HL Deb 28 April 2003 vol 647 cc525-66

7.44 p.m.

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

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

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

On Question, Motion agreed to.

House in Committee accordingly.

[The DEPUTY CHAIRMAN OF COMMITTEES (Viscount Allenby of Megiddo) in the Chair.]

Clause 41 [Engaging in sexual activity in the presence, procured by inducement, threat or deception, of a person with a mental disorder or learning disability]:

Baroness Noakes moved Amendment No. 224: Page 19, line 42, leave out paragraph (a).

The noble Baroness said: I rise to move Amendment No. 224 and to speak to the other amendments in the group. The Committee will be relieved to hear that I shall not in fact be speaking on an individual basis to all 22 amendments. They are similar amendments to various clauses which seek to establish the circumstances in which the Government would regard it as appropriate for the relevant offences to be tried on a summary basis rather than by indictment.

We have already considered several of these amendments in Committee. I have agreed with the suggestion made by the Minister's officials that, in order to speed up the deliberations of our Committee, I would group the majority of the remaining amendments and accept from the Minister a written reply or replies covering them.

Perhaps I may remind the Minister that I shall be seeking from him clarification of the types of circumstance for each offence which are regarded as so minor that a six-month sentence or a fine would be appropriate. In particular, I hope that he will direct his replies to those cases where the corresponding penalty on conviction on indictment would result in a potentially significant sentence—for example, the maximum determinate sentence. I am trying to find out whether there are minor versions of what would otherwise be very serious offences.

I also seek to ascertain whether the Government intend to issue any guidance on the approach that they expect prosecutors to take, and, if so, what form that guidance would take and when it would be issued. As I, and possibly other Members of the Committee, will want to consider the Minister's reply in good time for Report, I have asked him to reply no later than the day after the Committee concludes. I hope that he will agree to provide the reply by that time. I understand that the Minister will copy his letter to Members of the Committee and will place a copy in the Library. If the Minister can confirm those arrangements, I shall be pleased to withdraw Amendment No. 224 and not to move the remaining amendments in the group. I hope that other noble Lords will agree that this is a convenient way to proceed. I beg to move.

Lord Rix

I should like to join the noble Baroness, Lady Noakes, in stressing the need for the Crown Prosecution Service not to take the softer option of a summary conviction. Unfortunately, Mencap has been only too aware of too many cases in which the criminal justice system has not been geared up to take seriously the evidence of those with a learning disability. A crime may be reported, but it often comes to nothing because of the insensitivity and the rigidity of the system. Negative assumptions are often made about the ability of the person with a learning disability to give evidence, while the adversarial nature of the court acts as a barrier to the delivery of justice.

That is the case in spite of the distress and grief suffered by the victim and his or her family, and the sometimes painstaking investigations by police or others. Too many offenders have gone free or have been given lighter sentences, and too many people with a learning disability have suffered unnecessary humiliation as a result of failures and shortcomings in the criminal justice system.

While I welcome the important measures introduced in Speaking up for Justice, which provide extra support for vulnerable witnesses and victims, I should like to make sure that legislation further enforces the view that people with a learning disability are regarded as credible witnesses.

I hope that the Minister will tell us specifically when he perceives a summary conviction is likely to be used, and I seek assurances that guidance will be produced so that all reasonable steps are taken to ensure that the right conviction is pursued.

Lord Bassam of Brighton

I am most grateful to the noble Baroness for telegraphing her approach to the matter. I rise simply to confirm that we shall endeavour speedily to publish guidance and to ensure that the circumstances in which we would anticipate cases being tried in the lower court are made clear. It will be a matter for careful consideration by the CPS in the guidance it gives the courts but, ultimately, it will be a matter for the courts.

We take these matters very seriously; I have no doubt that our colleagues in the Courts Service will also take them very seriously, will weigh up the appropriateness of each individual case to suit particular circumstances, and ensure that the most appropriate court deals with offences. There is extreme sensitivity about these matters. We will try to clarify the circumstances in which such cases are tried—perhaps in the lower court rather than a higher court—to the satisfaction of the noble Baroness by Report. I cannot give her a precise date or time from the Dispatch Box now, but in the interests of brevity, I think it best that we leave the matter there. We will reply in writing to the points raised by the noble Baroness.

Baroness Noakes

I thank the Minister for that reply. I hope that when his officials prepare his letter, they will also take on board the points made by the noble Lord, Lord Rix, about people with learning disability. I emphasise to the Minister that it would be fair if we had the responses by the end of Committee. I should not want to labour on Report with a large number of unnecessary amendments taken one at a time. On that basis, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 41 agreed to.

Clause 42 [Causing a person with a mental disorder or learning disability to watch a sexual act by inducement, threat or deception]:

[Amendment No. 225 not moved.]

Clause 42 agreed to.

Clause 43 [Care workers: sexual activity with a person with a mental disorder or learning disability]:

Lord Thomas of Gresford moved Amendment No. 226: Page 20, line 29, at end insert ", and (e) A knows or could reasonably be expected to know that B has a mental disorder or learning disability

The noble Lord said: The issue raised by this group of amendments concerns the position of a care worker compared with anyone else who indulges in sexual activity with a person with a mental disorder or learning disability.

Clauses 33 to 42 in each case place on the prosecution the burden of proving that the offender knew or could reasonably be expected to know that the other person had a mental disorder or learning disability and because of it was likely to be unable to refuse. The clauses that deal with care workers, on the other hand, change the burden of proof, so that it is necessary for the defendant to prove that he did not know that the other person had a mental disorder. The burden then switches back to the prosecution, if he succeeds in proving but he did not know that the other person had a mental disorder, to prove that he could reasonably have been expected to know.

I have already addressed the Committee at length about the confusion that is bound to arise from shifting the burdens of proof—explaining it to the jury, and so on. It has been explained to me that the Human Rights Act 1998 and the European convention require that manner of proceeding. Why is it thought necessary to draw a distinction between the ordinary person and the care worker in such a technical matter concerning how the burden of proof rests on the defendant? That is the issue. I should like an explanation of that before I consider whether the matter is worth pursuing.

I come from Wrexham, so I know what happened in North Wales. A care worker could well be charged with offences against someone for whom he is not a care worker—counts one to 10, perhaps—while counts 11 to 20 could be in respect of his activity as a care worker and concerning someone in his charge. The problem that then arises is in directing a jury that in the one set of offences, its approach to the burden of proof is to be this, but in the other set of offences, because the person suffering from a mental disability is under his care, it must have a totally different approach in coming to its conclusions.

That is a recipe for real confusion. I see no reason why the Government should not simply direct the courts that if a person is a care worker and the person under his control suffers from a mental disorder or learning disability, the sentence should be increased. I see no reason for setting out some nine or 10 clauses simply to deal with shifting burdens of proof.

As I said, this is a probing amendment. I want to hear what is the Government's thinking behind the provision. I do not think that they have fully appreciated how difficult it will be to explain precisely how the clauses will work. I beg to move.

Lord Campbell of Alloway

I support the amendment. I agree with everything that the noble Lord said about the shift in the burden of proof and about the problems of directing a jury. I shall be very short, because I shall have much more to say on the matter when we debate Amendment No. 397A. For the moment, on the shift in the burden of proof, it is thrust on the accused to establish that his conduct matches that of a reasonable person—I am using simple English. Just imagine: there is the jury. Do the members of the jury imagine for a single moment that the man in the dock, charged with rape, is their concept of that abstract, hypothetical norm, a reasonable person? Of course not. So how will they approach the matter? What direction is the judge to give them" That is the acid test. Must they convict if the man is not a reasonable person, in their assessment at the time—an argument that is all but impossible for counsel to adduce in a reasoned fashion?

Let us consider the amendment. Suppose that the man in the dock is a person with a mental disorder or learning disability. Need I say more? Is that not enough to support the amendment?

Lord Falconer of Thoroton

With the greatest respect to the noble Lord, it is not enough. The noble Lords who have spoken have forgotten what happens in practice. Many people engaged in caring for people with a mental disability are absolutely first class and spend their time devoting themselves carefully to the care of those in their charge but, as Setting the Boundaries states: We heard that many learning impaired people regarded sexual abuse as a normal and expected part of life—a devastating concept. There are many loving and dedicated people working in care. Others, however, find that the provision of care provides a unique opportunity to those in their charge for their sexual gratification with little chance of discovery or effective redress". That point has been made to me privately by the noble Lord, Lord Rix, and those who work on behalf of those people. It has been forcefully made to me. I accept the view that, although the offences of sexual activity with people unable to consent and sexual activity brought about by threats or inducement get you some of the way there, they do not get you all the way there. They do not cover cases where you can see a care worker abusing somebody in their charge, and where that person cannot give evidence that would convince a court. That is why these offences are in their present form and why they are included in the Bill. The noble Lord, Lord Rix, made the point absolutely clearly to me. He has pleaded that they should not be regarded as some sort of residual offence but as a vital part of the protection.

The noble Lords, Lord Campbell and Lord Thomas, put the lawyers' points with great effectiveness. But, because they do not trust judges and juries enough, they exaggerate how complicated the offence would be. Would it be complicated for a judge to say to a jury, "If you are satisfied that there is a relationship of care between the defendant and the victim—that means that the defendant is involved in the care of the victim—then it is for the defendant to satisfy the jury that he did not know there was a question of mental impairment"? That does not seem remotely unreasonable. It seems to reflect the common sense of the position. Because of the ECHR position, we are advised that the burden of establishing the reasonableness required—that if the defendant did not know he should have known—must be on the prosecution.

With respect, the reason for the distinction from sexual activity where there is no capacity to consent or sexual activity relying on inducements and threats is that in those earlier sections there is no relationship of care, whereas in these sections there is one. We are saying that once that relationship is established, and the sexual activity is established, it should be for the defendant to establish that, despite the relationship of care, he did not know the precise circumstances of the victim. With the greatest respect, that seems a very sensible way of proceeding.

8 p.m.

Lord Thomas of Gresford

Obviously, I shall consider with some care what the Minister has said. However, it seems that he has not dealt with the fact that the person in the care of the care worker is a matter that goes to sentence. That is essentially the difference.

Lord Falconer of Thoroton

The question asked was what is the difference between the earlier offences, where there is no relationship of care, and ones where there is that relationship. It is because there is a relationship of care that the burden then moves. If you are caring for somebody, the reasonable assumption is that you will know the condition of that person. That is why the distinction exists.

Lord Thomas of Gresford

I do not, therefore, see why it is at all difficult for the prosecution to prove it. They must prove it in relation to anyone else. It is easier to prove it if the person concerned is a care worker and has the victim in his charge. It is much simpler. As the noble and learned Lord said himself, the assumption is that the care worker would know anyway. That is as far as the prosecution must go—they must simply prove it. I shall consider what the Minister says. For the moment, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 227 not moved.]

Lord Falconer of Thoroton moved Amendment No. 228: Page 20, line 35, leave out subsection (3).

On Question, amendment agreed to.

