HL Deb 01 April 2003 vol 646 cc1255-304

House again in Committee.

Clause 16 [Sections 9 to 15: marriage exception]:

Baroness Thornton moved Amendment No. 79: Page 6, line 37, after "involve" insert "the taking or making of

The noble Baroness said: This is a small amendment, and it could be that I put it down because I am being dim. I could not make sense of the clause unless it had something in it which was related to what was actually happening—whether a photograph was being taken, made, seen or whatever. So I decided that "taking or making" the photograph might make that clear. I beg to move.

Lord Falconer of Thoroton

The purpose of the marriage exception in Clause 16 is to make sure that the criminal law does not interfere unnecessarily with the right of individuals to engage in sexual activity within a lawful marriage. Marriages may be lawfully contracted overseas by individuals who then visit or come to live in this country, but who none the less are below the age of consent here.

The exception clause has been carefully drafted with the intention of making sure that the criminal law does not interfere with "normal" sexual behaviour within marriage, while ensuring that it does not inadvertently legalise abusive sexual behaviour within marriage. In order to protect children from being coerced into what many would consider to be abnormal sexual activity, the marriage defence provides that where the sexual activity complained of involves a third party, or involves photographs or pseudo-photographs of a third party engaging in sexual activity, the fact that the defendant and complainant are lawfully married will not absolve the defendant of criminal liability. That means in practice that if, for example, for the purposes of his own sexual gratification, a man makes his 15 year-old wife look at pornographic images as he downloads them from the Internet, or makes her look at pornographic photographs in a magazine, or makes her watch a pornographic movie, he will be guilty of the offence of, causing a child to watch a sexual act". The amendment of the noble Baroness, Lady Thornton, would have the effect of broadening the scope of the marriage exception, so that it would only not apply where the activity complained of involves a third party, or where it involved the "making or taking" of photographs, or pseudo-photographs of a third party engaging in sexual activity. If the amendment was incorporated in the Bill, a man who, for his own sexual gratification, made his wife look at pornographic images that he had downloaded from the Internet, or made his wife look at photographs or videos he had taken of a third party engaging in sexual activity, would still probably be committing an offence. However, it would no longer be an offence for him, for the purpose of sexual gratification, to make her watch pornographic movies or to look at photographs taken of a third person. That would reduce the protection from abuse that is offered within marriage.

There is a technical problem with the amendment, although it is in a different order. I do not believe that there is much point in going through the technical difficulties, because the noble Baroness is after some clarity on the point of principle. I believe that we have the balance right in the marriage exception, in that it does not interfere unnecessarily with mutually agreed activity, but it still protects children from behaviour within marriage that is abusive. I hope that helps the noble Baroness.

Baroness Thornton

I am not sure whether it helps. However, I shall read the Minister's words with care. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 16 agreed to.

Clause 17 [Meeting a child following sexual grooming etc.]

Lord Falconer of Thoroton moved Amendment No. 80: Page 7, line 3, leave out paragraph (a) and insert—

  1. "(a) having met or communicated with another person (B) on at least two earlier occasions, he—
  1. (i) intentionally meets B, or
  2. (ii) travels with the intention of meeting B in any part of the world,"

The noble and learned Lord said: Clause 17 is intended to cover situations in which an adult establishes contact with a child—for example through meetings, telephone conversations or communications on the Internet—with the intention of gaining the child's trust and confidence so that he can arrange to meet the child for the purpose of committing a sexual offence against him or her.

The communication or contact between the adult and the child can take any form. However, the offence will be committed only if the adult meets or travels to meet the child with the intention of committing a sex offence against the child at the meeting or on a subsequent occasion. It stems from work undertaken by the Government's Internet task force on child protection. On indictment, the maximum penalty is five years, but we would seek by way of amendment to persuade the House to agree to seven years.

There is presently no offence with which such a person could be charged and this important measure fills that gap. This new offence enables earlier intervention than is otherwise possible. It is designed to intervene at an earlier stage in the preparatory process which adults may use to gain access to children to abuse sexually. I have indicated the intention of the offence.

It is our intention that the adult should commit an offence wherever the meeting he is travelling to is intended to take place. The offence would be committed provided that some part of the journey to the meeting takes place in England, Wales or Northern Ireland. So a person commits an offence if he uses a computer at home in England to communicate with a child in, for example, Thailand and sets out to travel to that meeting provided that the travel or part of it takes place in England, Wales or Northern Ireland. The government amendment makes that explicit. This is because we see no reason to distinguish between situations where a person travels to meet in this country or abroad. However, the offence as drafted does not make that specifically clear.

I thank my noble friend Lady Thornton for tabling Amendment No. 81 to that effect. I confirm that we entirely agree with the objective she is trying to achieve and have tabled a government amendment to that effect. In the light of the government amendment prompted by her amendment, I trust that she will feel able to withdraw her amendment and support mine. I beg to move.

Baroness Thornton

I greatly welcome the amendment. I spoke on the matter at Second Reading of the Bill. It is an important amendment and it sends an important message to men who would prey on children in other countries. I am most pleased that the Government have tabled the amendment and I shall not move my amendment.

Baroness Blatch

I, too, welcome the amendment. I re-read the occasion on which I introduced these amendments to a Bill in this House and I re-read the arguments of the noble and learned Lord, Lord Williams of Mostyn, most cogently and elegantly put, as to why they could not and should not be included in the statute. I shall not say, "I told you so", but I am hugely pleased that they are now part of the Bill.

Clause 17 is a major step forward in addressing the mechanism whereby paedophiles seek to befriend children and lure them into situations where sexual activities can take place. It is important to address grooming in the context of the Internet and the enormous range of opportunities it presents to the determined paedophile. By tabling the amendment, the noble and learned Lord has sent a message that the Government are taking the matter extremely seriously.

The new grooming offence would enable the police to arrest the predator before the child was physically or sexually abused. That was always our concern. Under the law as it stood, the child had first to be attacked or abused before the police could take action. The police will be able to make an arrest once the predator met or travelled with the intention of meeting a child under 16 with the intention of committing a sexual offence. The intent will be drawn from a course of conduct; either the communication itself or other circumstances such as going to a meeting with pornography or condoms.

I am aware that Liberty, in its briefing, talks about, criminalisation of an act that is not in itself criminal". It goes on to state, In its admirable desire to prioritise child protection, the government should be careful of creating what is effectively 'thought crime'". That is an extraordinary approach. We are talking about someone who has embarked on a course of conduct designed to result in the commission of a child sex offence. That includes actual contact with the child victim that is linked, incontrovertibly, to arrangements for meeting with the purpose of committing a sexual crime. In order to be prosecuted the person must have set out on his journey to meet the child in order to perform his particular sexual fantasies upon that child. I regard that as much more than thought.

The Metropolitan Police are strongly supportive of the new offence and consider it, an essential piece of preventative legislation …It fills an important loophole that has caused significant concern to police and risk to children". They say, The inclusion of 'meets or travels with the intention of meeting' is essential, as our own risk assessments will never allow a child to physically meet an adult who is believed to be a danger to them". The police have evidence of one individual who sexually abused three children within 15 minutes of meeting them. They also confirm that this legislation will not be used to target those whose communications with children are innocent. They say, It is our intention to use this piece of legislation with the care and consideration it deserves. The police will not target people or consider the use of this legislation unless there is significant evidence or intelligence suggesting that the person involved is attempting to groom children for sex". The Met also say that the penalty should be increased from five to seven years, commensurate with other sentences in the Bill. So I am pleased to see that the Government have lent their name to Amendment No. 96 in the name of my noble friend, which appears to agree with that view.

Amendment No. 80 is a sensible amendment that tidies up the drafting of subsection (1)(a) and extends the protection to cover cases where the perpetrator is travelling to meet a child abroad. There is no reason why a man who uses the Internet to seduce a child in Portugal or in the USA should be able to set out on his journey to meet the child free from the reaches of this new law. That is especially true given the Bill's other provisions tackling sexual abuse of children abroad by people operating from within the United Kingdom.

Amendment No. 81 in the name of the noble Baroness, Lady Thornton, which also extends the new offence to protect children abroad, has effectively been adopted by the Government. I welcome that too.

I strongly support the new offence and I support its extension in this way. However, I have concerns, as the noble and learned Lord will have noticed from the Marshalled List, about whether Clause 17 goes far enough. I shall address those concerns when speaking to my Amendments Nos. 82 and 86. I am truly grateful for what the Government have done in this respect.

Baroness Walmsley

From these Benches we welcome this part of the Bill and the Government's amendment to it. The noble and learned Lord will be aware that at meetings about the Bill off the Floor of the House we raised concerns about the quality of the evidence that would be required for a conviction of someone under this new offence. The amendment clarifies matters considerably. We are delighted to know that the police have experts who can get into computers and find e-mails as their contents may make the accused's intention clear, which is important. Initially we had considerable sympathy with the concerns of Liberty, but the reassurances that we have received from the Minister have set our minds at rest. We shall have to see how the Bill works in practice. However, we certainly welcome the new offence which is an advance in child protection.

On Question, amendment agreed to.

The Deputy Chairman of Committees (Baroness Fookes

As Amendment No. 80 has been agreed to, I cannot call Amendments Nos. 81 or 82 due to preemption.

[Amendments Nos. 81 and 82 not moved.]

9.15 p.m.

Baroness Noakes moved Amendment No. 83: Page 7, line 5, at end insert "and subsection (IA) applies

The noble Baroness said: I welcome Clause 17 because it attempts to deal with sexual grooming. Amendments Nos. 83, 84 and 87 have been tabled to explore the preparatory nature of the activity essential for this offence. The Minister will be aware from the Second Reading debate that Clause 17 does not refer to sexual grooming as such. I was concerned to ensure that it encompasses an element of preparation. The offence just requires that a person has met or communicated with a child on at least two occasions before meeting the child or travelling with the intention of meeting the child. Nothing there is preparatory to the act that will involve a sexual offence.

Most communications and meetings with children, whether face to face or via the Internet, have no evil intent but all such communications potentially fall within the clause. My noble friend Lady Blatch and I were briefed by the Metropolitan Police, who believe that Clause 17 is essential preventive medicine. We heard how the Metropolitan Police deal with paedophiliac offences, which was something of an eye opener. The Metropolitan Police say that they will prove evidence of the intention that is required by Clause 17(1)(b) to commit a sexual offence in part by the content of the messages or communications. They have examples that clearly show that the communication is sexual or where sex is not mentioned but the phrases used plainly demonstrate the intention.

A ploy used by persons involved in grooming is to pretend to be someone much more like their intended victim or to allow trust to build up. Amendment No. 87 tries to capture those two possibilities where the communication is of a sexual nature or the offender has used impersonation to make the child believe that it would be safe to meet the person. If other words would capture the essence of grooming, I shall be pleased to consider them.

My noble friend Lady Blatch said that the offence under Clause 17 is essentially a thought crime that penalises a state of mind. The intention to commit an offence actually triggers the offence. I have no fundamental problem with that concept, provided that the clause offers sufficient safeguards. The Criminal Bar Association believes that safeguards are needed because of the potential that the earlier communications were entirely innocent. The CBA has suggested the words in Amendment No. 84, which requires that there be proved the intent to commit a sexual offence at the time of the two earlier communications. While that is different from Amendment No. 87, the intention is the same—to require more evidence about the defendant's behaviour or intentions before the meeting or the travelling that triggers the offence.

The noble Baroness, Lady Walmsley, mentioned that Liberty has expressed concern about prosecuting individuals not for what they have done but for what someone thinks that they might do. Liberty believes that people will become afraid of talking to children and that the impact on neighbours or communities will leave children less safe than at present. My noble friend Lord Astor of Hever pointed out at Second Reading that the Climbié inquiry taught us that we have to encourage neighbours to look out for children. We must not by this Bill make people scared of talking to children for fear of false accusations of paedophiliac offences.

As I am sure that the Minister is aware, Liberty would prefer the complete removal of Clause 17 but, failing that, supports Amendment No. 87. I stress that I have no desire to make the offence of sexual grooming any less effective; I am merely trying to ensure that the offence is clearly aimed at sexual grooming behaviour and, by doing so, does not become a trap into which the unwary innocent may fall. I beg to move.

Baroness Blatch

First, I am sorry that I was unable to move Amendment No. 82. Normally, we are told at the outset when an amendment is moved whether it pre-empts other amendments. I should have spoken to Amendment No. 82, if only to persuade the Minister to consider including its provisions in a later part of the Bill. Perhaps I shall have to reconsider that.

I want simply to pose some questions about the amendments. Amendments Nos. 83 and 87 would make it more difficult to convict under Clause 17, because they require proof that the communications with the child were sexual or that the predator pretended to be someone else to win the child's trust. The problem is that that excuses a paedophile who is honest about who he is, or who simply does not say anything about his identity or age. As long as the communications remained romantic rather than sexual, he would escape conviction, although the endgame may be the same.

Amendment No. 84 would also make it unnecessarily difficult to convict for grooming. It requires the prosecution to prove that on two earlier occasions where the perpetrator met or communicated with his victim, he intended to commit a sexual offence. The offence already requires the prosecution to prove that there was an intention to commit an offence at the time of the meeting in question. To add to that a burden of proving a similar intention on two earlier occasions would drastically reduce the number of prosecutions and convictions.

