Lords Sitting of 2 June 2003

Preamble
The House met at half-past two of the clock: The LORD CHANCELLOR on the Woolsack.
Prayers—Read by the Lord Bishop of Chester.

Special Advisers
Lord Sheldonasked Her Majesty's Government:
Following the publication of the report of the Committee on Standards in Public Life Defining the Boundaries within the Executive: Ministers, Special Advisers and the permanent Civil Service, whether they intend to introduce legislation to cover the Civil Service and special advisers.
The Minister for the Cabinet Office and Chancellor of the Duchy of Lancaster (Lord Macdonald of Tradeston): My Lords, the Government greatly appreciate the work carried out by Sir Nigel Wicks and the Committee on Standards in Public Life in its report Defining the Boundaries within the Executive published in April. As I made clear in my Answer to a related Question on 29th April, the Government are giving careful consideration to the committee's report and will respond in due course.
Lord Sheldon: My Lords, I thank my noble friend for that reply. Can he say when we will get a Civil Service Act? Are we going to get it in this Session or even in the next? Is he aware that some special advisers have been bringing pressure to bear on civil servants which has limited their impartiality? That impartiality lies at the root of the Civil Service operation, as emphasised by the Fulton committee on the Civil Service and repeated many times since. Does my noble friend accept the recommendation of the Wicks committee that it is not right for special advisers to be temporary civil servants? They need to be defined as a category of government servant distinct from the Civil Service.
Lord Macdonald of Tradeston: My Lords, we await the imminent release of the issues and questions document from the Public Administration Select Committee which has been promised. We also await the review being conducted by Robert Phillis and his group, which is a radical and free-standing review into the organisation of the Government's information services. We are also committed to replying to Sir Nigel Wicks, whose report arrived less than two months ago. So there are a number of inquiries and reviews still in progress. The Government look forward to their decisions being informed by them.
Lord Campbell of Croy: My Lords, does the Minister recall the debate in the House on this subject, initiated by me, in which there was general agreement
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that legislation was needed to define the status and functions of special advisers'? The report repeats that point.
Lord Macdonald of Tradeston: My Lords. I do not resile from any commitment to Civil Service legislation. However, I am responsible for the Better Regulation Task Force, an independent body which constantly insists that departments should look for alternatives to legislation, such as codes or guidance. Many of the suggestions put forward by noble Lords and others might be dealt with through other forms of legislation, including codes of conduct for special advisers or ceilings on the number of special advisers which could be dealt with through amendments to Orders in Council.
Baroness Goudie: My Lords, has my noble friend read the report of the interview given by Sir Andrew Turnbull in the Financial Times on 14th May in which he said that the Civil Service is now achieving better results than in 1997? Does he agree with Sir Andrew that Whitehall can push ahead with improvements only if it creates an effective working partnership with other parts of the public and private sectors?
Lord Macdonald of Tradeston: My Lords, in my two years at the Cabinet Office I have certainly been very impressed by the commitment to reform of, first, Sir Richard Wilson, and now Sir Andrew Turnbull. There is no doubt that the Civil Service is engaged in a thorough process of reform. I am not suggesting that that process started in 1997—it has been in train for many years now—but it is designed to uphold the impartiality, integrity and honesty to which my noble friend alluded in his opening Question.
Lord Neill of Bladen: My Lords, the Minister referred to Sir Nigel Wicks, the chairman of the Committee on Standards in Public Life. I was his predecessor. We made a recommendation in 2000 that there should be a Civil Service Act, to which the Government replied:
"The Government remains committed to the introduction of Civil Service legislation … No Government is, however, able to commit itself firmly to a detailed timetable in respect of the future legislative programme".
That was in July 2000. How long will this commitment not be fulfilled?
Lord Macdonald of Tradeston: My Lords, those with the experience of the noble Lord, Lord Neill, will not be surprised by the ministerial answer that we cannot anticipate what might appear in a forthcoming legislative programme. Nor will he be surprised to hear that governments have changing priorities which press down on every Session of Parliament. If changes can be taken forward outside of primary legislation, I recommend, as a matter of good practice, that the Government should adopt that approach, informed of course by the reviews and reports that we have in hand.
Lord McNally: My Lords, is the Minister aware that it will come as no surprise to many of us that the Government are developing new priorities so far as concerns a Civil Service Act? As the noble Lord, Lord Neill, pointed out, the Government's pledge is more than six years old and has been contained in several reports already, including the report of the committee of the noble and learned Lord, Lord Slynn, into the public service, on which I served in 1997. In these dying days of his role as Minister, is the noble Lord content to rest on committee inquiry after committee inquiry, or will he not say now that it would be better to have a draft Civil Service Bill, which could be published and debated, on which he could join us from the radical Back Benches, as soon as possible, to campaign for its implementation?
Lord Macdonald of Tradeston: My Lords, I certainly hope that this is the last time I have to reply to questions on the future of the Civil Service. However, we have a very active Public Administration Select Committee, under the very able chairmanship of Tony Wright, which has promised to give us guidance on this issue. I understand it will be publishing a report within the next day or two although I cannot anticipate the contents. In response to an earlier request by the Select Committee we set up the review under Bob Phillis which we hope will be reporting in the autumn on reform of the Government's information services and on the role of special advisers in relation to that.
We have put a great deal of work in train. Given the longevity of this great debate on the nature of the British Civil Service, I ask the noble Lord, Lord McNally, to wait a little longer. From the Back Benches, I shall be very happy perhaps to nod approvingly at what he says.
Lord Peyton of Yeovil: My Lords, the Minister's opening words that the Government were considering the report and would in due course reply are hardly original. They make us all feel very comfortable with the exceedingly familiar. However, would it not be possible to describe such inertia in slightly different words?
Lord Macdonald of Tradeston: My Lords, I found it easier in my previous profession as a journalist to be more ambitious with language than one is allowed to be as a Minister. My original Answer was not meant to be entirely soporific. I wanted to point out that we were considering a report which had been 18 months in the making and which we received less than two months ago. To repeat what I said: we shall give it very serious consideration. It is a very full piece of work and will sit alongside the other work being carried out by Bob Phillis and by the Public Administration Select Committee.

Iran: Nuclear Weapons Programme
2.45 p.m.
Lord Wallace of Saltaireasked Her Majesty's Government:
How serious a threat they consider the development of uranium enrichment facilities within Iran poses.
Baroness Crawley: My Lords, we have longstanding concerns about Iran's nuclear weapons ambitions. Reports of the development of uranium enrichment facilities heighten those concerns. The Director-General of the International Atomic Energy Agency (IAEA) visited Iran in February this year. His report, presented in March, was discussed at the Board of Governors of the IAEA meeting that month. Further discussion of Iran's nuclear programme is scheduled for the next governors' meeting in June. The UK will play an active role in highlighting our concerns at that meeting.
Lord Wallace of Saltaire: My Lords, I thank the Minister for that reply. I believe that all in this Chamber recognise that there are real concerns about Iran's nuclear weapons programme. Does she agree that to pursue this multilaterally through the International Atomic Energy Agency is the right way forward? Apparently exaggerated estimates of what is going on, put about by exiled groups in Washington, strike some of us as alarmist and perhaps sound a note of familiarity with what we have been suffering as regards Iraq in the past year. Does the Minister recognise, too, that proposals floated in the press and elsewhere in Washington that unilateral bombing by either American or Israeli fighters to take out the facilities would be something which Her Majesty's Government would immediately condemn?
Baroness Crawley: My Lords, yes, I agree with the noble Lord, Lord Wallace of Saltaire. As his Question implied, we shall pursue this matter with great seriousness through the IAEA. We look forward to Dr El-Baradei's report to the Board of Governors of the IAEA in June. We will encourage Iran to sign up to and implement the additional protocol to the IAEA safeguards agreement and urge it to be open and fully transparent with the inspectors, and to allow access to the sites.
Lord Astor of Hever: My Lords, what action are the Government taking with the Russian Government and the former Soviet successor states to ensure that they do not supply Iran with enriched uranium?
Baroness Crawley: My Lords, we do not consider it appropriate for Russia to supply nuclear fuel until Iran has signed and implemented the additional protocol that I spoke of in my second answer to the noble Lord, Lord Wallace of Saltaire. We would encourage Iran to

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sign up to it and to bring the safeguards agreement into force as soon as possible. We also welcome recent Russian assurances that it shares this view.
Lord Marsh: My Lords, does the Minister agree that the core of this problem is the steady proliferation of countries which are now perfectly capable of producing enriched uranium? Can she give an indication of how many there are? We cannot simply work on the assumption that after Iraq, Iran is next and then another country after that.
Baroness Crawley: My Lords, I cannot give a precise answer. I shall write to the noble Lord with as precise an answer as I hope will satisfy him.
Baroness Whitaker: My Lords, another alarming matter about Iraq is the human rights situation. What pressure can the Government bring to stop the public executions and the stonings for adultery which are a feature of its justice?
Baroness Crawley: My Lords, while thanking my noble friend for that question, I am reminded by the Leader that it is slightly wide of the initial Question about uranium enrichment facilities. However, that has not stopped us in the past. I am pleased to say that we have seen some improvement in the Iranian human rights situation. Since President Khatami was first elected in March 1997, there have been a number of significant improvements in Iran's human rights record. However, we still have concerns. We have concerns as regards halting torture, amputations and stoning. We have concerns, too, about accusations of subjugation of some religious minorities, about freedom of expression and, to some extent, about conditions for women.
Lord Avebury: My Lords, as regards all states that decline to allow the International Atomic Energy Agency to inspect their plants, is it not possible for those states which have satellites to make available the imaging technology so that pictures of alleged clandestine sites can be examined and submitted to expert analysis in order to determine whether they contain centrifuge enrichment plants?
Baroness Crawley: My Lords, I always listen very carefully to what the noble Lord has to say on these matters as it is always worth doing so. I am sure that the IAEA in following up some of the accusations may well consider that course of action.
Lord Campbell-Savours: My Lords, are we not placed in rather a difficult position when the Russians are accused of being involved in the Iranian nuclear programme and when the Americans were involved in the North Korean programme? People throughout the peace movement in this country have now latched on to that issue.
Baroness Crawley: My Lords, every country has to be looked at differently as regards problems with
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proliferation. We try to persuade countries through peaceful means as far as possible and through dialogue. That is why we have a critical engagement with Iran on this matter. Russia supplies the civil nuclear programme in Iran.

Prison Sentences
2.51 p.m.
Lord Taverneasked Her Majesty's Government:
What evidence they have that longer sentences are an effective deterrent to crime.
The Minister of State, Home Office (Lord Falconer of Thoroton): My Lords, deterrence is not the only purpose of sentencing. Reconviction rates are lower for those who serve longer terms of imprisonment than for those who serve shorter terms. That, however, reflects a number of factors and deterrence cannot readily be isolated. It is difficult to obtain reliable empirical evidence on the deterrent effect of sentencing severity but it is clear that the choice of some potential offenders as to whether o offend is influenced by their perception of the risks and consequences of being apprehended and punished. This suggests that increased sentence severity can have some specific effect on sentenced offenders and a general deterrent effect on the general population.
Lord Taverne: My Lords, although I concede that there is no very direct and clear evidence of any relationship in this regard, if one compares the penal regimes of the rest of the European Union, where sentences are in general much shorter than they are here, with those in the United States, where sentences are much longer, does that not undermine the whole basis of the Home Secretary's addiction to ever longer sentences? Is it really his view that sentencing policy should be determined by popular acclaim or by the Daily Mail? Does he really want to move closer to the penal regime of the United States?
Lord Falconer of Thoroton: My Lords, the Home Secretary's view is that sentencing should be effective. It should be effective in terms of stopping reoffending and it should have the confidence of the public. That is not a populist approach. It is always dangerous to mention statistics in this area. For example, in America sentence lengths have gone up and crime has gone down, but I am the first to say that a simplistic conclusion should not be drawn from that. As I say, the right approach is that sentencing should be effective in reducing reoffending. We are introducing a range of measures in the Criminal Justice Bill to make sentencing more effective.
The Lord Bishop of Portsmouth: My Lords, following the supplementary question of the noble Lord, Lord Taverne, do the Government agree that more important than length of sentence is rehabilitation policy within the Prison Service?
Lord Falconer of Thoroton: My Lords, there is no one simple answer to that. In some cases long

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sentences are plainly required, for example, for public protection. But as important as length of sentence is what happens when an offender comes out of prison. If there is no support in relation to housing, family relationships and drug and alcohol abuse, there is likely to be more offending. We must be practical in ensuring that correctional options are effective in reducing reoffending. That is where the focus should be, not favouring one particular sentence over another.
Baroness Trumpington: My Lords, I believe that the Minister referred to the confidence of the public. Would I be right in thinking that the confidence of the public is sadly led astray when one sentence is given in one part of the country and a totally different sentence is given for the same offence in another part of the country? I think particularly of people being injured or killed through dangerous, ghastly driving. Does the Minister agree?
Lord Falconer of Thoroton: My Lords, I agree with the premise underlying the noble Baroness's question; namely, that if sentences are completely different in one place as opposed to another people will not have confidence in the system as they will believe that where one is sentenced will affect the length of sentence that one receives. We believe that consistency is very important. It is important that communities believe that the sentences imposed will protect them and are sensible in terms of reducing reoffending. I come back to that point time and time again.
Lord Corbett of Castle Vale: My Lords, is not a system which delivers two-thirds of prisoners back into prison within two years a system that is failing? What extra efforts is my noble and learned friend making to encourage courts to give more serious attention to non-custodial sentences? All the evidence shows that, where targeted and properly resourced, non-custodial sentences are much more successful in avoiding reoffending on the part of people who have completed their sentences.
Lord Falconer of Thoroton: My Lords, as regards both community sentences and custodial sentences the aim must be to reduce reoffending. That is why much time, effort and resources are devoted to training people whether they are serving a community or a custodial sentence and in introducing offender behaviour programmes to make people face up to their offending behaviour. That applies just as much to those on community sentences as to those on custodial sentences. In both frameworks more work needs to be done to try to reduce reoffending.
Baroness Sharples: My Lords, does the noble and learned Lord consider that tagging is an effective deterrent compared with prison?
Lord Falconer of Thoroton: My Lords, tagging is an effective and sensible way of dealing with people who
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are granted bail without imposing a custodial sentence to try to ensure that they do not commit further offences while on bail. Tagging allows such people to go back into the community with proper surveillance and supervision. It plainly has a part to play in our correctional policy.
Lord Stoddart of Swindon: My Lords, the prison population is projected to reach 100,000, which is 30,000 more than it is at present. What will be the extra cost of building new prisons to house those extra 30,000 prisoners? Is the 100,000 projection the highest figure that is considered by the Government and, if not, what is that figure?
Lord Falconer of Thoroton: My Lords, I have always said that it is unwise to comment on prisoner projections over the next few years as they always turn out to be inaccurate in some respect. It is projected that there will be more people in prison. For that reason in the previous Budget the Chancellor of the Exchequer made in excess of £100 million available to provide more prison places. We must ensure that there are enough prison places for those whom the courts send to prison. But, as I say, it is for the courts to decide what the appropriate sentence is; it is for the Government to ensure that those sentences can be delivered.
Lord Ackner: My Lords, does the noble and learned Lord agree that until you have effectively tackled overcrowding in prison these pious hopes to reform the experience of prison are not likely to be realised?
Lord Falconer of Thoroton: My Lords, I do not agree with that proposition. I refer to the work that has been done by the Prison Service under the leadership of Martin Narey in relation to the vast increase in the number of educational programmes, the vast number of offender behaviour programmes and the decrease in the reoffending rate. That shows that the pessimistic prognostications of the noble and learned Lord are wrong.
Lord Pilkington of Oxenford: My Lords—
The Lord Privy Seal (Lord Williams of Mostyn): My Lords, I am afraid that we have run out of time. The noble Lord, Lord Blaker, has an important Question.

Convention on the Future of Europe: Referendum
2.59 p.m.
Lord Blakerasked Her Majesty's Government:
Whether they will hold a referendum on the proposals resulting from the European convention.
Baroness Crawley: My Lords, as the Prime Minister has made clear, the Government see no case for having a national referendum on the proposals for a

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constitutional treaty for the European Union. A new constitutional treaty would require to be ratified in accordance with the individual constitutional arrangements of each member state. The Government are committed to our system of parliamentary democracy in Britain, whereby Parliament rigorously scrutinises any new treaty before it is ratified. Or, to be succinct, no.
Lord Blaker: My Lords, does the noble Baroness recall that, in rejecting the proposal for a referendum, the Government described the work of the convention as a tidying-up exercise? Is she aware that the distinguished president of the convention, Mr Giscard d'Estaing, an ex-president of France, has described the convention as in his view being comparable to that of the founding fathers on the constitution of the United States of America?
Is the noble Baroness also aware that three members of the presidium of the convention are ex-prime ministers of European countries, and two are ex-foreign ministers of European countries? Does she think that, if they had been told that they were going to take part in a tidying-up exercise, they would have accepted, or would they have insisted that it be something much more important?
Baroness Crawley: My Lords, the Government take the work of the convention extremely seriously. As noble Lords will know, the convention is looking at ways to identify how the EU can become more effective and able to deliver with a membership of 25 and more countries. We do not dismiss the work of the convention in any way, as I rather thought was implied by the noble Lord's follow-up question. The Prime Minister himself said of the convention:
"The objective for Britain, from the Convention, should be a Europe that is strong, effective and democratic".
We are very positive about the work of the convention. In this House, with the noble Lords who are actively involved in the convention, we have an embarrassment of riches.
Lord Wallace of Saltaire: My Lords, does the noble Baroness understand the Question as meaning that the Conservatives would like to have a referendum on the outcome of the convention, and then another on the outcome of the inter-governmental conference after the further negotiation? Would the Government not provide greater help to public opinion if they were to make sure that there was a worthwhile information campaign on proposals as they come out from the convention? When may we expect a White Paper and some very thorough parliamentary scrutiny of the outcomes of the convention over the summer?
Baroness Crawley: My Lords, I absolutely agree with the noble Lord on ensuring that we have a treaty that is not complex and overlapping but simple and clear, and that can be a very important information document in itself. That is an important aim of the Government. I am sure that there will be a good information campaign, but we are at a very early stage.
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The draft treaty will be put to the summit in Thessaloniki later this month. It will then be discussed at great length, I am sure, by the inter-governmental conference later this year and into next year. Then it will be scrutinised by both Houses of Parliament. It is early doors.
Lord Carter: My Lords, is my noble friend aware that a number of us are rather puzzled by the newfound Conservative enthusiasm for a referendum on the European convention? I believe that there was no referendum on the Single European Act or the Maastricht Treaty. My memory is not as good as it was. When did a Conservative government, or indeed a Liberal government, last allow a constitutional referendum?
Baroness Crawley: Never, my Lords.
Lord Lamont of Lerwick: My Lords, on the very point that has just been raised, would the noble Baroness not admit that the previous Conservative government promised a referendum on the single European currency, which was the most important outcome of the Maastricht Treaty? To say that that government did not promise a referendum on the Maastricht Treaty is therefore completely untrue.
What is the Government's reply to the remarks of Mr Dini, a former prime minister of Italy, who this weekend said that if Mr Blair says that the convention is merely tidying up he is trying to deceive the British people?
Baroness Crawley: My Lords, I am afraid that I did not hear the remarks to which the noble Lord refers, so I cannot respond to them. On his becoming slightly aerated about the record of former Conservative governments on the issue, I am sure that noble Lords appreciate delivery rather than promises.
Lord Hogg of Cumbernauld: My Lords, does my noble friend recognise that, on these not-quite-so-radical Back Benches, there are those of us who are pro-European but none the less in favour of a referendum on this important matter, recognising that the Government have set precedents for referendums? There were referendums ahead of devolution in Scotland and Wales, there are proposals for referendums on regional authorities, and we are promised a referendum on the euro. Has the precedent not been set that how the people are governed, and the arrangements for government, are put before the people in a referendum? Why have the Government changed their mind?
Baroness Crawley: My Lords, my noble friend obviously feels very strongly on the issue. However, I have to say to him, as I said to the noble Lord, Lord Blaker, in my original reply, that in Britain a national referendum is only for exceptional changes to our system of government. We had referendums so far as Scotland and Wales were concerned, as my noble

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friend mentioned, but that was because there was a considerable and fundamental change in the way those new nations were to be governed.
Noble Lords: Oh!
Baroness Crawley: My Lords—if I can make myself heard—there is no suggestion that the draft constitution being debated by the Convention on the Future of Europe will lead to significant changes in the relationship between the European Union and its citizens.

Taxation (Information) Bill [H.L.]
3.7 p.m.
Lord Saatchi: My Lords, I beg to introduce a Bill to make provision for public information about the burden of taxation, for a public holiday in each calendar year to mark in symbolic fashion the date on which the national burden of taxation may be said to have been discharged, and for connected purposes. I beg to move that this Bill be now read a first time.
Moved, That the Bill be now read a first time.—(Lord Saatchi.)
On Question, Bill read a first time, and ordered to be printed.

Business of the House: Standing Order 41
Lord Williams of Mostyn: My Lords, I beg to move the Motion standing in my name on the Order Paper.
Moved, That Standing Order 41 (Arrangement of the Order Paper) be dispensed with on 17th June to allow the Motion standing in the name of the Lord Lester of Herne Hill to be taken before the two Motions standing in the name of the Lord Sainsbury of Turville.—(Lord Williams of Mostyn.)
On Question, Motion agreed to.

Sexual Offences Bill [H.L.]
Report received.
Lord Campbell of Allowaymoved Amendment No. 1:
Before Clause 1, insert the following new clause—
"DEFENCE OF HONEST BELIEF AS TO CONSENT
The provisions of this Act as concerns England and Wales shall not abrogate the jurisdiction of the judiciary to entertain the defence of honest but mistaken belief as to consent as judicially established, and to ensure that an accused who had no guilty mind should not be convicted."
The noble Lord said: My Lords, I am grateful to the noble and learned Lord, Lord Ackner, for his support. We were on the western circuit together after the war, conducting at times this very sort of case on assize or
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a Court of Session long before the defence asserted by the amendment had been established by the Appellate Committee of this House in 1975.
I am particularly fortified by the presence of the noble and learned Lord, Lord Lloyd of Berwick, who spoke with authority on Second Reading and in Committee when there was a substantial division of opinion. On this matter, one defers—at least I do—to the expertise of noble and learned Lords and to the common sense of this House as to fair play.
If the amendment were to commend itself, it would slight the structure of seven clauses of the Bill. It would conflict with the amendments to Clauses 1, 3, 5 and 7, as implemented by Clauses 77 to 79, tabled by the noble and learned Lord, Lord Falconer of Thoroton, and others. Your Lordships may consider it appropriate at all events that the amendment be debated in principle at the outset to save the tedium of repetition and to try to clear the day.
As to when this conflict of principle, for that is what it is, will be resolved, one defers to the sense of this House. The fundamental objection to the abolition of the defence of honest belief as to consent has not been removed by any of the amendments—especially those tabled by the noble and learned Lord, Lord Falconer of Thoroton.
Those amendments substitute an abstract reasonable expectation of doubt for the actual guilty intent of the accused. The decisions of the Appellate Committee of your Lordships' House established and applied this defence, which will be considered later, but only as to substance. Those decisions reflected our indigenous concepts of the due and fair administration of justice with which all your Lordships are familiar, as applied throughout the United Kingdom.
It is said that this defence, judicially established at the highest, has to be set aside to bolster up convictions only in England and Wales. On objective examination, no case has yet been made for the abolition of this defence. There are causes for the low conviction rate, which have been spoken to by the noble Baroness, Lady Mallalieu, the noble and learned Lord, Lord Ackner, and others, whose speeches in Committee have not been called in question. Apart from enhancing the risk of erroneous convictions, tinkering with the presumption of innocence and tampering with juries as arbiters of the actual guilty intent of the accused, abolition is not justified. It would constitute an unwarranted trespass of the executive on the functions of the judiciary over which this House stands as sole guardian.
The common sense, simple, straightforward question to be resolved by your Lordships is the justification for the abolition of that defence. It may not be pre-empted as a matter of convenience to enable the Government to have their business, or to even up the odds on the rails at the "tough on crime" selling plate. Your Lordships may either support or reject clauses and amendments whose effect will abolish this defence.

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As to the causes of the low conviction rate, I refer in particular to the failure of the Crown Prosecution Service to instruct counsel with appropriate experience to advise on the prospects of success before settling the indictment. There is a failure to advise on evidence or to have the conduct of the case in court as was once the practice, as most noble Lords will remember from their younger days. Now a case goes to trial on a sort of in-house assessment as to whether it is credible lest criticism for an action engenders unwelcome publicity.
As to the salient issues, why was this defence judicially established? How has it been judicially applied? Why should it be abolished? Are the consequences of abolition acceptable? Should the scales be weighted against acquittal in favour of conviction—the collateral damage of unintended consequence? Have the Government made out a case?
As to the first question, the defence, as explained by the noble and learned Lord, Lord Lloyd of Berwick, was established in 1975 by the Appellate Committee to seek to ensure that the accused who had no guilty mind should not be convicted. It was applied by another decision of the Appellate Committee in 1999 on indecent assault in which the noble and learned Lord, Lord Bingham of Cornhill, gave the leading opinion. It was decided unanimously that belief, if honest, did not have to be reasonable, albeit unreasonableness would cast doubt on whether the belief was genuine.
In February this year, the High Court of Justiciary in Scotland decided that this defence was separate and distinct, and to be put to the jury as such: the Crown has to satisfy the jury beyond reasonable doubt either that the belief was not genuine or that there was no such belief.
Why should those decisions be set aside? Is not the burden on the Government to justify setting aside by some reasoned argument?
As to the consequences of abolition, Clauses 1, 3, 5 and 7, whether or not they are amended as proposed, remove the presumption of innocence and, as implemented by Clauses 77 to 79, shift the burden of proof to the defence to show that in all the circumstances the accused could not by an abstract standard of reasonableness have been expected to have a doubt as to consent. Even if he honestly believed that there was consent, the jury may not acquit in such a case. That is a complex direction to be given to the jury that sets aside the decisions of the Appellate Committee in your Lordships' House and the High Court of Justiciary—a complexity of direction, compounded with compulsory presumptions of non-consent. Again, is this not but a Setting the Boundaries placebo beyond the reach of justice as administered generally throughout the kingdoms? Is the reason given for that wholly exceptional proposal justifiable?
As to the collateral damage of unintended consequences, that could well have been foreseen, but I do not suggest that it was. It is the enhancement of the risk of erroneous conviction, spoken to by the noble Baroness, Lady Mallalieu, and the noble Lord, Lord Campbell-Savours, on Second Reading and in Committee. I am delighted to see that they are both in their places.
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Since then, there has been the Catlin case referred to in The Times of 11th April in which, after seven years' imprisonment, conviction for rape on a false accusation was quashed because the Crown Prosecution Service had failed to disclose evidence that could have cleared the accused. Who are the true victims of a rape trial: those whose evidence is not accepted by the jury or those erroneously convicted of false accusations, whose lives and livelihood are destroyed?
Have the Government made out their case? I believe that I may have spoken for some noble Lords on all sides of the House, lest even-handed justice be slighted by inhibiting the defence to secure more convictions. I beg to move.
3.15 p.m.
Lord Ackner: My Lords, I support the amendment. I put my name down to do so because it seems to me to isolate the very issue that runs through so many clauses and has produced so many varying amendments. It seeks to establish in clear terms between the two contests—should a defendant only be convicted if he realised that there was no consent; or should he be convicted if he made a mistake about that and should not have made that mistake? The matter has frequently been considered, but it arose from the Morgan case.
I shall make only a brief reference to the career of the Morgan case. After the decision, which required the proof of the guilty mind of the accused—that he did not honestly believe, a subjective test—a committee was set up especially to consider the validity of that decision because of some public outcry against it. That committee, the Heilbron committee, considered the matter in great detail and concluded that the law as adumbrated was sound. It was thereafter re-enacted, but with the additional proposition that the jury should take into account in considering the validity of the honest belief all matters that related to the reasonableness of what had happened.
That has now remained in existence for several decades without challenge. The Law Commission was invited to consider the matter some time ago. Properly, the Law Commission said that the choice between whether the test should be a subjective one—the guilty mind of the accused—or an objective one—what a reasonable person would consider appropriate—was essentially a matter of policy, having set out the arguments pro and con. It stated:
"The law, as stated … accords with the principles upon which criminal liability for serious crimes has habitually been fixed in England and Wales ('the Golden Thread').
"Where it is sought to derogate from this principle and to seek to establish criminal liability for rape on some or other degree of negligence, our view, as a principle of law reform, is that it must be demonstrated by the proponents of such a departure that it is necessary to remove a serious shortcoming in the way the law is applied in the courts.
"There is no such evidence. Accordingly, on that ground, we do not support that proposed change".