Lord Falconer of Thoroton moved Amendment No. 229: Page 20, line 36, at beginning insert— (3A) A person guilty of an offence under this section, if the touching involved—

  1. (a) penetration of B's anus or vagina with a part of A's body or anything else,
  2. (b) penetration of B's mouth with A's penis,
  3. (c) penetration of A's anus or vagina with a part of B's body, or
  4. (d) penetration of A's mouth with B's penis, is liable, on conviction on indictment, to imprisonment for a term not exceeding 14 years.
(4) Unless subsection (3A) applies,

The noble and learned Lord said: I beg to move.

Baroness Noakes

Have these amendments been spoken to?

Lord Falconer of Thoroton

This amendment is part of a group and must be debated with the amendments of the noble Lord, Lord Adebowale. As the noble Baroness, Lady Noakes, was about to point out, these amendments go with those relating to penalty in respect of the offences committed by care workers.

Amendments Nos. 231 and 231, which were tabled by the noble Lord, Lord Adebowale, emphasise the seriousness of offences where a care worker engages in sexual activity with someone in his care who, by virtue of his mental disorder or learning disability, is in a vulnerable position and could be improperly influenced into sexual activity by those who care for him. If that influence goes beyond that which is implicit in the relationship of care and involves inducement, threat or deception such that the individual's ability to choose freely whether to engage in sexual activity is compromised, or if the individual lacks the capacity to consent, other offences can be charged that carry the penalty that the noble Lord, Lord Adebowale, seeks.

Moreover, we have sought to define the relationships of care widely. A series of government amendments that we shall come to later widens the scope further to ensure that those providing care, assistance or services in connection with the victim's mental disorder or learning disability are included. We take the view that a maximum penalty of life imprisonment in those circumstances, as the noble Lord proposes, goes too far and is disproportionate, having regard to other offences both in this Bill and beyond.

We are sympathetic to suggestions that the penalties for this clause are too low. Our amendments would increase the penalties to 14 years when penetration is involved and 10 years when it is not. We have gone quite a considerable way, but we think that a balance must be struck. In the light of that, I very much hope that the noble Lord, Lord Adebowale, will be able to withdraw his amendments.

Lord Adebowale

I am pleased that the noble and learned Lord has introduced an amendment that raises the issues covered in Amendments Nos. 231 and 233. I wish to speak to both amendments. They address points raised by Turning Point, Mencap, Respond and others. I pay tribute to the noble Lord, Lord Rix, who raised the important issue when he introduced his own Bill last year. I am also indebted to the Minister for responding very positively to the concerns raised. Given the importance of this issue, which is central to the Bill, I wish to set out my views in some detail.

There are many people with learning disabilities living in a care setting who experience abuse as a norm and, sadly, expect it as part of their life. Care environments may offer opportunities for abuse without detection. The fact that one party is in a position of power can influence the availability of the other party of consent. Some staff members may exploit their power to ensure compliance to sexual acts. For this reason, compliance to sexual acts should not be confused with informed consent. Given the position of trust and the relationship of care, such behaviour is as serious as having sex with a person who cannot consent to sexual relations. In addition, cases which have come to court recently have shown that force is unnecessary. The absence of force is more a barometer of the power staff hold over people with learning disabilities rather than a reflection of a lack of negative intent on behalf of the staff perpetrator. People with a learning disability are often powerless. They tend to be under control rather than having the opportunity to exercise control in their lives.

I support all the recommendations to strengthen the law to protect people with learning disabilities who live in residential accommodation or similar institutional care. Clearly, there is a social evil that has to be dealt with by the criminal law.

Research shows that there is a bias towards offences in a service setting—it is a dangerous place as far as sex crime is concerned. It is appropriate for additional protection to be put in place to cover individuals who require care and support and are therefore vulnerable to exploitation by those providing that care or support. For example, in one case a woman aged 22 was raped and sexually and physically abused for more than a year by a male care worker. However, the judge ruled that the woman was not capable of giving evidence and dismissed the trial. I need not inform noble Lords of the damage this caused to the woman and her family.

Abuse within a care setting has many attributes. It is often invisible and warning signs are often ignored. It is characterised by the failure of care staff to concern themselves with abuse that takes place.

My amendment and the Minister's amendment serve to distinguish between acts of penetration and other forms of sexual activity, including sexually inappropriate acts such as rubbing up against someone's private parts through their clothes for sexual gratification. Both should be an offence but the former is obviously more serious and should carry a more serious penalty, which my amendment, and the Minister's amendment, seeks to achieve. I am pleased that the Government have moved on this issue and responded to issues raised by Turning Point and others. Some good progress has been made.

I want also to address other issues raised in Amendments Nos. 229 and 232. This goes a long way to answer my concerns raised at Second Reading about the current proposals on sentencing. At Second Reading I referred to the Longcare case in Buckinghamshire. In the residential home there were some people with a learning disability with no communication skills and who could not consent to sexual relations. There were others who had the capacity to consent but who were scared to speak out against people in authority. They were forced to comply because of the authority such people held or because of the relationship of trust. Both groups of people were forced to undress and watch pornographic videos. They were also forced to have sex with one another and were raped and physically assaulted. All 50 residents were in a relationship of care and suffered serious abuse at the hands of the notorious Gordon Rowe and his staff at the two homes.

It would not be fair, just or equitable if the law were to distinguish between different people in a home. I have argued that it would be wrong if the law levelled a life sentence for those who lacked the capacity to consent but gave a shorter sentence for those who had some capacity but who clearly did not give free agreement. This is particularly the case where both groups are in the same relationship of care or trust and suffer the same pain and distress. Perpetrators should not receive shorter sentences and an offence should not be downgraded in cases that clearly amount to rape.

I am concerned that the term "abuse" can be misleading. It often minimises the impact of incidents that are often serious offences. I hope the noble and learned Lord could agree that sexual activity that took place at Longcare is better described as rape and sexual assault rather than, consensual sexual activity, which is nevertheless abusive". The amendment does not yet achieve complete parity with the sentencing provisions for people who cannot consent. However, it is a welcome improvement. It represents a doubling of the sentence for the most serious crimes and the Government should be commended for responding positively to concerns raised by my organisation, Turning Point, and others. I hope the Minister can be persuaded to go one step further and have a maximum life sentence for the most serious breach of trust offences.

Lord Astor of Hever

We on these Benches fully support the government amendments. They make clear that anyone guilty of the offence in Clauses 43, 44 and 45, where the sexual activity is penetrative sex, is liable on conviction on indictment to a sentence of 15 years. In all other circumstances, the penalty when the prosecution takes place before the Crown Court has been raised from seven to 10 years. This increases the severity of the penalty and differentiates between cases of rape and serious sexual assault and other forms of sexual activity. We welcome this. I am sorry to disappoint the noble Lord, Lord Adebowale, but we cannot support the amendments in his name. We agree with the Minister that they go too far. If rape has occurred it can be prosecuted under Clause 1. The Government have made the clauses more severe by changing the maximum penalty from seven years to 14 years in the case of penetration and 10 years otherwise. That is sensible.

Lord Rix

I listened carefully to the arguments put forward by the Minister but I am still not convinced. While I welcome the increase to 14 years, I support my noble friend Lord Adebowale in his amendments which would ensure that the offence carries a maximum life sentence rather than that proposed by the Government.

I wholeheartedly welcome the willingness of the Government to listen, but I fear that the new provision does not go far enough. I hope that the Minister is minded to accept the amendments of my noble friend Lord Adebowale, if not at present, certainly at the next stage of the Bill.

8.15 p.m.

Lord Thomas of Gresford

On these Benches we support the government amendment and regrettably take issue with the noble Lord, Lord Adebowale, who seeks to impose life imprisonment for an offence where there is consent. The essential difference between Clauses 33 and 43 is that in Clause 33 the victim is unable to refuse because of mental disorder or learning disability. That is not the case in Clause 43. As the noble Lord, Lord Astor, said, if having the capacity to refuse the victim does refuse, it is to be charged as rape, with a life sentence. If the person consents, that is a different matter and I believe that 14 years is the appropriate maximum.

Lord Campbell of Alloway

I beg to support the amendment of the Government. It is an entirely proportionate provision.

Lord Falconer of Thoroton

The arguments are perfectly clear to everyone in the Chamber. I understand what the noble Lords, Lord Rix and Lord Adebowale, are saying about the extent to which abuse can go effectively inadequately punished, but there must be a proportionate response. We think that this is broadly the proportionate response.

Lord Carlisle of Bucklow

Perhaps I may ask the Minister a general question which applies to the whole of this Bill. I understand that the effect of these amendments is to take Clause 43 and divide it between acts which include penetration and those which do not and to make different penalties depending on whether there is penetration or there is not penetration.

What worries me is that in relation to the whole Bill we seem to be going into enormous detail in a way which is really taking over the duty of the Lord Chief Justice in giving guidance on what the type of sentence should be. Rather than saying that there is a difference between a 14-year maximum or a life maximum, should we not as Parliament say that these are such serious offences that in their gravest kind they would require a life sentence and that we should leave it to the Lord Chief Justice and the judiciary to set out the type of sentences that they consider appropriate, rather than attempt to distinguish between the different types of offences as we do in this Bill at very great length?

Baroness Blatch

I have one point which is actually more of a question. The noble Lord. Lord Adebowale, had a point. I accept what the noble Lord, Lord Thomas of Gresford, said about someone who is deemed to have the capacity to refuse and consents and that that should not be considered rape. But, if they do not consent, the person can be caught under Clause 1 as my noble friend said. That is right.

However, we are talking about a very vulnerable group of people who are in a particular relationship. My question is: what flexibility do the courts have in a situation where consent is deemed to have been given and where it is deemed that the person had the capacity to consent, but that actually the nature of the relationship is such that the carer is all powerful and although the person may have the capacity to say, "No", they do not have the emotional ability?

If something along the lines suggested by the noble Lord, Lord Adebowale, is not accepted, what scope does the court have to explore the relationship and the terms under which the person is deemed to have consented when actually they did not want to consent but simply felt intimidated?

Lord Rix

I fear that the new offences which cover care workers are still seen in the noble and learned Lord's department as a fallback for action under other Bill headings, as has been stated by other Members of the Committee today, which provide for more severe penalties. I listened to the Minister and others and, indeed, to the arguments put by the Home Office, but that is not really how I see things. Only the abuse of trust provisions give real protection to the vulnerable person in a particularly vulnerable situation who, although able to consent in theory, has little choice in practice.

Lord Falconer of Thoroton

I shall deal quickly with all three points. First, in response to the noble Lord, Lord Carlisle, we set maximums and we do no more than that. The framework must be set by the courts. On the question of whether we are right to draw a distinction between penetrative sex and non-penetrative sex, which is done not only here but also in other parts of the Bill, we think that we are right to do so because it marks the greater seriousness of the offence. Broadly, we are seeking to do what the noble Lord suggests: setting maximums and then leaving it to the courts.