The fact that two examples are required gives rise to the dreadful scenario that a single, blatantly sexual advance would not suffice for a conviction under the clause. In fact, it could be a single, very long contact with the individual. A paedophile may have a series of entirely innocuous communications with a child which, unbeknown to the child, are intended to lull him or her into a false sense of security. That is a particular tactic of paedophiles. If he then sends a single e-mail asking the young person to meet him to perform specific sexual acts, he could escape conviction, since that falls short of the two examples required by Amendment No. 84. I ask the Minister to confirm that that would be the effect of the amendments.

Lord Falconer of Thoroton

Three amendments are grouped: Amendments Nos. 83, 84 and 87. Amendments Nos. 83 and 87 would restrict the offence of, Meeting a child following sexual grooming etc.", to those situations where the prior communication between the adult and the child is either explicitly sexual or involves the adult impersonating another person in such a way as to lead the child to believe that it would be safe to meet the adult.

As the noble Baroness, Lady Noakes, said, the offence would be committed only where it could be proven that an adult, having communicated with a child on at least two previous occasions, travelled to meet or met that child with the intention sexually to abuse the child at the meeting or subsequently. The sexual intent at the final meeting must be proven in order for the offence to be made out. It would, therefore, seem unwise to limit the communication to only those of an explicitly sexual nature or where the adult had impersonated someone—for example, a person of similar age to the child—in order to lead the child to believe that a meeting would be safe and appropriate.

In some cases, where adults are seeking to gain the friendship and trust of children so that they can abuse them, they may not lie about their age or their identity.

They may not be explicitly sexual in their communication. However, if there is evidence which proves the intent to commit a sex offence—-for example, something said to a third party—it is difficult to understand why they should not be liable for the offence. So it is difficult to understand the logic behind Amendments Nos. 83 and 87.

Perhaps I can test that by way of example. A man in his 20s may communicate with a child of 13 or 14. The man may talk on the Internet to the child about his favourite pop group, or what he likes to watch on television. In this way he may befriend the child and travel to meet him with the intention of committing a sexual offence against him. He may even communicate, as happens, details of the sexual offence he is intending to commit to another adult with similar sexual interests to his own, but he has neither tried to impersonate someone else nor been remotely sexual in his communication. That man would not be guilty of a Clause 17 offence. Is that what we want? I do not think that it is. With respect to the noble Baroness, I believe that these are unwise amendments.

The effect of Amendment No. 84 would be to make, in some cases, prosecution under Clause 17 for the offence of meeting a child following sexual grooming extremely difficult. The effect of Amendment No. 84 would be that the intention would have to be present before each of the meetings. I assume that the noble Lord, Lord Astor of Hever, and the noble Baroness, Lady Noakes, have tabled the amendment in order to prevent wrongful prosecutions against adults who have innocent non-sexual communications and intentions towards children and that the offence should be committed only where the future sexual intent can be proven at the time of the earlier communications as well.

In fact, such innocent and altruistic communications where there is never any sexual intent would never bring conviction, as the offence is committed only following those communications where the adult travels to meet the child and a sexual intent at that stage can be proven. It should not matter, when an adult travels to meet a child with an intention sexually to abuse that child, whether or not you can also prove that he had that sexual intention in previous communications with the child. It is enough that he has befriended that child and now travels to meet him or meets him with that intent.

I understand why the amendment has been tabled, but in effect it creates great difficulties. All you would have to prove to get away with the offence would be that one of the occasions was entirely innocent. That would be enough, even though there might be conduct or communications, for example, with a third party that indicated that the meeting was intended to lead to illegal sexual activity.

The noble Baroness, Lady Blatch, referred to preemption and asks why there should be two occasions rather than one. This is a sensible, effective but quite far-reaching offence. It depends upon a course of conduct before the meeting. The course of conduct would not be established by just one meeting; you would need two. I fully accept that one can envisage circumstances, as the noble Baroness says. Let us compare, for example, a chat room conversation on the Internet that lasted eight hours with one e-mail. There needs to be some basis upon which one can establish a course of conduct. We think that two is the minimum number which can form the basis of such a course of conduct. I was not clear about the noble Baroness's final example. It appeared to involve some contact followed at the end by an e-mail. That seems to me to satisfy the two meetings or communications requirement.

Baroness Blatch

My second example refers to where there have been many communications of a non-sexual nature. The relationship between the person sending the e-mails and the young child receiving them lulls that person into a sense of false security. The final e-mail is sexual in nature, and they meet. On the back of all that grooming, which on the face of it was non-sexual in nature, there could not be a conviction because there has to be another e-mail of a sexual nature. The person creating over a period a friendship with the person, followed by one very short e-mail about meeting for a sexual encounter, would not be convicted because there would not have been two e-mails of a sexual nature.

9.30 p.m.

Lord Falconer of Thoroton

I misunderstood the noble Baroness's point. It appears that the attack was on the amendment moved by the noble Baroness, Lady Noakes, and not on the Government's position. That is fine. I thank the noble Baroness.

Baroness Noakes

I had realised that my noble friend's attack was aimed at me; indeed, that is something that I have become quite used to this evening.

I thank the Minister for his reply and for explaining his position on the concerns raised. I can paraphrase the concerns that he expressed and those mentioned by my noble friend Lady Blatch by saying that it is difficult to convict paedophiles. I approached my amendments from a slightly different direction by pointing out that one element of this offence involves potentially innocent activity. Most communications with children are innocent communications, which could themselves bring this offence into effect.

I am not perhaps concerned that innocent people would be prosecuted and convicted. I have always been concerned about innocent people having false accusations made against them. Through ignorance. we know that quite frightening reactions often occur in communities whenever people suspect that a paedophile is in their midst. That is the nature of my concern.

The clause is not about sexual grooming; it is about going to meet someone with an intent to commit an offence. There is a fig-leaf of grooming at the beginning of the clause, followed by the reference to two communications. That is the part of the provision about which I am most concerned. However. I shall not press the amendment this evening. I should like to consider the matter further. I remain concerned about the potential effect on innocent people. I put that alongside the difficulties as regards convicting paedophiles, who we really want to convict under this legislation. I thank the Minister for his response. and beg leave to withdraw my amendment.

Amendment, by leave, withdrawn.

[Amendment No. 84 not moved.]

The Deputy Chairman of Committees

Before I call the next amendment, perhaps I may take to heart the point made earlier by the noble Baroness. If Amendment No. 85 is agreed to, I cannot call Amendment No. 86 by reason of pre-emption.

Lord Astor of Hever moved Amendment No.85: Page 7, line 9, leave out paragraphs (c) and (d) and insert", and (c) subsection (1B) applies

The noble Lord said: In moving this amendment, I shall speak also to Amendment No. 88. These amendments would extend the new grooming offence outlined in Clause 17 to include adults with a mental disorder or a learning disability.

Our amendments focus on a different aspect of the new offence and one that I feel has been neglected by those who have been lobbying for the new offence to be introduced. The Bill clearly sets aside two groups who could be classified as "vulnerable"—those who cannot readily consent to sexual activity and for whom sexual abuse may be a very traumatic experience, and one that they have problems reporting or admitting. For these reasons, sexual offences committed against children and those with a mental disorder or learning disability are dealt with separately in the Bill.

Like children, the Bill admits that vulnerable adults with a mental disorder or a learning disability need special protection against sexual abuse. Their trust can be won easily. They may have a confused sense of what is wrong and what is right in sexual terms. I believe that not including them in the Bill, along with the under-16s, would be tantamount to a huge loophole in the legislation. They may have unrestricted access to computers and telephones, just like children. We know that they are often specifically targeted by sexual offenders.

I should be grateful if the Minister could outline the reasons for not including vulnerable adults under those who can be victims of the offence in Clause 17. I beg to move.

Baroness Blatch

Much as I welcome my noble friend Lord Astor of Hever to the Dispatch Box on this occasion in order to give my noble friend Lady Noakes a respite from having worked all day, I am sorry that I have been deprived of the opportunity to say to her how much I welcome these two amendments. I have been a bit of a thorn in her side for most of the day. It would have given me great pleasure to have said that to her.

Most of us can think of individuals who, although over 16 years in age, have a much younger mental age or could have a serious mental condition. It is right that the welcome new protection of Clause 17 should he extended to them. My noble friend Lord Astor made the point extremely well.

The Bill contains offences to protect people with mental disorders from unwelcome sexual advances and from abuse by care workers. These provisions, in some way, mirror the protections for children. It does therefore seem odd that the grooming offence in Clause 17 does not also apply to them in the same way as it applies to minors. Certainly, such people can be very prone to being led by sex abusers. They can be very trusting. We must protect that trust in every way. I believe that trust is very special in young people with this kind of disability. Including them within the protection of this offence can only be extremely welcome. I hope that the Minister will take the amendment seriously.

Baroness Howarth of Breckland

I, too, support the amendment proposed by the noble Lord, Lord Astor of Hever. It would be a great pity if we lost the opportunity to include vulnerable adults in Clause 17. They have exactly the same problems as children. I shall not go through the list again because the noble Baroness, Lady Blatch, gave all those examples. To leave this issue to later in the Bill would be a pity because, particularly in schools and in special schools, young people, including young people with learning disabilities, are being encouraged to learn how to use computers. Using computers gives them greater confidence and they are often able to use those skills to enhance their quality of life, which otherwise would be even less. That puts them into the same category as others who are vulnerable because they have that access. Therefore, it would be a pity to lose this opportunity.

Lord Skelmersdale

Obviously there is a lacuna in the Bill and I support my noble friend.

Lord Falconer of Thoroton

This is difficult. In relation to those young adults who do not have the capacity to consent, one can see fairly easily a comparability with children. We should consider that carefully. For those who have a capacity to consent, it is much harder to decide whether it is the right course to treat them as being similar to children or people who do not have the capacity to consent. In effect, what one is saying is that even though the right of those people who have the capacity to consent is recognised—albeit with some form of mental impairment—nevertheless they are entitled to especial protection and they should not be able to make the kinds of judgments that the rest of us are entitled to make.

My current inclination is to think that those without the capacity to consent might well need this protection. But because of our profound concern not to prevent people who do have the capacity to consent to be able to court and be courted in the way that other adults are, I am not sure that it would be right to extend this protection to those who do have the capacity to consent.

We shall certainly consider this amendment. We shall particularly focus on those without the capacity to consent because that is where the particular focus should be.

Baroness Walmsley

I have considerable sympathy with this amendment. However, we take the point that the Minister made about capacity to consent. We wonder if, at the next stage, this could be brought back with a slight change in the last line with words to the effect that B is suffering from a mental disorder which means that they do not have the capacity to consent. In that case, I think that we should be willing to support the amendment. But, as it stands, it has the flaw highlighted by the Minister.

Lord Astor of Hever

I am grateful to my noble friend Lady Blatch, my noble friend Lord Skelmersdale and the noble Baroness, Lady Howarth, for their support. I also take on board what the Minister said. We shall obviously reconsider this issue, particularly in the light of the observations made by the noble Baroness, Lady Walmsley. In the light of that, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Baroness Blatchmoved Amendment No.86: Page 7, line 9, after "16" insert "or is a police officer acting in the course of his duties, who, in communications with A, has consistently represented himself as being under 16

The noble Baroness said: Amendment No. 86 seeks to investigate the question of whether the police are prevented by the wording of Clause 17 from entrapping paedophiles.

The offence requires that, "B is under 16". Clause 17 covers the situation where there is a specific potential victim who is aged under 16. A mother might discover that her 14 year-old daughter has fixed up a meeting with a stranger over the Internet. She contacts the police. When the paedophile arrives for the meeting with B, he is met by police officers, who then arrest him. A Clause 17 offence has been committed because the paedophile is intending to meet B, and B is under 16. The fact that B will not be there for the meeting is irrelevant.

The problem arises if a police officer acts on his own initiative where there is no threat to a particular victim. If a policeman goes online and pretends to be under 16 in order to entrap a paedophile, the offence will not be made out because the officer is B, and B is not under 16.

Entrapment can be a necessary law enforcement measure, particularly in cases such as these. The police may be aware of an adult trawling teenage websites and engaging in suggestive communications with children, and they may see evidence in a chat room of attempts to arrange meetings, but they may not be able to track down the offender because he conceals his identity by using computers in public libraries, which cannot be linked to a particular individual.

Clearly the police should be able to conduct a sting operation to catch the offender. They should be able to engage him in correspondence and wait for him to arrange a meeting, where they can then identify and arrest him. They should be able to do this without having to involve a child in the process, otherwise they will have to leave this unidentified individual until he commits a sexual offence and hope that they catch him then.

It would be most unsatisfactory if the wording of Clause 17 prevented entrapment. I shall be most interested to hear what the Minister has to say about this. I hope that history will not repeat itself whereby I make a reasonable point now which in four or five years' time will be incorporated in a future Bill. It is particularly difficult to gain a conviction—or even to gain the identity—of someone who is up to no good with young people. If the result of entrapment is a conviction, it will have been an honourable task and another shot in the armoury for the police to track down these awful people. I beg to move.