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That is strong stuff. It was saying: if you are going to depart from established principle, you must be able to justify that. You cannot justify it by protest or pressure groups, however well-meaning; you must have the material.
The arguments against altering were set out by the Law Commission with commendable succinctness. It stated:
"(1) A person should not be guilty of a serious criminal offence on the basis of strict liability or on the basis of negligence. Liability at this level of seriousness should be based only on intent on recklessness.
"(2) The burden is on those who argue for a change to an objective basis to demonstrate that persons are being inappropriately acquitted by running a bogus 'unreasonable belief defence. No such evidence has been produced. It appears that Morgan is not, in practice, a problem.
"(3) If the availability of the defence is based upon 'reasonableness', then whose reasonableness is being applied? Is it that of the defendant, the members of the jury, the person on the Clapham omnibus? The concept of 'reasonableness' has been a source of endless, and continuing, difficulty in relation to provocation in homicide … Any proposal to reform the law should not be lightly made which carries the risk of making it more complex and unpredictable.
"(4) This difficulty would be even more pronounced if, instead of a test of reasonableness, the test were to be akin to 'gross negligence', as a further level of complexity would be involved.
"(5) A modern jury, properly directed on the question whether the person did or did not have such a belief, will be well able to root out the true from the bogus defence of belief in consent. Anyway, it is seldom, if ever, that a defendant would put forward a defence that he had such a belief for which he acknowledged there were no reasonable grounds.
"(6) The rate of conviction for rape is … alarmingly low. Juries appear already to be uncomfortable in convicting men of a very serious offence in circumstances which appear to them to be ambiguous. If there were a rule of law that, however honest a belief, the jury had no option but to convict in the absence of reasonable grounds for it, a perception of unfairness might arise, which might result in fewer convictions than were the jury left themselves to judge whether an assertion of belief is genuine or just a fanciful story unworthy of belief".
On the first day in Committee, I sought to summarise the reasons why the conviction rate was low. I do not wish to go through all of those reasons again—noble Lords can read them in Hansard. They include the fact that the prosecution some time ago was penny-pinching and paid less to prosecuting counsel than was paid, under legal aid, to defence counsel, with the result that counsel rejected the prosecution briefs. My arguments varied from that to ill- preparation, to the absence of the need in practice to find some corroborative evidence, to bogus allegations for one reason or another and, lastly, to the law of unintended consequences. That involved the argument that in order to assist vulnerable witnesses it has been made permissible merely to read their statements, so the jury has no chance to see and evaluate the credit-worthiness of the complainant although it has the defendant's sworn evidence.
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In a sentence—
3.30 p.m.
Lord Campbell-Savours: My Lords, I am sorry to interrupt the noble and learned Lord but he has missed one very good reason that he gave in his contributions at Second Reading and in Committee. It was that the attitude of the jury to a penalty when it knew that if it was to convict on what it viewed as a lesser offence it would not be prepared to see a maximum penalty imposed.
Lord Ackner: Yes, my Lords, I pointed out that the defendant, having given his evidence in a seemingly sensible way, is supported at the back of the court by a wife weeping and two young children. The jury knows, because it has been hammered home so hard, that rape is a terribly serious case and that the starting rate is five years or thereabouts. I have no doubt that some will say that that is too long. They may be quite wrong, but that may be their sense. In all the circumstances, when the onus of proof is so high, the jury must be satisfied that it is sure. It is very easy for it to say, "We are not sure", and thus acquit.
For the reasons that I have set out, I strongly support the amendment.
Lord Lloyd of Berwick: My Lords, I regret to say that on this occasion I find it impossible to support the amendment of the noble Lord, Lord Campbell of Alloway, not for any want of good will—I have masses of good will—but for technical reasons. If Clause 1 is amended by leaving out subsection (3), which is the purpose of the next amendment of the noble Lord, Lord Campbell—Amendment No. 4—his new clause would simply be unnecessary. However, if Clause 1(3) remains as it is or is amended—that is proposed by the noble Lord, Lord Thomas of Gresford, and now by the Minister—the new clause would be wholly contradictory to what would then be subsection (3). To have contradictory provisions of that kind in the same piece of legislation would be a recipe for disaster. It is surely better first to see what view we will take of Amendment No. 2, which is the amendment of the noble Lord, Lord Thomas of Gresford, and Amendment No. 6, which is the Minister's amendment, before we make any further progress on this amendment.
Lord Thomas of Gresford: My Lords, the clause as drafted by the Government retains a subjective element. It is a defence that one had an honest and mistaken belief in consent, but to that is added the objective consideration that that belief be reasonable. We believe with the Government that a defendant should no longer even in theory be able to rely on an unreasonable belief. A balance must be struck between the interests of the complainant, who has suffered penetration without his or her consent—the first two elements of the offence of rape—and the interests of the perpetrator with regard to the third element; that is, his belief, or lack of belief, in the complainant's consent.

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On these Benches, we consider that it is unacceptable that a defendant should rely on a belief that is unreasonable and that he should be allowed to say, "I have an honest but mistaken and, I now recognise, entirely daft belief that the lady in question consented". She remains raped. It is wrong that he should walk away because of an unreasonable belief. However, we believe that it is for the jury to consider the reasonableness of his belief, having regard not to some hypothetical anthropormorphised reasonable man—the man on the Clapham omnibus—but to the reasonable conduct of the defendant and to all the surrounding circumstances of the actual offence. We believe that it is perfectly possible for a jury to come to sensible conclusions about what is or is not a reasonable belief.
I draw a parallel with the fact that the defence of reasonable self-defence is very well known. I have no doubt that Mr Tony Martin had an honest but mistaken belief that he was defending himself when he shot an intruder in the back. He thought then and, according to the press, still thinks today that he acted reasonably. A number of people in this country appear to agree with him. However, a jury objectively said that that was unreasonable. It was perfectly capable of coming to that conclusion, and we believe that juries arc perfectly capable of coming to a conclusion as to whether an honest but mistaken belief is reasonable or not. We oppose the amendment.
Baroness Kennedy of The Shaws: My Lords, I support what the noble Lord, Lord Thomas of Gresford, said. The issue is not, as the noble and learned Lord, Lord Ackner, described it, simply the Government's response to lobbying by interest groups. It is about the interests of women who at times believe that the law has not reflected their world view. Happily, over the past 10 years there has been a recognition of the ways in which the law has failed women because it was essentially created from a male perspective. There are certain areas of the law that show us that in a very pronounced way. One of those areas relates to domestic violence and the other relates to rape. That is the reason; it involves more than simply a response to lobbying groups. It involves any group, whether women in church groups, women and students, black women or white women. Women up and down the country feel failed by the rape laws as they stand.
The Government are seeking to find a way of gaining the confidence of half of the public that the law can work for them. When a man claims that he has a belief, that it might have been unreasonable but that it was honest, women up and down the country find that unacceptable, and we must listen to them. We seem to he seeking a thread which in some ways will exclude their world view.
As a practitioner, I know—it has been stated in previous debates—that the Morgan defence is rarely used. I, like others, have never heard anyone in the courtroom say, "She was saying no. She was screaming her head off. She was fighting and beating me. but I
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thought she liked it that way and so I proceeded to have sexual intercourse with her." That is not what is said.
Juries faced with a man saying "I didn't force her to have sexual intercourse" and a woman saying "Yes, he did" listen to the judge, who invariably directs the jury on Morgan even if it has not been raised.
The judge says to the jury, "Members of the jury, if this man honestly believes she was consenting, then he has a defence". It is that formula in the judge's summing up which leaves juries saying, "Even though he is not saying it, maybe he did honestly believe it although she was saying no". Therefore, on the balance between the two, they use it to acquit men who are clearly guilty of the alleged offence.
I found extraordinary, although I do not count this against him, that the noble Viscount, Lord Bledisloe, should have chosen an unfortunate but telling example from which to draw the principle. He said:
"If I am accused of stealing your property, it is a defence if I show an honest belief that I had a claim of right to that property. That is the general test of the criminal law". [Official Report, 31/3/03; col. 1069.]
And, of course, it is the general test of the criminal law. But what is extraordinary is applying a principle that relates to property to our personal and intimate relationships as human beings. I think we can look for other kinds of principle.
The question is whether the protection of human beings, not property, from a profoundly damaging experience might justify higher expectations in human behaviour and greater care and respect for the humanity of others. We are really talking about human rights. Human rights are not just about things that happen in the third world; they are about our relationships with each other.
Is the principle drawing on the experience of women as well as men? I am glad that the noble and learned Lord, Lord Lloyd of Berwick, one of our most eminent, retired judges, is here today. Speaking about rape, the noble and learned Lord sensitively enunciated its kernel when he said that,
"forcible penetration of the vagina is a corruption of the deepest and tenderest of emotions of which human beings are capable". [Official Report, 31/3/03; col. 1051.]
I am sure homosexuals do not feel any differently, even if their form of intimacy is different.
Forcing intercourse upon someone and securing their engagement in sexual activity through fear is a corruption of love-making. Although sometimes people may do it casually and sometimes without profound emotions attached to it, love-making remains for most of us an expression of our most profound emotions.
That is why sexual offences are so lasting in the damage they do to life. They contaminate what is precious. That is why sexual offences are different from property offences and why, when we have offences involving an abuse of intimacy and our most intimate and precious feelings, we may look for ways of dealing with them that may be different.

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That does not mean reversing burdens of proof. As noble Lords know, I feel strongly committed to the civil liberties of defendants in the courts. I do not want to see any reneging from the civil liberties that protect defendants accused of serious crimes. I do not want to see the reversing of burdens of proof or any undermining of the standard of proof in criminal cases. I do not want to see accused people having to prove they are innocent. But we should be prohibiting people from being negligent in their disregard for others when it comes to intimate abuse. If human rights mean anything, then we are walking on the terrain of human rights here. That is why this is important; it is not an issue to be left to lawyering or to the technocrat in the legal world. We are seeking to do something about what is wrong in the law. The fact that so few cases ever lead to conviction would mean that between 93 and 97 per cent of women were making this up. Of course that is not so. We know that men walk free having abused women and children. No doubt it happens in homosexual relationships too.
The reason for trying to make things better is that the law, as it is, is failing. I urge everyone to recognise the effort being made by the Government to put it right.
3.45 p.m.
Baroness Noakes: My Lords, it may help the House if I make clear the position of these Benches. In doing so I pay tribute to my noble friend Lord Campbell of Alloway for his tireless work on this Bill and the dedication he has shown in drafting amendments. However, we cannot support his amendment.
From the outset, we have been open to the possibility that the formulation of the existing law of rape should be changed to one involving reasonableness. Our caveats have been that any change has to be workable and effective. That is what many of our debates have centred upon.
My noble friend's amendment is an attempt to keep the law as it is. That is not something we find attractive. We think that the conviction rate for rape is such a serious issue that we should look to change the law. I was interested to hear the noble Baroness, Lady Kennedy, supporting that position.
We will be looking again at the Government's newest attempt in Clause 1(3) to deal with reasonableness, and at the version of the noble Lord, Lord Thomas of Gresford. We can debate the issues and detail at that point. We believe this House would spend its time better by finding an effective way towards a good reasonableness test than by trying to keep the law as it is.
Earl Russell: My Lords, the noble Baroness, Lady Kennedy, made an extremely powerful and interesting speech. She is undoubtedly right that there is a balance here that needs to be redressed. Men are congenital optimists in these matters. Being congenital optimists, from time to time our congenital optimism needs to be restrained.
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A belief in consent may be based only on such optimism reached in a mood of unbounded wishful thinking. Therefore, one cannot have a test purely of abstract belief in consent. The Government are right. There is a balance that needs to be redressed. The question is whether the Government's attempt at redressing the balance is right.
Clause 1(3) of the Bill as it stands seems to set a hurdle that no one could successively get over. I doubt whether there is a perfect resolution. When looking at conviction rates, I do not need to tell the noble Baroness, Lady Kennedy, that this is in part a problem of culture as well as law and that changes must apply to both. When we look at the law, I think the amendment in the name of my noble friend Lord Thomas of Gresford, may not be perfect. However, in 10 years of thinking about the matter, I have not managed to produce a better one and so I shall vote for it.
Lord Alexander of Weedon: My Lords, in Committee, speaking as chairman of Justice, I indicated that I found this issue extremely difficult. So did our members, who were perhaps uncharacteristically divided as a law reform group as to the merits of the position put forward by the noble Lord, Lord Campbell of Alloway, and the noble and learned Lord, Lord Ackner, and the merits of the case so eloquently argued by the noble Baroness, Lady Kennedy of The Shaws. The position for which I speak is not a formulated, firm Justice position.
I have read the reports of the debates in committees over recent years. I believe that thought and sentiment have moved on since the timing of the admirable Heilbron report. As I understand it, an amelioration of the law which tilts the balance towards the protection of the legitimate and important rights of women has been accepted in some other jurisdictions, including Canada, without any allegations of notable unfairness. I have no wish to take up time in this debate because I agree—although I cannot express it as eloquently nor from the perception of the same sex—with the views expressed by the noble Baroness, Lady Kennedy. I also agree with every word spoken by the noble Earl, Lord Russell. In Committee I said that, while I found the original government drafting cumbersome, if an amendment along the lines tabled by the noble Lord, Lord Thomas of Gresford, were accepted, I would gladly support that. I hope that the House will move in that direction.
Lord Cooke of Thorndon: My Lords, I do not often trouble your Lordships, being constrained by the convention that one does not speak in your Lordships' House unless one knows something about the subject. But it chances that I have a certain degree of expertise in the matter of non-consensual sex. It leads me to a position in principle not far removed from that of the previous four speakers in the debate.
In New Zealand the legislation requires reasonable grounds for a defence of belief in consent to sexual violation. That change came into force in 1986. In the same year I became President of the Court of Appeal.

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However, the two events were apparently not connected. In the 10 years of my presidency, and since, the legislation has operated without much difficulty and to general public satisfaction. Comparatively few cases have reached the Court of Appeal and only a mere handful considered worth reporting in the Law Reports. There is no move towards a return to Morgan and no likelihood of one. The subject has become simply a non-issue.
The significance of this change cannot be separately identified. It was part of a series of reforms, largely promoted by women's organisations. Some of those already have their counterpart in the United Kingdom, for instance, the abolition of the rule of practice requiring the judge to warn the jury that it is dangerous to convict on the uncorroborated evidence of the complainant. Together, these various changes were followed in New Zealand by a surge in complaints, prosecutions and convictions. In 10 years the number of convictions for rape rose 180 per cent.
There is another reason why the introduction of an objective ingredient cannot be isolated as a catalyst. As the noble Baroness, Lady Kennedy, said, a defence accepting that the victim did not consent, but asserting a belief in consent, is very rare indeed. Commonly, the defence is that she did consent, though both counsel and judge will tell the jury that it is enough if the defendant believed so on reasonable grounds. The jury's task is thus simplified, while prosecution is encouraged. For those reasons, I am led to favour the introduction of a partly objective test here. Dramatic changes in the rate of a conviction, as distinct from the number of convictions, should perhaps not be expected.
In New Zealand more than 50 per cent of sexual violation complaints are either not established or are ultimately decided by the police not to be well-founded. Of those complaints that are ultimately prosecuted, only about 35 per cent result in guilty verdicts. As to the formulation of a partly objective test, I favour the amendments tabled by the noble and learned Lord, Lord Falconer. They are not overcomplicated and by asking whether the accused could reasonably be expected to doubt whether the complainant consented, they focused on the particular accused and his characteristics.
Alternative formulae, such as a reasonable belief or a reasonably held belief, are less clear in that respect, as indeed is the New Zealand section which has led to High Court decisions that even intellectual impairment should be disregarded.
In New Zealand, when the reasonable grounds requirement was enacted, some professional voices were raised in opposition, invoking a purely subjective approach to mens rea, such as has been so skilfully urged before your Lordships by the noble and learned Lords, Lord Ackner and Lord Lloyd of Berwick, and others. But ultimately, the New Zealand Bill was
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passed without a Division—a circumstance which I mention as a happy fact, not necessarily as a prediction.
Lord Falconer of Thoroton: My Lords, I agree with the noble and learned Lord, Lord Lloyd of Berwick, that it would be unwise to allow the amendment for technical reasons. But I do not believe that it is right to debate it on the basis of the technicalities in relation to it. The amendment tabled by the noble Lord. Lord Campbell of Alloway, puts four square before the House one of the most critical changes that the Bill is introducing. As the noble and learned Lord, Lord Ackner, rightly said, the introduction of an objective element into the mens rea for rape affects a number of other clauses in the Bill. The amendment tabled by the noble Lord, Lord Campbell, therefore gives us another opportunity to debate that principle.
It was made clear at Second Reading and in Committee and I repeat that the Government are of the firm opinion that where the victim did not consent, but the defendant honestly believed that he or she did consent and if the prosecution can prove that that belief was unreasonable, then the defendant should be convicted of an offence.
We believe that that test is right in principle because it is currently unacceptable that an honest belief in consent, regardless of how unreasonable, can lead to an acquittal. We believe that it undermines the faith that victims are prepared to place in the justice system and we believe that it discourages them from bringing cases to court. If we remove the reasonableness tests then we will go back to the current position.
The unsatisfactory elements of the current position are, first, that it implicitly authorises the assumption of consent regardless of the views of the victim. Secondly, it is easy for the defendant to seek consent—the cost to him is very slight and the cost to the victim of forced sexual activity is very high indeed. We believe that it is not unfair to ask any person to take care to ensure that their partner is consenting and for them to be at risk of a prosecution if they do not do so.
Our position is simple. We can find no justice in leaving the law on consent as it is. One must remember that the issue applies when the victim has been raped and has been forced to have sexual activity without his or her consent, because the question of reasonable belief only arises when the act has occurred without his or her consent.
So we take the strong view that there should be an objective element in the matter. We do not believe that it is in any way unfair to require that the defendant should act reasonably in those circumstances. We believe that that is more just. I draw attention to the speech of the noble and learned Lord, Lord Cooke, not just because he supported the Government's amendment, but because he spoke with the experience of that or a similar provision being in force in New Zealand over a period of time. He supports the analysis that it would lead to more cases and more convictions and that it would not lead to miscarriages of justice.

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I am grateful to the noble Lord, Lord Campbell, for giving us an opportunity to debate the issue again, but I earnestly implore noble Lords to support the significant change that we are seeking to make by introducing objectiveness into the mens rea for rape.
4 p.m.
Lord Campbell of Alloway: My Lords, I am grateful to the Minister and to all noble Lords who have spoken in this debate. As to the technicality, I am leaving that aside because the whole sense of the House is against the principle of the amendment. It is a sheer waste of time to deal with a technicality. I agree with and was impressed by the noble and learned Lord, Lord Falconer, and with the speech of the noble and learned Lord, Lord Cooke. In that speech there was the first glimmer—and more than that, light—of a justification for altering the whole substratum of our present legal approach. The sense of the House is that we should do that: that we should do away with Morgan; that we should do away with the decision of the Appellate Committee in which the noble and learned Lord, Lord Bingham of Cornhill, gave the leading opinion; we should do away with the decision of the High Court of Justiciary in Scotland and start again; and—as I think the noble Baroness, Lady Kennedy, put it—we should seek some kind of thread to right what is wrong in the law. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 1 [Rape]:
The Deputy Speaker (Lord Carter): My Lords, before calling Amendment No. 2, I must inform the House that if that amendment is agreed to, I cannot call Amendments Nos. 3 to 9.
Lord Thomas of Gresfordmoved Amendment No. 2:
Page 1, line 5, leave out subsections (1) to (4) and insert—
"(1) A person (A) commits an offence if—

(a) he intentionally penetrates the vagina, anus or mouth of another person (B) with his penis;

(b) B does not consent: and

(c) A does not reasonably believe that B consents.

(2) Sections 77 and 78 apply to an offence under this section."
The noble Lord said: My Lords, in this group of amendments I am concerned with simplicity, but more properly with the fair trial that a defendant has to face. I am concerned with the reverse onus of proof that exists in the presumptions that are set out in Clauses 77 and 78. I note that another practitioner, the noble Baroness, Lady Kennedy of The Shaws, indicated that she was against reverse onuses of proof.
I start with the basic statement of principle made by Viscount Sankey, the Lord Chancellor in the well known case of Woolmington:
"Throughout the web of the English criminal law one golden thread is always to be seen, that it is the duty of the prosecution to prove the prisoner's guilt … subject to any statutory exception."
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The importance of the presumption of innocence was set out by Mr. Justice Sachs, whom some of us had the privilege to meet recently in this House, sitting in the South African constitutional court in the State v Coetzee in 1997. His statement of principle has been quoted with approval by the noble and learned Lords, Lord Bingham and Lord Steyn, in recent House of Lords cases. He said:
"There is a paradox at the heart of all criminal procedure, in that the more serious the crime and the greater the public interest in securing convictions of the guilty, the more important the constitutional protections of the accused become. The starting point of any balancing inquiry where constitutional rights are concerned must be that the public interest in ensuring that innocent people are not convicted and subjected to ignominy and heavy sentences massively outweighs the public interest in ensuring that a particular criminal is brought to book…Hence the presumption of innocence, which serves not only to protect a particular individual on trial, but to maintain public confidence in the enduring integrity and security of the legal system."
That last sentence of maintaining public confidence is a theme that I have played many times before your Lordships in connection with much legislation that has passed through this House.
There are three essential elements sought in the offence of rape—penetration by the defendant, lack of consent by the complainant and lack of reasonable belief in consent by the defendant. Those three elements are stated simply in Amendment No. 2. That is how I have set out how the offence should be defined. I also say that Clauses 77 and 78 should apply, but I shall come to that in due course.
In stranger rape, generally the issue is whether penetration took place and, if so, whether it was by the defendant. It is frequently an identity issue. In marital or acquaintance rape, generally the issue is consent or, in the alternative, belief by the defendant in consent. That was the way that the noble and learned Lord, Lord Cooke, expressed the matter a moment ago, and the noble Baroness, Lady Kennedy, said much the same. Regarding reasonable belief, we agree with the Government that it can be no defence for the defendant to say that he gave no thought as to whether the complainant consented. That is the purpose of Amendment No. 175 tabled in my name and that of my noble friend Lady Walmsley to replace Clause 77 simply to make that statement.
We have had that debate on reasonable or unreasonable belief already and I do not propose to say any more about that.
However, we part company with the Government on where the burden of proof on the third essential element of the offence should lie; that is, lack of reasonable belief in consent by the defendant, the rebuttable presumption set out in Clause 77 as presently drafted and the conclusive presumptions in Clause 78.
To make the defendant disprove a lack of reasonable belief in consent in the arbitrarily chosen circumstances set out in Clause 77—a number of circumstances are set out there but by no means all that could possibly arise in a rape case—we say is a fundamental derogation from the presumption of innocence. To presume conclusively that in other

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circumstances and in particular deception or impersonation, two of the three essential elements of the offence of rape are automatically proved—that is, both the complainant's lack of consent and the defendant's lack of belief in it—is, we say, a violation of the presumption of innocence.
When one comes to that position, that the presumption of innocence is attacked both by the rebuttable and the conclusive presumptions set out in the Government's Bill, we then have to consider whether such presumptions are compatible with a fair trial under the provisions of Article 6(2) of the European Convention on Human Rights. On that topic, the European Court in Salabiaku v France in 1988 stated:
"Presumptions of fact or law operate in every legal system. Clearly, the Convention does not prohibit such presumptions in principle. It does, however, require the contracting states to remain within certain limits in this respect as regards criminal law….
Article 6(2) does not regard presumptions of fact or law provided in the criminal law with indifference. It requires states to confine them within reasonable limits which take into account the importance of what is at stake and maintains the rights of the defence".
So, where there are presumptions of law or fact, the convention is not silent about it and does not view it with indifference.
The noble and learned Lord, Lord Steyn, in the case of Lambert in 2002 quoted that passage and added:
"This test is dependent upon the circumstances of the individual case. It follows that a legislative interference with the presumption of innocence requires justification and must not be greater than necessary".
Similarly, the noble and learned Lord, Lord Hope, in the Kebilene case in 2000 stated:
"as a matter of general principle, a fair balance must be struck between the demands of the general interest of the community and the protection of the fundamental rights of the individual".
In summary, a derogation from, or what I would call a violation of, the presumption of innocence will satisfy the constitutional protections of an accused person only if it can be shown to be necessary, justified and proportionate.
Shortly after the convention became part of our law through the Human Rights Act, the Anti-terrorism, Crime and Security Act 2001 was passed, which included an offence of possession of nuclear weapons. One might think that that is a fairly serious offence but the statute, bearing in mind what had been said in Kebilene, was drafted in this way:
"(1) In proceedings for an offence … relating to an object it is a defence for the accused to show that he did not know and had no reason to believe that the object was a nuclear weapon.
(2) But he shall be taken to have shown that fact if—
(a) sufficient evidence is adduced to raise an issue with respect to it; and,
(b) the contrary is not proved by the prosecution beyond reasonable doubt".
In the anti-terrorism Act an evidential burden was passed to the defendant to raise the possibility on the evidence that he did not know and had no reason to believe that the object he possessed was a nuclear weapon. But even with something as serious as that the
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legislation provided that it was for the prosecution to continue to have the persuasive burden of establishing beyond reasonable doubt that he did have that possession with knowledge of the fact.
Here, as regards the first element, it is not necessary to have a reverse onus of proof. In the circumstances postulated in Clause 77(2)(a) to (e) and even more so in Clause 78—for example, circumstances where violence is used; where the complainant is asleep, or where there is deception and so forth—the jury will have no difficulty whatever in determining the defendant's belief and whether it is reasonable, just as juries daily up and down this country determine intent, dishonesty and other states of mind.
So, we say that it is not necessary to reverse the onus of proof. If a man uses violence against a woman, it is not difficult to show that he had no reasonable belief that she consented. He raises the issue, it can be destroyed by the prosecution and it does not necessarily require a great deal of effort to do that by cross-examination or whatever.
We also say that it is not justified—the second of the three tests—because, unlike the relatively few instances in serious crime where the persuasive burden is on the defendant in relation to an essential element of the offence, there is nothing peculiarly within the defendant's knowledge in a rape case as opposed, for example, to a case involving accounting systems or fraud, which the prosecution would have any difficulty in disproving. Even if there were, a reverse evidential burden could be justified only with the onus of proving guilt ultimately remaining on the prosecution.
In the recent case of Carass in 2002 the Court of Appeal stated:
"the proper approach has to be that if a reverse burden is to be imposed on an accused it must be justified and in particular it must be demonstrated why a legal or persuasive rather than an evidential burden is necessary".
For it to pass the tests of Article 6(2) of a fair trial it has to be shown why a legal or persuasive burden rather than an evidential burden is necessary.
Finally, these reverse onuses of proof are not proportionate. All the sex offences in question carry heavy sentences up to life imprisonment. We consider that it would be quite wrong for a jury to convict if there were a doubt about the third essential element, reasonable belief in consent. If, as regards the third essential element, the burden is placed on the defendant who has to satisfy it on a balance of probabilities, the jury could find against him but yet retain up to 49 per cent of a doubt about his guilt. Lord Justice Waller stated in the case of Carass, to which I have referred,
"With an evidential burden it will be for the defendant to produce some evidence that any concealment established against him was not with the intention to defraud".
That was a fraud case.
"Common sense dictates that if concealment is proved the evidential burden will be quite a difficult burden for the defendant to surmount. If however he were to surmount it, then it would be less than satisfactory if he could still be convicted if the jury were not sure that he had intended to defraud".