Secondly, in response to the comments of the noble Baroness, Lady Blatch, it is precisely because of the points she made that this run of offences has been included in the Bill. Consent here is totally irrelevant. It plays no part in the ingredients of the offences. To put it simply, the elements required for an offence are the relationship of care between the defendant and the victim, and the occurrence of sexual activity. As the noble Baroness pointed out, shades of consent are difficult to prove in these circumstances. Furthermore, as the noble Lord, Lord Adebowale, remarked, the power is with the carer. The offences reflect the concerns expressed by the noble Baroness.

Thirdly, the noble Lord, Lord Rix, has completely convinced me and the rest of the Government that these should not be regarded as residual offences, precisely for the reasons set out in Setting the Boundaries; namely, the scope for abuse.

On Question, amendment agreed to.

[Amendment No. 230 not moved.]

The Deputy Chairman of Committees

If Amendment No. 231 is agreed to, I shall not be able to call Amendment No. 232 by reason of pre-emption.

[Amendment No. 231 not moved.]

Lord Falconer of Thoroton moved Amendment No. 232: Page 20, line 40, leave out "7" and insert "10

On Question, amendment agreed to.

[Amendment No. 233 not moved.]

Clause 43, as amended, agreed to.

Clause 44 [Care workers: causing sexual activity]:

Lord Astor of Hever moved Amendment No. 234: Page 21, line 1, at beginning insert "for the purpose of obtaining sexual gratification,

The noble Lord said: In moving Amendment No. 234, I shall speak also to Amendments Nos. 241, 243 and 244. The purpose of the amendments is to make sure that those who provide help, advice and instruction for people with mental disorders or learning difficulties to develop their awareness of their own sexuality are not criminalised. These are probing amendments and are supported by the National Autistic Society, MIND and Turning Point. While I accept that the wording of the amendments is not perfect, it does raise the issue of sex education.

Care staff in services may engage in intimate acts as part of a programme of sex education for their patients, for example, facilitating masturbation. Experienced and trained staff who engage in such educational activities should not be criminalised as these programmes enhance the quality of life of the people in their care. Currently the Bill does not provide any protection for care workers who, for legitimate purposes, encourage mentally disabled people to engage in sexual activity.

My amendments offer two alternative options to provide an exemption for care workers in Clause 44, covering care workers "causing sexual activity", and in Clause 45, covering care workers "inciting sexual activity". Amendments Nos. 234 and 241 seek to make the activity an offence only if the care workers were behaving in non-legitimate circumstances and, for the purpose of obtaining sexual gratification for themselves.

Amendments Nos. 243 and 244 propose an exemption in Clause 45 by drawing attention to those care workers who have been authorised by the Secretary of State to provide sexual assistance as part of the treatment which B receives. It might be hard to prove in reality whether or not a care worker was helping a patient perform a sexual activity for the purposes of obtaining sexual gratification. Requiring a care worker to be authorised by the Secretary of State to provide sexual assistance for treatment purposes would make it a more regulated activity. However, I accept that it might be difficult in practice to require care workers to seek approval from the Department of Health.

Care workers provide an invaluable service to those with mental disorders and learning disabilities. It is imperative that they are afforded a comprehensive degree of protection in providing these treatment facilities to their patients. I very much hope that the Government will introduce national guidelines on sexual education for adults with a mental disorder or learning disability. I beg to move.

Lord Campbell of Alloway

What could be covered under paragraph (b)—"the activity is sexual"—that would not be covered by "for the purpose of obtaining sexual gratification"? If the answer is "nothing at all"—and this is a probing amendment—I respectfully suggest that it does not achieve anything that should be committed to a Bill which will become an Act of Parliament.

Lord Adebowale

I support the noble Lord, Lord Astor. I intended to raise this issue at Clause 46 stand part stage. However, it seems appropriate to raise my points now. In any event, I would rather make my points through an amendment than by pursuing the route of opposing clause stand part. For this reason, I am grateful to the noble Baroness, Lady Noakes, and the noble Lord, Lord Astor.

I am very conscious of the need for future legislation to strike a sensitive balance between promoting sexual autonomy and protecting people from abuse and exploitation. We need to ensure that people with learning disabilities enjoy their fundamental right to a healthy sex life but we must also protect people from harm.

At Second Reading, I listened closely to the arguments made that the Bill does not recognise that care workers may undertake work for people with a learning disability to help them to enjoy a sex life if they so wish. My understanding is that under current law care workers would not come within the ambit of the criminal law if that sexual activity is not indecent. However, under the provisions in the Bill a person may come within the scope of the new legislation even in cases where touching is within the context of a sex education programme and helps people to understand and express their sexuality. This is an issue of concern to the charity of which I am chief executive, Turning Point.

I have also received an informative briefing from Sue Brown at the deafblind charity, Sense. If I may, I should like to indulge the Committee's time by quoting from that briefing. Sense's policy on personal relationships allows for teaching of an intimate or sexual nature to take place only where there is no alternative method. However, Sense, like Turning Point, would not want to see the law deny the possibility of sex education, which in the case of a deafblind person might include the need for physical instruction for the purpose of education. It is not clear whether touching in this context would be considered to be "sexual" as defined in the Bill, but care staff could find themselves unable to provide essential support to deafblind people relating to sex education. This mirrors Turning Point's worries about the Bill.

On balance, it would be inappropriate to spell out an exception regarding sex education on the face of the Bill as it would be difficult to frame and there is a risk that this provision might be abused. However, guidance is needed to ensure that care workers who carry out legitimate sex education work are not prosecuted. Guidance is also needed to prevent prosecutions in cases involving two people with severe learning disabilities who engage in sexual activity but where neither person can consent to sexual relations. This issue has already been raised in a separate amendment. I hope that the Minister can assure me that guidance will flow from the Bill's provisions to deal directly with this issue.

8.30 p.m.

Baroness Howarth of Breckland

I want to raise the issue of people with severe physical disabilities who may not have a mental disorder or a learning disability. I speak as the vice-chair of the John Grooms charity for disabled people. That group of people has been missed out. I have been looking for an opportunity to raise the question of how they could be included in the Bill. I would be grateful if the Minister would consider how the legislation might include them so that their rights are the same as those of the groups we have already debated.

Baroness Walmsley

We support the amendments tabled by the noble Lord, Lord Astor of Hever. I raised on Second Reading the point that it is important that people with mental disorders and learning disabilities are enabled to have a sex life. That is a very fulfilling part of life, and it may be only with the help and instruction of care workers—properly trained and regulated, of course—that it can take place. The amendments would provide a reasonable amount of protection for people who certainly need it.

I turn to the point made by the noble Lord, Lord Campbell of Alloway, about paragraph (b), which makes it an offence if "the activity is sexual". He asked whether that paragraph did not cover the point. I believe that it may not, because the activity being sexual relates to the nature of the act. The words in the amendment, for the purpose of obtaining sexual gratification", refer to the purpose of the act for the person committing it. We need the amendments, and I support them.

Lord Campbell of Alloway

How an earth can there be gratification without an act, and why should the act be prohibited if it is not sexual? I am not trying to be difficult. The noble Baroness, Lady Walmsley, rightly criticised what I said—I am usually wrong, anyway—but I cannot understand her reasoning.

Baroness Walmsley

I should clarify what I meant. I did not say that we do not need paragraph (b). We need it to make clear the nature of the act to which we refer, but in addition we need the amendment tabled in the names of the noble Baroness, Lady Noakes, and the noble Lord, Lord Astor of Hever, to clarify the intention of the person committing the act.

Baroness Blatch

This is a difficult area. My noble friend Lord Campbell of Alloway suggested that the amendments were probing. In that spirit, I want to pose some concerns about the amendments being accepted.

Amendment No. 234 imposes a harder test in Clause 44 for proving that a care worker has caused a person in his care to engage in sexual activity. I should make it clear that some powerful points have been made about the rights of such people, and I do not want to get in the way of those rights but simply to raise some questions.

Amendment No. 241 would make the same change to Clause 45, which covers inciting sexual activity. The changes would require it to be proved that a defendant incited, or caused the activity, for the purpose of obtaining sexual gratification". I am sure my noble friend intends that an activity that is wholly innocent, such as legitimate sex education, should not fall foul of the offences. That is my reading of the meaning of the amendment. However, as I understand it, there is no real risk that such activities would be successfully prosecuted. Police, prosecutors and the courts have enough common sense to see that as a bona fide situation that has been registered under the system. Following the law of unintended consequences, the amendment would instead provide a much wider defence, which would actually require the prosecution to adduce evidence of the perpetrator's intention. Prosecutions could fail for lack of evidence of what he intended by his actions, even when they were overtly sexual. Defendants simply have to put up a reasonable sounding claim that they were not acting for their own sexual gratification and they can escape conviction. A claim that they caused or incited a disabled person to engage in sexual activity for "educational purposes" rather than their own gratification could result in an acquittal.

Under Amendments Nos. 243 and 244 care workers would be authorised by the Secretary of State—by what mechanism we are not told—to provide sexual assistance to their patients. This would exempt them— I am talking about the carers from the offence detailed in Clause 45 of the Bill. If my reading is right, that would open up an astonishing loophole in the law. It would give a blanket defence to carers "providing sexual assistance". What does that actually mean? The Family Planning Association says that for disabled people, assistance with sexual expression may be required … Staff and carers should take a holistic view of sexuality to encompass sensuality and intimacy". So even the FPA is coy on this point. Does the organisation called the Sexual Freedom Coalition tell us what is really being talked of here? Its submission to the Sex Offences Review claims, Some physically disabled people who are unable to masturbate want to be able to put in the job description of their personal assistants that there is an option to relieve them of their sexual frustration". The submission refers to physically disabled people, but are we to deduce that this is the sort of thing to which the amendment before us relates? The website of the Sexual Freedom Coalition goes further, describing, Sex Angels, often nurses or care assistants who act as unofficial volunteers using their uninhibited minds and fingers to rescue the situation. This is always hush-hush". If this amendment is at any risk of legally enshrining such activities, we really should have nothing to do with it. It would radically undermine the patient/carer trust and could place some carers in an excruciatingly embarrassing position. I believe that it has some read-across to previous amendments.

The amendment could also be abused. It could allow a carer who sexually abused one of his patients to claim that he was merely providing "sexual assistance". The amendment could give the abuser immunity from prosecution. The perpetrator of the offence would be free to argue that he was merely helping his victims to fulfil their sexual desires and was registered by the Secretary of State for the purpose. The amendment may even lead abusers deliberately to seek jobs as carers because of this exception in the law.

Those with a mental disorder or learning disabilities desperately need the protection of the law as well as proper respect for their fundamental rights in this area. Incitement is a term clearly understood in criminal law. The proposed amendments would obscure its meaning and remove protection from some of the most vulnerable people in society. That is what we are discussing in this part of the Bill.

If my reading of the amendments is correct, I hope that it will not be made more difficult to bring to account those who abuse very vulnerable people. We need to recognise and respect the rights of the physically disabled as well as those with learning disabilities to have fulfilment but at the same time we should not make it much easier for very manipulative people to be free to abuse in the name of the law.