Lord Falconer of Thoroton

The amendment would make explicit that the offence of, Meeting a child following sexual grooming etc.", covers offenders who think they are communicating with a child under 16 when in fact the "child" is an undercover police officer who has assumed the identity of the child—for example, in an Internet chat room. I sympathise with the intention of the noble Baroness that the police should be able to carry out the kind of sting operations that she suggests. However, that situation is already covered in law and the amendment is not necessary.

The situation covered by the amendment would constitute an attempt to meet a child following sexual grooming. Section 1(2) of the Criminal Attempts Act 1981 makes clear that a person may be guilty of attempting to commit an offence even though the facts are such that the commission of the offence is impossible—for example, because the person with whom the person is communicating is a policeman. Section 1(3) of the Criminal Attempts Act 1981 makes clear that, in assessing whether the person has the relevant intention, it is assumed that the facts are as he believed them to be—that is, that the person to whom he was talking was a child rather than, as was in fact the case, an undercover policeman.

So in this case the defendant would be deemed to have the intention to meet a child under 16 and to commit a sex offence because that would have been his intention if the facts had been as he believed them to be. The maximum penalty for an attempted offence, which it would be in the sting hypothetically proposed by the noble Baroness, is the same as for the substantive offence. So the law already provides for the kind of situation to which the noble Baroness rightly drew the Committee's attention. On the basis of the reassurance I have given her, I hope that she will feel able to withdraw the amendment.

Baroness Blatch

I am grateful for that reply. As always, like many other people, I shall need to read it very carefully. I welcome the noble and learned Lord's reply if he is saying—and I have no reason to doubt it—that the activity I have described of the police trying to catch these people is covered in law. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 87 and 88 not moved.]

9.45 p.m.

Lord Bassam of Brighton moved Amendment No.89: Page 7, line 17, leave out sub-paragraphs (ii) to (iv) and insert— (ia) an offence within any of paragraphs 53 to 67 of Schedule 2, or

The noble Lord said: This group of amendments deals with technical amendments to those elements of the Bill which are to extend to Northern Ireland. None will make any difference in policy terms as to how the provisions will apply in that jurisdiction. The intended effect, where offences are to extend, is to ensure similar provision and to make the necessary adjustments to the law of Northern Ireland. I beg to move.

On Question, amendment agreed to.

Lord Bassam of Brighton moved Amendment No.90: Page 7, line 25, leave out from "within" to end of line 27 and insert "sub-paragraph (i) or (ia) but would be an offence within sub-paragraph (i) if done in England and Wales.

The noble Lord said: Government Amendments Nos. 90, 92 and 94 to Clause 17 of the Bill are to change the definition of a relevant offence if the offence is committed outside England, Wales or Northern Ireland. The criminal law in England and Wales and Northern Ireland is different. Sometimes particular behaviour is an offence in Northern Ireland but not in England and Wales, and vice versa.

As currently drafted, the effect of Clause 17(2)(b)(v) is that a person could intend to commit an act abroad or in Scotland and if that act is an offence in Northern Ireland, but not in England and Wales, he could still be prosecuted for it in England and Wales. This is not an effect that we had intended.

As a consequence of Amendment No. 90, a person will be able to be prosecuted in England and Wales for an offence committed abroad or in Scotland only if it is an offence in England and Wales. Amendments Nos. 92 and 94 produce the same result for Northern Ireland. I beg to move.

On Question, amendment agreed to.

Baroness Noakes moved Amendment No. 91: Page 7, line 28, leave out subsection (3).

The noble Baroness said: I rise to move Amendment No. 91 which seeks to delete subsection (3) of Clause 17. This is a probing amendment about the application of the Bill to Northern Ireland. We have reached the first substantive part of the application of the Bill to Northern Ireland, which is why the amendment is targeted at the subsection.

The Minister will be aware that many differences still exist in the law applying to Northern Ireland and as it applies in England and Wales. Indeed, the noble Lord, Lord Bassam, made that point just a moment ago. In due course we shall come to the achievement of gender neutrality specifically for the abolition of homosexual-specific offences.

In a Written Answer, the noble and learned Lord the Leader of the House has informed me that consideration is being given to addressing issues concerning offences that target only homosexual activity in Northern Ireland. If the Minister could say anything further about that, it would be most helpful.

The amendment seeks to remove the higher age of consent of 17 in Northern Ireland from the particular offence of sexual grooming, but the main issue underlying the amendment is the broader canvas of differences between the laws in Northern Ireland and those in England and Wales. In his Written Answer, the noble and learned Lord the Leader of the House also stated that any changes in Northern Ireland must await a review and consultation. However, we believe that the law should be the same unless good reason can be demonstrated for different treatment. Furthermore, if the Bill is ultimately effective in terms of improving the operation of the law covering rape—although, as the Minister knows, on the basis of our Committee discussions to date, that is an open issue—why should not Northern Ireland benefit from that?

I hope that the Minister will be able to say when we can expect the review in Northern Ireland to take place and thus within what kind of time-scale we can expect the people of Northern Ireland to benefit from the changes that are being proposed in this Bill. I beg to move.

Lord Hylton

Would it not be better to leave matters of this kind until they have been devolved to the Northern Ireland Assembly?

Lord Falconer of Thoroton

I think that the noble Baroness is entitled to an answer to her question as regards the position in relation to Northern Ireland. There is no question of having to wait in that regard.

The law on sexual offences in Northern Ireland differs from that in England and Wales and was not included in the review that underpins the changes we are making in this Bill. The wholesale reform of the law in Northern Ireland does not form part of the Bill. Northern Ireland is conducting its own review of sexual offences. That review has already begun and a consultation paper will be published in the near future.

However, we are taking the opportunity in this Bill to make some changes to the law in Northern Ireland. We are extending a relatively small number of the offences set out in Part 1. We are also ensuring that the reforms set out in Part 2 of the Bill on the registration of sex offenders continue to extend to Northern Ireland without there being any question of such offenders being able to view Northern Ireland as some kind of safe haven.

We are also keen to remove as soon as possible the inequalities from the law on sexual offences in Northern Ireland between the heterosexual and homosexual population. We are currently examining what remedial amendments we can effect in advance of the substantive reform represented by the review, specifically to deal with certain inequalities which have been identified. We are considering the issues carefully, together with the police and the Department of Public Prosecutions for Northern Ireland.

We have also sought parliamentary approval in the draft of the Criminal Justice (Northern Ireland) Order 2003 to make some changes in the law on sexual offences in Northern Ireland in order to be compliant with certain obligations under the European Convention on Human Rights.

I have not dealt specifically with the amendment because I have regarded it as a legitimate pivot on which to discuss the Northern Ireland position overall.

Lord Skelmersdale

Before my noble friend decides what to do with the amendment—and I am sure she will withdraw it—let me say that in my limited and out-of-date experience of Northern Ireland, I would be very surprised if the result of the consultation to which the noble and learned Lord has referred were a general wish to reduce the age of consent in Northern Ireland from 17 to 16. After all, it is by far the most Catholic part of the United Kingdom and follows to a great extent, although not totally, the attitudes in the Irish Republic.

Lord Falconer of Thoroton

The Bill does not purport to change the age of consent in Northern Ireland. I would be extraordinarily unwise to venture a guess as to what public opinion might be in Northern Ireland.

Baroness Noakes

My noble friend has predicted that I shall withdraw the amendment. It is a probing amendment, as I informed the Minister's officials. I thank the Minister for that reply. I might have wished for some more specificity as to when, but I must be grateful for what I have. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Falconer of Thoroton moved Amendments Nos. 92 to 94: Page 7, line 28, after "Ireland" insert "(a) Page 7, line 28, leave out "(1)(c)(i)" and insert "(1) Page 7, line 29, at end insert— (b) subsection (2)(b)(v) has effect with the substitution of "sub-paragraph (ia) if done in Northern Ireland" for "sub-paragraph (i) if done in England and Wales".

On Question, amendments agreed to.

Baroness Noakes moved Amendment No. 95: Page 7, line 31, leave out paragraph (a).

The noble Baroness said: In moving Amendment No. 95, I shall also speak to Amendment No. 96. It may in fact be easier if I start with Amendment No. 96, because I am pleased to see that the Minister's name also appears on the amendment, hence it is non-controversial.

We believed, and are glad that the Government believe as well, that five years was too short a maximum sentence for the offence of meeting a child following sexual grooming. Seven years is a more realistic sentence.

Amendment No. 96 again raises the issue of what circumstances could lead the CPS even to contemplate a summary offence under the sexual grooming provisions. We are talking about a person who has been convicted of grooming a child with a view to a sexual offence. I talked in an earlier group of amendments about the difficulties with Clause 17 but my problem there was with whether innocent people, foolish or otherwise, might become entangled in it. But if the Crown Prosecution Service is convinced that it can prove this crime, it is a very serious matter. I simply cannot see how the summary procedure could ever he relevant. Like being pregnant, I do not think one can be a little bit of a sexual groomer—one is either a dangerous sexual predator or one is not.

My concern about leaving the summary conviction route on the face of the Bill is that it may be used in borderline cases in the hope of getting a guilty plea. People on the borderline may well be the innocent fools I have been concerned about. I am concerned that the option, which should not be a real option for conviction for an offence of serious sexual grooming, is on the face of the Bill. I beg to move.

Lord Falconer of Thoroton

We are agreed as regards the change from five to seven years. I do not think there is a problem there. As regards the possibility of a summary charge in relation to grooming, the vast majority of cases will be so serious as to merit the Crown Court. Is there a case that might not be? Possibly that of a 19 year-old talking to a child of 15 years and 11 months. However, it is sensible to include the provision.

Baroness Noakes

I thank the Minister for that reply. I still maintain that sexual grooming is a very serious offence. If the CPS thinks it is worth bringing a prosecution, we are talking about a serious offence which should receive an appropriate sentence. I do not think that there are borderline cases. Earlier I made a joke about that. However, I am not sure that there is borderline sexual grooming. Either we want to prevent the people we are discussing harming young children or we do not. I believe that the provision is unlikely to be used as regards 19year-olds talking to 15 year-olds. If a prosecution were to be brought in such a case, it should occur because a serious offence has been committed.

I shall not press the amendment tonight, as I am sure the Minister would expect. However, I should like to think about it further as I am not convinced that there is a less serious offence of sexual grooming. The offence of sexual grooming is a very serious offence and should be so treated. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Baroness Noakes moved Amendment No. 96: Page 7, line 34, leave out "5" and insert "7

On Question, amendment agreed to.

Clause 17, as amended, agreed to.

Clause 18 [Abuse of position of trust: sexual activity with a child]:

Lord Thomas of Gresford moved Amendment No. 97: Page 7, line 43, after first "he" insert "reasonably

The noble Lord said: We move to a section of Part 1 headed: Abuse of position of trust". Before we get too involved, I point out that Clauses 18 to 22 set out the offences; Clauses 23 and 24 deal with the interpretation of a position of trust; and Clauses 25 to 27 contain exceptions.

Before I come to the series of amendments which are common to the criminal charges in Clauses 19 to 22, I should point out to the noble and learned Lord that in the section where we were concerned with child sex offences, in Clauses 9, 10, 11, 13 and 17 and in government Amendments Nos. 48 and 50, the words that are used over and over again are, reasonably believe that B is 16 or over". Members of the Committee who were present during yesterday's debate will remember the great controversy that arose between the Government and these Benches about whether we should invent the reasonable person or whether it would be far simpler and more direct simply to include the words "reasonable belief"—words which appear in the part which the Committee has considered most of the day with almost all the lawyers silent. The lawyers have been banished for much of today, much to everyone's relief.

Lord Skelmersdale

Will not the noble Lord, Lord Thomas, admit that they banished themselves?

10 p.m.

Lord Thomas of Gresford

I certainly did not, but all the others seem to have done. I am now in a rather lonely position in considering with the noble and learned Lord technical amendments which do not really involve any point of principle. I should prefer to see some sensible mechanism to prove the various offences. Clauses 18 to 22 demonstrate the obsession of those who have drafted the Bill with moving the burden of proof around in all directions quite regardless of the problems that we discussed throughout yesterday of trying to direct a jury or to inform magistrates of how these burdens of proof should be regarded, what they mean and so on.

Let me, for example, take Clause 18(2) to demonstrate a quite simple problem. If the four points in subsection (1) are proved—the burden is on the prosecution to prove them beyond reasonable doubt— the persuasive burden passes to the defendant to prove, that he believed that the other person was 18 or over". If he can prove that, he is not guilty of the offence unless it is proved that his belief was unreasonable". Who has to prove that his belief was unreasonable? Clearly it is the prosecution.

The jury has to be told, "Look at Clause 18(1). The burden of proof is on the Crown to prove beyond reasonable doubt, so that you are sure. Then look at the defendant. He has to prove in a balance of probabilities that he is not guilty because he believed that the other person was 18. But once you have got to that position, you then have to consider whether the prosecution has proved, so that you are sure, that his belief was unreasonable." It is that leap required in the brain that is so difficult and open to criticism.