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How much less satisfactory is it in the crime of rape punishable with life imprisonment that juries would find themselves obliged to find a person guilty while there was still a doubt in their minds? Lord Justice Clarke in Sheldrake, another recent case, stated:
"Since the inherent danger of the reverse burden technique is that an innocent accused may fail on the balance of probabilities to establish his innocence, the consequences of failure are relevant".
The amount of punishment that is likely to arise is a relevant matter in considering whether a reverse onus is necessary, justified and proportionate.
I invite your Lordships to consider the amendments in that light. I have attempted to define the offence simply, with the three necessary elements. New Clause 77 states that belief should not be satisfied by a person not having given any thought to the matter. Amendments relating to Clause 78 set out the circumstances that a jury ought to bear in mind when it comes to its conclusion as to whether the prosecution has proved the third element of a reasonable belief.
The matters that I have set out in amendments to Clause 78 are taken straight from the elements that the Government want to make the subject of a rebuttable or conclusive presumption. We say that is not the right way of going about it. The jury should simply be reminded of all the circumstances, including—to take a point made by the noble and learned Lord, Lord Cooke—that the characteristics of the particular defendant should be considered.
In light of that, I am convinced that a defendant would have a fair trial but that the public interest would be properly served in ensuring that the guilty are convicted and that those who are not guilty are acquitted. I beg to move.
Baroness Noakes: My Lords, I shall speak to Amendments Nos. 7, 8, 19, 20, 29, 30, 38 and 39 in my name and that of my noble friend Lord Astor of Hever.
We on these Benches share with Government and Liberal Democrat members a desire to produce a formulation for sexual offences that works and contains a reasonableness test that works. The Government listened to the concerns expressed on Second Reading and in Committee and have tried to respond. The noble and learned Lord the Minister will speak to Amendment No. 6 and others in due course. We welcome that the Government have thought again. We particularly welcome that they have moved away from the concept of the hypothetical reasonable person to reasonableness in relation to the defendant.
We have concerns, however, about amended Clause 1(3), which would abandon the formulation of the offence of rape in terms of belief and consent in favour of one based on doubt about consent. I can see the logic, but is it simple enough?
In contrast, the amendments tabled by the noble Lord, Lord Thomas of Gresford—to whom I pay tribute for working extremely hard on producing amendments for Committee and Report stages,
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despite his many other commitments—are much simpler and more traditional. The conservative in me values the link to tradition.
Amendments Nos. 7 and 8 seek to insert "sharing the characteristics of A" into the existing formulation for reasonableness. For example, if A had severe learning difficulties, the test would be formulated by reference to A. The Government's new formulation refers to all the circumstances being taken into account. If that were adopted, I would want to add "including the characteristics of A".
The Minister knows of my concerns and I would be pleased to hear how he can be sure that his formulation would require the defendant's extreme learning difficulties or youth to be taken into account. In Committee, the noble Viscount, Lord Bledisloe—who I am pleased to see in his place—said that "circumstances" meant surrounding facts, not the individual's particular characteristics. Does the Minister believe that the wording of the Government amendment is absolutely clear? Amendment No. 178 in the name of the noble Lord, Lord Thomas, explicitly refers to the characteristics of the defendant.
A final concern is the role of presumptions in Clauses 77 and 78, to which a later group of amendments refers. We fully support the comments of the noble Lord, Lord Thomas, in that regard.
We want the law on rape and other sexual offences to be workable and effective, which is how we shall judge the amendments before us. The noble Lord, Lord Thomas, made a powerful case for his amendments. I look forward to the Minister's reply.
4.30 p.m.
Lord Lloyd of Berwick: My Lords, I regret that I cannot support the amendments in the name of the noble Lord, Lord Thomas of Gresford. I shall speak also to Government Amendment No. 6, the amendments to which the noble Baroness, Lady Noakes, spoke, and my Amendment No. 17 to omit Clause 3(3).
Clauses 1 to 15 are a huge improvement on the law as it is at the moment. They set things out clearly and well and will be widely welcomed by the judiciary and those who practice in the criminal courts. I wish that I could say the same about Clause 1(3) but I cannot.
As recently as 2000, the Law Commission—after an exhaustive and lengthy inquiry— recommended that the definition of rape should remain as it is. The noble and learned Lord, Lord Ackner, has already read the relevant passage to your Lordships. Even more recently, the Home Office steering group was against introducing any objective element into the law of rape. In light of that recommendation, one looks for some satisfactory explanation as to why that recommendation has not been accepted. One can find none.
This may be a good moment to stand back and remind ourselves of the existing law. One can do that best by taking Clause 1(2) and reading in a few words at the end. It states:
"This subsection applies if A does not believe that B consents (whether because he knows that B does not consent, gives no thought to whether B consents, or otherwise)".

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Then:
"In deciding"—
this is existing law—
"whether A does not so believe, the jury shall have regard to all the circumstances of the case and in particular to the presence or absence of reasonable grounds for such belief".
Having read that to your Lordships, I am inclined to ask what is wrong with it? What more could one want? If there are no reasonable grounds for the belief, the jury will reject the defendant's evidence and convict. If there are reasonable grounds for the belief, the jury will very probably acquit—but obviously depending on the impression that the evidence of both sides has left.
Why is a change needed at all? Does not the existing law in practice give the Minister everything that he wants with regard to the requirement for reasonableness? It is there in the Sexual Offences (Amendment) Act 1976.
Perhaps I may deal in advance with two of the arguments the Minister will no doubt put forward in reply. The first is that the defendant should not get off by asserting an honest belief in the lady's consent however unreasonable. One hears that argument over and again. It was used by the Minister in the letter he was good enough to write to me after the Second Reading debate. He said:
"We believe that the test is right in principle because it aims to correct the situation in the law at present whereby an honest belief in consent is sufficient to negate the mens rea of the offence, regardless of how unreasonable the actions of the defendant might have been".
That first argument is, I submit, misconceived. None of the judges who spoke in Committee had ever heard of such a case in practice. I am sure noble Lords who were present will remember the remarkable speeches of the noble and learned Lords from north of the Border, Lord McCluskey, and Lord Cameron. They regarded as outlandish the suggestion that such a case could arise. All the English judges with experience of applying this part of the criminal law were of the same view. What can one put against all that practical experience? What is put against it is nothing but a theoretical objection expressed in a rather tendentious way.
The second argument is this. It is said that we need to change the law because defendants who are in truth guilty must be getting off because of the low conviction rate. That needs to be examined in stages. One has often read, or heard it said, that there must be something wrong with a conviction rate for rape as low as 7 per cent. But that again is a complete misconception. Seven per cent is not the conviction rate. In the course of his reply, the Minister gave the conviction rate as 45 per cent, subsequently correcting it to 41 per cent. Many people may have found that surprising, and much higher than they had been led to expect. But if that figure is correct—I have no reason to doubt it—is it all that surprising?
In considering the offence of rape, it is helpful to refer to the crime of murder. Between 1991 and 2001 the number of those tried for murder varied each year between 557 and 661, a very narrow margin, as it
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always is. The number of those convicted of murder varied between 197 and 277, another very narrow margin. If one adds the figures for those eleven years and applies one to the other, one will find a conviction rate of 40 per cent—1 per cent less than the rate of conviction for rape.
The Minister will undoubtedly say, and others with knowledge of the criminal law will know, that many of those acquitted of murder will have been convicted of the lesser crime, manslaughter, on the ground of either provocation or diminished responsibility. If he were to say that, of course, he would be right. However, in the case of murder no one argues that there must be something wrong with the law because only 40 per cent of those tried are convicted of murder. So why is it so different in the case of rape? Why do we have this impression that somehow the conviction rate for rape is too low? The answer is, I think, because in the case of rape there are powerful and vocal pressure groups at work. The noble Baroness, Lady Kennedy, referred to them in her wonderful speech. No one doubts that they are doing the job they feel they must do. The truth is that these powerful groups influence the press; the press influence public opinion; and public opinion influences the main political parties far beyond what is justified.
I have in mind a very short and pertinent speech made in Committee by the noble Baroness, Lady Carnegy of Lour. Without her permission—I wish she were present—I read one sentence:
"However, I want to remind the Government that, in their laudable intent to assist women who are raped and whose assailant is not convicted, they may not be meeting what the public want in the way they want it. In my experience, which is mostly local, there is a world of difference between the reaction of ordinary members of the public to rape trials and rape accusations and the reaction of the groups who exist to stand up and speak for women".—[Official Report, 31/03/03; col. 1084.]
The noble Baroness went on to say that she thought that the Government were misguided in their approach to the question, and altogether barking up the wrong tree. I suggest that there is a great deal in what the noble Baroness said. I entirely agree with it. I fear that the same is as true of the Conservative and Liberal parties as it is of the Government.
The trouble with pressure groups is always that the more vocal and powerful they are, the more likely they are to distort sound judgment. The burden of resisting what seems to me to be unnecessary changes in the law falls on the Cross Benches who have little power but at least no political axe to grind.
Let us suppose that I am wrong about all that. Let us suppose that the conviction rate for rape is lower than for other comparable offences. Is that not exactly what one would expect? I suggest that that is so for two reasons. First, there is evidence, admittedly anecdotal, that in rape cases the Crown Prosecution Service does not always apply the 51 per cent guideline the Attorney-General says that it should. That would explain why the conviction rate for rape may be less than 50 per cent.
Secondly, in cases of other crimes where the conviction rate is or may be higher, there is almost always some other evidence to support the prosecution

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case whereas in many, if not most, rape cases there is not. It is word against word with nothing else for the jury to go on. Therefore, one can well understand why a jury in those circumstances, with convincing evidence on both sides, will give the benefit of the doubt to the defendant. That is exactly what they should do and what judges always tell them to do; it is their duty. I suggest that it is not in the least surprising to find that the conviction rate is 41 per cent. Indeed, that is just what one would expect, and no ground for changing the law.
However, let us suppose that for political reasons the Government are determined to increase the number of rape convictions. There are two ways in which they can do so. They could either make rape a crime of strict liability—in other words, it would be enough to prove that the woman is not consenting—or they could say that the jury need not be convinced beyond reasonable doubt but that proof on the balance of probability would be enough. Neither of those solutions would be remotely acceptable to any Member of this House but at least they would work.
What have the Government proposed in its stead? They propose the creation—it is nothing short of a creation—of a brand new crime of rape, not dependent on knowledge, recklessness, or the guilty state of mind, but on negligence; not even gross negligence as in the case of manslaughter but ordinary negligence—not taking steps which could reasonably be expected in all the circumstances—as if the victim were claiming damages for tort. I suggest that it is totally unacceptable to have a crime of rape by negligence, where the crime carries a sentence of life imprisonment. It would not work. It would not result in one further conviction: it would merely result in more appeals.
Let us suppose that the Government are determined to create this new offence of rape by negligence, alongside the existing offence of rape. What do they do? They lump both offences together in the same clause, with the same maximum sentence of life imprisonment. That is nothing short of dotty. It must surely be obvious that rape by negligence under subsection (3) is a much less serious offence than rape when the defendant knows that the woman is not consenting, or is reckless in that respect. Putting those two separate offences in one clause shows, as much in the Bill does, that this legislation has been drafted by civil servants with, one regrets to say, little experience of how courts work and limited knowledge of what actually happens within them. They cannot have consulted the judges on this change—or, if they have, the advice of those judges has been rejected.
One cannot have a single offence with two alternative states of mind—incompatible mental elements—as in subsections (2) and (3). I entreat the Minister simply to read page 103 of the current edition of Smith and Hogan and to study what is said there about that suggestion. How can a defendant plead to a count that contains alternatives, as set out in subsections (2) and (3)? How can a judge sentence when he has two alternatives before him, on either of
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which the jury might convict? As the noble Lord, Lord Thomas, I am sure, will tell us, a count with alternatives of this kind would be struck out as being bad for duplicity. If we are to have this new-fangled offence of rape by negligence, please may we have it in a separate section with a lesser maximum sentence? That would make sense, and might at least result in a few extra convictions: the present version as set out in subsection (3), and the alternative proposed by the noble Lord, Lord Gresford, will not.
Baroness Mallalieu: My Lords, I agree with every word just spoken by the noble and learned Lord. I am always troubled when I hear it said that a balance must be struck. It indicates that an important matter of principle is about to be ditched. There is at present, quite rightly, a serious stigma attached to the offence of rape. The provisions suggested by several sides of the House reflect the pressure groups to which the noble and learned Lord referred. I am bound to say that my experience is very much akin to that of the noble Baroness, Lady Carnegy, when I talk to people about the sort of cases in which, as a criminal barrister concerned with rape, I am involved. Much as I admire her eloquence, the way in which the matter was put by the noble Baroness, Lady Kennedy, does not reflect the general view.
I am also troubled by the proposed law of unintended consequences. The stigma that currently attaches to rape is rightly attached to a situation where one person forces himself on another against the will of the other and without concern for his or her objections. The stigma is not attached to carelessness, inadvertence, mistake or negligence. I pay tribute to the Minister for his response to those of us who raised concerns at an early stage. I recognise that the noble and learned Lord has moved a considerable distance. But, ironically, the proposed change might well be to downgrade the seriousness of the crime, which I do not believe to be the intention of the Government. Nor is it what some of those in favour of change wish to see. I shall support later amendments proposed by the noble and learned Lord, Lord Lloyd.
4.45 p.m.
Lord Campbell of Alloway: My Lords, I agree with the noble Baroness, Lady Mallalieu. I agree also with the comments made by the noble and learned Lord, Lord Lloyd of Berwick, on, effectively, Amendments Nos. 4 and 5—though he actually spoke to subsection (3) as regards the latter amendment—to which he has attached his name.
The grouping begins with Amendment No. 2 moved by the noble Lord, Lord Thomas of Gresford. I am in difficulties with the amendment because it includes the word "mouth". I have tabled a later amendment that proposes to exclude the reference to "mouth". I do not wish to anticipate the debate, or to take up the time of the House by repeating myself when I move that amendment, but, basically, that is the reason behind my objection to the noble Lord's amendment. I shall greatly regret it if we are to have the "reasonable" defence, but not "guilty intent". It is wrong to remove

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"guilty intent" from the offence of rape. However, if the House proposes to go that way, then I am with the noble Lord, Lord Thomas of Gresford, on paragraph (c) of his amendment, because noble Lords would accept "reasonably believe".
I am also very much with the noble Lord on the violation of the presumption of innocence. I am, therefore, in a split position, which I thought I should declare to the House in the presence of the noble Lord. I do not wish to detain noble Lords. I shall deal in due course with my amendment, which proposes to delete the reference to "mouth". The issue may well have been spoken to by the time that Amendments Nos. 4 and 5 are called. I simply do not know.
The wording of government Amendment No. 6 is repeated throughout this grouping as regards Clauses 1, 3, 5, and 7, which is the run to which I referred earlier. When moving Amendment No. 1, I said that I would be opposed to that change. However, if the House is to take another route, I should still find this unacceptable in rape because it would substitute an artificial, abstract standard of "reasonableness" for guilty intent. For my part, I cannot get away from that position. Having made the point, I should add that I am grateful for having had the opportunity to make myself plain.
Lord Ackner: My Lords, I agree entirely with my noble and learned friend Lord Lloyd of Berwick. That is not surprising, because I am bracketed with him in regard to Amendments Nos. 4 and 5. I do not know whether I misheard what was said on the rate of conviction—this happens from time to time nowadays—but I understood from the most informative speech made by the noble and learned Lord, Lord Cooke of Thorndon, that since New Zealand amended its legislation to introduce the objective test the conviction rate stands at 35 per cent. Have I got that wrong?
Lord Cooke of Thorndon: My Lords, that is substantially correct, but it must be remembered that the number of convictions for rape has dramatically increased. However, the rate of convictions as against complaints—complaints have also increased—is about 35 per cent.
Lord Ackner: My Lords, I am very grateful. That is appreciably below what we have at present, without any amendments. I thought it might be worth reminding the House of that.
Lord Falconer of Thoroton: My Lords, three issues are raised by this group of amendments. The first is the objectiveness test, again. All the amendments in the group have some formulation in relation to an objective test. The second issue is what that objective test should be. The third is the presumptions issue: have we gone too far in placing too many burdens on the defendant? That is the point raised by the noble Lord, Lord Thomas of Gresford.
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With regard to the objectiveness test, the noble and learned Lord, Lord Lloyd of Berwick, made a very powerful speech which in effect supported the point made by the noble Lord, Lord Campbell of Alloway. It completely ignored the speech by the noble and learned Lord, Lord Cooke of Thorndon; it was delivered as if the hypothesis had never been tested in practice. The noble and learned Lord, Lord Cooke, who was the President of the Court of Appeal in New Zealand from the time such a test was introduced, said that it was part of a number of measures that were introduced, and also said candidly that it was not possible to tell precisely which effect which measure had had. But his broad thrust was that it worked and worked well, and, along with the other measures, increased the number of cases brought to trial.
From all round the House there was support for the introduction of an objective element, to the extent that the noble Lord, Lord Campbell of Alloway, said that the sense of the House was that it wanted to have an objective element, for the reasons given by the noble Lord, Lord Thomas of Gresford, by the noble Baroness, Lady Noakes, and by my noble friend Lady Kennedy of the Shaws. We strongly take the view that the time has come for there to be that objective element, because I ask the House to remember that the victim has been raped, has been forced to have sexual activity without her consent. The issue is whether or not the defendant honestly and reasonably believed that she consented. There is no question in these cases over there not having been consent, because only after that has been established does the issue arise. Therefore, with the greatest respect to the powerful speech delivered by the noble and learned Lord, I rely on the arguments advanced not just by me but by other noble Lords in the first part of the debate.
The second issue is how to formulate the reasonableness test. The Bill is as it is. The amendments of the noble Lord, Lord Thomas of Gresford, and the noble Baroness, Lady Walmsley, would strike out the existing test of mens rea from subsections (2) and (3) and replace it with a requirement that the defendant does not reasonably believe that the complainant consents. Those of us who are following the debate by reference to the documents will note that in Amendment No. 175, to Clause 77, they then have a seven-line explanation of what is meant by absence of belief in consent. I suggest that noble Lords look at that to see the precise nature of the reasonableness test proposed as being simpler than ours.
We believe that considerable and effective points were made about our test in subsection (3), and in response to the criticisms levelled against the way in which our own reasonableness test was framed, we propose our own amendments to Clauses 1, 3, 5 and 7 to introduce a new, simpler version of the reasonableness test, one that we believe effectively addresses the concerns that have been raised, while still meeting our policy objectives of focusing on the actions taken by the defendant.

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I appreciate that the noble Lord, Lord Thomas of Gresford, and I both assert that our test is the simpler, but in some respects the noble Lord's test loses some key elements. The test that the Government propose in Amendment No. 6 and the amendments dependent upon it focuses upon whether the defendant should have doubted that there was consent. The test directs the jury to look at all the circumstances in considering this issue, including whether the defendant took any steps to ascertain consent. These are utterly straightforward issues that the noble Lord would be the first to agree the jury would have no difficulty in understanding.
The jury's consideration will also take account, where necessary, and subject to any directions of the judge, of any relevant characteristics of the defendant. But the really important matter is that our test will be easier for the jury to apply than the negative formulation—
Lord Campbell of Alloway: My Lords, will the noble and learned Lord deal with what I think could be the crunch issue: the burden of proof? There is a sticking point.
Lord Falconer of Thoroton: My Lords, I shall certainly come to the question of the burden of proof, but I shall first deal with how one formulates the reasonableness test.
The reasonableness test of the noble Lord, Lord Thomas of Gresford, is a negative formulation: does the defendant not reasonably believe? It is far simpler for the jury to be asked to consider positive facts—should the defendant have had doubts about consent in all the circumstances?—rather than being asked to decide whether the defendant should not have believed in consent.
Amendment No. 175 of the noble Lord and the noble Baroness, Lady Walmsley, would retain the focus of the reasonableness test on the steps that the defendant took, but this issue needs to be clearly spelt out in the relevant non-consensual clauses. In any event, that amendment does not detract from the problems of the negative formulation that the noble Lord proposes, the "does not reasonably believe" test, which I have already outlined.
The amendments of the noble Baroness, Lady Noakes, and the noble Lord, Lord Astor of Hever, Amendments Nos. 7, 8, 19, 20, 29, 30, 38 and 39, are all designed to require the jury to take into account the personal characteristics of the defendant when applying the reasonableness test. Those are amendments to our old subsection (3), which, whether we take my test or the test of the noble Lord, Lord Thomas of Gresford, would not survive.
However, I should deal with the point that is raised in the amendments. Introducing a requirement that all the personal characteristics of the defendant should be taken into account would mean that the jury would be asked to take into account characteristics that should not absolve him of guilt: for example, the fact that he
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has a quick temper or that the sight of a girl in a miniskirt will always turn him on and make him unable to resist her. That cannot be the intention.
I have indicated that the judge and the jury together can be relied on to identify those characteristics which could be taken into account, and I stand by that. That applies just as much to government Amendment No. 6, and it would apply equally to the amendment of the noble Lord, Lord Thomas of Gresford. He can express his own view about that.
As I explained in Committee, it is for the jury to decide whether any of the defendant's attributes are relevant to their deliberations, subject to the judge's directions where necessary.
I have dealt with Amendment No. 175. It retains the effect of the provisions in subsection (2) of Clauses 1, 3, 5 and 7, but is much more complicated. Subsection (2) of each clause contains a "does not believe" test. As I have already explained, since this negative formulation is difficult to understand, we have given examples in brackets of what it covers. One example is where the defendant gives no thought to whether the complainant consents. The noble Lord achieves the same end, but by means of a presumption. We consider that that is unnecessarily complicated. It is obvious that a person who gave no thought to the question of consent cannot have believed in consent. It is worth mentioning but it is not worth creating a presumption about it. It is more helpful for this explanation to be in the relevant clauses than in Clause 77.
We favour our approach rather than that of the noble Lord, Lord Thomas of Gresford. We bear in mind the points made by the noble Baroness, Lady Noakes. All three proposals—ours, the noble Baroness's and the noble Lord's—seek to arrive at broadly the same point. The right course is for the Government to consider all three amendments, to talk to parliamentary counsel and to come back at Third Reading with a formulation to deliver the result that I anticipate we all want to achieve. The issues between us are not about achieving a particular end but about the best way of formulating that end. That is all I want to say in relation to the reasonableness test.
The rebuttable and conclusive presumptions raise different issues, with which the noble Lord, Lord Thomas of Gresford, has quite rightly dealt.
5 p.m.
Lord Lloyd of Berwick: My Lords, before the noble and learned Lord leaves the reasonableness test, is he saying that a person could be charged in the same count with the alternatives of the objective and subjective offence? If not, would it not be better to have the objective and subjective offences in separate sections with different penalties, otherwise we are bound to get into trouble?
Lord Falconer of Thoroton: My Lords, we are not persuaded of that. We believe that the right course is to keep them within the same offence. Rape is charged now in an indictment simply as the defendant on such and such a day raped X—X being the name of the

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victim. It is right that it should be left that way. It would be quite wrong to require the prosecution, in drafting the indictment, to formulate specifically which of two ways it puts the case. I am sure that that is the right course.
Lord Lloyd of Berwick: My Lords, how does a defendant plead to such a count?
Lord Falconer of Thoroton: My Lords, there will be absolutely no difficulty at all in relation to that. There will be no difficulty in the defendant deciding whether or not he pleads guilty to a charge of having sexual intercourse with the victim without her consent. With the greatest respect, the noble and learned Lord is exaggerating the difficulties in relation to that.
Lord Thomas of Gresford: My Lords, perhaps I may assist the noble and learned Lord. The position today is that if a person pleads guilty to a charge such as rape he will almost inevitably agree the basis of plea to avoid a hearing as to what is the basis of his plea. He will therefore set out the basis—whether it is subjective or objective, to use the noble and learned Lord's expression—and, if the prosecution accepts that basis of plea, the plea will then go forward and sentencing will occur.
Baroness Kennedy of The Shaws: My Lords, in accepting that a judge would direct the jury as to enduring characteristics, I should be grateful if the Minister could make it clear to the House that we are talking about enduring characteristics such as youth or mental impairment and not cultural differences or people being able to pray in aid that because of their culture a woman who presents in a particular way may be indicating availability. It is very important that a licence is not given under which it could be claimed that there is a characteristic in the accused which would allow for a certain degree of unfair practice.
Lord Falconer of Thoroton: My Lords, I am grateful to the noble Lord, Lord Thomas of Gresford, for dealing with the point raised so effectively by the noble and learned Lord, Lord Lloyd. As to the point raised by my noble friend Lady Kennedy of The Shaws, it would be unwise for me to restrict the precise characteristics to which a judge could direct a jury. It will depend upon the circumstances of a case. The noble Baroness is obviously right to refer to the enduring characteristics of age and mental impairment but I should not like to rule out other circumstances. One will have to leave it to the good sense of judges and juries.
As to the question of presumption, we propose that where the victim has not consented and where, for example, immediately before or during the sexual act which founds the charge she is subjected to violence, it is for the defendant to prove on a balance of probabilities that he believed that she was consenting. In other words, he has to give evidence of something that was completely in his own mind where it is accepted, or it is proved, that the victim was not
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consenting and there had been violence beforehand. Is that reasonable and sensible? We believe that it is because the defendant has to give evidence of what went through his mind. He has to establish to the satisfaction of the jury—on the balance of probabilities, not beyond a reasonable doubt—that, despite the fact that she did not consent, despite the fact that he was inflicting violence on her at the time, he nevertheless believed she consented. It is a fair, just, proportionate and appropriate way to deal with the issue. That is the basis of our case in relation to the presumptions. It is sensible and will assist.
On previous occasions the noble Lord has said in the course of debates that that is how the judge and the jury would operate anyway in relation to such a case. If that is how they would operate anyway, let us make the law reflect the way that a judge and jury would operate in a sensible case. There is a place for the presumptions. They have been sensibly and appropriately limited and will assist in the good administration of justice.
In conclusion, with the greatest respect to the noble and learned Lord, we reject his arguments in relation to reasonableness. As to how we formulate it, the right course is to see whether we can reach a solution which is acceptable to everyone and to come back with an amendment. In relation to the presumptions—which, although separate, it is right to deal with them in this clause; plainly, any vote on reasonableness would not determine any vote on presumptions—we believe, with the greatest respect to the noble Lord, Lord Thomas of Gresford, that we have the policy about right in that regard.
Lord Thomas of Gresford: My Lords, as regards the competing tests of how one introduces the objective element, the noble and learned Lord believes that his formulation,
"A could reasonably be expected to doubt whether B consents",
is simple. I do not believe that it is. It invites the jury to enter into a hypothetical discussion as to whether A could reasonably he expected to doubt at the time of the alleged offence. It is far easier for a jury to grapple with the concept of what he believed at the time. Did he believe she consented? It is a very simple matter. Having come to the conclusion that he did, did he reasonably believe it? That is a simple way to deal with the issue.
As to the question of presumptions, we on these Benches do not believe in presumptions at all. But, if there are to be presumptions, surely they should shift only the evidential burden and not the persuasive burden to the defendant. In other words, if he should raise the issue in evidence given either by himself or in the course of the prosecution case, ultimately, in a serious matter such as a charge of rape, the burden of proving the case, of rebutting the presumption of innocence, of finding the defendant guilty, should always remain on the prosecution.
In the spirit of the Minister's reply I shall not press a Division at this stage. I hope that we will have further constructive discussions as to how to formulate the