Lord Thomas of Gresford

Will the Minister explain why the phrase, for the purpose of obtaining sexual gratification appears in Clause 46(1)(c) and in Clause 47(1)(a) but does not appear in the earlier clauses? Obviously, the thinking behind it is that there is a distinction between Clauses 43, 44 and 45 and Clauses 46 and 47. I quite fail to see what the distinction is. I look forward to enlightenment.

Lord Falconer of Thoroton

This is a very sensitive and difficult area. I understand the amendments moved by the noble Lord, Lord Astor of Hever, to be probing amendments. He made it absolutely clear—he telegraphed this in advance for which I am grateful—that he seeks to deal with the issue of sexual education for people with a mental disorder or a learning disability.

The noble Lord proposes that in order to be guilty of an offence under Clause 44 the person who intentionally causes the victim to engage in the relevant activity must do so in effect for the purposes of his own sexual gratification. That would, as it happens, exclude those cases where the carer procures the victim to engage in sexual activity with someone else for money, for example. The noble Lord, Lord Astor of Hever, would plainly not wish to exclude that.

As a means of getting to the end that the noble Lord wishes to reach— legitimate sex education activity that is not a criminal offence—the amendment does not work because of the sorts of case that it lets in. There might well be other cases where simply bullying or intimidation was the motive, rather than sexual gratification. Again, I am sure that he and the noble Lord, Lord Adebowale, would not wish to exclude those cases.

How then does one deal with the problem? The next proposal is to create some exemption scheme related to the Secretary of State through which authority is given. Again, I fully accept that the amendment is probing, but the scope of the exemption is very broadly defined, both with respect to the nature of the activity covered and the care workers to whom it might apply. It is very difficult to see how it could work in practice, in terms of the positives. How would one get the authorisation? What would be the effect of not being authorised if one were legitimate? What would the scope for abuse be even if one were authorised? The amendment has absolutely no feel of practicality. Although it is only a probing amendment, it does not get off the starting block as a sensible way forward.

The noble Lord, Lord Adebowale, effectively accepts, which is sensible, that it is very difficult to deal with the problem in the Bill. As the noble Baroness, Lady Blatch, said, one has to leave it to prosecutorial discretion. Is that enough? The noble Lord asks about producing some sort of guidance. We need to think about that, as it seems an important issue. Without giving any assurance, I should like to come back to that on Report and indicate where we have got to. However, I make it absolutely clear that our pretty firm view is that dealing with the matter in the Bill is not the right method, as it would lead to more problems than one would solve.

The noble Baroness, Lady Howarth, made a point about those not suffering from a mental disorder or learning disability but who have a physical disability. The provisions do not refer at all to them. Therefore, the normal law would apply, and the relevant question would be whether there was genuine consent, assuming that the person to whom she referred was an adult. We need to look at whether there is there some degree of vulnerability.

Baroness Howarth of Breckland

Those people who are quadriplegic with communication difficulties, but who are not psychologically or mentally impaired—the kind of people with whom I deal—are certainly vulnerable, in that there is a power relationship with the care worker. Certainly, the new adult protection units are discovering in a number of places that they have to look into such situations. If we were able to consider them in the Bill and have a clearer way forward, it would help the units and people who try to provide the services. I would be grateful if it were possible at this stage to see whether there was any possibility of including that group of clients in the Bill.

Lord Falconer of Thoroton

Perhaps I may consider that. In effect, the question that the noble Baroness raises is one of a whole new category of people. We have to see whether they are adequately covered by the provisions about the problems of communication. I imagine that she would suggest that vulnerability gives rise to the problem as well as communication. We cover it to some extent—I know that it will not be adequate enough for her—in Clause 78, in which we give rise to certain presumptions. However, I imagine that she is referring to a more pervasive protection than simply that. I will certainly consider what she has said, again with no assurances.

I shall come back at a later date to the question asked by the noble Lord, Lord Thomas, perhaps by correspondence.

Lord Astor of Hever

I very much take the point made by my noble friend Lord Campbell of Alloway. It was never my objective to have the amendments included in the Bill. However, I have been persuaded by bodies that I respect that the issue is important and needs to be debated. I am very grateful for the support of the noble Baroness, Lady Walmsley, who recognised the importance of sexual education by properly trained and properly regulated staff.

I agree with my noble friend Lady Blatch that this is a very difficult area. Our amendments are not perfect, as I said in my opening speech. I discussed them thoroughly with our advisers before agreeing to move them. My briefing was not from the Sexual Freedom Coalition but from bona fide legitimate charities which I respect.

We have had a good debate and I thank the Minister for his reply. I very much look forward to the Government coming forward, as I hope they will, with something positive in relation to national guidance on sexual education. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 235 and 236 not moved.]

8.45 p.m.

Lord Falconer of Thoroton moved Amendments Nos. 237 and 238: Page 21, line 10, leave out subsection (3). Page 21, line 11, at beginning insert— (3A) A person guilty of an offence under this section, if the activity caused involved—

  1. (a) penetration of B's anus or vagina,
  2. (b) penetration of B's mouth with a person's penis,
  3. (c) penetration of a person's anus or vagina with a part of B's body or by B with anything else, or
  4. (d) penetration of a person's mouth with B's penis, is liable, on conviction on indictment, to imprisonment for a term not exceeding 14 years.
(4) Unless subsection (3A) applies,

On Question, amendments agreed to.

[Amendment No. 239 not moved.]

Lord Falconer of Thoroton moved Amendment No. 240: Page 21, line 15, leave out "7" and insert "10

On Question, amendment agreed to.

Clause 44, as amended, agreed to.

Clause 45 [Care workers: inciting sexual activity]:

[Amendments Nos. 241 to 245 not moved.]

Lord Falconer of Thoroton moved Amendment No. 246: Page 21, line 27, at beginning insert— (2A) A person guilty of an offence under this section, if the activity incited involved—

  1. (a) penetration of B's anus or vagina,
  2. (b) penetration of B's mouth with a person's penis,
  3. (c) penetration of a person's anus or vagina with a part of B's body or by B with anything else, or
  4. (d) penetration of a person's mouth with B's penis, is liable, on conviction on indictment, to imprisonment for a term not exceeding 14 years.
(3) Unless subsection (2A) applies,

On Question, amendment agreed to.

[Amendment No. 247 not moved.]

Lord Falconer of Thoroton moved Amendment No. 248: Page 21, line 31, leave out "7" and insert "10

On Question, amendment agreed to.

Clause 45, as amended, agreed to.

Clause 46 [Care workers: sexual activity in the presence of a person with a mental disorder or learning disability]:

[Amendments Nos. 249 to 251 not moved.]

Clause 46 agreed to.

Clause 47 [Care workers: causing a person with a mental disorder or learning disability to watch a sexual act]:

[Amendments Nos. 252 to 254 not moved.]

Clause 47 agreed to.

Clause 48 [Care workers: interpretation]:

Lord Adebowale moved Amendment No. 255: Page 22, line 29, leave out "the care o' and insert "caring for, training or supervising

The noble Lord said: In moving Amendment No. 255, I shall speak to all my amendments to Clause 48. This will be interesting: it is a big task and a massive group of amendments. I hope that I am up to the challenge and, more to the point, that Members of the Committee can keep up with me because I may have trouble myself.

The amendments to which I shall speak include Amendments Nos. 263, 272, 273, 275 and 277. I wish also to support the amendments tabled by the noble Lord, Lord Rix—Amendments Nos. 258, 260, 279 and 280. These amendments on advocacy are very important and I give notice of my intention formally to support the noble Lord, Lord Rix, when he moves them.

The aim of Amendment No. 255 is to define more closely the meaning of "care" to include activities such as training and supervision within the definition. That would make these provisions consistent with the equivalent clauses in relation to children who live in a care setting, as defined earlier in the Bill.

The manager of a care home may not provide regular care but will certainly provide regular supervision and possibly training and will be in a position of care and trust in that care setting. The organisation BILD, led by the excellent Dr John Harries, has pressed the importance of the caring role to extend to individuals who provide citizen advocacy for people with learning disabilities. I know that this is an issue that rightly preoccupies the noble Lord, Lord Rix, and the noble Baroness, Lady Noakes. People providing advocacy hold a position of trust. The Bill's provisions should extend to them as well as to those who provide training and supervision.

Amendments Nos. 263, 272 and 273 also relate to the relationship of care. Care staff may be entrusted with work of a very intimate nature such as washing an individual or changing their clothes. The amendments seek to take account of situations where people may be in a position of trust but do not provide face-to-face support. Such people may have some contact with the individual and enjoy a position of authority but do not provide hands-on or face-to-face support. A senior hospital figure is one example. I should like to avoid situations in which an abuser claims that he does not have face-to-face contact with the person as a means of avoiding a prosecution The noble Lord, Lord Rix, has addressed a similar issue in relation to the word "regular". I hope that the noble and learned Lord, Lord Falconer, will confirm that that issue is addressed in a later amendment.

Amendment No. 275 broadly seeks to achieve the same objective sought in similar amendments tabled by the noble Baroness, Lady Noakes. I have already outlined the need for care settings to be broadly defined. This amendment explicitly seeks to set out the need for the offence to apply to situations in which a person provides training, social, educational or recreational activities to a person with a learning disability. We know that sexual abuse can take place in any setting and that people may be particularly vulnerable to abuse in youth clubs, day centres and other similar environments. Indeed, we are all too painfully aware that those settings may not be properly regulated, are inadequately staffed, or have staff who are inexperienced, poorly trained or too frightened to speak out when they see another staff member committing abuse.

Volunteers may also work in day services but are indistinguishable from staff in terms of the power and position they hold over a person with a learning disability. All abuse is morally indefensible. That includes indirect toleration of abuse or collusion in relation to reporting or responding to abuse. Day services may create their own cultures of abuse, particularly those that remain institutional. Supervision of people with learning disabilities may be poor or borderline or neglectful. People are not offered real activities or opportunities to interact with others.

The law on sex offences should explicitly set out what is right or wrong and define care settings as widely as possible. I appreciate that the existing clause seeks to include all situations and all settings where support is provided to another individual. However, I believe that given the vulnerability to abuse in a day centre or youth club, the nature of the setting should be explicitly defined and set out in the Bill.

I turn finally to Amendment No. 277. I note that the noble Baroness, Lady Noakes, has a similar amendment. I am concerned that the inclusion of the term "personal" may narrow the scope of protection and unintentionally mean that some forms of care would not come within the provisions of the Act. A person may be in a position of care and trust but not provide personal care to another individual. That individual may have a combination of physical, social and healthcare needs. For example, a person who works in a day centre and closely supervises and supports an individual to develop social skills and interact with others may not be providing personal, hands-on nursing care but is still in a position of trust and may abuse that position if left unchecked by law. The removal of the term "personal" will ensure that all forms of care are covered by the Act. I beg to move.