Everything gets even worse in subsection (3), which states: Where in proceedings for an offence under this section it is proved that a position of trust existed because of circumstances within section 23(2), (3), (4) or (5)". That places the burden on the prosecution to prove that those circumstances existed. The subsection continues, and the defendant proves that he did not know of those circumstances". That gives him the burden of proving on a balance of probabilities that he did not know. The subsection goes on to say that, he is not guilty of the offence unless it is proved"— the burden passes back to the prosecution to prove beyond reasonable doubt— that he could reasonably have been expected to know of those circumstances, or … that a position of trust existed because of other circumstances". The purpose of my amendment is not at all to change the essence of what the Government are driving at, but to try to make it understandable by those who have to come to a particular decision. What I propose in subsection (2) is that, before "believed" in line 43, we insert "reasonably", and that we simply leave out, unless it is proved that his belief was unreasonable". In such circumstances, once the essential facts in subsection (1) have been proved, the burden passes to the defendant to establish that he reasonably believed that the other person was 18.

The words "reasonably believe" have appeared all through Clauses 9 to 17, which Members of the Committee have considered in the absence of the lawyers. However, all of a sudden we come back to a clause that might have been drafted by someone completely different, in which we have all the problems about which we talked yesterday.

Similarly, my amendments to Clause 18(3) would exclude all the words from "unless it is proved" to the end, include "solely" before "because", and add after "know" the words, and had no reason to believe". In the end, that subsection would therefore read, very simply: Where in proceedings for an offence under this section a position of trust existed solely because of circumstances within section 23(2), (3), (4), or (5)"— that puts the burden of proof on the prosecution to establish that— and the defendant proves that he did not know and had no reason to believe of those circumstances, he is not guilty of the offence". That would be the case if the defendant were acting reasonably. The burden of proof certainly shifts, but it does so only once. Although the jury may have difficulty in fully comprehending the difference between the prosecution having to make them sure and the burden shifting to the defendant to say that the decision is made on the balance of probabilities, that is much simpler than shifting the burden back again to the prosecution.

As your Lordships will appreciate, I am simply trying to clear up the situation. If one amended the provisions as I have proposed, that would strengthen the Bill rather than weaken it. My formulation in no sense weakens the principle that the Government are seeking; it in fact strengthens it.

I have studied those two provisions specifically to illustrate the fact that the same or virtually the same principles arise in Clauses 18 to 22. The same points arise and the same amendments can be made so as to put into this part of the Bill the concept of reasonable belief that is in the previous part and for which we contend—we will come back to this—in relation to rape and all the other matters that we discussed yesterday. The amendments are sensible and would not do anything that the Government would not want. It will be interesting to see whether they will be resisted. I beg to move.

Baroness Noakes

We share the concern of the noble Lord, Lord Thomas of Gresford, about the way in which the abuse of trust clauses are constructed. Those clauses are very important and it is a major concern to us that they are workable and effective.

The noble Lord ably demonstrated how under Clause 18(2) and (3) the burdens of proof shift backwards and forwards. If that is not complicated, I do not know what is, especially if both defences are being run in the same trial. We heard yesterday about the complexity of various formulations for trial judges and juries. All parties claimed superiority, whether defending the status quo, the Bill or an amendment, in terms of simplicity for juries. I defy the Minister in this instance to defend the Bill in terms of simplicity when instructing a jury about how to reach a decision under subsections (2) and (3) and later similar provisions.

If we cannot be confident about getting it right with regard to instructing juries, we are concerned that we cannot be confident that we have offences that are workable and effective. It is difficult to judge whether the amendment's formulations are right. They are certainly much simpler and I congratulate the noble Lord on that. As he pointed out, they make the approach more difficult and there is a higher burden on the defence. I am concerned that the amendments to subsection (3) would require the defence to prove two negatives: first, that the defendant did not know and, secondly, that he had no reason to believe. That is a detailed concern and lawyers who are cleverer than me can sort that out. I am pretty simple minded in this regard. I was struck, as was the noble Lord, Lord Thomas of Gresford, by the difference in formulation between the child sex offences and the abuse of trust offences in terms of relying on the prosecution proving an appropriate reasonable belief. Why was that formulation not adopted? It would not involve the formulation proposed by the noble Lord.

I hope that the Minister will also explain why the Government found it necessary to change the approach from the Sexual Offences (Amendment) Act 2000. The current law has another formulation again in that legislation. I hope that he will explain why the Bill's formulation is effective. I rather suspect that he will find that difficult. I hope that he will be prepared to consider alternative formulations.

Lord Skelmersdale

In supporting the amendment I am clearly not privy to what is in the noble and learned Lord's brief. However, before he responds to the amendment, perhaps he would cast his eye up the page to the formulation in Clause 17(1)(d) which states: A does not reasonably believe that B is 16 or over". Why is there a difference between that formulation and this formulation in Clause 18?

Lord Falconer of Thoroton

As the noble Lords, Lord Skelmersdale and Lord Thomas of Gresford, and the noble Baroness, Lady Noakes, are aware, in child sex offences and in Clause 17 the burden is on the prosecution at all stages in relation to those identified. In this formulation the burden is on the defendant to prove that he believed that the child was of a different age from that which he was. That is perfectly ECHR compliant because that is within the knowledge of the defendant. We are advised that it would not be ECHR compliant to place the burden on the defendant to say that it is reasonable because that is not specifically within his knowledge. It should be for the prosecution to prove that it is unreasonable under the circumstances. That is why it has been done in that way.

Does that lead to impossible comprehensibility for the jury? Can one put to the jury the question, "Has the defendant proved on the balance of probabilities that he believed that the other person was 18 or over?" If he has proved that, it is for the prosecution to prove that that belief was unreasonable. That is perfectly manageable as far as concerns the jury. It has been done in that way because of the ECHR. If noble Lords think that it would be better to shift the burden back to the prosecution on the defendant's belief, perhaps they should think again between now and Report. That seems to me to be putting on to the prosecution a burden which is unrealistic. It is for the defendant to come forward with why he thought the belief was unreasonable. Perhaps I may say with the greatest diffidence that I believe that both the noble Lords, Lord Monson and Lord Thomas, underestimate the ability of the jury to understand that.

Lord Thomas of Gresford

I do not underestimate the ability of the jury to understand anything. I have had the experience of directing juries on many occasions. I know from a recent case that if juries are provided with a series of complicated questions to solve, they get it wrong. The simpler the issues which can be put before them the better.

I am interested in the noble and learned Lord's comments on the impact of the European Convention on Human Rights. I shall consider that and discuss it with some of my noble friends who are deeply involved in that sort of litigation. It strikes me as curious that the reason for the formulation in Clause 17, referred to by the noble Lord, Lord Skelmersdale, where the prosecution have to prove that, A does not reasonably believe that B is 16 or over". is because it is compatible with the ECHR.

Lord Falconer of Thoroton

The reason why it is ECHR compatible is that it could not possibly be unfair to the defendant to place the burden of both on the prosecution.

Baroness Noakes

Perhaps I may ask the noble and learned Lord why in the 2000 Act it was phrased that he did not know and could not reasonably have been expected to know that B was under 18, or that B was a person to whom he was in a position of trust. The Government have chosen to change the formulation from the abuse of trust offence as enacted only just over two years ago.

Lord Falconer of Thoroton

You have not indicated from the passage to which you referred where the burden lies—

The Earl of Onslow

The noble Baroness!

Lord Falconer of Thoroton

I thank the noble Earl whose contribution to the debate so far, rightly, has been to ensure that we remember our manners. I apologise to the noble Baroness, who in referring to the 2000 Act did not indicate where the burden of proof lies. I am not sufficiently acquainted with that Act to know where the burden of proof lies.

Baroness Noakes

I believe the burden is on the defence. I shall consider the matter further.

Lord Thomas of Gresford

We will take away the wise words of the Minister, and consider them further. I am not satisfied with his explanation. There are things that we need to look at—the compatibility with the 2000 Act and with other parts of the Bill. I have a sneaking suspicion that this part was drafted by somebody other than whoever drafted earlier parts of the Bill. For the moment, I beg leave to withdraw.

Amendment, by leave, withdrawn.

10.15 p.m.

Lord Thomas of Gresford moved Amendment No. 98: Page 7, line 43, leave out "the other person" and insert ''B

The noble Lord said: These are the "B" resolutions. There is a raft of them, which your Lordships will see over the page in the Marshalled List. Again, it is purely a question of drafting. If we are going to use "A" and "B"—an innovation in statutes that is not many years old—they should be used consistently. That would make matters clearer when there was more than one person mentioned in a clause. That happens in some of the instances that are listed in my series of amendments. It is to alter the words "the other person" to "B". I would he interested to hear what the noble and learned Lord, Lord Falconer, has to say about it. I beg to move.

Lord Falconer of Thoroton

The amendments, Amendment No. 98 and others seek to remove references to "the other person" in the abuse of trust offences and the familial child sex offences, and replace them with references to "B". I understand that the amendments are intended to achieve consistency of drafting. The reason for the different terminology is best explained by way of an example. In Clause 29(1), the references are to "A", the person committing the offence, and "B", the victim of the offence. They are hypothetical people, used to explain what is and what is not acceptable behaviour. In Clause 29(2) and (3), however, the references are to the defendant and the other person. That is because Clause 29(2) and (3) apply when criminal proceedings are under way. The people in question are no longer hypothetical. There is a real defendant, and it makes sense to refer to him as a defendant. We could refer to that other person as "B", but there is no need to complicate matters. Having referred to the defendant, it is perfectly obvious who the other person must be. For those reasons, to achieve consistency, the amendments are not necessary.

Lord Thomas of Gresford

Clause 31(1) states, Conduct by a person (A) which would otherwise be an offence under section 28 or 29 against another person (B) is not an offence under that section if they are lawfully married at the time … In proceedings for such an offence"— proceedings having commenced, it should be appreciated— it is for A to prove that he and B were lawfully married at the time.". There is an inconsistency that runs through this, and for clarification, the letters should be used consistently. For the moment, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 99 not moved.]

Lord Falconer of Thoroton moved Amendments Nos. 100 and 101: Page 7, line 44, after "proved" insert "(a) Page 7, line 44, at end insert ", or (b) that the other person was under 13.

On Question, amendments agreed to.

[Amendments Nos. 102 to 105 not moved.]

Lord Falconer of Thoroton moved Amendment No. 106: Page 8, line 8, leave out subsection (4).

On Question, amendment agreed to.

Baroness Noakes moved Amendment No. 107: Page 8, line 10, leave out paragraph (a).

The noble Baroness said: In moving Amendment No. 107 I shall speak also to Amendments Nos. 120, 129, 138 and 148.These all concern abuse of trust offences and are probing amendments related to the option of using summary procedure.

For all of those offences, the Government have included the option of a summary conviction carrying a six-month sentence or a fine instead of the five-year sentence available on indictment. We will be returning to that five-year sentence in the next group of amendments, but at the moment I shall focus on the circumstances appropriate for using summary conviction.

I have previously mentioned consistency within the Bill. I was looking to compare the abuse of trust provisions with the care worker provisions of Clauses 43 to 47. It seems to me that we are talking about the same kind of abuse of a relationship which is created in the abuse of trust provisions in relation to children, in relation to care worker offences and in relation to those who are mentally disordered.

For the care worker offences, there is no option of summary conviction. My question to the Minister is: why are these two groups of offences treated differently? Is it in some senses always regarded as a more heinous offence if it involves a care worker with a mentally disordered person compared with the abuse of trust in relation to a child? If the Minister believes that it is appropriate to have the summary route, will he indicate in which circumstances that would arise?

When we talked earlier about the options available for the "basic" sexual offences, we talked about a potentially wide range of activities within the clauses. When we are talking about the abuse of trust, we are talking about a particularly nasty aspect of sexual abuse. I find difficulty in seeing why that should have the option of the extremely lenient sentences available by way of summary conviction. I beg to move.

Lord Falconer of Thoroton

These are probing amendments tabled by the noble Baroness in relation to why we should have summary offences. I shall deal with them in turn. The abuse of trust sexual activity could plainly involve sexual intercourse between a 30 year-old nurse and a 17 year-old patient in his or her care in hospital and is plainly suitable for the Crown Court. It also covers the case of a nurse intentionally touching a patient's genital area in a sexual manner through his clothes entirely consensually. Is that suitable for the Crown Court? Sometimes it will be; in other cases it will not be.

The noble Baroness moves her head not in agreement but indicating that that is tricky and she is right in relation to that. Surely, the CPS should be able to have the option in relation to it.

Baroness Noakes

I am prompted to rise to indicate that I was not thinking that it was tricky but that it was not the kind of case that should be appearing in the courts at all.

Lord Falconer of Thoroton

A skilful answer. On that basis, I assume that she would not envisage the case appearing in the Crown Court.

Baroness Noakes

I agree.

Lord Falconer of Thoroton

The offence of abuse of position of trust causing a child to engage in sexual activity could cover the case where, for example, a Connexions adviser on one occasion caused a child to touch her own breasts in a sexual way, the child being at the high end of the age range. The abuse of trust inciting a child to engage in sexual activity could be, for example, a teacher asking two 17 year-old pupils to strip and they both refused or a teacher who shows 17 year-old pupils a sex video during a geography lesson. How serious are those? They could be charged in the Crown Court. Sometimes the case will not be serious enough to merit that and it is right that the CPS should have the option to bring it summarily.