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test, as he suggested. I thank the Minister and those advising him for the considerable assistance they have been to me in the course of the period that has elapsed between the Committee stage and today. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Campbell of Allowaymoved Amendment No. 3:
Page 1, line 6, leave out ", anus or mouth" and insert "or anus"
The noble Lord said: My Lords, I shall put this very simply. Oral penetration without consent is a serious sexual assault, but has never been hitherto defined or understood to be rape. The noble and learned Lord, Lord Lloyd of Berwick, has already, to some degree, spoken to this today. The noble and learned Lord, Lord Bingham of Cornhill, in a decision of the Appellate Committee of your Lordships' House concerned with the defence of honest and genuine belief as to consent—but it would have been said in any other context—said:
"Nothing in this opinion should be taken to minimise the potential seriousness of the offence of indecent assault. While some instances of the offence may be relatively minor, others may be scarcely less serious than rape itself. This is reflected in the maximum penalty, now increased to 10 years', and the mandatory requirement that those convicted be subject to the notification requirements of the Sex Offenders Act 1997".
Your Lordships should know that, by chance, after I moved and withdrew this amendment in Committee, the noble and learned Lord, Lord Lane, who happened to be passing by in the Library, said to me, "I heard you talking about another offence or altering Clause 3 or something like that". I said, "Yes, my Lord, I did". He said, "That is a lot of nonsense. What is wrong with indecent assault? Indecent assault would cover this. It has this wide range.". It was then that I decided to look up the law and I found what the noble and learned Lord, Lord Bingham, had said.
The essence of the argument has already been put better than I could put it. Oral penetration is not rape. What is the justification for changing it and calling it rape? There is an alternative suggested for Clause 3. That is a matter for your Lordships to consider. But I particularly defer to the opinion expressed in Committee by the noble Baroness, Lady Mallalieu, who opposed the redefinition of rape in this way. She said, and I agree, that it degrades the seriousness of the label of rape and could confuse juries, who might well decline to convict of rape. There is nothing much more that I could usefully say to persuade your Lordships. I beg to move.
Lord Lloyd of Berwick: My Lords, I support this amendment. It is a very short point. All the arguments were advanced in Committee. In particular, we all remember the speech made by the noble Baroness, Lady Mallalieu. No one advanced any argument in Committee for including oral penetration for the first time in the offence of rape other than to say that it is a very serious offence. That it is a very serious offence we are all agreed,but it is not rape as ordinarily
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understood. For that reason, in Amendment No. 14A I have proposed to put this offence in Clause 3, which is where it belongs, under the heading of assault and with the same maximum sentence of life imprisonment.
When the Minister replied on the previous occasion, he did not completely shut the door. In that respect, he seemed to have an open mind. I invite him to consider again whether it would not be better to include what he wants—he will get all he wants—by inserting oral penetration in the offence under Clause 3 and not under Clause 1 where it does not belong.
5.15 p.m.
Baroness Mallalieu: My Lords, I shall add briefly to all that has been said in earlier debates on this topic. Whether victims of this type of sexual offence regard it as as serious and as damaging as rape I cannot say. That may be right. It is perhaps a subjective view as to whether it is as serious, more serious or less serious. It is clearly serious but, above all, it is a different offence. That is why I support the proposal made by the noble and learned Lord, Lord Lloyd of Berwick, that if it is regarded as inadequately dealt with at present under the provisions for indecent assault, there should be a separate offence with a separate penalty to cover it. It would be a mistake to extend the word rape, which has an ordinary meaning that everyone understands, to cover something that at present no one would understand actually to mean rape. I hope that the Minister will consider what has been said and perhaps adopt the approach of the noble and learned Lord.
Lord Falconer of Thoroton: My Lords, the noble and learned Lord, Lord Lloyd of Berwick, is correct that the debates were very fully canvassed on the previous occasion when I made clear that that which had weighed with the Government in this respect was the very persuasive evidence submitted to the Sexual Offences Review by victims and victim support groups. From the perspective of victims—I fully accept that the noble Lord, Lord Campbell, and the noble and learned Lord, Lord Lloyd, do not dispute any of this—forced penile penetration of the mouth can be just as horrible, demeaning and traumatising as other forms of forced penile penetration and is equally, if not more, psychologically harmful in certain cases than vaginal and anal rape.
As the evidence given to the inquiry revealed, it is not unusual for women and children who have been violated in this way to develop long-term difficulties in eating and drinking. They may also have difficulties in visiting the dentist, leading to poor health care. I appreciate that including forced oral penetration within the scope of Clauses 3 and 4 recognises the serious nature of this particular form of offending behaviour and also provides for a maximum life sentence. I listened, too, to the arguments that perhaps the public and, in particular, juries might not take the view that it is rape.
Rape is already clearly understood by everyone to be an offence of non-consensual penile penetration committed by men on women and on men. Juries have

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had no difficulty in accepting past changes to legislation that broadened the scope to cover both rape within marriage and anal penetration of one male by another. Once it is made clear in statute that the offence of rape includes forced oral penetration, there is no reason to believe that juries will have any difficulty with this change either.
Penile penetration is of a particularly personal kind. It carries risks of disease transmission and I believe that it should be treated separately from other penetrative assaults. In our view, it makes good sense for all forms of non-consensual penile penetration to be grouped together within the offences of rape. Broadening the scope of the rape offence in this way also ensures that legislation properly reflects the seriousness of the offence of forced oral penetration and its effects on the victim. For all the reasons given, we object to the amendments advanced.
Lord Campbell of Alloway: My Lords, I cannot say that I am exactly grateful to the noble and learned Lord for his response, but I am grateful to noble Lords who have spoken. Although there is a real temptation to take the opinion of the House to clear the deck of this point, which crosses the point of difficulty to which I referred in regard to the amendment of the noble Lord, Lord Thomas, I believe that it would be wrong to take the opinion of a "thin" House. I also believe that it would be wrong to return to the matter on Third Reading because I do not think, quite contrary to the other matter being left over to Third Reading, that this is really a Third Reading point. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 4 to 8 not moved.]
Baroness Noakesmoved Amendment No. 9:
Page 1. line 18, leave out subsection (4).
The noble Baroness said: My Lords, in moving Amendment No. 9, I wish to speak also to the amendments with which it is grouped.
The effect of these amendments is to remove the rebuttable presumptions about absence of belief in consent in Clause 77 and the conclusive presumptions about consent in Clause 78.
I shall not rehearse the detailed arguments on which we spent well over an hour in Committee or go over the ground that we covered earlier in the second group of amendments when the noble Lord, Lord Thomas of Gresford, spoke powerfully about the effect on the presumption of innocence. I shall confine my remarks to three matters.
First, the rebuttable presumptions are at one level a statement of the obvious. To take the circumstances in subsection (2)(a) of Clause 77, if the prosecution proves that the defendant used violence against the complainant and knew that, why do we need a rebuttable presumption of lack of belief in consent? To use the formulation in the Government's latest version of Clause 1(3), the defendant who has used the violence could reasonably be expected to doubt whether the complainant consented. That is why he used the
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violence. So what is added by a rebuttable presumption? Are the Government saying that juries are so perverse that they cannot work out what is or is not reasonable when violence is used? In Committee several noble Lords actually thought that the rebuttable presumptions would make the matter even more confusing for the jury.
Secondly, the list of rebuttable presumptions is too narrow. The Government said in their White Paper Protecting the Public that the definitive list of rebuttable presumptions would send a clear signal of the circumstances in which sexual activity is likely to be wrong. However, that list excludes some important circumstances, including the threat of future physical or economic harm. If a defendant says to a complainant, "You will lose your job if you do not have sex with me", why is there no rebuttable presumption that says that the defendant did not believe in consent? If the threat is made, surely that goes to the heart of belief in consent. That is another area of confusion for juries.
Thirdly, I cannot accept that the conclusive presumptions in Clause 78 are anything but a route to injustice. Conclusive presumptions leave no safety valve for the facts of a particular case. If we cannot trust the jury to reach the right result on the basis of the facts before it, we have a problem. The conclusive presumptions would have the effect of telling juries to reach a particular conclusion. One could end up with a perverse result in certain circumstances. I do not believe that justice and fairness are served by conclusive presumptions. For those reasons, and for the reasons mentioned earlier, I believe that the Bill would be a better Bill without Clauses 77 and 78. I beg to move.
Lord Thomas of Gresford: My Lords, I do not propose to repeat everything that I said in relation to the earlier group of amendments. I simply add that it is my view—I do not claim infallibility or even particular expertise in this area—that the provisions we are discussing would be struck down in the courts as being incompatible with Article 6(2). I have given the reasons for that. If the Government wish to proceed with the provisions, I am sure that the first time that they come before a court there will be an appeal which may be taken all the way to this House.
Lord Campbell of Alloway: My Lords, on the assumption that the House is moving towards some form of reasonable test and removing the extant law which derives from Morgan, I still take the point that Clauses 77 and 78 as they stand are not acceptable and that serious consideration should be given to accepting Amendments Nos. 175 and 178 in lieu tabled by the noble Lord, Lord Thomas of Gresford. If I have the matter right—I hope that I shall be corrected if I have not—the noble and learned Lord, Lord Falconer of Thoroton, will consult on the position with a view to

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seeing whether some accommodation may be made. If that is right, I welcome it. One could reserve one's position until Third Reading. If, however—
Lord Falconer of Thoroton: My Lords, I am sorry to give the noble Lord bad news. He will not be able to reserve his position. I indicated clearly that we would discuss the question of reasonableness and I did not move my amendment as a result. However, I am afraid that I gave no such assurance in relation to the rebuttable presumptions. I do not want the noble Lord to be under any illusions that he should keep his powder dry.
Lord Campbell of Alloway: My Lords, I am very much obliged. If there were a Division, I should have to support the noble Lord, Lord Thomas of Gresford. I take the view that Clauses 77 and 78 as they stand are not acceptable.
Lord Falconer of Thoroton: My Lords, there are in effect three points with which I should deal. First, I refer to the point raised by the noble Baroness, Lady Noakes, that one should not have rebuttable presumptions at all. With respect we disagree with that proposition. We believe that in many cases the rebuttable presumption will in effect reflect the way in which a jury would address the issue. We also believe that having the rebuttable presumption, without any unfairness to the defendant, sends the clearest possible signal of the way in which the law deals with such issues.
I give a further example to that which I gave in answer to the points raised by the noble Lord, Lord Thomas of Gresford, today. I refer to people suffering from a very severe physical disability where there has not been consent and where there has been an inability to communicate. That is referred to in one of the examples relating to the rebuttable presumption. We think it right in those circumstances that the defendant should satisfy the jury on the balance of probabilities—where there was no consent and the victim could not communicate—of the basis of his belief that the victim consented. No other specific protection has been given. We think it right that there should be such protection. We think that there is a place for these rebuttable presumptions. They certainly do not lead to any injustice.
Secondly, I hope that the noble Baroness, Lady Noakes, will forgive my saying that she changed her position completely. Having said that there should not be any rebuttable presumptions of the kind we are discussing, she then said that there were not enough.
Baroness Noakes: My Lords, I said that if we were to have them, they had to be wider.
Lord Falconer of Thoroton: My Lords, we think that they have to be limited sensibly, which is what we have done.
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We dealt with the issue of future economic or other harm being threatened and leading to sex. The difficulty with that is that such a wide range is covered. Something that might frighten someone in a particular condition might not frighten someone else. I gave various examples on the last day in Committee.
The third point with which I should deal is conclusive presumptions. The noble Baroness says that they are always unfair. Again, we had that debate on the previous occasion. She will be aware that the conclusive presumptions are in relation to where the defendant relies on what is said by a third party as a justification for believing in consent, and to impersonation. That is already the current law, so they apply in pretty limited circumstances.
In the light of what I have said, I hope that noble Lords will withdraw or not move their amendments.
5.30 p.m.
Baroness Noakes: My Lords, I thank all noble Lords who have spoken and the Minister for his reply. As I am sure he is aware, I shall not test the opinion of the House on the subject today. However, I would not like to leave him in any doubt: we regard the issue as important and outstanding. He indicated to my noble friend Lord Campbell of Alloway that he had no desire to debate it further in the discussions that he promised on the objective test, but I sincerely hope that he will entertain it in those discussions. Indeed, I have every confidence that he will do so. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Acknerhad given notice of his intention to move Amendment No. 10:
Leave out Clause 1.
The noble and learned Lord said: My Lords, in view of the further discussions that will take place on Clause 1, I shall not move the amendment.
[Amendment No. 10 not moved.]
Clause 2 [Rape of a child under 13]:
[Amendments Nos. 11 and 12 not moved.]
Lord Falconer of Thorotonmoved Amendment No. 13:
Transpose Clause 2 to after Clause 7.
The noble and learned Lord said: My Lords, government Amendments Nos. 13, 24 and 33 rearrange Clauses 1 to 8 into two groups. The first comprises the non-consensual offences, and the second all the offences specifically intended to protect those aged under 13. Government Amendments Nos. 42, 45, 47, 53, 69, 74, 98, 99, 100, 111, 112, 117, 123, 124, 125, 129 and 131 merge the causing and inciting limbs of the child sex, abuse of trust, mental disorder, inducements and care worker offences. They also add an inciting limb to Clause 8 to provide a specific offence for cases in which a child under 13 is incited to engage in sexual activity. The purpose is to simplify the drafting of the Bill and reduce duplicated wording.

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The merging is made possible by the removal of Clause 76. In the introductory print of the Bill, Clause 76 had the effect of providing that a person could not be convicted of the offences to which it applied if the victim of such an offence was under 13. In those cases, one of the offences specifically designed to protect that age group was to be charged. However, Clause 76 applied only to the causing limbs of the groups of offences to which I referred, because it was intended that Clause 8 should be charged in cases involving the under-13s. However, Clause 76 did not apply to the inciting limbs of those offences, because there was no equivalent offence specifically for the under-13s. The reason for that is that the issue of consent is not relevant to incitement, as one cannot incite a person not to consent to sexual activity. "Causing" and "inciting" were therefore drafted as separate offences.
A government amendment in Committee removed Clause 76. We did so because it would have caused difficulties in cases where evidence that the child was under 13 emerged only during the trial. The removal of Clause 76 therefore made it possible to merge the causing and inciting limbs of the offences. However, as I have said, there was no specific offence in the Bill of inciting a child under 13, so Amendments Nos. 42 and 45 provide a specific offence to cover situations in which a child under 13 is incited to engage in sexual activity.
The amendments will mean that whenever the causing or inciting limbs of the offences on abuse of trust, mental disorder, care workers and so on are committed against a child under 13, a specific "under-13" offence will be available for the CPS to charge. That offence will provide a penalty of life imprisonment where penetration was caused or incited, or 14 years in other cases. However, unlike the position under the previous Clause 76, it will still be possible to secure a conviction under the abuse of the trust and mental disorder offences and so on where the evidence unexpectedly shows that the victim was under 13.
The amendments also have the effect of reducing duplicated wording in the Bill and the number of clauses. I apologise for the complicated explanation, but its purpose is to try to increase the simplicity of the Bill.
Amendment No. 116 was tabled by the noble Baroness, Lady Noakes, and the noble Lord, Lord Astor of Hever. It proposes that, for the offence of inciting a person with a mental disorder or learning disability to engage in sexual activity, the maximum penalty should be life imprisonment where penetration is involved and 14 years in other cases. By deleting Clause 34 and amending Clause 33 to include incitement, government Amendments Nos. 111, 112 and 117 have the same effect as proposed in Amendment No. 116, so I invite those who tabled the amendment not to move it when the time comes.
I am afraid that I can offer no such comfort with respect to Amendments Nos. 43, 44, 51 and 52. Those have the effect of providing a maximum penalty of life imprisonment for the offences of causing a child under
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13 to engage in sexual activity and inciting a child under 16 to engage in sexual activity. The Bill provides for a maximum penalty of life for those offences where the activity is penetrative; in other cases it is 14 years.
Although we regard the offences as serious criminal behaviour, they involve activity ranging from penetration to sexual kissing. I think it right to retain a penalty structure that recognises the most serious abuse that can be inflicted. However, providing for a maximum 14-year penalty for non-penetrative activity none the less recognises the extent of the harm caused in other cases. Fourteen years is the maximum determinate penalty that can be imposed and is itself very severe. Therefore, if the time comes, I shall seek to argue against Amendments Nos. 43, 44, 51 and 52. I beg to move.
Baroness Noakes: My Lords, I thank the Minister for introducing his amendments, which we support. I tabled Amendments Nos. 43, 44, 51, 52 and 116 to the group as probing amendments to draw attention to the disparity of sentencing between the incitement offences involving under-13s in Clauses 8 and 11, and that for mentally disordered offenders in Clause 34. In effect, the Government's solution deals with the points. I have some remaining concerns on parity of sentencing, but I shall raise them under a later group of amendments.
Lord Thomas of Gresford: My Lords, I was delighted to hear the Minister use the word simplicity. How can I resist the amendments in that case?
On Question, amendment agreed to.
Lord Ackner moved Amendment No. 14:
After Clause 2, insert the following new clause—
"ANONYMITY OF DEFENDANT IN RAPE ETC. CASES
The defendant in rape etc. cases shall enjoy the same right to anonymity as is enjoyed by the complainant."
The noble and learned Lord said: My Lords, since the Committee stage a short time ago, I have been informed by an entirely impeccable source of the following facts. A local GP, carrying on a one-man practice, was suddenly charged by the police with having raped a girl under 16. I am not sure whether or not she was his patient. He was arrested in front of his family and was remanded in custody. He remained in custody for more than a week. He was then granted bail on terms that he left the county and lived with his father, only crossing the county boundaries for the purpose of obtaining legal advice. Very recently, and before he was due to go back to court, he was informed by the police that all charges had been withdrawn.
That incident focused my attention on why we have removed anonymity from the defendant. A defendant was granted anonymity by Section 6 of the Sexual Offences (Amendment) Act 1976 and enjoyed such anonymity for 12 years until Section 158 of the Criminal Justice Act 1988 withdrew it.
The Government's cri de coeur has been that we must adjust any imbalance that exists between complainant and defendant in criminal trials. Here is

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an imbalance that calls vociferously for an adjustment. I know of no reason for depriving the defendant of that immunity. If he does not want it he can in terms resile from it, but if he wants it, he should be entitled to retain it. If one considers the damage that must have been done to the reputation of that general practitioner locally—he has not yet been able to resume his practice—and what has happened in a number of cases when the press reveal that false allegations have been withdrawn at an early or a late stage, one wonders why this protection has been removed. From such inquiries that I have made, I can find no sensible justification for so doing. I beg to move.
Baroness Kennedy of The Shaws: My Lords, there is a sensible justification. There is the principle of open justice in which we should believe, and that anonymity should be rare and only in the most exceptional circumstances drawn down on someone involved in the system. There is anonymity in relation to children and for rape victims because of the terrible stigma and the problem of getting women to come forward and going through the process.
I agree with the noble and learned Lord, Lord Ackner, to the extent that there should be anonymity until the point of charging. There has been ignominy and scarring on the lives of people when no charge has been forthcoming, but when in the run-up to a charge, there is huge speculation in the newspapers. That damages people's lives.
However, once someone is charged, it is important, as with any other serious crime, that there is no anonymity because, as the police have found from experience, it is one of the ways in which evidence comes forward. Witnesses come forward saying, "I was also raped by this man". It happens particularly in relation to cases involving medical practitioners. A charge brought against a medical practitioner unearths many other instances of abuse.
I strongly urge that this House does not consider allowing anonymity for anyone who is charged with rape. But the Government might look sensitively at the issue of whether someone should be covered with anonymity until the point of being charged.
5.45 p.m.
Baroness Walmsley: My Lords, from these Benches we support the amendment tabled by the noble and learned Lord, Lord Ackner. We strongly believe in equality under the law. In the exceptional circumstance referred to by the noble Baroness, Lady Kennedy, the complainant has anonymity. However, an exceptional amount of stigma attaches to a person who is accused and charged with rape, but who may eventually be proved innocent.
I raised this subject at Second Reading, as did the noble Lord, Lord Lucas. It is important when making new law that is designed to increase the number of sound convictions for rape that we are seen to be as fair to the defendant as we are to the complainant. I recall
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that the Minister in response said, "Well, if rapists; why not murderers or shoplifters?". The difference is the press. Murderers and shoplifters—unless they are movie stars—do not have the same amount of coverage from the press as possible rapists.
The noble Baroness, Lady Kennedy of The Shaws, said that others may come forward. If someone has a complaint, he or she should make it. It is rare for people to come forward when there is publicity. It is much more important that both the defendant and the complainant are treated equally in these exceptional circumstances. That is why we support the amendment.
Baroness Kennedy of The Shaws: My Lords, perhaps I may raise one matter. When talking about equality before the law, it is important to look beyond the courtroom door. We have come to understand that formal equality does not do justice. To create formal equality and not take account of the inequalities in our society beyond the courtroom door creates greater injustice. To treat as equal those who are unequal only creates further injustice.
The point at issue is that we created protection for women because without it women would not come forward. The reason that women will come forward when they see that a man has been charged with rape is because they are confident that they will not be so readily disbelieved if he is clearly doing it to other women. Almost every woman in those circumstances is most concerned to protect other women. The majority of people when interviewed say, "I want to make sure that it doesn't happen to anybody else".
The Liberal Democrats are getting it wrong. Formal equality has to be replaced with substantive equality. That is what will make the difference to women's lives.
Lord Campbell of Alloway: My Lords—
Baroness Walmsley: My Lords, first let me respond to the points made by the noble Baroness, Lady Kennedy. She said that justice does not end at the courtroom door. But that is why the defendant needs to have the same protection as the complainant. I am absolutely in favour of doing everything possible to encourage women to come forward when they have been raped. I have enormous sympathy for them. However, we cannot give them that encouragement at the expense of a possible lifetime stigma for an innocent person. That is why we support the amendment.
Baroness Noakes: My Lords, we have considerable sympathy with the amendment. The issue of the stigma associated with an accusation of rape is so important that there should be measures to protect defendants. Of course there is a question of balance, as there is in many matters arising from the Bill. In certain circumstances, there may be a need to get women to come forward about offences involving a defendant, but that must be balanced against the need for fairness to the defendant.