Lord Rix

In speaking to my Amendments Nos. 258, 260, 265, 271, 276 and 280, I am pleased that that definition of a care worker has now been extended to include a range of services and assistance whether provided by voluntary or paid staff. The Minister deserves credit for listening to our concerns, and I warmly congratulate him on so doing. However, I should be even more delighted if he would confirm that the new definition of care worker will also include independent advocates. They are trusted to represent the interests of people with learning disability and to that end enjoy privileged access to them. Their responsibilities do not usually include personal care, but they may well spend substantial periods of time alone with their advocacy partner. I should be very interested to hear what the Minister has to say in response to that.

Lord Astor of Hever

The interpretation of "care workers" is liberal in its definitions and goes some way towards broadening the scope of protection for vulnerable adults, since it criminalises practices that have been proscribed merely by professional guidance regulation. This is an advantageous development, as such regulation has in the past failed to safeguard the wellbeing of many clients and patients. However, a persistent contributory factor in that problem has been not only inadequate regulation, but in some professions an absence of regulation. I am concerned that the interpretation of the clause may perpetuate this situation by failing to include in its scope some practices and professions that have been regulated either inadequately or not at all. Left as it is, Clause 48 would allow the continuation of grave danger to some vulnerable adults in receipt of care, as their needs for equal protection would be ignored by virtue of the nature of the care that they have sought. Our amendments would rectify this by incorporating practices and settings of care standards that are not currently included, but through which an equal risk of abuse is posed to vulnerable adults.

Health and social care professionals have a great deal of trust from their patients or clients, a high level of responsibility towards them and significant power over them. When care providers become sexually involved with current patients they are overstepping their professional boundaries. It is crucial that Clause 48 is sufficiently comprehensive to condemn any abuse of such responsibility and power—not only that which occurs within mainstream care. Our amendments include independent practices and practitioners, training, educational and occupational services and interpretations of care beyond just the "personal". They would ensure that services such as counselling, psychotherapy and complementary therapies are included, that those professionals practising from their own homes are not above the law, and that modern care environments and provisions, such as day centres, are accounted for. POPAN, funded by the Department of Health, reports that 55 per cent of calls to its helpline concern abuse by counsellors and complementary therapists.

I turn to our amendments proposing the inclusion of advocacy services, which also have little or no regulation, but are, unfortunately, as likely to involve abuse as other practices. I raise the matter in light of the fact that advocacy is to be made a legal right to some groups of vulnerable adults with the introduction of the new mental health Bill. The Government's heightened recognition of the benefits of advocacy services is welcome, but that must be qualified by measures to ensure that these services are safe and bound by the same safeguards as other services.

Does the Minister intend that services such as advocacy and supervision will be covered by his Amendment No. 274? People seeking redress through these offences, at least in part due to their already having survived abuse, are very likely to need, and indeed, to benefit from support both during and after legal proceedings. Without that, I fear that many vulnerable adults would be discouraged from pursuing legal action and that the potential effectiveness of the Bill will not be achieved. It is on that basis that I suggest that independent specialist advocacy services be available to all persons using Clauses 33 to 51 and that support, if desired, is available both during and after cases are heard.

I move on to Amendments Nos. 261 and 262. Could the Minister expand on his decision to expand Clause 23 by inserting the term "residential home care", but only to insert the terms "community home" and "voluntary home" in Clause 48? Does the Minister agree that, as with children, the abuse of vulnerable adults can also take place in any residential care home? We propose that our Amendment No. 262 provides a more foolproof safeguard against abuse which takes place in any residential care home. If the offences of Clauses 43 to 48 were to be broadened by removing the word "regular", that would be consistent with the purpose of the Government to protect vulnerable people from sexual abuse without infringing on their right to a private sex life.

As the Minister stated in his letter to me, it is possible for the abuse of a vulnerable adult by a care worker to take place upon their first contact. In recognising that, the Government have clearly acknowledged that contact does not need to be regular for abuse to take place. A vulnerable adult may be abused on his or her first contact with the care worker and never see him or her again. That does not make that abuse any less grave or damaging.

It is inconsistent to deny some victims of abuse protection or redress merely because they may not have enough contact with their abuser in the eyes of the law. If one contact is sufficient for abuse to take place, one contact should be sufficient for prosecution. Are the Government really prepared to condone abuse if it cannot be proved that further regular contact with the carer is likely to take place? If the term "regular" remains part of the clause, a vulnerable adult abused by, for example, a nurse whose care he or she received for only one morning would not be protected by the Bill.

9 p.m.

Lord Hylton

I want briefly to support what my noble friend Lord Rix said about lay advocates in various institutions. I do so from the experience of NIACRO in Northern Ireland and I have the honour to be the president of that organisation. We have been providing advocacy for teenagers in youth custody centres in Northern Ireland over a number of years and what my noble friend said is right.

Lord Falconer of Thoroton

The noble Lord is right to say that the clause is central to the other clauses relating to care workers as it defines to whom, where and when these offences will apply. We listened carefully to what was said at Second Reading and in our meetings and we believe that changes are required. They appear in our Amendments Nos. 262, 264, 270, 274, 281, 282 and 284. I shall deal first with them and then with the particular points raised.

Amendment No. 261 adds "community home, voluntary home" to the list of residential accommodation covered in subsection (2), there defined in Amendments Nos. 282 and 284. It is done for the sake of completeness. What is already covered is a care home which is described as providing accommodation together with nursing or personal care for any of the following persons. Subsection (b) specifies persons who have had a mental disorder. It is therefore wide already. We are worried about the point that we might include all homes, and that is why we have added "community home, voluntary home". We believe that that is sufficient.

Amendments Nos. 264 and 270 take account of concerns expressed to us by stakeholders that it was possible that a care worker could abuse his position of trust on the first time of meeting someone with a mental disorder or learning disability. The wording now allows for the case where A performs functions which are likely to bring someone into regular face-to-face contact. That change is also carried into Amendment No. 274.

The government Amendment No. 274 replaces the whole of subsection (4) with a formulation based solely on the relationship of care defined widely as "care, assistance or services" and removes the residence requirement which may have unwittingly excluded, for example, homeless people residing in a hostel from its protection and all the examples of day-care services that have been provided. Members of the Committee will see that that will encompass most of the relationships they were concerned to encompass under the protection of these clauses and the amendments they proposed.

The last of the government amendments, Amendment No. 281, makes a minor alteration to the definition of "care home".

I turn to the amendments spoken to by noble Lords. Amendments Nos. 258., 260, 279 and 280 seek to make specific reference to the inclusion of advocates in those who provide care. Our hope is that noble Lords will be satisfied because I am satisfied that Amendment No. 274, which refers to care, assistance or services, embraces that particular category. The case made by Members around the Chamber is a powerful one and we intend to cover that in Amendment No. 274. I hope noble Lords will think that we have done that adequately.

Amendments Nos. 265, 271 and 276 propose the removal of the requirement that face-to-face contact should occur on a regular basis. One of the earlier amendments I referred to seeks to deal with a situation where there is abuse on the first occasion. I believe that government Amendments Nos. 264 and 270 go some way to meeting the concerns expressed. However, to go as far as noble Lords require, particularly in the light of Amendment No. 274, is to go too far because it means that if any service is provided—if you serve someone in a shop, for instance—that would give rise to the relationship. We believe that that goes too far in relation to the creation of a criminal offence. Equally, it would cover a situation where a taxi driver carried the victim on one occasion only. Again, we think that is going too far. We fully understand the concerns. We have gone as far as we think it sensible to go, but we think that those particular provisions go too far

The noble Baroness, Lady Noakes, and the noble Lords, Lord Astor of Hever and Lord Campbell of Alloway, would add to the list of residential establishments. I am being corrected that it was not the noble Baroness; she put her name to the amendment. I apologise for including her, but that is why I did it. As regards using the words "any other residential establishment" I believe I have covered that already.

Amendments Nos. 267, 268, 269 and 283 seek to make specific reference to the inclusion of independent practitioners to those who provide care. Again, I believe that is covered adequately by Amendment No. 274 in the wide definition of services. Amendment No. 432, which is also in this group, to which I do not believe the noble Lord, Lord Adebowale, has spoken, seeks to add an order-making power to enable the Secretary of State to add to the definitions of care worker in Clause 48. I believe we have gone far enough not to need that power. The wide nature of Amendment No. 274 meets the particular point made. We have now defined it in such a way as to be as inclusive as possible.

I have dealt with the face-to-face and the regular arrangement. Types of services provided are again dealt with in Amendment No. 274. I very much sympathise with the kind of situations noble Lords seek to cover. However, with the exception of the one-off situation, where I am not prepared to go as far as noble Lords would go, they are broadly all sufficiently covered by the amendments proposed. I confirm that the independent advocate is covered by our amendment.

Lord Campbell of Alloway

Before the noble and learned Lord sits down, I was not going to speak on this amendment, but I shall be brief. This jumble of amendments, many of which are repetitive, come from different sources. Obviously, the Government will consider them. I am not wasting time. Some of the amendments are unique. In the light of this discussion, would the Government be prepared to draft an amendment on which they could then consult with everyone concerned so that this could be done off the Floor of the House before Report?

Lord Falconer of Thoroton

I thank the noble Lord for that suggestion. However, many of the points have been raised before, quite legitimately. We know what the issue is. It is about regular face-to-face contact. I think we have broadly accommodated every other issue. I have set out what our position is. I do not think any purpose would be served by a consultation which, as it were, went round the houses again. I fully appreciate the spirit in which the proposal is made but I am not sure that it would take us very much further.

Baroness Howarth of Breckland

Perhaps I may ask the Minister a different question. I welcome the Minister's remarks and believe that that would be extraordinarily helpful. I believe the one issue that was not picked up by the Minister—it was all rather fast— was that of leaving out "personal" in terms of personal care. I would have spoken to this had I not thought that it might be addressed with the other issues. The reason I am particularly concerned about removing "personal" is that it has a very clear defined meaning in relation to the social care legislation. With the current debates in relation to "supported living" as against "direct care", if we include "personal" in the personal care provisions I think that there will be all kinds of legal debates. I had hoped that the noble Lord, Lord Thomas, would be here. I thought that I needed someone with his mental agility in the law to help me on this matter, but I think that I have made my point.

Lord Falconer of Thoroton

The point has been made to me privately. It is an entirely good point. As a result we have knocked out altogether the reference to "personal care". The relevant words are in Amendment No. 274. I should have said this and I apologise for not doing so. They are, whether or not in the course of employment"— A, who would be the defendant, is— a provider of care, assistance or services to B in connection with B's mental disorder or learning disability". So the word "personal" has completely gone out of the picture for precisely the reasons referred to by the noble Baroness, Lady Howarth.

Lord Rix

My tinnitus is roaring away. I did not hear that the definition of a "care worker" included independent advocates. Can the noble and learned Lord perhaps calm my tinnitus and assure me otherwise?

Lord Falconer of Thoroton

I hope I can calm the noble Lord's tinnitus by saying that we take the view that a, provider of care, assistance or services", would include specifically an independent advocate. We hope that noble Lords will take the same view. We have not included an express reference to that because we think we have made out the case.