The noble Baroness, Lady Noakes, says that the care worker offences are treated differently, but they are triable each way as well. That is my answer about a distinction being drawn; there was no distinction drawn, in effect. I hope that that helps and that the noble Baroness will be satisfied about the range of offending behaviour that justifies all these offences being triable each way.

Lord Hylton

Before the noble Baroness makes up her mind about the amendment, I wonder whether I can probe further on the abuse of positions of trust. It seems clear to me that all staff employed in residential institutions are well covered in this clause and the clauses immediately following. That would include part-time staff, caretakers, ancillary workers and such people. Is the Minister satisfied that workers of all kinds in non-residential establishments are covered and that social workers who come into contact with children as part of their professional duties are covered? Even people like social services inspectors who in the course of their duties have some contact with some children are covered. One could include teachers and other workers in non-residential educational establishments. Can the Minister throw some light on those situations?

Lord Falconer of Thoroton

Those are legitimate questions. We shall come to them in detail. Positions of trust are dealt with in Clauses 23 and 24. They are not restricted to residential situations. A position of trust can arise, for example, in educational settings and also in some kinds of care settings that we shall expand by way of amendment, where the person providing the care does not provide it in a domiciliary or residential setting. The question is well judged. Perhaps I may answer it when we come to Clauses 23 and 24, where the relevant provisions are to be found.

Baroness Noakes

I thank the Minister for his evermore inventive examples of how the clauses will operate in practice, which I shall read carefully. I apologise for confusing him about the care worker offences. That actually relates to the next group of amendments. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Baroness Noakes moved Amendment No. 108: Page 8, line 13, leave out "5" and insert "7

The noble Baroness said: I now turn to the abuse of trust offences, the care worker offences and the sentences to be imposed. On conviction on indictment the sentence is five years for abuse of trust and seven years for the care worker offences. I want to tease out that comparison. I can see no real difference between the gravity of those two offences. Both involve the sexual exploitation of vulnerable people. I cannot see that the abuse of children under 18 by those in a position of trust is less heinous than abuse by a care worker of a mentally disordered person. In terms of long-term psychological trauma, I could make a case for the abuse of trust of a child being worthy of a stiffer penalty. The purpose of Amendment No. 108, together with Amendments Nos. 121, 130, 139 and 149, is to tease out the differences in approach between the two sections that mystified me. I beg to move.

Lord Falconer of Thoroton

As the noble Baroness said, these amendments have the effect of increasing the maximum penalty to seven years. In drafting the Bill we have been assisted by the noble Baroness in a number of respects and we have been at pains to ensure that the maximum penalties for similar degrees of offending behaviour are proportionate and consistent.

The primary purpose of the abuse of trust offences is to provide protection in criminal law for young people aged 16 and 17—that is, above the legal age of consent—who are considered to be particularly vulnerable to exploitation by those who hold a position of trust or authority in their lives. The offence is not designed to deal with other sexual offending behaviour—such as sexual intercourse with a child under the age of consent or a non-consensual activity that falls within the scope of other sex offences.

Although we consider such relationships to be wrong because of the abuse of trust involved, the offence relates to sexual activity that is ostensibly consensual. We feel that a maximum five-year penalty is sufficiently severe for sexual activity that was mutually agreed between an adult age 18 or over and a young person who was over the age of consent. Although the offences extend protection to children under the age of 16, where a child in that age group is involved we would expect the Crown Prosecution Service to charge one of the child sex offences instead, which carry a higher maximum penalty.

While we want to send a clear message that sexual activity within relationships of trust is wrong, we do not think that the offence as I have described it merits a seven-year maximum penalty. The noble Baroness rightly drew attention to the more severe maximum penalties for breach-of-care offences, which are designed to protect persons with a mental disorder or learning disability. That particularly vulnerable group of people merit the extra protection offered by the deterrent of a higher maximum penalty.

The young people protected by the offence to which the noble Baroness draws attention are essentially aged 16 or 17. We do not feel that they fall within the same category of vulnerability as those in the care offences with a mental disorder or learning disability. A seven-year maximum penalty on that basis for the offence of abuse of trust is disproportionate.

Baroness Noakes

It comes as news to me that the offences are intended only for 16 year-olds and 17 year-olds. From reading the clause, it is clearly intended to apply to children below the age of 13. The construction of the offences appears to apply to all children. I understand that the offence was originally introduced in response to unpleasant cases involving children's homes and so were clearly not intended only for 16 and 17 year-olds. I will reflect on the Minister's remarks. They seem perfectly reasonable but nevertheless, it is clear from the Bill that the abuse of trust provisions are designed for more than 16 and 17 year-olds. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

10.30 p.m.

Lord Monson moved Amendment No. 109: Page 8, line 13, at end insert— (6) No prosecution for an offence under this section may be instituted except by, or with the consent of, the Attorney General if the prospective defendant was under the age of 21 at the time of the alleged offence.

The noble Lord said: With the previous amendment in mind, I suspect that I may be swimming against the tide. So far in Committee, the pressure seems to have been for stiffer sentences—perhaps with the exception of the child sex offences debated earlier and notwithstanding that our prisons are full to bursting. Perhaps it is time to rein back a little.

Throughout history, hormones have ensured that young men and women of roughly the same age will fall for one another whatever the cultural and legal restrictions in force at the time. We are now asked to believe that if an 18 year-old and a 17 year-old are smitten—to use a slightly old-fashioned word—and act accordingly, a quite shocking act has occurred that merits the 18 year-old being sent to prison for up to five years if he or she is nominally in a position of authority over the 17 year-old, even if the younger party is more intelligent and mature than the older one, as is often the case. The younger one is not necessarily vulnerable or exploited, as the noble Baroness, Lady Noakes, suggested.

On Second Reading, I instanced the case of a strapping 17 year-old intelligent young man, possibly even a woman, in hospital with a broken wrist—in other words, fully in possession of all his mental faculties but physically injured—and an 18 year-old nurse in the same hospital and ward falling for one another. Even if no more than a kiss were exchanged, under the clause the nurse could end up in prison for a substantial period—shades of the Taliban, or at least Saudi Arabia.

The noble and learned Lord, Lord Falconer, was kind enough to write to me after Second Reading to explain in so many words that the Government had no intention to be heavy-handed in the matter and, earlier today during our debate on child sex offences, he hinted that the law will be applied with a light touch. However, rightly, the Director of Public Prosecutions is chosen independently of the Government and the Government have no control of whether prosecutions are brought.

So the amendment, which requires the consent of the Attorney-General when the age gap is tiny—where the older person is under the age of 21—would ensure that prosecutions were brought only in genuinely serious cases. As I interpret what was said earlier, that accords with the Government's broad intentions in the matter.

I have not sought to apply that safeguard to other clauses for good reason. Clauses 19 and 20, which we shall debate in a moment, are somewhat ambivalent and need clarification. Clauses 21 and 22 are by no means ambivalent but deal with perverted rather than normal sexual behaviour, which has nothing to do with mutual affection, so the safeguard that I urge for Clause 18 is neither necessary nor desirable for them. I beg to move.

Lord Falconer of Thoroton

This is another example of a case where the noble Lord identifies circumstances in which it would plainly be inappropriate to bring a prosecution. He suggests the unique protection of the Attorney-General stepping in compared to all the other sexual offences in the Bill, in relation to which prosecution is at the discretion of the Crown Prosecution Service.

Although the new offences of abuse of trust are drawn slightly more widely than the offence enacted by the Sexual Offences (Amendment) Act 2000, this offence does not raise any new issues about prosecution. Decisions about whether prosecution is in the public interest are made by the Crown Prosecution Service. I am unaware that that has given rise to any difficulty. We expect the CPS to continue to exercise its discretion wisely. We in Parliament cannot define how that should be done. The Attorney-General's time would be unnecessarily spent considering such prosecutions. The code for Crown prosecutors contains detailed guidance about the circumstances in which prosecution is in the public interest. They will he updated as a matter of standard practice following the Bill's enactment.

Although I fully understand why the noble Lord moved the amendment, the protection that he proposes goes too far to deal with the problem that he identifies.

Lord Monson

I am grateful to the Minister for his reply; it is rather as I expected. However, I am slightly heartened by it. The Government's heart is obviously in the right place on this one. I hope that their expectations are fulfilled and that no "rogue prosecution" takes place. I of course reserve the right to consider the matter before Report, but with that, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 18, as amended, agreed to.

Clause 19 [Abuse of position of trust: causing a child to engage in sexual activity]:

[Amendments Nos. 110 to 112 not moved.]

Lord Falconer of Thoroton moved Amendment No. 113: Page 8, line 22, after "proved" insert "(a)

On Question, amendment agreed to.

Lord Falconer of Thoroton moved Amendment No. 114: Page 8, line 22, at end insert ", or (b) that the other person was under 13.

On Question, amendment agreed to.

[Amendments Nos. 115 to 118 not moved.]

Lord Falconer of Thoroton moved Amendment No. 119: Page 8, line 30, leave out subsection (4).

On Question, amendment agreed to.

[Amendments Nos. 120 and 121 not moved.]

On Question, Whether Clause 19, as amended, shall stand part of the Bill?

Lord Monson

Perhaps I may ask the noble and learned Lord to clarify Clause 19 and, to save time, Clause 20, although technically we have not yet reached it. Clause 19 deals with causing a child to engage in sexual activity. At first glance the provision seems to indicate that it covers causing a child to engage in sexual activity with a third party, but it does not actually say so. I suppose that it could be extended to cover causing a child to engage in sexual activity with the instigator, so to speak. Similarly, as regards Clause 20, inciting a child to engage in sexual activity, the same slight doubt arises. Can the noble and learned Lord confirm or otherwise that both clauses are confined to causing or inciting a child to engage in sexual activity with a third party and not with the older person, so to speak, or the person in a deemed position of trust?

Lord Falconer of Thoroton

Clause 19 not only covers cases where the adult makes the child engage in sexual activity, for example sexual intercourse with the adult himself, but also where he makes the child engage in such activity with a third party, so it covers both. Similarly, in relation to Clause 20 the offence will cover situations where the offender incites the child to engage in sexual activity with him as well as with a third party.

Clause 19, as amended, agreed to.

Clause 20 [Abuse of position of trust: inciting a child to engage in sexual activity]:

[Amendments Nos. 122 to 130 not moved.]

Clause 20 agreed to.

Clause 21 [Abuse of position of trust: sexual activity in the presence of a child]:

[Amendments Nos. 131 to 139 not moved.]

Clause 21 agreed to.

Clause 22 [Abuse of position of trust: causing a child to watch a sexual act]:

Lord Falconer of Thoroton moved Amendment No. 140: Page 10, line 3, leave out second "a" and insert "any

On Question, amendment agreed to.

[Amendments Nos. 141 to 149 not moved.]

10.45 p.m.

Lord Bassam of Brighton moved Amendment No. 150: After Clause 22, insert the following new clause—

"ABUSE OF POSITION OF TRUST: ACTS DONE IN SCOTLAND Anything which, if done in England and Wales or Northern Ireland, would constitute an offence under any of sections 18 to 22 also constitutes that offence if done in Scotland.

The noble Lord said: The primary purpose of the "abuse of trust" offences is to provide protection in the criminal law for young people aged 16 and 17 (that is, above the legal age of consent) in circumstances where they are particularly vulnerable to being manipulated into an ostensibly consensual relationship by an adult (over 18) who holds a position of trust or authority in their lives.

The existing offence in the Sexual Offences (Amendment) Act 2000 has not yet been implemented in Scotland. It is the intention of the Scottish authorities to implement that offence rather than the wider offence that we are now introducing in this Bill. This gives us some cause for concern. We are anxious that there should not be a loophole in our legislation that would enable someone to evade prosecution by committing the act in another part of the United Kingdom.

We are concerned to protect, for example, the 16 year-old who goes on a school trip to Scotland and agrees to have sexual intercourse there with one of his tutors. We are closing this gap by introducing Amendment No. 150, which provides that any act that would constitute an abuse of trust offence if committed in England and Wales will also be an offence under the law of England and Wales if the act takes place in Scotland.

In the interests of enhancing the protection offered for young people under the criminal law, I respectfully ask the Committee to accept the amendment. I beg to move.

Baroness Blatch

Can the noble Lord say how that provision dovetails in with the Scottish jurisdiction? I have in mind an offence actually committed in Scotland—perhaps even by a Scot, who is resident in Scotland—against a child who happens to be on summer camp or taking part in a Duke of Edinburgh Award scheme, or whatever, but who is in fact resident in England. Can the noble Lord say how that squares with Scottish jurisdiction? My understanding is that it is a reserved matter for Scotland.

Lord Bassam of Brighton

The noble Baroness asks a good question. The best course for me would be to write to the noble Baroness on the subject.

Lord Thomas of Gresford

The noble Baroness has made a very good point. If the position of trust arises in Scotland as regards a person who lives in Scotland and he is in that position only because he is running a summer camp, I do not see how England and Wales would have jurisdiction.

Baroness Blatch

I am most grateful to the Minister for his response. He quite honestly said that he did not have the answer, but that he would write to me on the matter. With no malign intent whatever, I ask that this clause should not stand part of the Bill until the next stage of the proceedings. At that point we shall all be satisfied with the technical answer as to why this would work under such jurisdiction. There is a sufficient question mark over how it would work. Therefore, I believe that the clause should not stand part of the Bill at this stage.