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To my mind, the amendment before us does not deal with all the problems, because, as the noble Baroness, Lady Kennedy of the Shaws, pointed out, the biggest problems relate to the publicity that may occur before charge where it is much more difficult to provide remedy in the Bill. In recent cases involving Mr John Leslie and Mr and Mrs Neil Hamilton, they were subjected to appalling adverse publicity with no charges pressed. But there are people who will always say, "There is no smoke without fire". The intention behind the amendment is wholly laudable. I hope that the Government will say that they are prepared to consider introducing a provision to deal with the issue both pre-charge and during the course of a case, once it is decided to press a charge.
Lord Campbell of Alloway: My Lords, I apologise to the noble Baroness, Lady Walmsley; I did not realise that she was in the middle of her speech. I also apologise to the House.
The noble Baroness, Lady Kennedy of the Shaws, said that there was a form of inequality between the complainant and the accused. They both enjoy the presumption of innocence before they start.
The real problem is not tackled by the amendment as drafted. It is the pre-trial publicity that causes the great problems to which the noble and learned Lord, Lord Ackner, referred. I am sure that his amendment could be redrafted in some way clearly to cover that.
When charges are made and we get to trial, it is a question of reciprocity of treatment. If there is anonymity for the complainant, there should certainly be anonymity for the accused. My noble friend Lady Noakes is right: that should receive further government consideration. In certain circumstances, the damage done to a man or woman's reputation is terrific. At present, there is no way that one can escape those consequences.
Baroness Howarth of Breckland: My Lords, I am deeply tempted to support the amendment because I have worked with men who have been falsely accused, as well as with women who have not won their cases in court. However, I must stand today with the noble Baroness, Lady Kennedy, simply because it is the existence of anonymity for women that has brought more women forward. There is no doubt that other victims come forward when cases are being heard.
I was impressed by the earlier suggestion of the noble and learned Lord, Lord Lloyd, that those groups of women have enormous power and can so influence the press. My experience is that those women are emotionally frail. Although we are here debating in good, clear, intellectual terms with lawyers—I chance my arm again by speaking in this hornet's nest of lawyers—it is the sheer emotion, depression and subjection that those women experience that means that they do not come forward, but if someone else comes forward, they will clearly find some support.
However, I have sympathy with the amendment. I hope that the Government can find a place in the process that is less harmful to men who are innocent
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and not charged but does not provide anonymity to the assailant, because that is when we have a hope of more evidence being brought forward.
Baroness Mallalieu: My Lords, I, too, ask my noble and learned friend to respond to the spirit of the amendment and to consider what the Government can do to provide what is clearly needed: some protection for those who are not subsequently charged, as well as those who are awaiting trial. That is a real problem. As noble Lords have said, whether or not there is ultimately a charge, reputations are wrongly ruined and a great degree of suffering is caused. Perhaps my noble and learned friend will be sympathetic to what the House would like done.
Baroness Blotch: My Lords, like the noble Baroness, Lady Mallalieu, I hope that the Minister will take the amendment away and even consider the half-way house suggestion of anonymity beyond the point of charge. I prefer the amendment moved by the noble and learned Lord, Lord Ackner, but if that cannot be agreed to, some form of anonymity post-charge should be considered.
Some men in such situations are driven not just to the point of, but to actual, suicide. I cannot think of anything more dreadful to someone who is completely innocent and vexatiously charged with such a serious offence than having to live through the kind of publicity that goes with it. We should not underestimate the effect of that.
I am reminded of the noble Earl, Lord Russell, who for a long period—in all about a year, I think—stood by a young student who was vexatiously charged with a serious sex offence about two or three years after the offence was meant to have occurred. The charge turned out to be vexatious. The support given that young man by the noble Earl, Lord Russell, kept him sane throughout that period.
I personally know of a senior American military person who invited some friends to spend an evening and the night with his children. Two of the girls accused him of having entered their bedroom in the night with no clothes on and having touched them. He was given the choice of all that going public if a complaint was made and risking the downside of the attendant publicity, or returning to America out of uniform and out of the service as a senior officer.
He was innocent, but he took that choice: he went back to America; he could not convince anyone of his innocence. He was the father of two girls and held a respected position. He returned to America but, during the following two years, the girls admitted that they had cooked it up.
I agree with the noble Baroness, Lady Walmsley, who said that the damage done to such people lasts for their lifetime. I am fairly certain that the Minister will not accept the noble and learned Lord's amendment, but, along with many others, I implore him to think hard of some way to minimise adverse publicity on some innocent people. If they ultimately turn out to be guilty, they will receive all the publicity that they

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deserve. Protection is owed to those who are subject to cases, such as arise all too frequently, that are dropped before they come to court. As my noble friend Lady Noakes said, after all the attendant publicity, the rest of the world simply says, "There is no smoke without fire", and those people are damned and their personal life and, often, their working lives, destroyed.
The Lord Bishop of Chester: My Lords, I speak from this Bench in support of the amendment. The issue of emotional frailty cuts across both the accused and the victim. One can only imagine what it is like to be falsely accused, especially if one is in a prominent position. Occasionally I come across cases of clergy who are accused. The facts are often difficult to prove: in such cases, it is one person's word against another's. The point that more victims may come forward is important. One must weigh that carefully against the other considerations to which noble Lords have referred. On balance, the argument comes down in favour of granting the same rights of anonymity in principle to those who are accused. I support the amendment.
6 p.m.
Lord Lester of Herne Hill: My Lords, I was not intending to take part in the debate until I listened to speeches from all sides of the House.
I strongly support the way in which the Bill secures a better balance between the rights of defendants and the rights of victims in rape cases. That is entirely sensible. Introducing the objective elements into guilty intent is highly beneficial. Precisely because we have a fairer balance between the rights of defendants and those of victims, it is important that we also secure a fair balance between the rights of defendants and the rights of victims in rape cases so far as publicity and anonymity are concerned.
I fully take the general point made by the noble Baroness, Lady Kennedy of The Shaws, about the difference between formal equality and substantive equality, and open justice. Normally, I should use those concepts in a similar direction. However, I do not believe that this issue is about formal or substantive equality or open justice. No one is suggesting that the rights of alleged rape victims to anonymity should in any way be withdrawn. I entirely agree with the noble Baroness that that anonymity is crucial in encouraging women to come forward with complaints and to go all the way to trial.
The real question is: what harm does it do if we treat rape trials or the proceedings leading up to rape trials in much the same way as we treat issues that arise in the family courts? We do not regard open justice or anything of that kind as creating an absolute right to publicity for all stages of very intimate details of sexual and family matters in family courts. The same applies to the highly adversarial open system of criminal justice in this country, which often does not sufficiently respect the rights of third parties, children or other vulnerable people.
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The amendment seeks to do something compassionate and sensible; that is, to provide greater protection for the defendant who turns out not to be guilty in a way that does not produce any detriment that I can see either to the public interest at large or to the alleged victim of the rape. For those reasons, I support the amendment, as others from all sides of the House have done.
Lord Lucas: My Lords, first, the arguments that have been raised by many noble Lords will also apply with equal force to some child sex offences, which we shall consider later in the Bill and which have a similar stigma for the people who are accused. When someone is accused of that, it is extremely difficult to rid oneself of it because there is absolutely no public acceptance by anyone, including the inmates of prisons, of child sex offences. However, there are sections of society who are prepared to regard as least some varieties of rape as excusable.
Secondly, in relation to a charge of rape against a defendant, will the noble and learned Lord tell us—if not now, by letter—whether publicity either before the charge or at the moment of charge frequently brings forward other people who wish to support the charge or to produce other instances of it? How frequent is that? If it is not that common, perhaps we could have a system by which the defendant had anonymity but that anonymity was removable by application to the court on the grounds that the prosecution wished to see whether other people wished to bring forward similar accusations. That would protect those more difficult sets of charges, such as an alleged child sex offence as a result of recovered memory syndrome within a family, where it is unlikely that there are other people outside who were similarly affected, as against abuse in a children's home, where one very much wants to know whether others have been affected. Such a flexible arrangement would be a way of getting over some of the objections.
Lord Falconer of Thoroton: My Lords, a charge of a sexual offence that is not proved can be extraordinarily damaging. The amendment deals only with the position post-charge, not the position pre-charge. I shall deal with the position post-charge first and then with the position pre-charge.
My noble friend Lady Kennedy of The Shaws described the starting point exactly. It remains a principle of our criminal justice system that it is open and transparent. People must be able to see what is going on in a criminal case. Introducing anonymity for defendants for those categories of cases could reduce our chances of bringing more offenders to justice and might well impact on public confidence in the system; and we would risk giving out mixed messages, especially within the context of needing to do more for victims and witnesses.
As noble Lords know, anonymity for defendants was granted in 1976. The effect of that was considered by Mrs Justice Heilbron's committee—the very same Mrs Justice Heilbron whom the noble and learned Lord, Lord Ackner, relied on to justify his position in

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terms of not introducing an objective element in relation to mens rea for rape. Mrs Justice Heilbron recommended that anonymity be repealed and the government of the day acted in relation to that proposal. She gave a number of arguments, one of which involved the extent to which anonymity for the victim encouraged victims to come forward while withdrawing anonymity for the defendant would in certain cases help other victims of that defendant to come forward as well. She considered that delicate balance and recommended after the period of anonymity that it he withdrawn.
We believe that the law presently strikes a proper balance between the principle of open justice, in which the public has the wider interest, and the very important need to ensure that victims of sexual offences are encouraged to report such crimes.
Baroness Walmsley: My Lords, am I correct in thinking that Mrs Justice Heilbron's committee sat more than 30 years ago, at a time when the media's coverage of such cases was not as extensive or as headline-making—colourful, perhaps we should say—as it is today?
Lord Falconer of Thoroton: My Lords, Mrs Justice Heilbron's committee sat at the end of the 1970s, which is close enough to 30 years ago. I suspect that the noble Baroness is wrong if she is suggesting that the press in the 1970s were not vigorously and salaciously reporting sex crime cases. I have absolutely no doubt that the press in the 1970s had just as much interest in reporting those cases as they do now, although I cannot give a scientific assessment of that.
The rationale for protecting victims alone is not only to protect them from hurtful publicity but also to encourage other victims to come forward to report the offence and co-operate with the prosecution. Those arguments do not apply to the accused. Even in the case of the complainant, the court has the power to lift the prohibition on publicity if it is necessary to encourage witnesses to come forward and the defence is likely to be prejudiced if the anonymity of a complainant stays in place.
The noble Baroness, Lady Kennedy of The Shaws, was absolutely right when she said that talking about equality of arms is completely misleading. Equality of arms means that when the prosecution and defence are in court, there must he a level playing field between them. However, that does not mean that at every stage of proceedings they must be treated differently. I do not believe that anyone in the House would doubt that anonymity for victims is entirely appropriate as a means of encouraging people to complain.
Singling out defendants in cases of sexual offences, as is being proposed, might also give the impression that there exists a presumption of doubt about the credibility of the complainant in sex offence cases which does not exist with other kinds of offences. That could hamper efforts to encourage more victims—mainly women—to come forward to report sex offences committed against them, and it would be
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unwelcome to risk implying that such a change was being made because complainants in such cases were making false or malicious accusations.
We think it would be wrong in terms of promoting proper prosecution of these cases to single them out as those where there is a special protection for the defendant. We have considered the matter carefully but we do not think it would be right to give anonymity after charge.
The Association of Chief Police Officers has issued all police forces with guidance on the pre-charge position applying to all offences. The guidance makes it clear that anyone tinder investigation but not charged should not be named or have details provided that might lead to their identification before they are charged.
Lord Ackner: My Lords, the case I gave was an example of the flagrant way the press deals with the situation. In the local journal—the Advertiser I think it was called —all the details I have given and more were provided. Where does he get this protection from?
The noble Baroness, Lady Kennedy, did not seem to think there was any protection pre-trial, hence her modest suggestion. Am I to understand that the noble and learned Lord rejects even that?
Lord Falconer of Thoroton: My Lords, with respect to the noble and learned Lord, I understood him to be saying that there was a complaint made against the general practitioner, a charge was brought and the defendant was held in custody for a week. This was presumably imposed by a court, which must mean there was a charge. If a charge had been imposed, then all that can be reported is that which was referred to in court and that which would not prejudice a fair trial. I am not sure what particular part of the process the noble and learned Lord is complaining about—it is all post-charge as I understand the noble and learned Lord's case.
Lord Ackner: My Lords, I cannot be categoric on that because I am anxious that the person concerned at least has anonymity in this Chamber. However, there is nothing to stop the public being aware of what has happened. The wife herself could have complained.
Lord Falconer of Thoroton: My Lords, in addition to the guidance issued by ACPO, the Attorney-General, speaking at an event earlier this year, acknowledged the existence of the Press Complaints Commission's code of practice and said that he had issued further guidance to editors.
Baroness Kennedy of The Shaws: My Lords, I thank the Minister for giving way. The editor of one of our tabloid newspapers recently gave evidence before the Home Office Select Committee and said that her newspaper had paid money to police officers for information. It is well known that there are leaks from the police, particularly when the people involved have

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a public profile or an eminent position, whatever it might be. There are frequently leaks because it makes for good tabloid coverage.
Whatever the guidance is from the police and the Press Complaints Commission or from the Attorney-General, none of it works. There needs to be pre-charging anonymity. Once a charge is made, it should go to the traditional position. Perhaps the Minister might consider anonymity before a charge is made. This is because of the terrible impact on lives as has been described.
Lord Falconer of Thoroton: My Lords, what the noble Baroness describes is a practice between the police and the press not just in relation to sex offences but in relation to all investigations. It is made absolutely clear by the Association of Chief Police Officers and by my right honourable friend the Attorney-General that this should not happen. This is not the Bill in which to introduce any provision to cover this sort of matter. It is a matter for consideration in another context and in relation to another Bill.
6.15 p.m.
Lord Lester of Herne Hill: My Lords, I thank the Minister for giving way. Since we are dealing with this Bill and sexual offences in particular, what policy objection could there be to adopting the approach of the noble baroness, Lady Kennedy, and giving statutory safeguards for the pre-trial stage but not for the trial stage? Given that the Government's position is "it is happening in practice already"—or should be happening according to guidelines although that is not what always happens—what possible objection would there be to an amendment that dealt only with pre-trial in the context of this Bill?
Lord Falconer of Thoroton: My Lords, first, I do not want to single out a particular sort of offence. Secondly, the question of pre-charge anonymity has not been canvassed with the wide range of people who should be canvassed before any such change is made. For those reasons I respectfully submit it is not remotely appropriate to deal with it in this Bill.
Baroness Blatch: My Lords, anonymity for women has been singled out for a particular sort of offence so how can that be used as an argument against anonymity for men?
Lord Falconer of Thoroton: My Lords, for reasons that I have indicated, which are special to sexual offences, the reasoning advanced by the noble Baroness, Lady Kennedy, applies to all charges.
With the greatest of respect, there is no analogy to be drawn with the fact that people who are complainants in sexual offences have anonymity and the fact that in relation to the pre-charge position relating to sexual offences there must be a special rule.
Baroness Howarth of Breckland: My Lords, I am in total agreement with what the Minister has said. I am
1094
more familiar with guidance in the social care field and I wonder whether the Home Office could issue similar guidance? I do not know what kind of remedies there are if police officers leak information and whether that is a disciplinary offence. We could look at whether guidance could be consulted upon, which is the usual process, because as much as I want to speak for victims—I spend my life working with them—I also know the terrible damage that happens in these circumstances.
Lord Falconer of Thoroton: My Lords, again the right course is for me to send noble Lords a copy of the guidance issued by ACPO. I think it is, as the noble Baroness, Lady Howarth implies, a matter for guidance—
The Lord Bishop of Chester: My Lords, the noble and learned Lord referred to the guidance issued last November. Soon after that a well-known entertainer, Matthew Kelly, was dragged through the papers in an unfortunate way. He was dragged from his pantomime performance and it was in the press within five minutes. This was on the back of the guidance being issued. I happen to know this because his wife is involved in charitable affairs in my diocese. I know the impact on him and his family. Unless the guidance the Association of Chief Police Officers has issued is given some teeth, it is not worth the paper it is written on.
Lord Falconer of Thoroton: My Lords, this is not an appropriate issue to be dealt with simply in relation to sex offences. I respectfully submit that it is an issue to be dealt with by reference to guidance and not by the creation of what would be a special offence, which is what is being proposed here.
Lord Lucas: My Lords, this is not the procedure the Government are following in relation to Clause 73 in this Bill. That clause introduces a new offence of violating a corpse without, as far as I can see, tackling the many other ways people can violate the corpse or memory of somebody. Indeed, it is an offence for which the noble Lord could produce no actual instances. In this Bill, the Government are introducing something which is special to sexual offences and which does not relate to the wider and more common instances of similar offences—indeed, the question of the lady who was covered in bacon is in the news again today.
The Government are already dealing with an offence which is a general one but introducing it in this Bill as a specific offence just because this Bill is limited to sexual offences, in this case involving a corpse. If the Government are doing it in Clause 73, they can do it elsewhere.
Lord Falconer of Thoroton: My Lords, sexual penetration of a corpse should be appropriately dealt with in the Sexual Offences Bill. What people are talking about here is the practice in relation to pre-charge publicity and where information for pre-charge publicity comes to the press. That is a much bigger topic than simply in relation to sex offences.

1095
The amendment as tabled deals only with the post-charge position. We believe it wrong that anonymity should be given to defendants in relation to that. In relation to the pre-charge position, the amendment raises issues much wider than the Sex Offences Bill which we respectfully submit are better dealt with by guidance.
I hope that, in the light of what I have said, the noble and learned Lord will feel able to withdraw his amendment.
Lord Ackner: My Lords, my noble and learned friend has done nothing to encourage me to withdraw my amendment. For 12 years this anonymity was enjoyed. I have heard nothing to suggest that during those 12 years there were occasions when it worked to the disadvantage of justice. I have not limited my request to pre-trial because pre-trial is only part of the issue.
If there had been a ray of generosity, which one sometimes associates with my noble and learned friend, and he was prepared to give way on that, I would reluctantly have withdrawn my amendment. But as I cannot achieve even that, I am forced to ask for that which I have tabled. It may perhaps be a novel occasion for him, but I ask to test the opinion of the House.
6.21 p.m.
On Question, Whether the said amendment (No. 14) shall be agreed to?
Their Lordships divided: Contents, 109; Not-Contents, 105.

Division No. 1

CONTENTS

Ackner, L. [Teller]

Elton, L.

Addington, L.

Falkland, V.

Alexander of Weedon, L.

Fearn, L.

Alton of Liverpool, L.

Flather, B.

Anelay of St Johns, B.

Gardner of Parkes, B.

Astor, V.

Geddes, L.

Astor of Hever, L.

Glentoran, L.

Avebury, L.

Goodhart, L.

Barker, B.

Griffiths of Fforestfach, L.

Beaumont of Whitley, L.

Hamwee, B.

Blatch, B.

Hanham, B.

Bowness, L.

Hanningfield, L.

Brooke of Sutton Mandeville, L.

Harris of Richmond, B.

Brougham and Vaux, L.

Henley, L.

Burnham, L.

Hooson, L.

Buscombe, B.

Lester of Herne Hill, L.

Byford, B.

Lindsay, E.

Caithness, E.

Linklater of Butterstone, B.

Carlisle of Bucklow, L.

Livsey of Talgarth, L.

Chester, Bp.

Lucas, L.

Clement-Jones, L.

Luke, L.

Colwyn, L.

Lyell, L.

Cope of Berkeley, L.

McNally, L.

Cox, B.

Maddock, B.

Craigavon, V.

Mallalieu, B.

Crathorne, L.

Manchester, Bp.

Dahrendorf, L.

Mancroft, L.

Darcy de Knayth, B.

Mar and Kellie, E.

Dixon-Smith, L.

Marlesford, L.

1096

Masham of Ilton, B.

Scott of Needham Market, B.

Mayhew of Twysden, L.

Seccombe, B.

Methuen, L.

Sharp of Guildford, B.

Miller of Chilthorne Domer, B.

Sheldon, L.

Monro of Langholm, L.

Shutt of Greetland, L.

Monson, L.

Smith of Clifton, L.

Montrose, D.

Soulsby of Swaffham Prior, L.

Newby, L.

Stoddart of Swindon, L.

Newton of Braintree, L.

Taverne, L.

Noakes, B.

Thomas of Gresford, L.

Northesk, E.

Thomas of Walliswood, B.

Northover, B.

Thomson of Monifieth, L.

Norton of Louth, L.

Tope, L.

Oakeshott of Seagrove Bay, L.

Tordoff, L.

Onslow, E.

Tugendhat, L.

Pearson of Rannoch, L.

Ullswater, V.

Pilkington of Oxenford, L.

Waddington, L.

Plumb, L.

Wakeham, L.

Razzall, L.

Wallace of Saltaire, L.

Rennard, L.

Walmsley, B.

Renton, L.

Watson of Richmond, L.

Rodgers of Quarry Bank, L.

Weatherill, L.

Roper, L.

Wedderburn of Charlton, L.

Saltoun of Abernethy, Ly. [Teller]

Wilcox, B.

Williams of Crosby, B.

Sandberg, L.

Williamson of Horton. L.

NOT-CONTENTS

Ahmed, L.

Hardy of Wath, L.

Alli, L.

Harris of Haringey, L.

Amos, B.

Haskel, L.

Andrews, B.

Hattersley, L.

Archer of Sandwell, L.

Hayman, B.

Ashton of Upholland, B.

Hollis of Heigham, B.

Bach, L.

Howarth of Breckland, B.

Barnett, L.

Howe of Idlicote, B.

Bassam of Brighton, L.

Howells of St. Davids, B.

Berkeley, L.

Howie of Troon, L.

Bernstein of Craigweil, L.

Hoyle, L.

Billingham, B.

Hughes of Woodside, L.

Blackstone, B.

Hunt of Chesterton, L.

Borrie, L.

Hunt of Kings Heath, L.

Bragg, L.

Irvine of Lairg, L. (Lord Chancellor)

Brooke of Alverthorpe, L.

Brookman, L.

Janner of Braunstone, L.

Campbell-Savours, L.

Jay of Paddington, B.

Carter, L.

Jones, L.

Christopher, L.

Kennedy of The Shaws, B.

Clark of Windermere, L.

Kirkhill, L.

Clinton-Davis, L.

Layard, L.

Corbett of Castle Vale, L.

Lea of Crondall, L.

Crawley, B.

Lipsey, L.

David, B.

Lloyd of Berwick, L.

Davies of Coity, L.

Lofthouse of Pontefract, L.

Davies of Oldham, L.

McIntosh of Haringey, L. [Teller]

Desai, L.

Dixon, L.

McIntosh of Hudnall, B.

Dormand of Easington, L.

MacKenzie of Culkein, L.

Dubs, L.

Mackenzie of Framwellgate, L.

Eatwell, L.

Mar, C.

Elder, L.

Mason of Barnsley, L.

Evans of Parkside, L.

Merlyn-Rees, L.

Evans of Temple Guiting, L.

Mitchell, L.

Falconer of Thoroton, L.

Morgan, L.

Farrington of Ribbleton, B.

Morris of Manchester, L.

Faulkner of Worcester, L.

Palmer, L.

Filkin, L.

Patel, L.

Fyfe of Fairfield, L.

Patel of Blackburn, L.

Gale, B.

Pitkeathley, B.

Goldsmith, L.

Ramsay of Cartvale, B.

Gordon of Strathblane, L.

Randall of St. Budeaux, L.

Goudie, B.

Renwick of Clifton, L.

Gould of Potternewton, B.

Rooker, L.

Graham of Edmonton, L.

Sawyer, L.

Grocott, L. [Teller]

Simon, V.

1097

Smith of Leigh, L.

Whitaker, B.

Taylor of Blackburn, L.

Whitty, L.

Temple-Morris, L.

Wilkins, B.

Thornton, B.

Williams of Elvel, L.

Tomlinson, L.

Williams of Mostyn, L. (Lord Privy Seal)

Turnberg, L.

Walker of Doncaster, L.

Woolmer of Leeds, L.

Resolved in the affirmative, and amendment agreed to accordingly.
6.32 p.m.
Clause 3 [Assault by penetration]:
[Amendments Nos. 14A to 22 not moved.]
Clause 4 [Assault of a child under 13 by penetration]:
[Amendment No. 23 not moved.]
Lord Falconer of Thorotonmoved Amendment No. 24:
Transpose Clause 4 to after Clause 7.
On Question, amendment agreed to.
Clause 5 [Sexual assault]:
[Amendments Nos. 25 to 32 not moved.]
Clause 6 [Sexual assault of a child under 13]:
Lord Falconer of Thorotonmoved Amendment No. 33:
Transpose Clause 6 to after Clause 7.
On Question, amendment agreed to.
Clause 7 [Causing a person to engage in sexual activity without consent]:
[Amendments Nos. 34 to 41 not moved.]
Clause 8 [Causing a child under 13 to engage in sexual activity]:
Lord Falconer of Thorotonmoved Amendment No. 42:
Page 4, line 18, after "causes" insert "or incites"
On Question, amendment agreed to.
[Amendments Nos. 43 and 44 not moved.]
Lord Falconer of Thorotonmoved Amendment No. 45:
Page 4, line 25, after "caused" insert "or incited"
On Question, amendment agreed to.
Clause 9 [Sexual activity with a child]:
Lord Falconer of Thorotonmoved Amendment No. 46:
Page 4, line 36, leave out paragraph (c).
The noble and learned Lord said: My Lords, the offences in Clauses 9 and 10 relate ostensibly to consensual activity with a child aged under 16. Our policy is that children under 13 cannot consent to sexual activity in any circumstances. Therefore, where the child was under 13 we would expect charges to be brought under one of the specific child under 13 offences.
1098
Following the deletion of Clause 76 of the introductory print (which made specific provisions relating to the offences to be charged where the child was under 13) the wording of Clauses 9 and 10 has been amended. They provide that the prosecution must prove that the defendant did not reasonably believe that the victim was 16 or over at the time of the sexual activity. Now that the clauses may apply where the victim was under 13, the amendment made in Committee at paragraph (d) provides that where the child was under 13 at the time of the alleged offence, the mistaken belief in age provisions do not apply.
The new paragraph (d) that was agreed to in Committee makes paragraph (c) (which provides that the victim must be under 16) redundant. The Government amendments are purely a tidying-up exercise to remove the redundant paragraph (c) from each clause. I beg to move.
On Question, amendment agreed to.
Clause 10 [Causing a child to engage in sexual activity]:
Lord Falconer of Thorotonmoved Amendment No. 47:
Page 5, line 3, after "causes" insert "or incites"
On Question, amendment agreed to.
Lord Falconer of Thorotonmoved Amendment No. 48:
Page 5, line 5, leave out paragraph (c).
On Question, amendment agreed to.
Baroness Noakesmoved Amendment No. 49:
Page 5, line 11, after "indictment" insert—
"(a) where subsection (3) applies, to imprisonment for life; (b) in any other case"
The noble Baroness said: My Lords, in moving Amendment No. 49, I shall speak also to Amendments Nos. 50, 54 and 55 in the group. Amendments Nos. 49 and 50 amend the sentencing provisions of Clause 10, which now covers both causing and inciting a child to engage in sexual activity, so that the sentence can be life where penetration of a child under 13 is involved. The amendments align the sentence both with that under Clause 8, which deals exclusively with under-13s, and with that under Clause 33, where a mentally disordered person who lacks capacity to consent is involved.
Would the Minister explain why it is possible for an offence involving a child under 13 to carry a life sentence under Clause 8, but only 14 years under Clause 10? I do not believe that we should create the possibility that an offence involving a child under 13 could be tried where the sentence is the lesser one. That should not be an option open to prosecutors. I hope that the Minister will explain why, given the offences under Clause 8, it is necessary to include under-13s within the ambit of the Clause 10 offence. If I had been more focused when I tabled the amendments I should also have tabled a probing amendment to draw