Baroness Blatch

For the past 15 years my tinnitus has not stopped roaring away, so I have difficulties the whole time. The noble and learned Lord not only speaks very fast but is also precipitative because I had hoped to speak in support of my noble friend's amendments. I am not absolutely certain that I entirely accept what the noble and learned Lord said about my noble friend's amendment regarding the word "regular", and, for example, on Amendment No. 263, standing in the name of the noble Lord, Lord Adebowale, which broadens the protection afforded by Clause 48 by widening the definition of "care worker". It does that by removing the requirement in subsection (2) that the perpetrator is acting in the course of employment. Furthermore, it removes the requirement that the perpetrator must have face-to-face contact with the victim.

My noble friend certainly made a powerful point about the casual acquaintance, which is technically face-to-face and which can be extremely abusive. I am not sure that the points made by the noble and learned Lord cover totally that kind of encounter. I genuinely think that we should reflect on what has been said on all sides of the Chamber about that particular issue. I do not know whether my noble friend wants to return to it.

The noble Lord, Lord Rix, initially raised the issue of personal advocacy. Again my noble friend was very persuasive. The noble and learned Lord has been very helpful and says that it is included in the understanding of how Pepper v Hart works; that it is on the record and could be invoked if there was a future situation with someone engaged in personal advocacy. If so included, there may well be a need at some time to have a definition of what "other services" means because there are all kinds of services. If one removes the word "personal", then "services" is a very wide definition. I can see courts saying that that is not really a service. Nevertheless, with the increasing incidence of "supported living", about which we have heard a great deal in the past few days, in order for there to be a proper understanding of those involved in the care of vulnerable people there will need to be some understanding of what "other services" actually means. So, before the Bill finishes its passage through the House, we shall need some definition and some absolute guarantee that "personal advocacy" or people involved in personal advocacy is included.

However. I want to put on the record that I support Amendments Nos. 256, 257, 259, 263, 265, 271 and 276 tabled by my noble friend Lord Astor, the noble Lord, Lord Adebowale, and the noble Lord, Lord Rix.

Lord Falconer of Thoroton

Perhaps the noble Lord will reflect on whether it is sensible to start picking out specific kinds of services. We take the view that it is much better to have a wide definition, as the noble Baroness, Lady Blatch, says, so that it covers as much as possible without seeking to limit it. I apologise to the noble Baroness for speaking so fast that I prevented her from getting in.

On the "regular face-to-face" issue, we are very keen to ensure that on the first occasion, if abuse occurs, where it is likely that there would be "regular face-to-face contact", it will be covered. Equally, even if the person were temporary but regularly provided face-to-face services, that would be covered. The question is not whether someone is temporary or permanent but whether they have regular contact with the victim. Where the amendments go too far is that the provision of any services, no matter how limited, should not of itself give rise to the relationship that can create the criminal offence. That is the issue.

Lord Adebowale

I was going to support the amendment tabled by the noble Lord, Lord Rix.

Noble Lords


Lord Astor of Hever

On behalf of all those who have tabled the amendments, I thank the Minister for his response. There is a lot to digest in what he said, but I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 256 to 260 not moved.]

9.15 p.m.

Lord Falconer of Thoroton moved Amendment No. 261: Page 22, line 33, after first "home" insert ", community home, voluntary home".

On Question, amendment agreed to.

[Amendments Nos. 262 and 263 not moved. ]

Lord Falconer of Thoroton moved Amendment No. 264: Page 22, line 35, leave out from "A" to "regular" in line 36 and insert "has functions to perform in the home in the course of employment which have brought him or are likely to bring him into".

On Question, amendment agreed to.

[Amendment No. 265 not moved.]

[Amendment No. 266 had been withdrawn from the Marshalled List.]

[Amendments Nos. 267 to 269 not moved.]

Lord Falconer of Thoroton moved Amendment No. 270: Page 22, line 41, leave out from "A" to "regular" in line 42 and insert "has functions to perform for the body or agency or in the clinic or hospital in the course of employment which have brought him or are likely to bring him into".

On Question, amendment agreed to.

[Amendments Nos. 271 to 273 not moved.]

Lord Falconer of Thoroton moved Amendment No. 274: Page 23, line 1, leave out paragraphs (a) and (b) and insert "A—

  1. (a) is, whether or not in the course of employment, a provider of care, assistance or services to B in connection with B's mental disorder or learning disability, and
  2. (b) as such, has had or is likely to have regular face to face contact with B."

On Question, amendment agreed to.

[Amendments Nos. 275 to 280 not moved.]

Lord Falconer of Thoroton moved Amendments Nos. 281 and 282: Page 23, line 5, leave out from "home"" to "of" and insert "means an establishment which is a care home for the purposes Page 23, line 7, at end insert— "community home" has the meaning given by section 53(1) of the Children Act 1989 (c. 41);

On Question, amendments agreed to.

[Amendment No. 283 not moved.]

Lord Falconer of Thoroton moved Amendment No. 284: Page 23, line 18, at end insert— "voluntary home" has the meaning given by section 60(3) of the Children Act 1989 (c. 41).

On Question, amendment agreed to.

Clause 48, as amended, agreed to.

Clause 49 agreed to.

Clause 50 [Sections 43 to 47: sexual relationships which pre-date care relationships]:

On Question, Whether Clause 50 shall stand part of the Bill?

Baroness Blatch

Clause 50 exempts a care worker who engages in sexual activity with a person in his care, provided that they already had a sexual relationship immediately before the position of trust arose. Some have thought that Clause 50 is necessary to deal with the case of a married couple where one spouse suddenly becomes subject to a mental impairment and is then cared for by the other spouse. But the marriage exception in Clause 49 comprehensively covers that situation.

Entirely properly, married couples are exempt from the offences in Clauses 43 to 47. Even where a couple are engaged to be married and one fiancèe becomes mentally disordered, Clause 50 is still unnecessary. The reason for that is that any mentally disordered person who is capable of consenting to sex is by the same token capable of consenting to marriage. The contrary position is also true: if one fiancée became legally incapable of consenting to marriage, neither could they legally consent to sex. Such a person would then be protected by the Bill. So the position of marriage is well and truly covered.

Clause 50 creates a serious loophole in the Bill that could radically undermine the protection contained in Clauses 43 to 47. All the accused would have to argue is that he had a sexual relationship with his victim prior to taking up the post.

By definition, the offences in Clauses 43 to 47 are likely to have a victim who is unwilling to accuse the person who has abused a position. Those offences are necessary because we are talking about activity that is apparently consensual but where the consent is undermined by the care relationship that exists. They are not offences where there is evidence that force has been used. Prosecutors are not prosecuting for rape, sexual assault or one of the offences in Clauses 33 to 42. The victim has apparently consented. But the same vulnerability that makes the offences necessary in the first place makes such a defence open to abuse.

A care worker who begins a sexual relationship with a patient the day after he starts a new job will be committing an offence. A care worker who begins a relationship the day before will not. The result will be two tiers of protection. Those who were drawn into a sexual relationship with a carer before he began his job are not protected. There is a danger that prosecutions under Clauses 43 to 47 could routinely become bogged down in arguments about whether there was a sexual relationship before the accused started his job.

If paedophiles seek out responsible positions over young people, those who abuse adults with a mental disorder can also act in the same devious way. They can seek employment as a care worker in order to carry out their abuse. Clause 50 provides a technique for them to gain immunity from prosecution. It provides many opportunities for manipulative care workers to escape the clutches of the law. Either it is right to criminalise care workers who seek sexual gratification from disabled people in their care or it is not. But it makes no sense to create a halfway house whereby those who start their abuse just prior to taking up the position as a carer, or persuade their victims to say they did, escape the reach of the offence.

If the defence remains, we might see disturbing examples before the courts such as the following. A man has a job interview at a care home. While there he befriends a patient. Shortly afterwards the two meet up. A sexual relationship begins. The man then receives a job offer from the home and starts work. He continues his sexual relationship with the patient, relying on the Clause 50 defence.

A further example is where a man with Down's syndrome lives in his home with two other adults with similar disabilities. Social services send in a home help who provides personal care to the man. The home help happens to live on the same street. The two begin a sexual relationship. When the relationship is reported to the police, the home help claims that the relationship began before the position of trust arose. He tells the man with Down's syndrome that unless he backs up his story they will both go to gaol. The man corroborates the home help's story.

For those reasons, I do not believe that Clause 50 should stand part of the Bill and give people with these manipulative skills a defence against an abuse of vulnerable people.

Baroness Howarth of Breckland

I support the noble Baroness in looking again at this clause. I have some very real practical concerns about working in an establishment where one care worker has such a relationship with someone with that kind of dependency. In all the situations in which I have worked, I have made sure that if someone was in such a relationship, they did not work directly in the same establishment as the person with whom they were having the relationship; otherwise, the whole home and its atmosphere would be compromised by the situation, however appropriate it may or may not have been in advance. It is inappropriate for people to apply for posts in that situation. It would be useful to look at the matter again. I understand the nature of what the clause tries to drive at, but it would be useful to have another look at its implementation.

Lord Falconer of Thoroton

We have had similar debates about relationships of trust involving young people and carers. The noble Baroness, Lady Blatch, accurately identifies the effect of the marriage exception. We are not dealing with married couples where someone cares for his or her partner after he or she has suffered some mental impairment.

As the noble Baroness, Lady Blatch, said, the clause deals primarily with two situations. One is a situation in which a sexual relationship starts involving someone who already has a mental disorder and the person with whom they have the relationship is not in a care relationship with them. We take the view that, just as a position of trust between a carer and a child or young person should not be abused by someone to enter into a relationship, such relationships should not be criminalised. People with a mental disorder are entitled to a sex life with whomever they choose. It should be a defence to show that the relationship pre-dates the relationship of trust.

The noble Baroness, Lady Blatch, identified the possibility that it might be difficult to prove precisely when the relationship started. In the criminal law we must identify the relevant criminality. The pre-existing sexual relationship must be lawful. There would be no defence if the sexual relationship would have fallen within the offence set out in the 1956 Act of intercourse with a defective or intercourse between, say, a father and his learning disabled daughter.

The other situation covered by the exception is an unmarried relationship if the condition of one partner declines, as a result of which one looks after the other. The noble Baroness, Lady Blatch, said that that could be dealt with by marriage. In some cases, it could; in some cases, it could not. If the couple had decided not to get married before, it would be wrong to say that they must do so in order to avoid committing a criminal offence.

For those reasons, broadly, it would be wrong not to have the defence set out in Clause 50. I note what the noble Baroness, Lady Howarth of Breckland, said, and we will think about it. However, there is a difference between, on the one hand, the appropriate management of a care home, and, on the other, the criminalising of conduct. Somebody might come to work in a home because someone with whom they had had a relationship before a mental disorder set in needed full-time care. I can see how difficult that would make life in the residential home, hut, for reasons that should be obvious, it would not be right, in those circumstances, to criminalise the relationship.

I will think about what has been said, but I am not sure that the answer is to amend Clause 50. I hope that, in the light of what I have said, the noble Baroness will feel able to withdraw her objection to the clause.