Lord Bassam of Brighton

I am not sure that there is that big a question mark over the status of this part of the legislation. I ask the noble Baroness, and the noble Lord who echoed her concerns, to accept that we shall write to clarify the point. When I moved amendments earlier this evening similar provisions were made. Therefore, I believe we probably are on good ground: it is simply a technical matter.

Baroness Blatch

I am sorry. It may be a technical matter, but it is also possible that the noble Lord, Lord Thomas of Gresford, is right in saying that this will not work. Nothing will be lost by not passing the clause at this point and leaving it to the next stage of the proceedings. It will be a simple, technical matter of accepting it as part of the Bill on Report. Given the fact that the noble Lord does not have an answer to my question, it would be quite inappropriate to consider whether it should stand part of the Bill.

Baroness Noakes

I support my noble friend in her argument. As the Minister is unable to provide an answer to a clear question, it would not be proper to pursue the amendment until that aspect is clarified. If it is a simple, technical matter, the amendment can be dealt with straightforwardly on Report.

Lord Bassam of Brighton

We have had a very good natured and tolerant discussion this evening. It is probably a very simple matter. No harm will arise from leaving the situation as it is. I am sure that we can satisfy all Members of the Committee in the course of correspondence. Indeed, that is probably the best way to leave the matter at this stage.

Baroness Blatch

Does that mean that the noble Lord wishes the amendment to stand part of the Bill? If that is so, I shall object. The noble Lord is goading us into voting on the matter. It should not stand part of the Bill. The noble Lord has nothing to fear. It is the convention of this House that, once a clause is deemed part of the Bill by the whole House, we do not put it back in or take it out again as it is deemed to have been determined.

Lord Bassam of Brighton

Perhaps it may help that I now have an answer to the question, or at least part of the answer. My understanding is that the new clause gives extra territorial jurisdiction to England and Wales courts. If the acts undertaken also constitute offences in Scotland, Scottish courts would also have jurisdiction. I think that that clarifies the point. In those terms, I beg to move.

Baroness Blatch

I am sorry, but the noble Lord argued that the rationale for including this clause in the Bill was to prevent a gap, with the Scottish Parliament introducing the law into their own land. Therefore, it will not have jurisdiction because there is a gap, which the noble Lord admitted. This is merely a stop-gap. If the noble Lord insists on his amendment, I shall oppose it.

It seems perfectly reasonable and civil—and the Minister has nothing to lose by doing this—to leave this matter to the next stage of the Bill so that we can all be assured that the technical explanation that he is not giving at this moment is acceptable. If the noble Lord is as confident as he appears, it will be almost on-the-nod acceptance at the next stage.

Lord Hylton

It is not a question of losing the whole clause; it is simply a matter of the Government withdrawing their amendment.

Lord Bassam of Brighton

We are confident of our position. If the noble Baroness, Lady Blatch, wants to press it, it is entirely a matter for her. But that is not a sensible way to proceed. It would be unfortunate and would make poor use of time that we should be spending on more important parts of the Bill that are still to be considered today.

Baroness Blatch

The noble Lord has no answer to our question. The answer that he read out made no sense whatever. He said that the matter could be dealt with by Scottish jurisdiction. In the mean time, we have been told that the whole point of this amendment is to cover a lacuna between the period of this Bill going on to the statute book and Scottish law coming into effect when they could deal with this in Scotland. I do not think that this amendment should be accepted.

10.52 p.m.

On Question, Whether the said amendment (No. 150) shall be agreed to?

Their Lordships divided: Contents, 33; Not-Contents, 10

Division No. 1
Andrews, B. Grocott, L. [Teller]
Bach, L. Hardy of Wath, L.
Bassam of Brighton, L. Jones, L.
Campbell-Savours, L. Macdonald of Tradeston, L.
Corbett of Castle Vale, L. McIntosh of Haringey, L.
Crawley, B. [Teller]
Davies of Oldham, L. Monson, L.
Desai, L. Pendry, L.
Evans of Parkside, L. Puttnam, L.
Evans of Temple Guiting, L. Ramsay of Cartvale, B.
Falconer of Thoroton, L. Smith of Leigh, L.
Farrington of Ribbleton, B. Stone of Blackheath, L.
Faulkner of Worcester, L. Symons of Vernham Dean, B.
Fyfe of Fairfield, L. Thornton, B.
Gale, B. Whitaker, B.
Golding, B. Whitty, L.
Gould of Potternewton, B. Young of Old Scone, B.
Astor of Hever, L. [Teller] Patel, L.
Blatch, B. [Teller] Roper, L.
Craigavon, V. Skelmersdale, L.
Hylton, L. Thomas of Gresford, L.
Noakes, B. Walmsley, B.

Resolved in the affirmative, and amendment agreed to accordingly.

11 p.m.

Clause 23 [Positions of trust]:

Baroness Blatch moved Amendment No. 151: Page 10, line 28, leave out "(8)" and insert "(9)

The noble Baroness said: I rise to speak to Amendment No. 151, which is grouped with Amendments Nos. 157, 158, 159, 160 and 162, as well as Amendment No. 161 tabled in the name of the noble Lord, Lord Faulkner of Worcester.

In considering why the abuse of trust provisions should cover youth groups, I believe that it would be helpful to recount how it was that the Government first came to introduce them. The amendments seek to bring consistency to the clauses covering abuse of trust.

I turn first to the Utting report which looked into the safeguards relating to children living away from home. In 1997 Sir William Utting concluded that child abusers were, frequently in a position of responsibility, authority and trust". Paedophiles often seek out positions of trust over young people. We have seen many examples of that, in particular in the North Wales case. In the February 2000 report of that case by Sir Ronald Waterhouse, abuse of trust was uncovered on a massive scale. The Waterhouse inquiry found that the notorious paedophile, Reginald "Gary" Cooke, abused children while he worked in a children's home. Cooke had also worked as a nurse and as an assistant warden in a probation hostel.

The 2000 Act which followed the Waterhouse inquiry introduced abuse of trust legislation to cover all these positions; that is, social workers in children's homes, nurses who look after children, and probation officers. But as far as Cooke was concerned, what was significant was that the Waterhouse inquiry found that most of his proved abuse took place under circumstances where children were not in care. It took place through friendships developed in youth groups. Cooke abused children first by using his position as a youth group leader and then as an instructor in the Army cadets. Those are two positions not covered by the existing law or by the Bill.

Some of the worst abuse uncovered by the inquiry was perpetrated on boy B, whose life was wrecked by abuse which took place through meeting Cooke in two youth groups. A paragraph in the report draws the case to the attention of Parliament. In his evidence to the inquiry, B argued that Cooke, took advantage of him when he was in need of friendship". The abuse started within two weeks of meeting Cooke at a youth club, when B was aged 16. Later on when Cooke was an instructor in the Army cadets, he also abused B. The abuse continued until B was 18 years old. Cooke also "farmed out" boy B to be abused by other men.

It was because of cases like this that I and my late noble friend Lady Young sought to move amendments to the Sexual Offences (Amendment) Bill which would have brought youth group leaders into the category of holding a position of trust.

As I said at Second Reading, I am disappointed that provision has not been made in the Bill to protect young people in youth groups such as the scouts and guides. Three years ago, the Lord Privy Seal, when Attorney-General, was sympathetic to extending abuse of trust provisions to youth group leaders, but the Home Secretary has failed to act. I wonder why. What is the argument for not using his order-making powers?

Amendment No. 157 defines the new position of trust as youth worker A in a specialist organisation who looks after B who attends the group. I accept that community groups which include a mix of adults and young people would not be covered by the amendment as they do not offer a specialist service for young people. The leader of a local ramblers' group would not be covered, but a scout group leader would be.

No doubt the resources of the Home Office could come up with a better amendment. In order to encourage this, my Amendment No. 162 adopts an alternative approach, leaving it to the Home Secretary to define positions of trust held by youth and community workers and to use his order-making powers under Clause 23(1)(b). It would give the Home Secretary six months in which to act after the Bill's commencement.

Amendment No. 161, tabled by the noble Lord, Lord Faulkner of Worcester, brings registered sports coaches within the abuse of trust provisions. The Government are very keen on encouraging young people to become involved in sport, and various coaching schemes are available. If more and more children are to be involved in such schemes, it is right that an attempt is made to extend the protection of the clause to them. I welcome the amendment for that reason. The noble Lord will know that there is some very impressive work going on with football clubs linking up with schools and working with not just vulnerable children but all children.

Three years ago, I moved two amendments to the Sexual Offences (Amendment) Bill, which I am delighted to find now form part of subsections (6) and (7) of Clause 23. My amendments, now accepted by the Government, extended the abuse of trust provisions to learning mentors, otherwise known as Connexions personal advisers and personal advisers for children leaving council care. I welcome the Government's change of heart. The reason they have acted is because they now accept that Connexions personal advisers and advisers for children leaving care are situations in which the relationship of trust is particularly strong. Because of this, there is a potential vulnerability to exploitation.

I argue that this same strong relationship of trust is also true of supervisors appointed under the Children Act 1989 who have a legal duty placed on them to befriend children. When parents are in dereliction of particular duties, the court can make a supervision order under Section 35 of the Children Act. Supervisors appointed under the order may help ensure that medical care is obtained or help to provide access to friends or a non-resident parent.

A supervisor has a specific duty under Section 35(1)(a) of the 1989 Act, to advise, assist and befriend the child. That is the legal obligation on supervisors. Surely that is a strong relationship of trust.

Supervisors can be social workers or probation officers. My amendment also covers supervisors appointed as a result of an education supervision order—or ESO—also made under the Children Act, usually because a child is not being properly educated. Such an order may seek to secure the child's attendance at school. In paragraph 12(1)(a) of Schedule 3 to the Children Act, the duty of the supervisor appointed under an education supervision order is also to advise, assist and befriend the child.

The Waterhouse report noted that no less a figure than Derek Brushett, a highly esteemed social worker who later became the deputy head of the social services inspectorate in Wales, turned out to be a paedophile. He is serving a 14-year sentence for abusing children. If such a case is possible, surely it is reasonable to bring supervisors under the abuse of trust provisions.

At times of great emergency in the life of a child, a court can appoint a person to safeguard the child's interests under Section 41 of the Children Act 1989. Until 2000, these officers were known as guardians ad litem. Now they arc known as officers of the Children and Family Court Advisory and Support Service. The role of the officer is to represent the child and his interests in legal proceedings. In practice this involves consulting the child as to his wishes and attempting to gain the child's confidence. In extremis a child can become very trusting of those whose advice he or she depends upon. How could it ever be acceptable for an officer of the court to become sexually involved with a child he is appointed to protect? Surely there is a case for bringing them under the abuse of trust provisions.

My Amendment No. 160 brings registered childminders within the scope of the Bill's abuse of trust provisions. Childminders are in a position of very real trust as they are clearly in loco parentis. They may look after a child in the child's own home. They may do so several days a week. They will usually be unmonitored for most of the time that they are with the child. That gives huge scope for abuse. Childminders have to be registered under Part XA of the Children Act 1989. Failure to register is an offence. This, therefore, represents a clearly defined category of persons to whom the abuse of trust offence can be applied.

The NSPCC surveyed almost 3,000 young people about sexual abuse. Of those who reported sexual abuse by a non-relative, 2 per cent said they had been subjected to penetrative acts or oral sex by a babysitter. By comparison less than 1 per cent reported the same type of abuse by a teacher. Some 2 per cent reported voyeurism with a babysitter. Less than 1 per cent report voyeurism with a teacher.

In May 2001, a childminder was gaoled for a year for sex with a boy of 13. Ann Timmins, a 40 year-old, carried out more than 40 sexual acts on the boy, often while her own children were present. She admitted indecent assault and gross indecency. In September 2002, Brian Park, a registered childminder, was remanded into custody after pleading guilty to making an indecent image of a child and possessing child pornography with intent to distribute. His wife, also a childminder, had taken a photograph of a child in her care which Mr Park then doctored to include a sexual photograph of himself. It is true that not all babysitters will be covered by this amendment, only registered childminders.

In February this year, Robert Ireland, a 56 year-old, was sentenced to 15 months for indecently assaulting two girls. He had babysat for the girls while their mothers were out socialising. The two girls were aged nine and 11. Peter Hatchett, 23, conducted a campaign of sexual abuse against young girls while acting as a babysitter. He admitted 12 offences of indecent assault and seven of taking indecent photographs of a child. He assaulted six girls between three and 11 years of age over a three-year period. He also took more than 250 indecent pictures of his victims. Clearly, abuse by babysitters is a problem which must be addressed.

Clause 23(5) addresses abuse by teachers—a recognised problem. The NSPCC survey at the very least demonstrates that the abuse of trust provisions must also tackle abuse by those who look after children at home. It may be that the Home Office could improve the drafting but the amendment describes a precise category of persons—those registered under Part XA of the Children Act 1989, which lays down a detailed scheme for the registration of childminders.

Nannies and au pairs, for example, would be caught only if they happened to be registered. Not all babysitters would be covered but the measure begins to address the problem and does so in reliance on an existing statutory definition.

