Lords, but once such a defence is enshrined in law, then many people will regard this as a serious loophole. It will provide a way of allowing them to seek all the unpleasant gratification they want from their activities, but they will have to hand a defence that has been put on the statute book by the Government themselves.

Lord Falconer of Thoroton

I understand the point being made by the noble Baroness. The part I misunderstood was that I thought she had said that she was the only person in the Chamber speaking up for child protection. I am very glad to learn that I did misunderstand her. However, noble Lords on the Benches behind me are commenting that the noble Baroness did use those words. However, I understand that the noble Baroness is now making it absolutely clear that she said no such thing. I accept that without reservation.

Baroness Blatch

If I did say something like that, then I said it unwittingly and I apologise unreservedly for doing so. What I meant to say was that, in the context of these amendments, I would probably be the only noble Lord to speak against them in the interests of the protection of children. It seems that that is in fact the case.

Lord Falconer of Thoroton

I shall respond to the specific points made by the noble Baroness. She described the amendments as a "paedophile's charter". As various noble Lords have pointed out, the amendment states that no defence of any kind is provided where the acts involved are, not for the purpose of causing or encouraging the activity constituting the offence within subsection (1)(b)", or similar ones in the other offences to which it refers.

I was not able to understand the examples cited by the noble Baroness. She referred first to the headmaster of the school which her children attended. He took someone into the stock cupboard. It is inconceivable that this provision could possibly provide a defence against such an act. Furthermore, I should be interested to hear the details about Mr Gregory, to whom she referred, and how the amendments could possibly provide any form of defence. Before this Bill, those acts would not even have constituted a criminal offence. Simply to speak on certain subjects to ordinands would not have been an offence; therefore something more must have taken place.

Baroness Walmsley

As I recall, the cases quoted by the noble Baroness, Lady Blatch, all resulted in prosecutions and everyone concerned was found guilty. Therefore the common sense of the courts was clearly demonstrated.

Baroness Blatch

The point I sought to make was that if these amendments are included in the Bill, then such people would have a defence against such a prosecution. In the Gregory case, he claimed that he was conducting sex education with a group of young people, but it turned out that his intentions were malign.

As the Bill was originally drafted, it was very protective of children, but the amendments will give that kind of person a defence and a person like Gregory would probably not have been prosecuted.

Lord Falconer of Thoroton

Although not at this moment, I should like to learn the details of what happened in the Gregory case. However, I am not persuaded that the headmaster in the stock cupboard, one of the examples cited by the noble Baroness, would even remotely have a defence as a result of these provisions.

We considered the issues very carefully before the amendments were brought forward. We asked whether the provision would provide too much or, indeed, any defence for people with malign intentions. After careful thought, we concluded that it would not do so. That is why I think that the example cited of the headmaster is not persuasive so far. However, I would be anxious to hear from the noble Baroness about any other examples. As I have said, we have considered this matter with great care. We are just as concerned as the noble Baroness to ensure that children are protected from paedophiles and we do not believe that these provisions would have the consequences that she fears. However, we shall be more than willing to consider any further examples that she may cite.

I am grateful for the support of my noble friend Lady Gould. She pointed out that professional organisations wanted the Government to bring forward amendments of this kind. Child protection involves protecting children against the acts of paedophiles, but it also involves offering protection against physical harm through sex, from the activities of familial abuse, from early pregnancy and from sexually transmitted diseases.

My noble friend also asked the same question pm to me by the noble Baroness, Lady Walmsley; that is. would the abuse include talking? Yes, it would do so. I draw my noble friend's attention to government Amendment No. 375, which makes the position clear. The noble Lord, Lord Skelmersdale, asked how education would be affected. I believe that I answered those points in my response to the noble Baroness, Lady Noakes. The noble Baroness, Lady Howarth, asked whether the provision would cover volunteers working with Childline. Obviously, so long as the volunteers were acting in bona fide pursuance of the three aims—physical harm, pregnancy and sexually transmitted diseases—then of course the provision would apply. The right reverend Prelate the Bishop of Guildford asked whether it would apply to those agencies assisting with the foreign element. If and in so far as it would be a criminal offence otherwise, then the provision would apply.

Finally, the noble Baroness, Lady Walmsley, said that the noble Baroness, Lady Blatch, was not alone in speaking up for children, and I entirely agree.

I hope that in the light of those explanations, the House will feel able to agree to the amendments.

On Question, amendment agreed to.

[Amendment No. 75 not moved.]

Lord Falconer of Thoroton moved Amendment No. 76: Page 6, line 25, leave out subsection (2).

On Question, amendment agreed to.

[Amendments Nos. 77 and 78 not moved.]

Clause 15, as amended, agreed to.

Baroness Farrington of Ribbleton

I beg to move that the House do now resume. In moving this Motion, may I suggest that the Committee stage of the Bill begin again not before nine o'clock?

Moved accordingly, and, on Question, Motion agreed to.

House resumed.