Lord Lucas

What is being said is that a sexual relationship is not appropriate in the context of a care relationship if the two people are not married and one is caring for the other. If one is having an affair with someone who goes into care, it would be inappropriate to be employed by the care home and put oneself up as the carer for that person. One would not be in a position to provide the sort of independent relationship that a carer should provide.

I do not wish to discourage the continuation of a sexual relationship after one person has gone into care. I am saying that the other person in that position should not be the carer. The crime is not so much having the sexual relationship as not declaring it and, therefore, not disbarring oneself from the job of carer.

Lord Falconer of Thoroton

I sought to deal with the point made by the noble Baroness, Lady Howarth of Breckland. Many people will continue to care for their partner, to whom they are not married, when they are at home. Without Clause 50, that would be a criminal offence. I would regard that as wholly inappropriate.

9.30 p.m.

Baroness Blatch

I hope that the noble and learned Lord will take the advice of the noble Baroness, Lady Howarth of Breckland. There is scope, at least, for some reflection on some of the things that were said.

In response to a point that I raised, the noble and learned Lord recognised the difficulty of proving a "pre-post" relationship, but I am also talking about cases in which someone maliciously establishes such a relationship in order to continue a sexual offence, exempt from the clauses of this Bill.

The noble Baroness, Lady Howarth, and my noble friend raised the point about a person who is professionally employed to care for someone with whom they have a sexual relationship. As the noble and learned Lord recognised, the arguments are exactly the same as in the previous set of amendments when we were talking about young people. They do at least have the option of doing the same professional work, using their skills professionally, but in a different context. It seems that not only is there a difficulty for the people themselves but that there is a difficulty in terms of relationships generally throughout the institution in which they are working.

I shall reflect on the particular point made by the noble and learned Lord about a couple who are living at home and where informal care—not that which is employed and paid for by an organisation—is provided by a partner in a loving relationship. I shall think about that but I hope that the noble and learned Lord will continue to reflect on what has been said in the course of this amendment. There is a concern here that it can become a loophole to be exploited, with complete immunity from any kind of prosecution, for what I consider to be unacceptable sexual activities and establishing a relationship which would be damaging within the institution.

I withdraw my objection to the clause standing part of the Bill now, but I hope that the noble and learned Lord will take on board what has been said during the debate.

Clause 50 agreed to.

On Question, Whether Clause 51 shall stand part of the Bill?

Lord Astor of Hever

I need not detain the Committee long in speaking against the inclusion of this clause. I was pleased to see that the Government are in accord with us on this issue. I am grateful for the letter which I received from the noble and learned Lord explaining the rationale behind omitting this clause. It states: if it is our policy to make criminal people enter into sexual relationships with mentally impaired people, then it follows that those people should not be allowed to continue with relationships which started in that way". We fully support this principle. Clause 51 would provide a dangerous loophole whereby a manipulative care worker might easily induce an unwilling victim to agree to corroborate his account of a sexual relationship which preceded legislation. We welcome the fact that the Government have conceded the dangerous potential of this clause and have chosen to remove it from the Bill.

Baroness Blatch

I am pleased that the noble and learned Lord has added his name to removing this clause from the Bill. I welcome it heartily.

Lord Rix

I echo what the noble Baroness, Lady Blatch, just said.

Lord Falconer of Thoroton

We had this debate before in an earlier clause and we are all agreed.

Clause 51 negatived.

Clause 52 [Indecent photographs of persons aged 16 or 17]:

[Amendment No. 285 had been withdrawn from the Marshalled List.]

Baroness Thornton moved Amendment No. 285A: Page 24, line 7, leave out subsections (3) to (5).

The noble Baroness said

In moving Amendment No. 285A and speaking to Amendment No. 286, I should like to open my remarks by referring ahead briefly to Clause 59 which makes it clear that it will be illegal for any person under the age of 18 to participate in commercial pornographic depictions and images which can be distributed, advertised or promoted in the wider world for gain. That clause is entirely to be welcomed and commended. It goes some way towards bringing us into line with the United Nations Convention on the Rights of the Child, but it does not go the whole way. The UN Convention talks about protecting under 18 year-olds from all kinds of pornographic exploitation: it does not limit itself only to considering commercial pornography.

Clause 52 seeks to deal with the non-commercial end of the spectrum but, in my view, it fails to do so at all adequately. My amendment to Clause 52 falls into two parts. I shall deal with the second part first, and very briefly, because I see that my noble and learned friend the Minister and others are proposing to accept that part of the amendment which will delete subsection (5).

As it stands, subsection (5) would create two classes of pornography involving 16 and 17 year-old children: that which was produced before the commencement of the Act, which would remain legal, and that which was produced after the commencement of the Act, which would become illegal. Goodness knows, our law enforcement agencies have enough trouble with this whole area without imposing a further burden which would require them to establish precisely when every image was made. One can just imagine when a man was arrested, the first thing he would say is, "Sorry Guy, I thought these pictures were all made before April 2003".

I fear that the same muddled thinking and the same overly complicated and impractical reasoning is in evidence when we consider the other two subsections I seek to delete; that is, subsections (3) and (4). As it stands, the effect of the clause will again create two categories of pornography involving 16 and 17 year-old children. It would be entirely legal for a 47 year-old man to take sexual pictures of a 16 or 17 year-old child, or of himself and that child performing sexual acts. Provided that only he and the child possessed the images, no crime will have been committed. So we have an image that is made and produced entirely lawfully but becomes unlawful if someone else sees or is given a copy of it.

Alternatively, I have been advised that the image could become unlawful if, after it has been taken, the child withdraws her or his consent or, perhaps, if the adult were to withdraw his or her consent. That is plainly a ridiculous situation.

I believe fundamentally that no child of 16 or 17 years should be put in a position where they can be pressurised into taking part in pornographic or indecent depictions, especially since in these digital days it is easy to foresee circumstances where the consequences for the child can be permanent and irrevocable. It makes the idea of the possibility of withdrawing consent absurd.

Now that digital cameras are more widely owned and used, any digital image is just a mouse-click away from the Internet. Once an image reaches the Internet, it becomes a permanent record that could haunt and harm a child for the rest of their life. Only an adult should be empowered to make such a decision, one that could have harmful and lifelong consequences. Very often the person applying pressure to a 16 or 17 year-old child will be essentially in an abusive relationship with that child.

I am told that such behaviour is legal, but that does not make it right and it is not an answer. People can do other things legally that we are proposing to make illegal in the future, so in effect if we do not take this opportunity to amend the Bill in the way I propose, this House would be positively condoning the idea that 16 and 17 year-olds can take part in pornography, knowing also that in many circumstances the notion that they may later be able to withdraw their consent is entirely ridiculous. That cannot be right.

Continuing to allow 16 and 17 year-olds to take part in pornographic and indecent depictions in the digital age fails to comprehend the way in which easily and cheaply available digital technology has greatly reduced the barriers to distribution.

Young people aged between 16 and 17 fall in and out of relationships almost daily. It is not hard to imagine a "wronged" or "dumped" boy friend posting an image on the Internet as an impulsive act of revenge. Then the image will be permanent. There may already have been many cases of that kind. I fear that, if the clause is passed unamended, many more cases will arise.

I appreciate that the Bill proposes to make it a crime for any kind of distribution to take place outside the circle of consenting actors, but in reality things will be very different. I believe that many young people and others will fail to understand that whereas they can make, take or possess an image perfectly lawfully, later it could become an illegal image if one or more of the actors withdraws their consent. Some will even find it hard to understand that they can make, take or possess an image lawfully, but not distribute it to anyone outside the range of actors depicted or involved. I use the term "actors" because it would be possible to have multiple participants and multiple makers and takers. If one of the children involved later withdraws consent, does it become illegal for all or any of the other participants to carry on possessing the image? What if all the others are perfectly willing for the depiction to carry on being possessed by the others? Can we envisage disputes arising between the majority who want the image to remain legal and only one child who does not?

In all the circumstances, is it not simpler and more defensible to set a single age limit for participating in any and all forms of pornography, and for that age limit to be 18? My amendment would create a single age of consent at 18 years, the age of majority. I beg to move.

Baroness Noakes

I shall speak to Amendment No. 286, which is grouped with Amendment No. 285A. I am delighted to see that this is the most popular amendment in the Marshalled List to date and has even attracted the support of the Minister.

I have tabled the amendment because it is difficult to prove when a photograph or pseudo-photograph was made. Offences under the 1978 Act include the distribution and possession of photographs. If a case was brought it would be difficult to prove that the date of commencement of the Act in 2003 was the significant point for triggering the offence. That is not realistic and we see no useful purpose for subsection (5).

Amendment No. 285A seeks to remove the limited exceptions for 16 and 17 year-olds. I take a slightly different view from the noble Baroness, Lady Thornton. These are narrowly drawn exceptions which reflect the fact that 16 and 17 year-olds can give valid consent to sexual intercourse and other forms of sexual activity. While the clause treats 16 and 17 year-olds as children—indeed, Clause 52 brings them within the definition of "children"—that is only a partial statement of the truth because they are as much adults as they are children.

The limited exceptions which relate to photographs in a relationship, in effect—are a sensible way of balancing the desire to extend the protection to the age of 18 in accordance with international requirements while recognising that valid relationships can exist.

Baroness Howarth of Breckland

I support the amendment. While I accept that the exceptions are narrowly drawn, the way in which young people operate in the modern world causes me huge concern. My experience comes from years of childcare and working with young women who were in prostitution apparently by consent, but when you dug slightly on the surface you found it was certainly not by consent. In my work with the Independent Committee for the Supervision of Telephone Information Services—the premium rate watchdog—I spent years ensuring that young people were not depicted for the use of telephone sex lines.

Some noble Lords may say that that is far away from this narrowly drawn amendment, but young people see such situations as glamorous and become engaged in them, apparently by consent, and then seriously regret it. I fear that if this is written into statute it will simply give licence to behaviour which at present is held in check.

Even more serious, it would give an opening to those who would threaten and coerce young people into unwanted sexual behaviour. The abuser would of course say that the young people had consented but, as the noble Baroness, Lady Thornton, pointed out, older abusers often use the power of a relationship to put people in fear and therefore say that they had given their consent.

Let me give an example of a group of 16 and 17 year-old young men who, together with younger people of 14 and 15, were being photographed and the photographs sold. These people believed that the photographs were being taken and shared between friends, but they called Childline because they became anxious about the wider distribution of the photographs. They would not give names. It was only by using the information they did give and through good contact with the police that we were finally successful in bringing a prosecution.

These were not simple issues. There was a complexity of understanding among the young people as to what the photographs would be used for and their subsequent discovery that they would be used more widely. Even if young people of 16 believe that they have consented to such photographs, it can destroy their lives. They will deeply regret in the future the photographs being taken, especially, as the noble Baroness, Lady Thornton, pointed out, when they discover that they have been distributed across the world through the Internet.