It is difficult to catch every person in a category. For example, not all teachers are covered by Clause 23(5). Only if the victim is a full-time pupil and the teacher teaches regularly at that child's school will the abuse be caught. I have tabled later amendments that will widen those provisions. But a real attempt is being made to address an identified problem of teacher abuse.

The issue of babysitters may be an even bigger problem. Clearly, some attempt must be made in this clause to address it. Some will say that childminders tend to deal with children under 16 where other sexual offences will catch them even without applying abuse of trust. That may be true but the point of the abuse of trust offence is that it works in tandem with other sexual offences in order to ensure that the abuse of a position of trust to facilitate sexual crime is reflected both in the definition of the offence and in the sentence.

The Government rightly do not limit abuse of trust to victims over 16. There is an overlap between abuse of trust and the age of consent offences and, indeed, with non-consensual offences. That ensures that the seriousness of breach of trust is recognised.

In any event, over-16s also need protection. A childminder may be employed to look after all the children in the home. A family with five children aged two to 16 might decide that the 16 year-old is not quite responsible enough to look after his younger siblings, and so employ a childminder to look after all of them. The 16 year-old is therefore in regular contact with the registered childminder, even though he is not the primary reason why the childminder is there.

I hope that the Minister will not set his face against the amendments. I think that I have given enough evidence to prove that they are essential. Such people are in very intimate positions of trust in many cases, and they should be brought within the provisions of the Bill. I beg to move.

11.15 p.m.

Lord Faulkner of Worcester

I added my name to Amendment No. 151, and I speak particularly to my own amendment, Amendment No. 161, which provides an opportunity to specify that sports coaches should be included in the categories of positions of trust.

The coach holds an influential position with a young athlete. In many situations, he will have the power to determine the events or competitions in which an athlete will participate, and indeed the athlete's long-term career opportunities. Many young athletes, particularly those participating at county and national level, will spend long periods with their coach away from home and from parental or other forms of external supervision. The high level of dependency that the young athlete has on the coach creates a high level of vulnerability. Regrettably, there is significant evidence that some coaches have exploited their position of power and influence over the young athletes in their charge.

The establishment of the NSPCC's Child Protection in Sport Unit has provided sport with a simple referral point for concerns about abuse of trust. The unit works in close partnership with Sport England, the Sports Council for Northern Ireland and the Sports Council for Wales. In the past 12 months, a number of sports have reported cases where an inappropriate and abusive relationship between an adult coach and a young athlete has developed and led to serious concerns.

Many young athletes participate in sports at a county or national level. Some 1,400 young people are on the UK world-class star performance programme, funded directly by the lottery. Young athletes need the protection afforded to other 16 year-olds and 17 year-olds where there is a situation of trust, to ensure that national sport can develop and provide top athletes without the fear of sexual exploitation.

The NSPCC has brought several cases to my attention that underline the importance of strengthening the law in the area. As the hour is so late, I shall refer to only two of them. The first is that of a 17 year-old national champion who reported a number of sexual assaults committed by her coach at the residential training centre, and at a number of international competitions. The coach admitted having sexual intercourse with her but claimed that that was consensual, and no criminal action was taken. Following her complaint to the national governing body, it was disclosed to the NSPCC that a number of allegations had been made previously by other female athletes, but again no action had been taken. The coach continues to work and the athlete has now left the national squad.

The second case concerns a national governing body that received a number of complaints against a national coach by members of an under-21 national squad. The allegations were that the coach was exploiting his position and having sexual relationships with team members. Internal disciplinary action was taken, although again the coach retained his position.

The issue deserves a good deal of consideration in the Bill. I hope that my noble and learned friend will give some indication that the Government are prepared to widen the position of trust provision to include athletes and sports coaches.

Baroness Noakes

The amendments in this group were tabled by my noble friend Lady Blatch but they also appear in my name and that of my noble friend Lord Astor. I pay tribute to my noble friend Lady Blatch for making such a powerful case when the abuse of trust provisions were first introduced. On that occasion, her pleas did not result in the amendments that she sought but she is again seeking to secure them.

We support the amendments. The abuse of trust provisions are extremely important but they are very narrowly conceived. They are basically conceived only for institutions. While the most notorious cases of sexual offence against children—in the Waterhouse report, for example—largely concerned activities in institutions, it is important that the Act goes as far as possible to deal with those situations in which positions of trust, positions of authority or other opportunities arise in relation to children. That is why we support the amendments tabled by my noble friend. The noble Lord, Lord Faulkner of Worcester, made a powerful case for extending the provisions. We also support that.

The abuse of trust provisions need to have the maximum possible impact on as many potentially harmful relationships as possible. That is why we believe that they should be extended widely. Amendment No. 162, which requires the Secretary of State to specify conditions for youth and community workers, is particularly important because it will allow an even wider group of people to be brought in.

Lord Thomas of Gresford

The noble Baroness, Lady Blatch, and the noble Lord, Lord Faulkner of Worcester, have proposed powerful reasons for extending the positions of trust in Clause 23. I expect that when the noble and learned Lord replies, he will tell us precisely what is meant by subsection (1)(b). What mechanism will be in place to widen positions of trust? We are in principle in favour of the amendments and in particular of Amendment No. 162. Whether it is right to attempt to specify every single position is a matter about which we should like to think more. Perhaps the noble and learned Lord can help us in that regard.

Lord Hylton

I support the general direction of the amendments. I believe that the law concerning abuse of trust should be as comprehensive as possible. The Minister may reflect on whether mentoring, for example, is covered. That is a rather fashionable remedy for many problems affecting people under 18. No one wants to make recruitment more difficult than it need be in relation to responsible and much-needed posts and volunteers who engage in socially important work. However, employers have a duty to make clear to candidates for such posts and to volunteers what is and what is not a position of responsibility involving trust.

Lord Falconer of Thoroton

These are very important provisions. It is worth emphasising that the primary purpose of the abuse of trust offence is to provide protection in the criminal law for young people who are over the age of consent—16 or 17—and who are considered to be particularly vulnerable to exploitation and abuse within an ostensibly consensual sexual relationship.

The drafting of the offence covers young people below the age of 16 but it is hard to imagine that an offence would ever be prosecuted in relation to someone who was under 16 because that would involve sexual activity with someone who was under the age of consent, and one would never need to deploy the abuse of trust clause because that would lead to a lower maximum sentence.

The reality of these offences, rightly, is that they focus on 16 and 17 year-olds. The offence is not designed to catch other sexual offending behaviour, such as sexual intercourse with a child under the age of consent or non-consensual activity which fall within the scope of a range or other sex offences. It is important to focus on that. One has to keep it within some bounds because the law has decided that with persons over 16, while trust should not be abused, they are capable of forming sexual relationships.

In determining the positions of trust that merit intervention by the criminal law, some principles need to be set out. We have been guided by three criteria: first, the individual who is particularly vulnerable, for example on probation or in residential care; secondly, the location and/or lack of access to other adults and absence of countervailing influence makes the individual particularly vulnerable; and thirdly, the special influence of the adult: the relationship is in loco parentis.

We believe that the categories we are now adding to the offence—Connexions and personal advisers and those supervising young people in the community in pursuance of an order made in the criminal justice system—meet the criteria in full. They additionally merit inclusion because the state appointed them and compelled the young person into the relationship not through the young person's or their family's own choice.

I shall deal with the particular classes suggested. The first, as proposed by the amendments tabled by the noble Baroness, Lady Blatch, is that of childminders. The question is whether a registered childminder of a 16 or 17 year-old should be regarded as in a relationship of trust which requires this particular special protection. Applying the tests, is the individual particularly vulnerable; does the location and/or lack of access to other adults and absence of countervailing influence make the individual particularly vulnerable, and is there a special influence of the adult? We believe that it is difficult to see that the tests are made out in relation to childminders.

Secondly, I refer to sports coaches. My initial reaction to the speech of the noble Lord, Lord Faulkner of Worcester, was that they would not fall within the category. However, presumably without knowing what my notes state, the noble Lord seemed to hit the spot in respect of a large number of the criteria, particularly as he described a picture in certain circumstances of the vulnerable adult being isolated because of the control that a sports coach has. I am not in a position to give any guarantees or assurances to the noble Lord. We need to consider the matter. I see the force in what he said. I also see difficulties in how one defines a sports coach to try to capture what he describes.

Thirdly, I refer to voluntary youth workers. This is very wide. It seems that the three criteria do not apply as clearly as in relation to sports coaches. As regards the appointment of guardians ad litem or supervisors under the provisions of the Children Act 1999, such persons are outside the control of the child or his family. They cover children up to the age of 18. I fully accept the points made by the noble Baroness that in such cases one would try to establish a relationship of trust, particularly in circumstances where the child might be vulnerable. Those seem worthy of further consideration. I shall further consider those between now and Report.

Therefore, we shall consider sports coaches, guardians ad litem and supervisors but can give no assurances. On the basis of the criteria we are applying, voluntary youth workers and childminders do not seem to me to be appropriate, remembering that we are focusing on 16 or 17 year-olds. Perhaps I may return to the issues I identified on Report as they certainly merit further consideration.

Amendment No. 162, tabled by the noble Baroness, Lady Blatch, would require the Secretary of State to make an order under the provisions of Section 23(1)(b) to specify conditions relating to youth and community workers. They will not be needed for the reasons that I am rejecting that particular part of the amendment.

On the question asked by the noble Lord, Lord Thomas of Gresford, on when the Secretary of State will apply his powers under Clause 23(1)(b), I hope that by indicating what the criteria are, I am indicating the approach that he would take in relation to it. In the light of the assurances that I have given, I hope that all the amendments will either be withdrawn or not moved.

11.30 p.m.

Lord Monson

I find the Minister's arguments convincing—in particular, his references to childminders. It is almost inconceivable that a 16 or 17 year-old would have a childminder. If a childminder was employed in the household, it would surely be to look after the younger brother or sister of the 16 or 17 year-old. If a relationship were to develop between the older child in the household and a childminder, that would not be the state's business.

Baroness Blatch

I am grateful for the thoughtful reply of the noble and learned Lord. I will start with childminders, as they have just been mentioned. I count myself among those mothers who would not regard their 16 year-old as the right person to look after smaller children. I have three smaller children, twins and a single child. I would not have asked my 16 year-old to look after them. So it was not uncommon for me, and I suspect many other mothers, to have a babysitter to look after the children if we were not at home.

I must also say that, because of the lowering of the age of consent, if a sexual relationship had been established between the person babysitting and my daughter, or the babysitter and my son, and he or she was 16 or over, then that would have been entirely legal. There would be no protection whatever. I and my husband would have gone out, leaving this person in loco parentis over my children. That corrupting relationship would have been legal. I would have seen it as a corrupting relationship, because I would not have left the babysitter behind to have a sexual relationship with one of my children, whatever the age. That is an argument that needs to be returned to.

Regarding sports coaches, I am grateful for the Minister's response, because it is not just the instances cited by the noble Lord, Lord Faulkner of Worcester; there is a great deal of one-to-one coaching in the sports field. There are personal trainers and all sorts of special relationships. There is some impressive work, almost social work, taking place between some football clubs and schools, where there is a close relationship with some children who are perhaps not supported well at home, and the club knows about that. So I am grateful to the Minister. I am also grateful for him referring to the guardian ad litem relationship, because that can be a particularly sensitive relationship, at a particularly sensitive time in the life of the family and the child.

I am very surprised at the Minister's reaction to the voluntary provisions for community workers. I do not know how much knowledge the noble and learned Lord has of the field of youth and community workers. I know from my own county, and having been involved with young people for many years, that some interesting relationships are struck between youth workers and the young people who come before them. There are weekend camps, trips into the country, boating arrangements, sailing, climbing and walking. They are gatherings when, again, young 16 and 17 year-olds are in relationships that can be taken advantage of. If it was one's daughter or son, and a sexual relationship was struck between that person who was in a position of trust, then the parent would look to have some protection for their children—when they have paid money and allowed them to go away for the weekend in the charge of such a person. I hope that the Minister will not close his mind entirely on that example.

There are so many people outside the provisions that I have asked for. The three tests that the Minister gave—vulnerability, location and lack of access for young people in a particular situation, and the special influence of the adult—are three that I had in mind when I was thinking of youth and community workers. Certainly the voluntary sector, including people who take young people away on Duke of Edinburgh Award expeditions, are in a position of trust. Families, in good faith, allow their children to go away in the charge of these people, knowing that they will be protected. If they happen to have passed that magic age of 16, then there is no protection. Whatever happens, whatever sexual activity is involved, at that point it is a legal activity and I believe the parents deserve more of a guarantee of the safety of their children. I beg leave to withdraw the amendment at this stage, but shall return to some aspects of it.

Amendment, by leave, withdrawn.

Lord Falconer of Thoroton moved Amendment No. 152: Page 10, line 45, at end insert— ( ) an independent clinic,

The noble and learned Lord said: The primary purpose of abuse of trust offences is to provide protection for young people aged 16 and 17 in circumstances where they are particularly vulnerable to be manipulated into an ostensible consensual relationship by an adult over 18 who holds a position of trust or authority in their lives. One of the positions of trust covered by the offence is where a person under 18 is accommodated and cared for in a hospital or private hospital. Amendment No. 152 is needed to ensure that the offence continues to cover all medical institutions within which healthcare services are provided to persons under 18. I beg to move.