1099
attention to a similar disparity between Clauses 6 and 9. As the same point of principle arises, I hope that the Minister will cover that as well.
Amendments Nos. 54 and 55 seek to amend the sentencing provision of Clauses 12 and 13 so that for under-13s the sentence will be aligned with that for mentally-disordered persons who lack capacity to consent under Clauses 35 and 36.
Under Clauses 35 and 36 the offence is always triable on indictment and carries a possible 10-year sentence. Under Clauses 12 and 13 there is an option of summary conviction carrying six months or a fine. We do not think that that is right where under-13s are involved. I believe that the Government's approach to the Bill is that where a child is under 13 the question of consent should not arise. Why is it that a person who cannot consent under Clauses 35 and 36 receives greater protection than a child under Clauses 12 and 13? Why is it possible that an offence involving an under-13 could be tried summarily with its much lower sentence? Our amendments seek to eliminate disparity and ensure that offences involving under-13s are always treated as serious offences. I beg to move.
Baroness Blatch: My Lords, my noble friend's amendment deals with the internal inconsistency of the Bill and the comparisons between the penalty for causing a child to engage in sexual activity and that for causing a person with a mental disorder to do the same thing. I rise not to take issue with my noble friend but simply to take this opportunity to point out that all the child sex offences in Clauses 9 to 13, welcome though they are, are limited in their effect where the victim—the child—will not make a complaint to the police against the perpetrator or will not give evidence.
We know that all too often children are frightened to get involved in a prosecution. The perpetrator may have threatened all kinds of dire consequences or at least have created an air of intimidation. Then there are cases where the child will not give evidence because that child believes that she is in love with the perpetrator. An under-age child may be engaging in frequent sexual intercourse with an older person but if the only source of evidence about the intercourse is the child herself, the police often say that they are powerless to act.
I was written to some weeks ago by my friend Mr Andrew Turner, MP for the Isle of Wight. He had a case in his constituency of an under-aged girl who was sexually involved with two males. Hampshire Constabulary said that no allegation of criminal offences was made by the victim, and in their words where that is not forthcoming the police are limited in the action that can be taken. Even if the parents consent to a medical examination to obtain DNA evidence, if the child refuses to allow police surgeons to examine her there is nothing they can do.
Hampshire Constabulary also provided Mr Turner with a series of similar cases. In autumn 2000, police officers strongly suspected that a 14 year-old girl was having a sexual relationship with a 32 year-old man but the girl was unwilling to be interviewed. She was
1100
eventually taken into care by social services. Once away from the influence of that man she indicated a willingness to co-operate with the police. However, before she could be interviewed, the man traced her and sent her letters that persuaded her not to say anything. The man was eventually prosecuted for child abduction, to which he pleaded guilty. He admitted that there was a relationship but refused to admit that it was sexual.
In another case, officers investigated cases of unlawful sexual intercourse involving a registered sex offender and several young girls under 16. The girls in that case refused to co-operate with the police and social services, considering themselves, again, to be in love with the offender so an application to obtain a sex offender's order against him failed and the man was prosecuted for abduction. In each case the prosecution was for abduction, not a sexual offence. The reality of what he did was therefore not recognised in the proceedings or the sentence.
More and more legal duties are being placed on parents these days. They are told, for example, that they will be gaoled for not sending their children to school, but there is no corresponding increase in parents' legal powers or, indeed, in the support they can expect from the police and social services when their children become unruly despite their best efforts.
On 16th May this year the Daily Mail reported a case in the area from which I come. It was the case of 15 year-old Vicky Osborne who left home and moved in with 17 year-old Sam Hayes, a lesbian who has served three months for beating up a woman in a row over drugs money. The two freely admit that they sleep together yet the police say that they cannot act because Vicky has made no complaint to them. Astonishingly, when the parents turned to social services for help they were told that there were no grounds to warrant Vicky's forcible removal from Sam's care. Milton Keynes social services stated:
"There is no evidence to suggest that Vicky is at risk",
albeit that taking that attitude they were condoning illegal behaviour. The age of consent under our law is 16. The older party to this sexual relationship is committing a sexual offence against Vicky, yet social services saw nothing wrong with that situation.
Where a sexual relationship with a minor is being condoned by the local social services, it makes a mockery of the law and cocks a snook at the girl's parents who are trying to do the best for their daughter. In that type of situation, can parents take any comfort from these clauses in the Bill? Are the offences in Clauses 9 to 13 any easier to prosecute than the current offences of unlawful sexual intercourse with a minor and sexual assault? Are any of the later provisions of the Bill, such as the sexual offences prevention orders or the risk of sexual harm orders, likely to be of help in such situations?
I was being opportunist because these issues relate very much to this part of the Bill. Where my noble friend is arguing for consistency I am arguing for effective prosecution and support for parents who are trying to do the best by their children.
6.45 p.m.
Lord Falconer of Thoroton: My Lords, the amendment moved by the noble Baroness, Lady Noakes, would provide a higher penalty in relation to certain offences and would require the case to be dealt with only at the Crown Court for certain of the child sex offences when the victim is aged under 13.
Amendments Nos. 49 and 50 would introduce a penalty of life rather than 14 years for the offence of causing a child to engage in sexual activity where the activity involves penetration of or by a child aged under 13. We are obviously agreed on the need to ensure that sufficiently heavy penalties are available when sexual offences are committed against children of such an age.
However, as the noble Baroness pointed out—indeed, it is the foundation of her case—Clause 8 is already available for the Crown Prosecution Service to charge in these circumstances and carries precisely the penalties proposed in Amendments Nos. 49 and 50. We think it is important for the CPS to charge the Clause 8 offence rather than the Clause 10 offence where the victim is under 13, so that not only are the higher penalties available, but the defendant, if found guilty, will have on his criminal record the offence of causing a child under 13 to engage in sexual activity.
As regards the provisions which the noble Baroness seeks to amend, it is possible for there to be victims under 13, as is explicitly acknowledged in the clause, but those would be cases where we think that a mistake had been made about the age which became apparent only during the course of the proceedings. We think that in those circumstances, where one is dealing with cases on the margins, the 14-year penalty is sufficient.
Amendments Nos. 54 and 55 propose that cases of engaging in sexual activity in the presence of a child and causing a child to watch sexual activity should be dealt with on indictment only with a maximum penalty of 10 years when the offence involves a child under 13. We equally have no doubt that the offences in question merit the intervention of the criminal law. As I said, in a number of these cases one has to recognise that they involve a range of sexual activity which a person can be forced to watch or caused to watch, ranging from penetration—which plainly would merit the intervention of the Crown Court—right through to what might be, by comparison with penetration, quite minor sexual activity. We think that in those cases, as in any other, the option of summary trial should be retained to allow flexibility in recognition of the range of behaviour involved in the types of offences to which we refer. We do not believe it is right that that option should be taken away from the Crown Prosecution Service.
The noble Baroness, Lady Blatch, described her intervention as somewhat opportunist. With the greatest respect, I have to say that this has absolutely nothing to do with any of the amendments we are discussing. However, we want to make these offences effective and we believe that we have made them more effective in many respects than the existing law in providing proper protection for children. However,
1102
there will need to be some evidence in every case, although not necessarily the evidence of the victim. There will be causes where evidence can be brought from sources other than the victim—for example, in relation to what was said or recorded by others. We believe that the Bill's provisions are effective and strike the right balance between the need for proper evidence and the need for the proper protection of children.
Baroness Noakes: My Lords, the Minister has not answered my points. As to Clause 10, he said that Clause 8 would normally be used but if there were some kind of mistake, 14 years was all right. Where the child was under 13, there should never be the possibility of a lesser penalty than the one in Clause 8.
I invite the Minister to examine the relationship between Clauses 12 and 13 and Clauses 35 and 36, which deal with mentally disordered persons who lack the capacity to refuse. In the case of under-13s, we are effectively dealing with the same situation because the issue of consent is wholly irrelevant. A range of behaviours can cause a charge to be brought under Clauses 35 and 36 in relation to mentally disordered persons, with a set penalty. With children, there is the option of a lesser penalty. I do not understand that provision in respect of under-13s.
I hope that the Minister will think again. I will not press the amendment but will return to the issue on Report. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 50 not moved.]
Clause 11 [Inciting a child to engage in sexual activity]:
[Amendments Nos. 51 and 52 not moved.]
Lord Falconer of Thorotonmoved Amendment No. 53:
Leave out Clause 11.
On Question, amendment agreed to.
Clause 12 [Engaging in sexual activity in the presence of a child]:
[Amendment No. 54 not moved.]
Clause 13 [Causing a child to watch a sexual act]:
[Amendment No. 55 not moved.]
Clause 14 [Child sex offences committed by children or young persons]:
Baroness Walmsleymoved Amendment No. 56:
Leave out Clause 14.
The noble Baroness said: My Lords, the result of this amendment would be that under-18s could not commit the relatively minor offences set out in Clauses 9 to 13—the sexual touching of a child; causing, inciting or engaging in sex in the presence of a child; or causing a child age 13 to 15 to watch sexual activity.
The amendment focuses on the Bill's most ridiculous aspect. Where the activity is consensual, the normal behaviour of probably half the adolescent population is being criminalised. The penalties in Clause 14(2) are neither necessary, justified nor

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proportionate. One of the problems with Clauses 14 and 9 is that they take no account of consent. Whether or not there is consent, their provisions are not the best way of dealing with sexual activity between young people.
During the passage of the Bill through your Lordships' House, I have pressed for children to be treated differently, for two reasons. One is the matter of culpability for their actions. Children's moral values are not yet fully formed. They experiment. That is a normal part of growing up. Children are very much influenced by adults and what they see around them. Their attitudes and behaviour are almost always strongly influenced by the opinions of adults and the way that adults behave towards them.
Children who commit offences such as sexual touching without the consent of their child victim are damaged children themselves. Many have suffered sexual abuse. A large majority have suffered physical and emotional violence and neglect.
The second reason is that children respond even better to treatment and counselling than adults, partly because their attitudes are not yet fixed. A large amount of research has shown how well children respond to counselling, which is why it is so important to provide it. Counselling can transform the lives of young offenders and. most important, protect other children who might otherwise be abused by them in the future. It is all about child protection.
I draw your Lordships' attention to the Long Title:
"A Bill … to make new provision about sexual offences, their prevention and the protection of children from harm from other sexual acts, and for connected purposes".
It seems strange that all my attempts to put into the Bill measures to ensure that children who commit sexual offences are entitled to treatment rather than penalties—albeit lower than those for adults—have failed. I have been told that such measures are beyond the scope of the Bill. They are not. The Bill is about effective prevention and the protection of children and their potential victims.
We all know the truth of the old saying that one cannot fit a square peg into a round hole. If one can, either the peg or the hole is the wrong shape. The Government, in drafting the Bill so narrowly, have crafted the wrong-shaped hole, into which I and others are vainly trying to squeeze something that is absolutely vital—the proper treatment of young sex offenders.
The Government claim that they always act on the advice of experts. In matters of scientific importance such as CJD, foot and mouth disease, MMR vaccination and GM crops, the Government make a big thing about doing so. During the passage of the Bill, the noble and learned Lord the Minister has listened to experts such as the noble Lords, Lord Rix and Lord Adebowale, speak about people with physical and mental disabilities. Why will the Minister not listen to the experts on children? The noble Baronesses, Lady Howarth and Lady Gould of Potternewton, the noble Earl, Lord Listowel, and many others have given us the benefit of their years of
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experience in advising young people—yet the Government are still not listening. Instead, they are trying to make a Bill for adults fit children by sticking in a few clauses with lower penalties.
Clause 14 is faulty because it will have unintended consequences for teenagers indulging in relatively harmless experimentation. Nor does it provide the most effective method of ensuring
"prevention and the protection of children from harm".
I beg to move.
Baroness Noakes: My Lords, I have considerable sympathy with Amendment No. 56. Throughout our consideration of the Bill, I have been concerned about the way that sexual activity has been criminalised. In this instance the issue is teenage sex but elsewhere the Bill addresses sex between persons who are mentally disordered. It continues to trouble me that we must rest on prosecutorial discretion in determining which sexual activities are to be treated as criminal.
Some of your Lordships will view the amendment as undermining the age of consent but it is already undermined—day in, day out—by wholly consensual sexual intercourse involving teenagers. We cannot turn the clock back to a golden age, if one ever existed, in which teenagers saved themselves to their 16th birthday. The world has moved on and we may well reflect that in our laws.
We should remember also that while child offences include full sexual intercourse, they extend to a lot of other activities such as kissing, heavy petting and looking at dirty magazines. I wonder if there are any children under 16 who do not engage in one or more of those activities. The problem is how to reflect the realities of teenage life in our laws. We struggled to do so in Committee and are still struggling.
I am clear that we do not want to create a blanket exception for all sexual activity involving under-18s because some young people are very dangerous sexually. They can and do abuse other children and the law should be fully capable of dealing with them. I fully accept the comment by the noble Baroness, Lady Walmsley, that other interventions are likely to be the most important when dealing with such children.
The amendment does not affect the crimes under Clauses 1 to 8. Therefore sexual activity with under 13 year-olds will remain a crime, as will non-consensual activity with 13 to 15 year-olds. I am conscious that that may well involve a 13 to 15 year-old giving evidence. That has drawbacks. However, as always with the Bill, it is a question of balance. On the one side, there is the possibility of emotional trauma for a 13 to 15 year-old having to give evidence; and, on the other, that a wholly consensual and normal activity involving teenagers will be dragged within the law, possibly at the insistence of over-zealous parents. On balance, I find myself in favour of the amendment.
However, I have a problem with it. The amendment would remove the possibility of prosecution under Clause 12 or 13 where under 13 year-olds were involved. Clause 12 covers engaging in sexual activity in the presence of a child; Clause 13 covers causing a

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child to watch a sexual act. I do not think that that is right. For that reason, I am unable today to support the amendment but I certainly support the principles underlying the amendment.
7 p.m.
Baroness Howarth of Breckland: My Lords, I support the intent underlying the amendment. On the previous occasion when we discussed the issue, the Minister kindly wrote to the noble Lord, Lord Campbell, regarding a question that I raised about the treatment of young people. I cannot quote from the letter because I do not have it in front of me; the Minister will put me right. The general gist of the letter was that research at present does not indicate what we can do in order to provide treatment and, therefore, a working party was being set up to consider the implications.
I took a copy of the letter to the steering group of the Stop It Now campaign which I chair. The group includes Barnardo's, Childline, the NSPCC and the Faithfull Foundation—to name but a few. They all commented on the wide range of work. Indeed, Barnardo's already has eight projects working with young people who abuse. The NSPCC has projects. The Faithfull Foundation has led the way in some of this thinking.
It is important to recognise that treatment is the way forward for those young people, while not criminalising normal sexual developmental behaviour. I how again to the lawyers' understanding of how to include the social care aspect in the legal framework. I hope that we shall consider the issue again. I shall submit a great deal of information to the working party. I support the amendment.
The Earl of Listowel: My Lords, I, too, support the intention of the amendment. I welcome the Minister's remarks in Committee regarding those young children who commit serious offences who may be covered by Clause 14 or possibly earlier clauses. I appreciate his wholehearted agreement that we should identify and intervene at an early stage with children at risk of becoming sexual abusers; and his acknowledgement that in the past such children have not received the focus and attention they should have done. The noble and learned Lord has kindly written to me and to others, alerting us to the interdepartmental working group. I believe that it is due to report in the autumn. Will the Minister keep us informed of the progress of the working group? Perhaps he will let us know should there be any change in the group's timetable.
Baroness Blatch: My Lords, I think that I am again on my own in fighting this issue. I object to any provision which erodes what I consider to be the very low age of consent. We continually erode it through some of the amendments put forward.
I was pleased to hear my noble friend Lady Noakes give qualified support for the amendment: she did not wish to see a blanket exemption. Removing Clause 14 represents a blanket exemption. All noble Lords have
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talked about what they consider to be innocent, normal sexual activity between healthy teenagers. However, in the real world we know that there is aggressive and abusive sexual behaviour by teenage boys in particular against very young girls. It is possible for 13 year-olds or even younger girls to be terrorised by such aggressive, abusive sexual behaviour. By leaving out Clause 14, those teenage boys would not commit offences. There needs to be protection of those children.
I find it almost impossible to conceive of the police prosecuting the kinds of examples cited. We need a provision in the Bill which enables the police to prosecute and then to put in place the treatment, counselling and behavioural programmes that those young people require. As the noble Baroness, Lady Walmsley, said, many of those young people have been abused themselves. They have all kinds of personality defects. That issue needs also to be addressed. But to remove Clause 14 from the Bill would be detrimental. I hope that the noble and learned Lord will not accept the amendment.
The Lord Bishop of Chester: My Lords, I hope that the noble Baroness, Lady Blatch, will be pleased to know that she is not alone on this matter. I share the desire to avoid criminalising young people unless it is necessary. The legal framework in our country affects the moral climate. The two are not separate. To remove Clause 14 gives the wrong signal. I speak as someone with teenage children. My daughter is 17. She brings her friends to my house, we mix freely, and I learn something of the culture of young people. It is a bit of a jungle, with threats, stresses and strains. The law has a part to play in providing safeguards and anchors in particular when dealing with boys aged 15, 16 and 17.
As drafted, Clause 14 is somewhat stark. Clearly one wants counselling, support, advice and education to be pre-eminent. There is a place for the law. Clause 14 has got it about right. At present, I resist the amendment.
Lord Falconer of Thoroton: My Lords, it is a difficult area but we resist the amendment. It is important to identify its effect: ostensibly, that consensual sexual activity between persons aged between 13 and 17 inclusive would never be unlawful. In effect, it restricts the age of consent only to situations where a person under 16 engages in sexual activity with a person who is 18 or over. The way in which the criminal law deals with under-age consensual sexual activity is a matter we debated at some length in Committee. We have considered very carefully our position in the light of all the concerns raised. However, we remain firmly of the opinion that the age of consent should apply across the board, whether a child is having sex with another child or an adult.
I know that it is widely held that a sexual relationship is far more likely to be abusive if the age gap between the parties is significant—for example, between a 15 year-old child and a 40 year-old adult. But the truth is that adults do not have a monopoly on child abuse. We cannot assume that sexual

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relationships between young people will be fully consensual just because they are of a similar age. We know that children are often abused by other children. Although we earnestly hope that steps would be taken to intervene as early and as quickly as possible to try to help the child who is abusing, the law must be able to protect such children in the appropriate case.
The amendment would leave in place the nonconsensual cases and the under-13 cases, save in the respect identified by the noble Baroness, Lady Noakes, but would provide no protection where it is said, possibly by the victim, that there was consent. In that case, the child sex activity charge would not apply to those cases where the defendant is under 18 years of age.
We believe that the law must make provision for children to face charges relating, ostensibly, to consensual activity where there is evidence to suggest that it is exploitative or coercive, as there may not be enough evidence to support a charge for a nonconsensual offence. As was said in Committee, many children are vulnerable to peer pressure and can be persuaded to engage in sexual activity when they would prefer not to do so. In such circumstances, sexual activity cannot be said to be non-consensual, but it can be exploitative. In such cases, we want to leave open the possibility of the CPS bringing charges under one of the child sex offences where prosecution is in the public interest.
The testimony of many children is that they welcome the protection that is offered by the age of consent, because it enables them to withstand peer pressure to engage in sexual activity before they are ready to do so. I am not sure that we would be right to remove that protection. I simply do not accept the proposition that we should leave children without any legal grounds to help them resist coercive sex. Legalising sexual activity between minors would send the message that sexual activity below the age of consent is acceptable and normal. In my opinion, that would encourage more children to engage in sexual activity before they are emotionally and physically ready to cope with the consequences.
Our view is that we have a duty to protect children from engaging in sexual activity at too early an age. Existing legislation, which contains offences of unlawful sexual intercourse and indecent assault, already makes it clear that it is unlawful to engage in any sexual activity with a person below the age of 16. We are content that our new legislation should make a clear statement that this continues to be the case.
I have already made it clear—I do so again—that we do not want or expect under-age sexual activity between young people to be prosecuted unless there is clear evidence of exploitation and prosecution is in the public interest. We suspect that it would be unwise to remove all of that protection, as proposed by the amendment, and that it would also be a matter of getting the balance wrong. Despite the law that I described, there is no evidence at present to show that that happens. As we are not making any substantive change in that respect, we do not believe that it will happen in the future.
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I recognise that this is a difficult issue, but we are clearly of the view that the amendment is unacceptable. I am not talking about the technicalities involved; I am talking about the principle. To say that the child sex activity offences should not apply to a person under the age of 18 is wrong in principle. I respectfully ask the noble Baroness to withdraw her amendment.
Baroness Walmsley: My Lords, I am grateful to the Minister for his response, and to those noble Lords who expressed support for the sentiments behind the amendment. It is possible that the wording of the amendment is not quite right, but I respectfully suggest that that also applies to Clause 14. Perhaps I need to draft a new Clause 14 and table it for consideration on Third Reading. I shall certainly consider that option. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
7.15 p.m.
Baroness Walmsleymoved Amendment No. 57:
After Clause 14, insert the following new clause—
"SENTENCE REVIEW
Where a young person under the age of 18 has been convicted of an offence under this Part, the Court or Youth Offending Panel shall review the sentence when the young person reaches the age of 18."
The noble Baroness said: My Lords, this amendment relates to reviewing the case of a young sex offender when he reaches the age of 18. When I tabled a similar amendment in Committee, the noble and learned Lord responded that young people's cases are regularly reviewed in any event, so why should we bother to review such cases again when such youngsters reach the age of 18? In response, I should point out that at the age of 18 young people move into the adult penal system, which is a very significant change in their circumstances. That is why I believe it to he essential for such cases to be reviewed.
There is a great difference between a young offenders' institution and an adult prison. It is quite appropriate, therefore, even if a review took place only a month or so prior to the young person's 18th birthday, for such cases to be reviewed. We are talking about a significant point in the lives of young sex offenders when they move into the adult justice system. I beg to move.
Lord Falconer of Thoroton: My Lords, this amendment would introduce a new provision that would oblige the court or a youth offending panel to review the sentence of all young persons convicted of sex offences once they reach the age of 18, regardless of what sentence was passed. This point was raised in Committee. As I said then, the sentence passed by the court will already have taken account of the severity of the offence and the age or the child at the time that the offence was committed.

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For sentences passed for sex offences committed by young persons to be automatically reviewed when the child reaches the age of 18 would be a completely novel departure from the approach adopted throughout the rest of the criminal justice system. For example, a sentence passed on a young offender at the age of 17 would need to be reviewed very quickly thereafter. If a very long sentence was passed on a younger child, it would almost invariably be because of the seriousness of the offence, which, as a matter of punishment, required a long sentence.
Therefore, although we fully understand the motivation behind the amendment, we do not believe it to be sensible or necessary and we do not believe that it sufficiently takes into account the fact that the court will already have considered the child's age and the seriousness of the offence when passing sentence. I implore the noble Baroness to consider withdrawing her amendment.
The Earl of Listowel: My Lords, I apologise for speaking out of turn. I did not rise quickly enough to enable me to speak in the proper order. I shall quite understand if noble Lords object to my speaking at this point. However, having re-read the record of the Committee stage in the Official Report, I must emphasise my concern about those children aged 13 or 14 who receive a long sentence of imprisonment. Tremendous progress has been made on what can be done to treat these children. The scene here is changing very quickly. As the Minister will know, for adults there has been a lot of progress and this is now beginning to happen for children.
I emphasise that for these young children with long sentences there are almost invariably welfare issues to do with the circumstances that created the initial problem in them. They undergo an important transition at the age of 18. Perhaps the Minister could bear these factors in mind when considering the guidance that is to apply to the Bill, so as to ensure that a thorough mechanism for review is available for the cases of those children who receive long sentences at an early age. This would ensure that the practice here is right. I thank noble Lords for giving me this opportunity to speak.
Baroness Walmsley: My Lords, I am most grateful to the Minister for his reply. I also thank the noble Earl, Lord Listowel, for his comments. He is quite right: rapid progress is being made in the treatments and programmes available to assist young people in such situations. Indeed, because of the flexibility of the programmes, the children often make very rapid progress towards recovery out of the situations in which they find themselves. Therefore, it is very important to review the sentence when these youngsters reach the age of 18. However, for the moment, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 15 [Arranging or facilitating commission of a child sex offence]:
Baroness Blatchmoved Amendment No. 58:
Page 6, line 36, at end insert—
"( ) he is not and has never been subject to the notification requirements of Part 2 of this Act or to any order made under Part 2 of this Act,
( ) he has never been subject to Part 1 of the Sex Offenders Act 1997 (c. 51) and does not satisfy any of the conditions in section 83(1)(a) to (d) of this Act, and
( ) he is not and has never been subject to any order made under a provision within section 83(8) of this Act, and"
The noble Baroness said: My Lords, Clauses 15 and 75 were amended in Committee to create a defence against child sex offences for those who claimed to be carrying out sex education or similar activities. I opposed the amendments. I believe that the defence is unnecessary. I am not aware of a single case under the existing law of a respectable sex education professional being prosecuted for a child sex offence simply for carrying out legitimate sex education. I do not believe that any such cases would arise under the new legislation.
None the less, the Government, supported by my noble friends and others, were determined that there should be a specific defence from the Clause 15 offence of facilitating a child sex offence and a further defence from aiding and abetting child sex offences in Clause 75.
The Bill now provides that no offence is committed where the person acts to protect a child from sexually transmitted infection or physical harm, or to prevent pregnancy (Clause 15 (3) and Clause 75(1)).
I have given serious consideration to all that was said in Committee, and I remain concerned that this defence will be abused. When the matter was debated in Committee on 1st April (Hansard, col. 1235), I argued that it was a paedophile's charter. I maintain that the law of unintended consequences means that the amendment, which is not necessary to protect sex education professionals, will instead benefit paedophiles who worm their way into positions of trust and authority over children precisely in order to take sexual advantage of them.
In the next group we shall discuss amendments which would widen the scope of that defence. I hope by my amendments to narrow the defence.
I wrote to the noble and learned Lord the Minister last week mentioning some cases where a child sex abuser claimed that he was simply carrying out sex education, when in fact he had ulterior motives.
First there was the case of Michael Gregory, a trainee church minister who was convicted of indecently assaulting two girls. In one case he gave a 13-year-old girl a graphic demonstration of how to use a condom. The man was responsible for giving a course of sex education lessons to a youth group at the church.
Then there is the case of Terence King. He was a vicar who apparently showed an 11-year-old boy pictures of naked men during sex education classes and

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then sexually assaulted him. The victim, now 24, said that a number of children in the church were abused in this way. The vicar would require the children to go one at a time into his room for sex education sessions lasting up to half an hour.
There was also the case of Robin Peverett, the headmaster of a leading prep school who indecently assaulted at least eight pupils in the 1970s. He conducted sex education lessons at the school. He had access to the girls' changing rooms and showers, and obtained details of the girls' physical development, ostensibly out of professional interest.
Finally, there is the case of Anthony Gray. He arranged via the Internet to meet up with a 14-year-old boy. His pretext was to discuss the boy's confusion over his sexuality. He took the boy to a hotel, where he sexually assault him. He later claimed that they spent the night discussing the boy's problems.
Clearly, those are cases in which the paedophiles carried out actual sexual acts on the children concerned, and it was for those acts that they were subsequently convicted. My purpose in drawing attention to those cases is to ask what would have happened if the individual had stopped short of actual sexual contact and had been content to obtain his sexual gratification from the sex education lessons. Could he have defended his actions up to that point by claiming merely to have been involved in sex education?
None of those cases involved a man with previous convictions for child sex offences. This brings me on to the substance of my amendments. What is most astonishing about the sex educator's defence that the Government have written in to Clauses 15 and 75 is that there is nothing to prevent a convicted paedophile or other sex offender from using that defence. Is it really the Government's intention that this defence should be available to such people?
My amendments—Amendments Nos. 58, 168 and 171—stipulate that no person who is subject to the sex offender notification requirements of Part 2 can rely on that defence. This stipulation also applies to those subject to registration under the existing sex offenders register. This stipulation is permanent. Once a person has been subject to the notification requirements he can never rely on the defence, even if the notification requirements cease to apply.
I would accept it if the Minister said that the drafting could be improved—any drafting of my amendments can always be improved—and that he will take the matter away and think about it.
I cannot conceive of any reason why a convicted sex offender should ever be allowed to get away with facilitating or aiding and abetting a child sex offence by claiming that he was merely involved in sex education. I beg to move.
Baroness Noakes: My Lords, I support the principles behind my noble friend's amendment. If there is any possibility that paedophiles could use the
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welcome provisions in Clauses 15 and 75 to become involved inappropriately with children, everyone in the House would want to prevent that.
My noble friend has found an ingenious way to ensure that sex offenders cannot claim the protection of Clauses 15 and 75, and I congratulate her on that.
However, I have two problems with the amendments. The first relates to the lack of time limits. The time that the ban exists does not expire with the notification period, which it seems to me would be a more proportionate amendment. Secondly, the amendments cover all sex offenders and therefore cover offences involving adults only as well as those involving children.
If those aspects can be resolved, it seems to me that the Government would want to consider whether the matter can be shaped into a more workable form.
Lord Falconer of Thoroton: My Lords, the purpose of Amendments Nos. 58, 168 and 171 is to ensure that the exemption that we have introduced to protect those acting to protect the physical safety of a child, or to protect him or her from pregnancy or sexually transmitted infection, shall not apply if the accused is or has been a registered sex offender or the subject of an order designed to prevent sexual harm.
The noble Baroness, Lady Noakes, referred to various aspects of the clause that make it probably too wide and untargeted. I do not wish to spend time on the detail, but rather to deal with the principle, which, as I understand it, as advanced by the noble Baroness, Lady Blatch, is that a convicted sex offender—I shall ignore how one precisely defines that term—should never be able to rely on Clause 75 as a defence to any of the relevant offences.
I fully understand the noble Baroness's concerns, and completely agree that the clause should not become a means of people putting forward bogus defences. But I do not believe that addressing the issue as the noble Baroness suggests, by an amendment of this sort, is the appropriate way.
I believe that the provisions in the Criminal Justice Bill, which will reach this House in the next two to three weeks, would be the better way to address this question. They deal with cases where the fact that a defendant has a conviction for a sex offence is relevant to the facts of the charge in question. The existing law means that it is only in very exceptional circumstances that evidence of such previous convictions is admissible in trials.
If someone previously convicted of sex offences against a child were charged with a new sexual offence involving a child, it would not generally be possible now to refer to the previous convictions in the trial for the new allegation. However, proposals in the Criminal Justice Bill would make such evidence available to the court in a much wider range of circumstances. The court, therefore, when considering whether the exception was made out—and the exception exists for the purposes of court proceedings—or whether the defendant had in fact