Imagine how you would feel if it was your child in these pictures. They are not pretty. They are extremely sordid and sexually explicit. Very often young people may appear to have given consent, but I have listened to them sobbing on the lines at Childline and talking about how they would like to redress and retract what has happened once they understand the full nature of what their apparent consent involved. I am a great believer in children's rights and children making their own decisions, but the young people we are discussing are often vulnerable. I do not believe that they are wise or experienced enough to understand the implications of what they are saying by means of consent. Therefore, I ask the Minister to leave the age of consent at 18 and not reduce it to 16 under any circumstances, however narrowly defined.

9.45 p.m.

Lord Monson

I oppose Amendment No. 285A, not least because it is wholly incompatible with the determined opposition of the Government and of most, though not all, Labour Back Benchers to the valiant efforts of Lady Young, in earlier Bills relating to sexual offences, to protect 16 and 17 year-olds. The noble Baroness, Lady Noakes, put the question much more tactfully and obliquely, but if it is considered that a 16 year-old girl is mature enough to consent to being sodomised, with all the physical dangers involved, by definition she must be mature enough to consent to having a photograph taken. That involves no physical dangers and, for the most part—although the noble Baroness, Lady Howarth, might dispute it—fewer psychological dangers, too.

I also have reservations about Amendment No. 286, but in view of the fact that the noble and learned Lord, Lord Falconer, has added his name to it, it would be a waste of the Committee's time to explain exactly why. Will he clarify two questions, however? Will there be a defence for someone who takes a photograph assuming that the girl in question—it will usually be a girl—is 18 or 19 when she is in fact 16 or 17? Secondly, what is a pseudo-photograph? The interpretation Clause 81 refers us to the Protection of Children Act 1978. I dashed down to the library to look up that Act; it is quite short, but nowhere in it does the phrase "pseudo-photograph" appear. I would be grateful for clarification of that point.

Baroness Blatch

I speak in support of the amendment tabled by the noble Baroness, Lady Thornton. As a Home Office Minister, the subject was part of my portfolio, and I remember receiving a great deal of unsolicited mail through the post from vulnerable people who had themselves received unsolicited mail through the post. Many of them were elderly, and they were extremely distressed.

Those people asked me what I was going to do about the problem, but I was given a standard answer that it was an acceptable level of pornography. I discovered to my horror that in urban places such as London, Manchester, Leeds and other major cities where such cases came to court, every time the case was made that this was an acceptable level of pornography that was permitted to be in circulation, that became case law for the whole of the country.

One day, I said to officials in my department, "I want you to put on my desk what is an unacceptable level of pornography, so that I can see the borderline between what is acceptable and unacceptable". I was staggered by what was considered to be legitimate and acceptable. I had to do a double take at the brown envelope that arrived on my desk, which I was forbidden to take out of the office. I saw what I believed to be young people between the ages of 14 and 16 in the most horrendous guises in these illustrations. Some or many of the photographs were actual photographs, as were the videos. There is some pretty unsavoury stuff in circulation.

I understand where the noble Lord, Lord Monson, is coming from. Like him, I believe that there is an inconsistency when Parliament lowers the age of consent and will fight to the death to remove Clause 28, and so on, but will argue against the amendment tabled by the noble Baroness, Lady Thornton. That really is inconsistent. It is for that very reason that I want to be consistent. I believe that 16 year-olds today are schoolchildren. These days very few leave school at 16. The Government are doing what they can to persuade that tail end of young people who try to leave school at 16 to stay on.

When the age of consent was lowered we legalised buggery on girls of 16, 17 and 18 years-old. However inconsistent that is, I want to be consistent. I believe that we as a Parliament should consider the protection of 16 and 17 year-olds. I want to do that.

We simply cannot go on wringing our hands about all the terrible things that are happening to our young people such as the high incidence of sexually transmitted diseases and teenage pregnancies which are, we are told, more prevalent in this country than any other, while allowing pornographic photography under the law. The noble Baroness, Lady Thornton, made an extremely good speech in which she referred to the nonsense of something being unlawful under the Bill if it is passed being lawful before the Bill is passed. There are many such nonsenses. I believe that for the sake of consistency we should prevent people younger than 18 being involved in the kind of material we are discussing. For all sorts of reasons including coercion, intimidation and the power relationship between two people or often a group of people, people may act in a particular way. However, in the cold light of day they become rueful about what has happened. All kinds of consequences flow from such situations. I support the noble Baroness, Lady Thornton.

Lord Falconer of Thoroton

The purpose of the clause overall is to extend the Protection of Children Act 1978 to cover photographs and pseudo-photographs of children aged 16 and 17. Therefore, the clause extends protection in that regard. I say to the noble Lord, Lord Monson, that a pseudo-photograph is an image, whether made by computer graphics or otherwise, which appears to be a photograph. I hope that that is of some assistance.

We provide an exception to the extension to 16 and 17 year-olds for a person to make, take or possess indecent photographs of children aged 16 and 17 with their consent. The exception is very limited and is designed to ensure that the photographs are seen only by the person who took the photograph and the person in the photograph. It prevents any kind of distribution.

Amendment No. 285A, supported by the noble Baronesses, Lady Howarth and Lady Blatch, would remove that exception so that it would always be an offence to take an indecent photograph of a child of 16 or 17 and it would always be an offence to possess such a photograph even if the two people concerned were married. The amendment would permit no distribution of such photographs if they were taken by a husband of his wife or by a wife of her husband. Under the amendment such distribution would constitute a criminal offence.

I recognise that this is a very difficult area but as the noble Lord, Lord Monson, and the noble Baroness, Lady Noakes, said, the age of consent for sexual activity in this country is 16. It is not possible not to reflect that to some extent in the Bill. We have done so by, as the noble Baroness, Lady Noakes, put it, including as limited an exception as is sensible, but one which reflects the existing law. We think that we have the balance about right in terms of dealing with the exception I mentioned where there is absolutely no distribution of the material.

The examples given by the noble Baroness, Lady Howarth, would be unlawful. As I understood the first example she gave—I may have misunderstood it—there was distribution of the picture she mentioned for the purpose of prostitution. Obviously, that would be an offence under the Bill as there was distribution other than to the person who consented. I understood her second example also to involve distribution. It would in addition be unlawful as some of the subjects of the photograph were, as I understood it, under 16. We are talking here only about 16 and 17 year-olds.

For those reasons. I am afraid that the Government are not attracted to Amendment No. 285A. However, the reasons why we support Amendment No. 286 are perfectly clear. The argument for it was put well by the noble Baroness, Lady Noakes, and we are persuaded by it.

Baroness Thornton

I thank Members of the Committee who supported my amendment. The inconsistencies are in Clause 59. As narrowly drawn as the exceptions may be, they do not recognise the reality of the modern world. When my noble and learned friend says that the distribution of the photographs will be limited to the person who takes them and the person who takes part in them, he is not recognising the realities of the modern world, or of young people's relationships and what happens when 15 year-olds, 16 year-olds and 17 year-olds fall out with each other. In my view the exceptions are not narrowly enough drawn.

I accept that the issue about a man and wife—a young married couple—is a problem. Therefore, I am happy to withdraw the amendment on the basis that it is not right for that. However, we need to return to the subject, because I am not satisfied with the answer that I have received from the Minister. The limit that we may propose on the liberty of 16 year-olds and 17 year-olds not to be exploited in such a way is not satisfactory.

Baroness Blatch

Before the noble Baroness withdraws the amendment in order for there to be more reflection, I want to say that distribution smacks of a positive act. Someone physically and positively has to distribute. However, we all know that there are ways for photographs and material to be seen by other people. They can be left around; it can be made certain that people see them, but without someone necessarily having formally distributed them. The noble Baroness is very much more in touch with the real world. Other people would see the material, and proving distribution might be extremely difficult.

Baroness Thornton

I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Baroness Noakes moved Amendment No. 286: Page 24, line 28, leave out subsection (5).

On Question, amendment agreed to.

Clause 52, as amended, agreed to.

Clause 53 [Criminal investigations or proceedings]:

Baroness Thornton moved Amendment No. 287: Page 24, leave out lines 35 and 36.

The noble Baroness said: I thank the Minister for Amendments Nos. 288 and 289, which expand the reason for my amendment. At the moment, there is no defence in law to the charge of making a child pornographic image. The word "making" covers copying an image, say from a hard disc on to a floppy disc or a CD. That means, however, that even law enforcement officials and lawyers involved in a case cannot lawfully be handed copies of the evidence. There have been cases where that has been a problem. That is obviously ridiculous, and the effect of the amendment is to create a system that authorises a limited series of people to be able to make such images as their legal jobs require. I beg to move.

Lord Falconer of Thoroton

We support Amendment No. 287, tabled in my name and that of the noble Baronesses, Lady Thornton and Lady Noakes. It would remove the separate exception for the purposes of criminal proceedings from the clause. However, it is clearly necessary to allow for "making" images in the course of criminal proceedings, as the noble Baroness said. It may have been her intent to place "making", for the purposes of criminal proceedings, within the authorisation process. I agree that that is a helpful approach, and Amendment No. 288 would achieve that. I hope that the package is acceptable to the Committee.

On Question, amendment agreed to.

Lord Falconer of Thoroton moved Amendment No. 288: Page 25, line I, after "crime" insert ", or for the purposes of criminal proceedings,

On Question, amendment agreed to.

Lord Falconer of Thoroton moved Amendment No. 289: Page 25, line 14, at end insert— ( ) After Article 3 of the Protection of Children (Northern Ireland) Order 1978 (S.I. 1978/1047 (N.I. 17)) insert—

"EXCEPTION FOR CRIMINAL INVESTIGATIONS OR PROCEEDINGS 3A. (1) It is not an offence under Article 3(1)(a) for a person to make an indecent photograph or pseudo-photograph of a child in accordance with an authorisation under this section. (2) An authorisation may be given only if it appears to the person or persons giving it to be necessary for the purposes of the prevention, detection or investigation of crime, or for the purposes of criminal proceedings, in any part of the world, or for any particular purpose falling within those purposes. (3) An authorisation—

  1. (a) must be in writing,
  2. (b) must specify the person to whom it is given and the purpose or purposes for which it is given, and
  3. (c) may specify conditions to which it is subject.
(4) An authorisation may be given by—
  1. (a) the Chief Constable of the Police Service of Northern Ireland,
  2. (b) the Director General of the National Crime Squad,
  3. (c) the Director General of the National Crime Intelligence Service,
  4. (d) the Commissioners of Customs and Excise, or
  5. (e) the Director of Public Prosecutions.""

The noble and learned Lord said: This amendment extends to Northern Ireland the defence to making indecent photographs of children, the defence being that such acts are necessary for the purposes of criminal proceedings and are authorised. There is no policy difference between the operation of the defence in England and Wales and its operation in Northern Ireland. The amendment ensures that policy determined by the Bill on this issue can apply equally and offer the same protection to those investigating child sex offences in Northern Ireland as to their counterparts in England and Wales. I beg to move.

On Question, amendment agreed to.

Clause 53, as amended, agreed to.

Lord Grocott

I beg to move that the House do now resume.

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

House resumed.

House adjourned at one minute past ten o'clock.

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