On Question, amendment agreed to.

Lord Falconer of Thoroton moved Amendment No. 153: Page 10, line 46, after "home" insert ", residential care home

On Question, amendment agreed to.

Baroness Blatch had given notice of her intention to move Amendment No. 154: Page 11, line 5, leave out "full-time

The noble Baroness said: Amendment No. 154 is grouped with Amendment No. 156. Under Clause 23(5), teachers are defined to be in a position of trust only in relation to full-time pupils. It should not matter whether the pupil is full-time or part-time. If there has been abuse of that situation, both should qualify.

Most pupils study full-time. However, increasing numbers of young people study on a part-time basis. Having read the 14 to 19 paper, I know that it is the Government's policy to encourage that and to develop a more flexible approach to the curriculum between the ages of 14 to 19.

The Government wish to give more choice to young people in the 14 to 19 phase. Paragraph 3.23 of the Green Paper on 14–19: Extending Opportunities, Raising Standards, which was published last year, states: The current curriculum typically absorbs about 80 per cent of pupils' school day but its minimum requirements could be delivered in 60 per cent. We think that the compulsory elements within the revised curriculum we propose could be delivered in about 50 per cent of pupils' time, so creating significant space for greatly increased choice by pupils and schools". So the core curriculum at Key Stage 4 is to be slimmed down so as to allow a wider choice of options to young people outside the core curriculum to be educated in other education institutions or to have experience with employers.

The Green Paper states in paragraph 3.28 that: Many young people will continue as now with predominantly general programmes. But increasingly we would expect others to extend the work-related element of their programme—beyond the minimum core we are suggesting for all—to pursue genuinely mixed programmes of study. The involvement of employers, including small and medium-sized enterprises, will be crucial".

There can be absolutely no doubt at all that the numbers of young people aged 14 or over who study part-time will greatly increase. Many more of them will study in school for three or four days a week and take extra courses in other institutions or gain vocational training with employers.

If this happens, under the Bill these young people will no longer be in a position of trust in relation to their teachers. They may spend most of their time at school, but not all of it. Because of this, they will cease to be full-time pupils and therefore be outside the abuse of trust provisions of the Bill.

The situation post-16 already includes substantial provision for young people to study part-time in sixth-form colleges or in school sixth forms None of these young people will be protected by the Bill.

To omit part-time pupils leads to ridiculous irregularities. For example, one 16 year-old studies full-time at a sixth-form college and is in a position of trust in respect to his A-level maths teacher at the college. Another pupil—

Lord Falconer of Thoroton

I intervene helpfully to indicate that I shall accept the amendment in principle for all the reasons that the noble Baroness is about to explain; namely, that between the ages of 16 and 17 the anomaly between full time and part time is difficult to maintain. Sitting next door to each other in the same class there will be some pupils who are full time and others who are part time. The definition of full time is for funding purposes and not for relationships with teachers.

In principle I accept the amendment. It is not worth wearying the Committee at the moment with my reasons why the wording is not acceptable. I shall return on Report with an amendment to deal with the matter. Perhaps I can show the amendment to the noble Baroness before Report stage so that she is satisfied with its wording.

Baroness Blatch

I was on my last paragraph, so I am very grateful. That was a divine intervention which I accept fulsomely. I look forward to seeing the amendment. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Falconer of Thoroton moved Amendment No. 155: Page 11, line 6, after "receiving" insert ", and A is not receiving,

The noble and learned Lord said: The abuse of trust offences are primarily designed to protect young people aged 16 and 17 who, even though they are over the age of consent for sexual activity, are vulnerable to being manipulated into a sexual relationship by an adult who holds a position of trust or authority in relation to them, and thereby has a considerable amount of power and influence over their lives.

Clause 23 provides a full list of circumstances in which a position of trust exists, including a number of institutions where children are looked after by adults. Thus, for example, the offence would criminalise a consensual sexual relationship between someone who teaches in an educational institution and a pupil receiving education at that institution. In an educational institution it is possible for some students to be over the age of 18 and for them to adopt a certain level of trust in relation to other students who are still under 18; for example, a head boy, or head girl or a prefect who supervises homework or detention periods.

It was suggested at Second Reading that as drafted the abuse of trust offences would criminalise a consensual sexual relationship between, for example, the 18 year-old head boy of a school and his 17 year-old girl friend who attends the same school. That was never our intention. We have tabled Amendment No. 155 so that the offence will not apply where A and B are both pupils receiving full-time education at the same institution. I am aware that an amendment has been tabled in relation to part-time students, but perhaps I can deal with that point separately. I beg to move.

Baroness Noakes

I thank the Minister for introducing the amendment. I believe that the origin of the amendment came in discussions that my honourable friend Humfrey Malins MP and I had with his officials before Second Reading. So I shall regard this as the Malins exemption. I thank him for introducing it.

On Question, amendment agreed to.

[Amendments Nos. 156 to 161 not moved.]

Clause 23, as amended, agreed to.

[Amendment No. 162 not moved.]

11.45 p.m.

Clause 24 [Positions of trust: interpretation]:

Baroness Blatch moved Amendment No. 163: Page 11, line 25, leave out "regularly

The noble Baroness said: It is common for staff or temporary staff to be employed for a whole host of reasons in the public services. They may he employed to cover for illness or staff who are away on training. Clause 24(2) states that a person in a position of trust, looks after persons under 18 if he is regularly involved in caring for, training, supervising or being in sole charge of such persons".

Clause 24(3) stipulates that the offender must be, regularly involved in caring for, training or supervising", the victim.

Does that requirement rule out a supply teacher? Does it protect children from temporary social work staff who work in children's homes? I suspect that the Minister cannot give a definitive answer because the word "regularly" is open to interpretation. I asked that question at Second Reading and among all the letters sent to noble Lords who spoke in the debate, there was no answer to my particular question on the definition of "regularly".

Child protection should not turn on the definition of one word or be left to chance. My amendment would delete "regularly" because wherever abuse occurs in Clause 24, it affects all those in positions of trust under the Bill. The abuse of trust offences all hinge on the definition of what it means regularly to look after a young person.

A supply teacher or other temporary worker who abused a child in their care could claim that the section does not apply simply by arguing that their involvement with the child was not regular but occasional, infrequent or irregular. Some supply teachers work just one day at a school in a period of several months—but could commit an offence.

I am particularly concerned about schools because they routinely use supply teachers—never more so than now. They are not covered by the provisions in Clause 23(5) because the supply teacher does not regularly look after a pupil. Social work departments use agencies to provide social workers to cover for absences or staff shortages. Children's homes and detention centres likewise employ temporary staff.

The three amendments seek to bring temporary or non-regular staff within the definition of a position of trust in Clause 23: temporary staff who look after young people in Clause 23(2); temporary staff in children's homes in Clause 23(3): temporary staff in care homes or hospitals in Clause 23(4); supply teachers in Clause 23(5); temporary mentors in Clause 23(6); temporary personal advisers in Clause 23(7); and temporary staff in youth offending teams in Clause 23(8).

Some of your Lordships will remember the supply teacher Amy Gehring, who was in the headlines a year ago. She was cleared of indecently assaulting two brothers age 14 and 15 but after the trial owned up to having sex with other pupils. In an interview on "Today", Ms Gehring—a 26 year-old supply teacher—admitted to a sexual encounter with a 16 year-old pupil. She claimed that she had been too drunk to remember whether she had also had sex with a boy of 15 at another school at which she had taught. Gehring was quoted as saying: The chances are that I could have but I can't remember doing it".

Amy Gehring admitted her involvement with boys at several schools. Her case proves that young people need protection from supply teachers—just as they do from any teacher.

If Amy Gehring had been a full-time teacher, the boys would have been protected by the abuse of trust legislation. Only by deleting "regularly" can we be sure that supply teachers are covered. Other temporary staff in positions of trust ought also to be covered. When a young person in school is abused by a teacher, it should not matter whether the teacher is full time or part time. If the person is in a position of trust, they ought to be caught by the Bill's provisions. I beg to move.

Baroness Noakes

My name and that of my noble friend Lord Astor of Hever also appear against this amendment which we strongly support. It cannot be sensible to make the offence dependent on regular contact. The nature of the position creates the relationship that can be abused—and that relationship can begin from the outset of the child's exposure to the individual.

Lord Skelmersdale

I want rapidly to add my support to my noble friend Lady Blatch. On Second Reading, I said that she ought to consider bringing part-time teachers within the clause. I am delighted that she has done so and hope that the Minister is too.

Lord Falconer of Thoroton

I hope that I can reassure the Committee. What constitutes "regular" will depend on the particular factor or individual situation, but is obviously expected to cover not only the full-time class teacher or matron in a children's home hut, for example, the peripatetic teacher who takes a child for music lessons once a week; the supply teacher who provides cover during the maternity leave of the regular teacher; or the physiotherapist who treats a child daily during a short period of convalescence in hospital. The distinction chosen in the Bill is not between part or full-time, it is "regular".

If the requirement that the adult looks after the child on a regular basis were to be removed, as the noble Baronesses, Lady Blatch and Lady Noakes, and the noble Lord, Lord Skelmersdale, propose, the offence would prohibit sexual relationships between, for example, a 17 year-old and the supply teacher who covers for only one day while the regular teacher is off sick. The noble Baroness, Lady Noakes, argues that it is the position of authority that is important. It is for her to consider whether she wants 16 and 17 year-olds to have that degree of restriction. In the Amy Gehring case, the supply teacher was, I believe, teaching for more than a full term.

As for the nurse who looks after a 17 year-old during a one-day stay in hospital, is there to be no allowance for a relationship to occur after the stay in hospital comes to an end? The intervention of the criminal law in such cases should be proportionate to the protection required. Would that be an undue interference in a relationship between two consenting adults? The effect of removing the word "regularly" would be to achieve that conclusion. As I said, the Bill is not intended to exclude supply teachers; the question is whether they have a regular relationship with the individual victim on the basis of their job?

Codes of conduct and disciplinary guidelines are the appropriate means of controlling consensual relations where existing requirements of the breach of trust offence are not met. To broaden the offence's scope would seriously undermine its true purpose and considerably weaken its credibility. It is a matter for the noble Baronesses and the noble Lord, but I earnestly ask them carefully to consider the credibility of the provision before they come back.

Baroness Blatch

The Minister can he sure that I shall come back, because his answer was hugely unsatisfactory. The Minister asks whether the young person wants that degree of restriction. I should argue it the other way round: does that young person deserve that degree of protection? I expect nurses not to sexually abuse children in their care. I am one of those old-fashioned mothers who regards her 16 year-olds as children. We do not send our children to hospital or school to risk their being abused by the very person who is acting in loco parentis.

The way in which the Minister dealt with the definition of "regularly" is highly unsatisfactory. There was no definition. There was not. I am a governor of a school in London. The noble Lord, Lord Puttnam, who is in his place, will know of the problems in some of the more difficult parts of our inner cities—but especially in London—where people pass in the night. Teachers come and teachers go. In fact, teachers arrive in the morning and have disappeared before the end of the day because they simply cannot manage the tasks that they have been given—perhaps with a very dysfunctional class of 14 year-olds.

All that I am saying is that abusers are often fly-by-nights, people who flit from one thing to another. The idea that if abuse had taken place, people would be caught by the Bill only if they were "regular", in some definition to be determined in future, is not reliable enough. I shall certainly return to the matter because the answer was unsatisfactory. I am grateful for the support that I have received and I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 164 and 165 not moved.]

Lord Falconer of Thoroton moved Amendment No. 166: Page 12, line 4, leave out from "by" to end of line 7 and insert "Article 9 of the Health and Personal Social Services (Quality, Improvement and Regulation) (Northern Ireland) Order 2003 (S.I. 2003/431 (N.I. 9)) ("the 2003 Order") if in paragraph (4) of that Article sub-paragraphs (d), (f) and (g) were omitted;

On Question, amendment agreed to.

Lord Falconer of Thoroton moved Amendment No. 167: Page 12, line 8, leave out "53(1)" and insert "53

The noble and learned Lord said: Amendment No. 167 is a purely technical amendment that has been tabled to make the Bill accurate. Clause 24 is an interpretation clause relating to positions of trust. The meaning of "community home" is currently recorded as having the same meaning as in Section 53(1) of the Children Act 1989. The reference should, in fact, be to the whole of Section 53. I beg to move.

On Question, amendment agreed to.

Lord Falconer of Thoroton moved Amendments Nos. 168 to 171: Page 12, line 16, leave out "has" and insert "means a hospital within Page 12, line 18, at end insert ", or any other establishment which is a hospital within the meaning given by Article 2(2) of the 2003 Order Page 12, line 18, at end insert— "independent clinic" has—

  1. (a) in relation to England and Wales, the meaning given by section 2 of the Care Standards Act 2000 (c. 14);
  2. (b) in relation to Northern Ireland, the meaning given by Article 2(2) of the 2003 Order:"
Page 12, line 20, at end insert— "residential care home" means an establishment which is a residential care home for the purposes of the 2003 Order;

On Question, amendments agreed to.

Clause 24, as amended, agreed to.

Clause 25 agreed to.

Lord Grocott

I beg to move that the House do now resume.

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

House resumed.