1113
been causing or encouraging a sexual offence, would be able to consider that matter, where relevant, taking into account those previous convictions.
I think that it is better for the court to assess whether in a particular case the evidence relating to the previous conviction is relevant, and, where it is fair, for it to be admitted, rather than providing a blanket prohibition on a whole class of offenders from relying on the exemption, even where there might be clear evidence that the defendant was acting for the protection of the child.
I am very sympathetic to what is sought to be achieved, but I think that there is a better way to deal with it.
I have dealt with the principle. For the reasons advanced by the noble Baroness, Lady Noakes, I do not think the detail is quite right, but I do not rely on the detail; I rely on the principle.
7.30 p.m.
Baroness Blatch: My Lords, the noble and learned Lord has not answered my question. In all the cases I have cited, what would have been the position if those involved had stopped short of committing actual sexual offences and relied upon the sexual education exemption in the Bill? There is a lacuna in the Bill which, sooner or later, will be used by people who have malintentions against young people.
Lord Falconer of Thoroton: My Lords, as I understand the hypothesis put by the noble Baroness, the putative offender conducts sex education lessons—he does not commit any other offence but simply teaches sex education—and obtains some kind of sexual gratification from that. If that is all, and there is no element of grooming involved, is that an offence under the Bill? The answer is that it is not.
Clause 13 relates to causing a child to watch a sexual act. If the noble Baroness is referring to potentially causing another person to watch a third person engaging in a sexual activity, plainly she is right. But, as I understood the noble Baroness's point, looked at from the outside it would be ostensibly a straightforward biology lesson.
Baroness Blatch: My Lords, the noble and learned Lord and my noble friend are missing the point. It is possible that the activity undertaken by these persons could be offensive and their defence for what they were doing could be that they were helping a young person to deal with confusion about his or her sexuality or helping a young person who had difficulties in his or her sex life. The defence has a wide interpretation which could be used by persons who are up to no good. Such people would be allowed to adopt the defence, which could be accepted. If the people in the cases I have cited had done what they were charged with but simply stopped short of the full offence, their behaviour would have been offensive but their defence would be allowed under the Bill as presently drafted.
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The noble and learned Lord said that there are other ways of dealing with this issue and that he was sympathetic to what I was trying to achieve, but he did not impress me too much with his answer. We are dealing with a sexual offences Bill and this is a sexual offences issue. What I am referring to can be dealt with in the Bill. The remedy is not to give a blanket defence for people who have a malintention rather than a genuine educational intention.
I am bothered that the noble and learned Lord is palming off this issue by saying that another Bill is coming along and that that is the way to deal with it. It should be dealt with in this Bill. If the noble and learned Lord is not able to improve on my wording I shall go away, pick up the points made by my noble friend and the noble and learned Lord and try to find a way of ensuring that young people are protected from people who have malintentions against them using the defence set out in the Bill. I go back to what I have said previously—I make no apologies for it—that this Bill could in practice be a paedophile's charter. That is something that I do not want to sign up to. In the mean time, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Evans of Temple Guiting: My Lords, I beg to move that consideration on Report be now adjourned. In moving the Motion I suggest that the Report stage begin again not before 8.35 p.m.
Moved accordingly, and, on Question, Motion agreed to.

Horses
7.34 p.m.
Viscount Astorrose to ask Her Majesty's Government what progress they are making in bringing forward passports for horses.
The noble Viscount said: My Lords, the Government intend to introduce horse passports at the end of this year. However, I believe that there are two important issues that Ministers must address before doing so. First, is it really necessary to require all horses, ponies and donkeys to have a passport in order to meet European Decision 2000/68/EC? Secondly, if the Government are determined to pursue the introduction of passports for all horses, whether or not they end up in the human food chain, are the current proposals the most sensible option? The answer to both questions would seem to be no.
The European decision aims to prevent horses that have been given drugs which might be harmful to humans from entering the food chain at the end of their lives. Under the Government's proposals, all horses, ponies and donkeys will have to have a passport from the age of six months onwards and owners must carry it with them whenever they travel. When they acquire the passport the owners must state whether or not the horse can enter the human food chain. Restricted drugs will then be entered into the passports of animals that may be used for human consumption.

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It would be perfectly possible to prevent horses that have been given restricted drugs from entering the human food chain without introducing a universal horse passport scheme. The Government could simply stipulate that only horses with a passport could be presented at slaughterhouses for human consumption. As most British horses do not enter the human food chain, this would save thousands of owners across the country having to apply for passports and the industry as a whole many millions of pounds.
The Government have estimated in their own Regulatory Impact Assessment that such a scheme would cost around £140,000 to £300,000 per year. This compares with the £17.6 million start-up cost and the £2 million annual running cost of introducing universal horse passports.
In the Government's Final Regulatory Impact Assessment published on 27th March this year, the Government rejected this simple suggestion on the basis that,
"This option has a high risk of legal challenge from the EC for not implementing the measure fully".
They went on to argue that a universal passport scheme was the only option that,
"fully implements the Commission Decision".
Can the Minister point to the section of the European Commission's decision which states that all horses across the EU must have passports by December 2003? Can he tell the House what measures other European countries are taking to implement the decision? Have any other member states decided to opt for passports only in cases where the horse will enter the food chain?
The Government claim in their Final Regulatory Impact Assessment that the draft statutory instrument published earlier this year does not include,
"any gold plating or add any requirements that are additional to those contained in the Commission Decision".
However, this is clearly not true given that the Government could meet the requirements of the decision—that horses which have been given certain medicines should not enter the food chain—without introducing a bureaucratic, universal horse passport scheme.
The Government, to be fair, did consult. It consulted the British Horse Industry Confederation, the BHIC. Unfortunately neither the BHIC nor, indeed, the British Equestrian Federation appear to have consulted their own industry as thoroughly as they might have. Many sections of the British horse industry, which will not benefit financially from administering the scheme, are opposed to the introduction of universal horse passports.
The Association of British Riding Schools, which has 65,000 members, believes that,
"The introduction of horse passports will put British breeders at a disadvantage competing against European breeders in countries with simpler control systems. It is unenforceable. It will increase costs and create welfare problems. The consultation process was seriously flawed. Only a narrow and unrepresentative sample of the horse industry was consulted".
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The Pony Club, which has 33,000 members, has stated that,
"We are concerned at the financial burden placed on our members by yet another cost. Many of them operate on a very tight budget. We share the industry's anxiety about the risk of old horses and ponies being dumped rather than pay the passport price".
The Donkey Society—we must remember that donkeys are included in these proposals—is also not in favour.
The Government have claimed that universal horse passports,
"may well result in additional benefits to horse welfare and breeding".
Having read the comments made by many of the horse and pony societies in this country, these assertions are not immediately obvious. The concerns of the industry seem to be the opposite: that the introduction of a passport scheme could be detrimental to the welfare and breeding of horses.
The National Equine Welfare Council has explained:
"In the UK, the percentage ending up in the human food chain is tiny. Many will also, especially with smaller ponies of low end value, just abandon the ponies rather than face the passport cost or a possible fine".
I am particularly worried that vets may be deterred from giving drugs to horses in an emergency if the owner does not have the animal's passport on them at the time. This could lead to unnecessary suffering.
In terms of breeding, I see no advantage in such a scheme. Racehorses need passports but that is just to race, so to protect the punters. This country has bred world-class showjumpers and event horses and maintained rare breeds for centuries without the need for a universal horse passport scheme.
Turning to my second point, if the Government are determined to pursue the introduction of passports for all horses—I would urge them to think again—are the current proposals set out in the draft statutory instrument the most sensible option? I fear not. The statutory instrument seems to apply only to England. Can the Minister confirm that we are not going to have separate regimes with separate rules in Scotland and Wales, which would only further increase costs and also add to confusion?
Perhaps, at this stage, I should declare my interest as an owner of three horses at home in Oxfordshire and a very charming Highland pony called Tommy who lives in Scotland. As far as I can see, I shall have to have different passports for different horses in different regimes.
The draft order also states that all existing passports, because they do not conform to the Government's requirements as they do not contain a Section IX statement about whether or not the horse can go into the food chain, will need to be recalled. In reality, the only people who actually need return a passport for a Section IX form to be inserted are those who may allow their horse to enter the human food chain. The simple safeguard would be that anyone presenting a horse for slaughter for human

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consumption without a completed Section IX in the animal's passport could be rejected. If a vet was asked to administer restricted drugs to a horse without a Section IX, he or she could simply stamp it across the front page of the passport.
It is envisaged that all horses, ponies and donkeys will need a passport once they reach six months old. That may cause practical difficulties for breeders of racehorses with a number of foals to register. Existing practice on most studs is to apply for passports in batches after the last foal of the season has arrived. This problem could be dealt with by requiring owners to acquire passports by the end of the year in which the animal was born.
Finally, there is the issue of owners declaring that their animals cannot go into the human food chain. As drafted, this is irrevocable. Once an owner has declared that a horse cannot be used for human consumption, this can never be changed. As most owners do not like the idea of their horse or pony being eaten, they will undoubtedly sign this declaration. This could, in time, result in the complete halt of horses being sent to specialist equine abattoirs.
How will owners deal with the disposal of carcasses at the end of a horse's life? The concern must be that the more irresponsible owners may turn them loose towards the end of their lives or export them to other EU countries without the same passport requirements. The live export of animals over vast distances causes enormous distress, yet it is something that this scheme will probably encourage.
The risks could be reduced and the future of specialist equine slaughterhouses secured if owners did not have to sign the Section IX form until nearer the end of a horse's life. Six months would then have to elapse between the signing of the declaration and its disposal, during which any medications administered would have to be recorded.
The Government's consultation on the draft order ends in June. I believe that there are serious disadvantages to the Government's proposals for the introduction of universal passports. The cost to the horse industry in this country will be enormous—more than £20 million probably. The implications for animal welfare are serious.
It is a bizarre world in which passports are required for beef cattle, but without a record of drugs. Indeed, current laws allow pigs, sheep and chickens to go passport free. Yet the Government are stipulating that all horses must have passports recording their veterinary history. A universal passport scheme is unnecessary.
It would be interesting to hear from the Minister which of these animals are the most widely consumed across the EU—I think we can be fairly sure that it will not be the horse. Perhaps the noble Lord could also tell the House what restrictions will be imposed on horses being imported from outside the EU for slaughter and consumption.
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In terms of health issues I would suggest that there are many more serious than this. There is a simple solution to this problem—only horses entering the food chain should require passports. The Government have rejected this. I urge the Minister to think again.
7.44 p.m.
Baroness Mallalieu: My Lords, I have to declare an even larger interest than the noble Viscount, Lord Astor, because I have 13 of the things at home and I know that five of them have not got passports. Almost all of them are old horses; they will all be put down at home; none of them will go for human consumption. But if I want to register my new foals this year with Weatherbys, the non-thoroughbred register, I have to pay a vet who comes and does DNA sampling, micro-chipping and identification certification for which I pay him a minimum of £50. I then have to pay a fee for the passport of £50.25. If I do not get the application in before 30th September, that will rise to £138.50 per horse. This is an expensive business.
I would support strongly the principle of a universal registration system for equines in this country and I would support it fully if I could be confident that it was likely to have real benefits for horse welfare and to encourage responsible horse ownership. But I have real concerns and I wonder—given that I have to take this at a gallop because of the three minutes—whether the Minister would try to allay some of my worries.
First, I wonder why, instead of allowing a free-for-all, in effect, in the provision of passports, DEFRA has not set up one comprehensive register which could he consulted with ease, which it could administer, or someone on its behalf, for a reasonable fee. Instead, the delegation of the issue of passports to a whole range of quite separate bodies, all of which seem to have different requirements, seems a recipe for a failure to get to grips with the registration system.
Like the noble Viscount, Lord Astor, I am particularly concerned about vets and their position. Can we be reassured that there will be no question of a vet not being able to prescribe required medicines to horses which have no passport. Unless that is the case, there is a real danger that owners will not call out a vet because they are afraid that they are going to be asked for a passport they do not have. In some cases, vets may be reluctant to prescribe medicine which they consider to be necessary for fear of their own position.
I should like to know also what steps DEFRA is proposing to take to inform horse owners both about their obligations and about their options because I am not at all clear as to where I can go to obtain, as it were, the appropriate passport for my old retainers at home and where I can do it relatively cheaply. Perhaps I may also echo what the noble Viscount, Lord Astor, said about animals being abandoned. It is already going on in the New Forest, in the Quantocks and on Exmoor. In some parts of Northern Ireland it is a serious problem. It is not just horses abandoned because owners have lost interest or will not pay necessary veterinary expenses, but we see in fields large numbers of horses which are sorely neglected because owners

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have lost interest. One sees them in fields of ragwort while driving along any motorway in this country. I cannot see the owners of those horses rushing out before the end of the year to obtain documentation for their horses.
Finally, what plans do the department have for enforcement of these provisions? What will it cost? What provisions, if any, are being made for what I very much fear will be a much larger number of abandoned animals?
7.48 p.m.
Lord Soulsby of Swaffham Prior: My Lords, my noble friend Lord Astor has raised the contentious issue of horse passports. The concept of horse passports was mooted in 2000 when DEFRA undertook consultation on the issue and received widespread support. As a spin-off to this legislation that all equids are to have a passport, DEFRA intends to collect data on every horse—its breed, its age, its unique equine life number and location—to create a national equine database. One would not necessarily argue with that.
On the other hand, the argument is that this will improve breeding, sport and welfare of horses. However, the registration of breeding and sport horses is already catered for by the various breed and competition society passports. These could be easily amended to incorporate medicines under Option II of the consultation document. On a positive note, one area in which passports will be of importance is in the monitoring of infectious diseases, such as African horse sickness and West Nile fever, that threaten our shores.
It is important to remember that this legislation is not primarily for the purposes of breeding, sport or welfare but for food safety of the eaters of horse meat in the European Union. As has been stated, animals must he declared—for life—that they are not destined for human food. We must respect the concerns of the consumer but whether such draconian regulations are the way forward is doubtful.
Several concerns arise. First, there will be 58 authorities able to issue passports. These will be based on a silhouette which is noteworthy for its unreliability. By far the most effective and secure method is the microchip and this can readily lead to the establishment of a central register.
Mention has been made of the veterinary surgeon who may be in a quandary. He knows that he cannot use Annex IV drugs for food animals but what about horses where passports are missing, animals that have been involved in accidents, strays or where the passport does not conform to the animal?
Foals must have a passport when they reach six months of age. But what about a foal-at-foot when a mare leaves a stud to go for service? Will the young foal a few weeks old need a passport, and how accurate can a silhouette be for later life?
Of the options offered, Option II is to my mind the most realistic. It has the benefit of being simple, practical and workable. I commend it to the Minister.
7.51 p.m.
Viscount Ullswater: My Lords, I am grateful to my noble friend Lord Astor for putting down the Unstarred Question for debate this evening. I think that I should declare an interest in this matter at the outset in that I am a member of the Jockey Club.
The European Commission decision requires all equines to have a passport as a means of safeguarding the food chain. Although it is difficult to assess the number of horses and ponies going for slaughter for food, it would appear that some 10,000 animals are disposed of in this way each year.
The thoroughbred horse industry is very used to passports. Weatherbys have been issuing passports for 40 years, and it is their key document of identification. As the noble Baroness, Lady Mallalieu, said, with a DNA parentage check on foals, microchips for all foals from 1999 onwards and the identification silhouette check undertaken by a qualified vet, the thoroughbred industry has understood the need for passports for many years. So the horse passport is not new.
Passports are to be issued by organisations approved under the EU legislation. At present there are about 59 such organisations. Is the Minister confident that all these organisations are going to apply the same criteria to the issue of passports? It is one thing issuing a unique lifetime number to an animal, but if one is not able to identify the animal properly, the passport is rendered worthless.
Like my noble friend Lord Soulsby, I ask the Minister to think again about microchips, as they represent the most practical and cost-effective means of uniquely identifying horses. Stolen, lost or straying animals will not be accompanied by their passports and are therefore difficult to trace back to the owner. Neglected or abandoned horses can also be more easily traced back to the last keeper.
The design of the passport is also important. Passports that have already been issued should not need to be recalled to be updated to comply with the new requirements. It must be possible to have Section 9, for instance, issued by way of an adhesive page to be attached to an existing passport so that the passport can remain with the animal. Think of the disruption to racing if all passports have to be recalled in December this year for the addition of new pages.
As we have heard, there are serious concerns about welfare too. Will the cost of issuing a passport drive the owners of some low value ponies and donkeys simply to abandon their animals and turn them loose? In August 2002 Dartford Council reported that it had picked up 100 abandoned horses in the space of a year in the area near the Dartford Tunnel. We get back to microchips again.
Will the need to sign a declaration in Section 9 at an early stage of an animal's life remove the best way of disposing of the animal when its useful life is done? A knackerman will charge for taking an animal away for rendering. There is a substantial cost for incineration.

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The Government seem determined to bring hunting to an end and with it will go the collection of fallen and elderly stock by the hunt kennels.
Will the Government consider an amendment to Article 10 so that a stamp of "not fit for human consumption" could be added if Annex IV drugs are applied?
In our search for the protection of human beings from unwanted substances entering the food chain, we must not abandon all our thoughts of humanity to the patient animals that serve us and give us endless days of pleasure.
7.55 p.m.
Lord Burnham: My Lords, I consulted my daughter who is very expert on this particular subject. My question was greeted with an hysterical scream. The hysterical scream represents the degree of knowledge about the details of the regulations.
A number of points need to be made, of which I shall mention just one—the question of VAT. I believe that the Government have left undecided the question of VAT. Is VAT payable on passports? The implications of that are enormous. Defra has shrugged its shoulders and told the horse societies that they must talk individually to Customs and Excise. Customs and Excise is to make the decision.
At present VAT has not been included by the societies and passports are being issued VAT-free. If there is a change and it is decided that it has to be included, bureaucratic chaos is inevitable. The various societies are one thing. They are mostly relatively well organised and have prescribed communication systems. But outside that there are 400,000 to 500,000 owners who will be affected and largely do not at present realise or recognise that they must do something about the matter. "Passport" is a bad word. The majority of small owners are saying—if they know anything at all—that their horses never go abroad and do not require a passport. These questions are asked in the revised Defra consultation document. Replies are required by 30th June, with parliamentary approval to be given in November and the regulations to come into force by 1st January.
Other noble Lords, if they are considering the subject, will have realised the various problems which arise which must be answered—a number of them have already been mentioned—and which will undoubtedly delay the implementation of the regulations. Towering above all is the question of whether owners intend their horses on death to enter the food chain. They must make a decision to the vet which is recorded and which is irrevocable. If the answer is no, there is no problem, but if the answer is not no, almost everything on a long list of drugs and embrocations, internal and external, including flea powders and wormers, will be banned. As I say, the decision is irrevocable; an owner cannot change his mind. The decision remains if the horse changes hands. A new owner is bound by the same conditions.
7.58 p.m.
Baroness Masham of Ilton: My Lords, I thank the noble Viscount, Lord Astor, for this very timely debate. Short though it is, it involves many people, thousands of equines and millions of pounds. I declare an interest as a breeder of registered highland ponies and the owner of a small rural riding centre which was badly hit, being in an area surrounded by foot and mouth disease. The centre provides an outlet for people on holiday and for those who want to enjoy the countryside by seeing it on horseback.
I am a life member of the Highland Pony Society, a member of the National Pony Society, Ponies (UK), the British Horse Society and the Shire Horse Society. I am not speaking on behalf of those societies this evening but from a personal point of view.
The main options seem to be either passports for all horses or passports for only those slaughtered for human consumption. Ponies running free on Dartmoor, Exmoor and in the New Forest will not be required to have passports until they leave those areas. Why could that not be the same for all equines? Many people have old ponies around 28 or 30 years old who have served their owners and are in retirement. What advice do the Government give about those old family friends? I do not think that enough thought has been given to the matter.
Horse societies may be in favour of passports, as it is a way of increasing their finances. Keeping ponies is expensive, especially vets' bills, which are often excessive. The passports will increase that. Small rural riding centres that have to pay business rates find it hard to make ends meet, and passports will increase the stress. The passports will guarantee more paperwork and bureaucracy. The countryside is being strangled with red tape.
I am in favour of passports for equines going abroad, but not for those who stay at home. It would be fairer if equines in Britain were reclassified as an agricultural animal, as in other parts of Europe. Appleby Horse Fair takes place around now. How will all the gypsy horses have passports and be policed when rural villages have lost their policemen?
A £5,000 fine or six months in prison for having a horse, pony, donkey or zebra without a passport seems totally disproportionate compared to someone without a driving licence who kills an innocent person and gets only a suspended sentence. How will the unfair situation be explained to children when their parents forget to get a passport for their pony?
8.2 p.m.
Lord Willoughby de Broke: My Lords, I am grateful to my noble friend Lord Astor for expressing so clearly the concerns and reservations about the legislation. I have some sympathy with DEFRA, and with the Minister, to the extent that his department is now relegated to the status of a branch office of the Directorate-General of Agriculture in Brussels. It seems that he has no option but to implement the directive with which we are dealing.

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To what extent did the Government resist this typically heavy-handed and costly EU directive? What was the position taken by DEFRA officials and our permanent representatives in Brussels when the measure was in its early stages? Did they fight it in the committee rooms? Did they fight it in the bars and on the beaches? Did they fight it in the fleshpots of Brussels, or was our "strong voice in Europe" reduced to the usual impotent squeak of protest before the ritual cave-in? Did our representatives support the directive and, if so, why? After all, they are charged with looking after our interests and not those of our horse-eating partners in the European Union.
When the measure was considered by the EU standing committee on zootechnics in 1999, it was passed by 64 votes to 23. Which way did our representatives vote then? It is important to know. The Minister will not be able to give me an answer this evening, but I would be grateful if he wrote to me with that detail.
If the aim of the regulation is to protect our Belgian and French friends from getting tummy ache after enjoying their pony burgers, surely a simple solution would be, on the lines of that suggested by my noble friend Lord Astor, a regulation stating that no equine shall be exported or allowed to enter the food chain unless accompanied by a passport containing a duly completed section on medical treatment. If the aim is to identify horses, I add my name to those of my noble friends who have suggested that microchip technology would be far more effective and much more cost effective. If microchip identification is unacceptable at the moment or too advanced for the EU bureaucracy, why not use our strong voice in Europe, our seat at the table, to change its mind?
I hope that the Minister will tell us that he has listened to what everyone has said, and will do what he can—as branch manager—to reduce the cost, red tape and bureaucracy of this extra burden on the rural community.
8.5 p.m.
The Earl of Onslow: My Lords, I must declare an interest, in that I seem to be keeping half the vets in Surrey in Mercedes with my veterinary bills, and the farriers grow rich and wax prosperous on my shoeing bill. I drive four palomino ponies, named Belisarius, Mundus, Justinian and Theodora. As noble Lords know, those are the great characters of early 6th-century Constantinople.
Have we gone stark, staring, raving mad? Why do we eat horses in Europe? It can all be blamed on Napoleon. When he invaded Russia and the French army's ration system broke down, it then slaughtered its horses and ate them. Consequently they could not ride home, and consequently the whole thing went pear shaped and they managed to acquire a taste for horseflesh.
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I was looking vaguely through an anthology of poetry, and the following thoughts came to my mind:
"Their's not to make reply,
Their's not to reason why,
Their's but to do or die:
Into the valley of Death
Rode the six hundred".
"Sorry, sergeant-major, I don't have a horse passport. Need I go?" Or:
"A horse! a horse! my kingdom for a horse".
"Sorry, sir, it hasn't got a passport." Or:
"I sprang to the stirrup, and Joris, and he;
I galloped, Dirck galloped, we galloped all three;
'Good speed!' cried the watch, as the gate-bolts undrew;
'Speed!' echoed the wall to us galloping through".
Then the watchman has to say, "Very sorry, could you and Dirck and Joris please stop, because we haven't checked your passports".
Has DEFRA gone stark, staring, raving mad in saying that we have to have the regulations? We have existed for a thousand years without horse passports. Just because the French muck up the invasion of Russia and take a liking to eating horseflesh, we suddenly have to have horse passports, let alone the fact that we cannot bury livestock, and that every sheep has to have an ear tag. DEFRA is the department for making absolutely certain that it is weighed down with regulation, red tape and incompetence. I thought that the old Ministry of Agriculture was bad, but DEFRA! I think that I may have said enough.
I remind your Lordships that a "passport" means, "Please make it easier to pass towards the Porte, or the centre of government of the Ottoman empire". It was originally something to make things easier. But this is DEFRA using a passport to make the ownership of Shetland ponies more difficult.
8.8 p.m.
Lord Mancroft: My Lords, there seem to be two separate, although related, strands to the question brought to our attention by the noble Viscount, Lord Astor. They are not quite the same strands to which my noble friend Lord Onslow referred.
The first is whether the Government's plan to introduce passports for all of Britain's 900,000 horses is a proportional solution to the problem of drug-free horsemeat entering the food chain. My research shows that all those horses that need passports for international travel, whether to compete or for breeding purposes, already have them. The current system works more than adequately as I have not come across evidence of major problems.
The vast majority of horses do not need passports for the simple reason that they do not travel abroad. Very few horses from this country are intended or likely to enter the food chain, so the most obvious solution to the problem is to ensure that any horses that are sent abroad for meat must have a passport. No passport, no travel, no meat problem. I should imagine that that is a relatively straightforward solution to a relatively simple problem. I cannot think for the life of

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me why the 90 per cent of horses in the UK that do not travel abroad, and which consequently will not enter the food chain, should be obliged to subject their owners to pointless bureaucratic processes at some expense but for no discernible benefit.
The second question concerns whether the European Commission's decision means that the Government are obliged to introduce passports for all horses in order to comply. I understand that the Government are obliged to ensure that horses containing certain drugs do not enter the food chain, and to prevent that from happening, no horse should travel without a passport listing the drugs that have been administered to it over a period before travel.
The wording of the decision does not compel the introduction of a universal passport scheme, although that may be the best solution for those countries that have a vibrant horsemeat market, which the United Kingdom does not. The manner in which that decision is implemented will be different in each country. I am sure that the Minister will tell the House how carefully the Government have consulted. I am sure that that is right, but while those horse organisations that will benefit financially from universal passports are in favour, the organisations that will not benefit are clearly not in favour.
My research, which was as extensive as it could be in the time available, leads me to conclude that those who need passports are happy with the current system, and that those who know virtually nothing of the Government's proposals and do not want to know. I am in their camp.
I also understand that the Government believe that a universal passport scheme could lead to a national horse database, which in turn will raise the standard of horse breeding and improve welfare. That is an interesting idea, but it is not relevant and it is probably wrong. The UK already has one of the best breeding industries at many levels in the world. Of course there is room for improvement, but I cannot see how a database will make a difference. Your Lordships might like to remember how often the House has been told of the benefits to be accrued from the Home Office's database of firearms' ownership, which four or five years later, has still to be set up.
If your Lordships cast your minds back to dog licences, one of the reasons why they were abolished was that responsible owners licensed their dogs and irresponsible owners did not. The same applies to car tax discs. I see no real benefits in compelling all owners to have passports for their horses. Even if there were benefits, they are peripheral to tonight's debate.
I shall finish where I started. Does every horse in Britain really need a passport to ensure that no horse containing proscribed drugs enters the European horsemeat market? Are the Government really obliged to set up a universal passport system at an estimated cost of £20 million to meet their obligations to the Commission in respect of decision 2000/68? The short answers I suspect are no and no.
8.12 p.m.
Viscount Falkland: My Lords, I hope that the House will accept that in speaking from these Benches I am in no way anti-European when I ask how likely it is that we would be discussing passports for horses, ponies and donkeys if we were not members of the European Union. I suggest that the issue has little relevance to our horse culture.
I cast my mind back to discussions that we had on dangerous dogs some years ago. The noble Lord, Lord Soulsby of Swawffham Prior, will remember those discussions as an issue about which some of us felt quite strongly. The Government's arguments had some justification, which reflects the remarks made by the noble Baroness, Lady Mallalieu. One of the strongest arguments was that the owners whose dogs needed to be registered were the least likely to register their dogs. The same goes for horses or ponies that should be registered because their owners are likely to mistreat them, lose or get rid of them on purpose. Such owners are the least likely to put information on a passport or some identity form.
This proposal was originally introduced by the European Commission as a means to simplify trade—that was probably unnecessary as well. Some time later, we came across the question of the food chain, which really does not apply to us. As other noble Lords have said, it applies to Belgium and France in particular.
The Government would have done better had they turned their attention to the shocking and indescribable conditions of horses exported from here for slaughter to those countries that eat horses, stamped on that and got it properly under control before acceding to this measure. Policing is an especially difficult problem, as was mentioned. One visualises all kinds of shifty little men with briefcases and notebooks going around riding stables, presumably to check the papers, but probably for other reasons as well.
The Government have not thought this through. They say, "If Europe does it, we have to do it". I personally wish that Europe had said that all dogs should be registered, because the reasons for registering dogs are much more cogent and persuasive than those made for horses and ponies. I wish that the Government would take a little more time. If we were dealing with the matter outside the context of the European Union, there would be more consultation and consideration of the detail and of proper information before it arrived at your Lordships' House.
8.15 p.m.
Baroness Byford: My Lords, I thank my noble friend Lord Astor for giving us the opportunity to refer to the order tonight. He fully explained his reservations about the introduction of the order, which I cannot repeat in the limited time at my disposal.
I have three specific questions. First, is the order necessary in a country where horsemeat is not eaten? Secondly, should the scheme enhance breeding

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programmes, as has been proposed? Is that really its purpose? If so, let us have that made clear. Thirdly, will the requirements be applied to countries outside the United Kingdom? What happens to animals that are imported into countries for human consumption?
In a country where horsemeat is not eaten in the same way as it is on the Continent, why should owners in England—I stress England—be burdened with rules designed to cover but so very few? Why indeed? As other noble Lords have said, horses or ponies sold for export for human consumption could be required to have a passport before they are exported. That point has been clearly made by all noble Lords who have spoken.
Has that suggestion been made to the Government? Have they raised it with the European Commission? If so, what was the outcome of those discussions? Did the Government vote in favour of the horse passport scheme, or was theirs the only voice expressing concern? Or is this yet one more statutory instrument that must be implemented whether it has the support of England or not? As I said, will countries outside the EU be required to meet such restrictions, or is this yet again bureaucracy and cost placed on European citizens?
We have heard noble Lords on all sides of the House express concern—in fact, no one has spoken in favour of the scheme. That should concentrate the Government's mind on questioning the consultation that they have undertaken. The order is costly. It is estimated to cost £20 million—obviously, with ongoing costs after that. There is concern about animal welfare and the likelihood that animals will be dumped.
I also have practical concerns, because the order refers only to England. What happens to cross-border movement of animals kept in Scotland or Wales when they are shooed from one side where they do not need a passport to the other where they do?
The whole question of the universal passport scheme has been raised again in the debate; it has been considered unnecessary, costly, unenforceable and runs the risk of increasing animal welfare concerns, about which all noble Lords are anxious. The order is not required by other countries outside England.
In a country where the majority of horses are kept—we have heard the figure of 900,000, of which only 10,000 reach the overseas market—is this really the way to deal with a statutory instrument? Interestingly enough, if it had not been for my noble friend, we should not have had this opportunity to debate the instrument at all.
There are many questions that the Government need to answer; I hope that the Minister will. He should be able to do so. My noble friend Lord Willoughby de Broke said that he is happy to be written to. Finally, in the age of microchips, cannot we use them to help with this issue?
8.19 p.m.
The Parliamentary Under-Secretary of State, Department for Environment, Food and Rural Affairs (Lord Whitty): My Lords, I appreciate the initiation of
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this debate introduced by the noble Viscount, Lord Astor, and the contributions of noble Lords.
A number of misconceptions have been running round the House in the course of this debate. The noble Baroness correctly said that no noble Lord who has spoken appears to be wholly in favour of the proposition. It is perhaps incumbent on me to explain some of the background. The Commission proposed it at the initial stage. There was concern about the availability of certain medicines that are frequently used to treat horses but which have not been authorised for food-producing animals. Under EU law, horses count as animals that could get into the food chain. The Commission decided that in order to protect the human food chain, all horses needed to be accompanied by an identity document. The directive is based on that proposition. It is also true that by requiring all equines to have passports, the UK can continue to use those medicines that are frequently used for horses that are in no sense destined for the human food chain and at the same time help those consumers in other EU countries who do eat meat.
The Earl of Onslow: My Lords, I genuinely seek information. In the eating of horse flesh in the past 20 years, how many instances have there been of damage being caused to human health because something was wrong with the drugs that were administered to horses? Are we chasing a chimera?
Lord Whitty: No, my Lords, because the judgment is made not on the basis of the number of cases that may or may not have been recorded but on an assessment of the effect of the medicines, as is done with human medicine. If such medicines have been deemed to be dangerous to humans, it is incumbent on the authorities—including, in this case, the Commission—to make proposals to minimise the danger.
Noble Lords are right that were the EU not to have made this proposal and if it was not concerned about the eating of horses, we should probably not be debating this matter tonight. However, it is also true that at every stage in the consideration of this matter, the majority of those organisations dealing with horses in this country have been in favour of the proposal for passports and of the proposal that they should cover all equines in this country. That applied when we were first considering the directive and in relation to the consultation in 2000 and, so far as we can tell—in terms of responses so far received—it applies in relation to the current consultation, which will end at the end of this month.
In the 2000 consultation, for example, the following organisations indicated their support for passports for all horses: the British Horse Industry Confederation, the British Horse Society, the British Equestrian Federation, the Thoroughbred Breeders Association, the British Equine Veterinary Association, the British Hanoverian Horse Society, and so on. There were organisations that opposed the approach. However,

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those organisations, which have some experience in this area, strongly supported the approach and represented the vast majority of those who replied.
Baroness Byford: My Lords, I accept the organisations that the Minister stated. There are many ordinary horses and ponies out there and most people have ordinary horses and ponies. I wonder what response the Minister had from what I call the more scrubby end of the trade rather than the élite end, if I can put it that way.
Lord Whitty: My Lords, I am not sure which I should designate as being the scrubbier end of the trade. There are responses from other bodies and individuals to the latest consultation. We must assess that at the end of June. As some noble Lords said, there were some contrary views during the 2000 consultation. My point is that the vast majority were in favour.
There have also been allegations that we were goldplating and taking action before other countries. Germany, Sweden and Luxembourg have already fully implemented the legislation. The Netherlands, Spain and Denmark are planning to do so before the end of 2004, as, indeed, is Belgium: the issue of the ride from Ghent to Aix will be covered in its provisions. The noble Earl referred to Napoleon. I do not have the full details about France, but we understand that the French have also implemented the proposals. In Ireland, the facility to issue horse passports for all equines is already in place. It is not true that other countries are not implementing.
Nor are we gold plating. By transposing the legislation, we are not introducing anything over and above the EU proposals. Failure to implement the proposals could lead to legal challenge.
Viscount Astor: My Lords, can the Minister explain why in the Government's own regulatory impact assessment, option 2 was just passports for horses for human consumption? It is the Government's own option and not one that has been invented on this side of the House.
Lord Whitty: My Lords, it is one of the options put forward in order to meet the criteria of the directive, but it was not one that was favoured by the industry. Therefore we have a double responsibility: first, not to gold plate legislation and secondly, to take into account the views of the industry in our drafting of the legislation. A number of questions were raised on our proposals, many of which are covered in the consultation. I am sure that remarks in this House, including the points raised by the noble Viscount, Lord Ullswater, on the administration of the passport system, can be taken into account in developing our response to that consultation. Not all issues are closed.
I was asked a number of questions by my noble friend Lady Mallalieu, including why we did not have a national scheme rather than relying on individual organisations to produce the passports. The answer is
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that passports are already being issued by a significant number of societies under the Horse Passports Order 1997. It is not necessary to re-invent the wheel and therefore we have devolved a responsibility to those organisations and by and large that has been accepted within the industry.
My noble friend Lady Mallalieu also asked how widespread our publicity on this is going to be. Once we have completed the consultation and decided in the light of that consultation how the scheme will work, we will need to engage in a widespread publicity campaign once the legislation is finalised. The societies involved in this scheme will also be engaged in that publicity. There is currently information on the Defra website and in a number of society communications. The full publicity will be needed before the point of implementation.
The noble Lord, Lord Soulsby and my noble friend Lady Mallalieu asked what happens under the scheme if a vet comes across a horse that does not have a passport. The easiest way to deal with such a case would be for the vet not to administer the medicines. However, we are discussing with the veterinary organisations the best and most practical way of dealing with this situation. Annex 4 of the council regulations says that the medicines must never be given to food-producing animals and therefore should not be used unless it is clear the animal will not enter the food chain.
It is necessary to have some understanding with the veterinary organisations as to how they would deal with a horse that did not have that disclaimer. It is not impossible to see that there will be options available to vets in those circumstances rather than simply refusing to use the medicines.
The noble Lord, Lord Burnham, asked about VAT. It is for Customs and Excise to say whether VAT would need to apply to these passports, but there is a complexity in that many of the organisations helping administer the scheme are charities. Therefore, we have yet to finalise the position in relation to VAT.
I think some of the costs referred to by my noble friend Lady Mallalieu and others relate to costs for particular societies. In consultation with the industry, we estimate that the average cost for the additional burden on the horse owner from this scheme would be £20 to £30 for each passport, which would be valid for the lifetime of the horse. There may be a particular problem with elderly horses but compared with the cost of keeping the horse for a lifetime, it is hardly a huge expenditure. Indeed, some societies—for instance, the British Horse Society and the British Driving Society—are offering a lower cost. This is therefore not a huge expense on the horse-owning public.
The burden of negative comments on the scheme needs to be set against some of the positive benefits that the industry and others see it. They include the fact that passports will enable medicines that are not authorised for food-producing animals to continue to be administered to all horses not intended for human consumption. As noble Lords have rightly said, that is

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the vast majority of British horses. Horse owners will have more information on the horses that they purchase, or are considering purchasing, because a requirement of the new legislation is that the passport must accompany a horse being sold. One can therefore check on ownership details such as age and so forth. There may he breeding benefits, because passports may discourage the indiscriminate purchasing of low-value and poorly kept animals, thereby having a positive effect on horse welfare.
The noble Lord, Lord Soulsby, and others referred to the proposed national equine database, which would be possible only if all horses required an identity document. If we go along that road, which is not part of the legislation, the Government will know far more than previously about the number of horses kept in the UK and the important and growing role that the horse industry plays in our rural economy. The British Equestrian Federation proposals for a central horse database would achieve its objectives through the information based on that supplied by the passport-issuing organisations. There is therefore a positive benefit from a public/private partnership in this area.
Noble Lords referred to feral horses, for example. Specific arrangements are being made in relation to Dartmoor, Exmoor and the New Forest and we are looking at other areas where that might also apply.
This has been an interesting if somewhat negative debate in terms of the contributions. I see my time is up, but if I need to answer other points I will do so in writing. In the meantime, I thank the noble Viscount for initiating the debate and all noble Lords for participating in it.
Baroness Farrington of Ribbleton: My Lords, I beg to move that the House do now adjourn during pleasure until 8.35 p.m.
Moved accordingly, and, on Question, Motion agreed to.
[The Sitting was suspended from 8.32 to 8.35 p.m.]

Sexual Offences Bill [H.L.]
Consideration of amendments on Report resumed.
Clause 15 [Arranging or facilitating commission of a child sex offence]:
Baroness Walmsleymoved Amendment No. 59:
Page 6, line 43, leave out "for the purpose" and insert "to promote the child's welfare, with particular regard for the need—"
The noble Baroness said: My Lords, in moving Amendment No. 59, I shall speak also to Amendment No. 61 in the group. We were grateful to the Minister at an earlier stage of the Bill for tabling the amendment which included subsection (3), making it clear that those who act to protect children from sexually transmitted infections, to protect their physical safety and to protect them from unwanted pregnancy would not be committing an offence under the clause. However, there are still concerns, which is why I have submitted the amendments.
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Earlier this evening the noble Baroness, Lady Blatch, suggested that it was almost unbelievable that somebody giving bona fide sex advice to a young person could possibly be caught under the clause. However, it is a fact that many of those who give that advice are the very people who are concerned about the unamended clause. They are people who work for reputable organisations such as the Brooke Advisory Centre, the Family Planning Association, Childline and many people who are commonly called agony aunts who write in some of the teenage magazines.
I feel that some of those teenage magazines sometimes go too far, but it has to be said that they are part of the culture of young people who do look to them for advice. On the whole the people who give that advice are reputable and well-intentioned. If they are concerned that the Bill as drafted is ambiguous and could make them feel that they were in danger of falling foul of the law if they carried on doing their good things, then I believe that that deserves our full attention.
The main thing missing from the Bill is reference to the emotional well-being of young people, because, particularly for them, emotions and sexual activity are tied up together. It is very difficult to separate them. I know that if the noble Baroness, Lady Howarth, was able to be with us this evening—and she is very sorry that she cannot be—she would be able to give us the perspective of the advisers on Childline who are concerned that often they are called upon to talk to young people about issues to do with sexual activity. Those young people are not just concerned about their own sexual activity. Sometimes they are distressed and worried about having perhaps witnessed their parents having sexual activity and they do not understand what is going on. They need reassurance and advice.
It is for that reason that I have tabled Amendments Nos. 59 and 61. Other amendments in this group would achieve similar aims. One way or another it is important that on the face of the Bill there is reference to the emotional well being of people as well as tangible things such as their sexual health and avoidance of unwanted pregnancies.
I hope that the Minister will carefully consider the amendment and look favourably upon it. There is much concern among professionals and well-intentioned and trained non-professionals, who do much good work. I have always felt that those who say that young people can get too much sex education are mistaken. It does not cause them to indulge in more sex than they otherwise would. It just means that they are well-informed about the consequences of sexual activity. We should do all we can to ensure that those who give good sex advice to young people are not in danger of falling foul of the law. I beg to move.
Baroness Noakes: My Lords, I shall speak to Amendments Nos. 60, 62, 169 and 170 tabled in my name. In our debate in Committee, the noble Baroness, Lady Walmsley explained the loose ends which existed. We were delighted that the Minister tabled the amendments which resulted in subsections (2) and (3) of Clauses 15 and 75. I have tabled slightly

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different amendments from the two tabled by the noble Baroness, but I do not think there is anything of substance between us. Amendment No. 62 represents wording suggested by the Periodical Publishers Association, which has a particular concern in relation to the work of agony aunts in magazines aimed at under-16s. We are trying to ensure that the exception provided by these two subsections covers not just the physical side of sex but also the emotional and psychological side.
I know that the Minister is keen to try to understand the kind of examples which could arise that would lead to the need for that. Perhaps I may put to him the case of a 15 year-old child confused about either a sexual relationship or his or her sexuality. He is in a relationship with another child under 16, which involves sexual activity. The child knows about condoms and all the kind of things about which one would advise a child in order to avoid sexually transmitted disease, pregnancy and so forth, but is confused as to how he feels about sexual activity and wants to discuss feelings of guilt, stress and perhaps even an obsession he has developed. He seeks advice from a trusted adult, Childline or one of the magazines which specialise in advice. He wants to know whether he should have sex, what will be the consequences for how he feels and what normal reactions are possible for him.
The person he consults can say, "No sex, you are under 16" and then no question of aiding and abetting or any of the other matters would arise. But that is not the real world so it is quite possible that the person giving advice would reassure the child that perhaps his strong desire for sex is not unusual. The adviser is not likely positively to counsel having sexual relations but it is likely that the advice will be given on the basis that it is not wrong for the child. Thus reassured, the child could go on to have sexual intercourse with the other child.
I do not believe that people in that situation should be caught by the Bill. We have already discussed the issue of whether it should be unlawful for teenagers to have consensual sex. Those of us who are concerned that the law should reflect the reality of consensual teenage sex have a similar concern in relation to advice given to teenagers involved in consensual sexual activity. If we do not deal with the doubts that exist—for example, in relation to publishers—advice columns could be closed down. The noble Baroness, Lady Walmsley, said that some advice goes further than she thinks advisable but such columns appear to meet a need. If they are closed down because of risk-averse lawyers, less information might be available to teenagers—which could lead to more problems down the line for society. I hope that the Minister will reconsider.
8.45 p.m.
Baroness Gould of Potternewton: My Lords, it may be that the wording of the amendments is not entirely correct but I hope that my noble and learned friend
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will feel able to support the principle behind the amendments, then perhaps we can return with something better.
It is almost impossible for anyone counselling children on engaging or not engaging in under-age sex to ignore the emotional problems that the child is likely to raise. I understand that Childline has received 800 calls this year from children seeking relationship advice and its counsellors must be reassured that the clause will protect them. If my noble and learned friend can say that is the case, the organisations to which the noble Baronesses, Lady Walmsley and Lady Noakes, referred can be clear that they are protected by the clause as it stands. It will be difficult for organisations to continue giving advice if they feel that there is any ambiguity in the Bill.
Baroness Blatch: My Lords, it will come as no surprise to anyone that I oppose the amendment. I have already expressed my grave reservations about the education defence. The potential for abusing that defence can only be made worse by the amendment, which extends its scope even further.
We are talking about some of the most manipulative people and worst confidence tricksters in the world. Here we are giving them a defence on a plate. Allowing a person to claim, as Amendment No. 61 does, that he was facilitating a child sex offence to protect a child's emotional well-being could open up all kinds of arguments. What, for example, is "emotional wellbeing"? It is certainly something much broader than the physical protection of a child. It is a very vague notion and will allow individuals to introduce young people to all sorts of material and to give them all kinds of appalling advice—safe in the knowledge that they can rely on the proposed defence.
If Amendments Nos. 62 and 170 are accepted, a person could with impunity supply a child with sexual literature that does not even pretend to be about so-called safer sex, help or pregnancy but deals merely with the emotional and physical aspects of sexual relations. Would the provision include pornography or advice about sexual technique? It seems wide to me and probably could.
The amendments go far beyond the legitimate concerns of a health professional or teacher and even further into the realm of activities that a person might undertake to groom a child for abuse. I hope that my noble friend and the noble Baroness, Lady Walmsley, will reflect not on the needs of health professionals or teachers—who have nothing to fear from the Bill—but on those manipulative individuals who will welcome a tailor-made defence to their abusive behaviour.
Lord Falconer of Thoroton: My Lords, I appreciate the very genuine concerns which have motivated the noble Baroness. I am sympathetic to them. It is obvious that help is of incredible importance with regard to many problems of an emotional kind. The noble Baroness, Lady Blatch, identifies the problem in relation to the amendment. Without it being pointed out, everyone can understand that those people who wish to encourage children to engage in sex for their

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own ends can say various things which will help them in relation to it. Therefore, the balance to be struck in this area is incredibly difficult.
Any statutory exceptions to protections offered to children by the criminal offences must be framed in such a way that they cannot be persistently manipulated by an abuser to avoid prosecution for abuse. That is why the exceptions have been worded in the way that they have, focusing on the specific protections being offered to the child—against sexually transmittable diseases, pregnancy or physical harm—that will exclude the provider's behaviour from the scope of the offence.
I am moved by the level of concern expressed by the noble Baronesses, Lady Walmsley, Lady Noakes and Lady Gould of Potternewton. There is no doubt that they are trying to deal with an actual problem. I have therefore spent a lot of time considering whether there is a way in which we could address those concerns without opening a loophole that an abuser could seek to exploit or causing grave concerns that we are weakening the protection that we offer to children. It is a difficult issue. I have looked at the amendments, keen to see what could be done to meet those concerns.
Amendment No. 59, moved by the noble Baroness, Lady Walmsley, would amend Clause 15(3) so that rather than acting "for the purpose" of protecting the child, the defendant is required to have acted "to promote the child's welfare, with particular regard for the need" of protecting the child.
I do not feel that the term "to promote the child's welfare" adds anything here, as there can be no doubt that the actions in subsection (3)(a) to (c)—protecting the child from pregnancy or infection, or protecting his physical safety—would promote the child's welfare. My concern about the term "with particular regard for" is that this is a lower test than "for the purpose of", which would only fuel the argument that the exceptions clause is weakening child protection. I think that the current wording is better and provides better protection for children and I wish to retain it.
Amendment No. 60, in the name of the noble Baroness, Lady Noakes, would extend the provision at Clause 15(3)(b) to cover both the physical and the emotional safety of the child. Her Amendment No. 169 would do the same in Clause 75(1)(b).
I am very concerned that the term "emotional safety" is too vague. It would create a potential loophole that abusers could exploit, claiming that they were, for example, seeking to protect a child from emotional bullying by his peers when in fact they might be trying to acclimatise a child to sexual matters in order to prepare the way for unlawful sexual activity. It would be a very difficult clause to police. There are differing views in the sector as to the right way to go.
Amendment No. 61, in the name of the noble Baroness, Lady Walmsley, would extend Clause 15(3)(b) to cover "the physical safety and emotional well-being" of the child. It is similar to the approach taken by the noble Baroness, Lady Noakes. I do not think that there is much to choose between "emotional well-being" and "emotional safety", as the noble
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Baroness said. I fear that both could potentially weaken the protection offered to children. What is the position if someone with the bona fide interests of the child were to say, "I understand your problems. You would feel a lot better if you did commit certain sexual acts"? The person giving that advice may be motivated by his or her belief, but such advice may not really be what reasonable people would regard as in the best interests of the child.
Amendment No. 62 would add a new subsection (3)(d) to Clause 15 that would exempt those who provide,
"bona tide advice and information about the emotional and physical aspects of sexual relations".
Amendment No. 170 proposes the same change for Clause 75 by creating a new subsection (1)(d). The words "bona fide" are open to wide interpretation—honest belief that it is okay, no matter how mad. Those words may be suitable for guidance notes, where they are already used. I know that the term was used in the case of Gillick, but I do not believe those words to be sufficiently precise for us to include in statute.
I do not believe that the phrase,
"advice and information about the emotional and physical aspects of sexual relations",
has anything to recommend it as regards being different in its ultimate effect from the more straightforward terms, such as, "emotional safety" or "emotional well-being''. We are going round and round in a sort of linguistic circle. I genuinely wish to help noble Lords with their concerns, but we are trying to strike a very difficult balance. Therefore, any provisions that we include in legislation to protect those who act to protect children must not undermine the protection that it offers to children.
This is a difficult area, hut, having thought about it a great deal, I am moderately satisfied that we have broadly got the balance right. If the amendments proposed by the noble Baronesses, Lady Walmsley and Lady Noakes, were placed in the Bill, I believe that we would end up with this becoming a major focus of criminal proceedings—not because such provision would form the basis of criminal charges but because it would become "the issue" upon which defendants would rely. We would regret that outcome.
Baroness Walmsley: My Lords, I am grateful to the Minister for his reply. I appreciate the support expressed by the noble Baronesses, Lady Noakes and Lady Gould of Potternewton. I accept the noble and learned Lord's suggestion as regards Amendment No. 59 that his wording is stronger than mine. I give in on that one; I think that the Minister is right.
However, the position on Amendments Nos. 60, 61, and 62 is somewhat different. A jury can sort out the difference between a defence and a successful defence—one that will get a paedophile off the hook. Far be it from me to want to write a paedophile's charter, but there is very little difference between our proposal to insert something about the emotional wellbeing of the child and subsection (3)(a), (b), or (c).

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Someone could try to defend himself from a charge of "inappropriate activity" by suggesting that he wanted to protect the child from sexually-transmitted infection by talking to the child regarding how he or she could have sex wearing a condom. In exactly the same way, a paedophile who was up to no good could also try to use that defence. Yet the noble and learned Lord seems to be perfectly happy with paragraphs (a), (b), and (c).
Sometimes such children are merely asking for advice on emotions and feelings, but where sexual activity is involved physical and emotional considerations can become mixed up. Therefore, the people who give such advice need the protection that could be provided by placing something on the face of the Bill that makes it clear that they are not doing anything wrong. I do not believe that our proposal would open up any more of a loophole for a potential paedophile than is the case with paragraphs (a), (b), or (c).
I do not intend to press Amendment No. 59 at this stage, but I may return to Amendment No. 61 on Third Reading. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 60 to 62 not moved.]
Clause 17 [Meeting a child following sexual grooming etc.]:
Lord Astor of Hevermoved Amendment No. 63:
Page 7, line 30, leave out paragraphs (c) and (d) and insert ", and (c) subsection (1B) applies."
The noble Lord said: My Lords, in moving this amendment I shall speak also to Amendment No. 64. This is an amended version of the amendments that we moved in Committee on the inclusion of those with a mental disorder or learning disability into the grooming offence under Clause 17.
In Committee I was grateful that the principle behind our amendments was welcomed. People with mental disorders or learning disabilities are often very trusting and easily exploited. Consequently, they are a target for sexual offenders. We should like them to be covered by Clause 17 in the same way as children are.
The noble and learned Lord the Minister and the noble Baroness, Lady Walmsley, pointed out—rightly—that there was a fundamental flaw in our original version. We have listened to those comments and altered the drafting of our original amendments. We want to provide safeguards and special protection, not to restrict the freedoms of those who can consent. The protection that Clause 17 offers to children should be extended to cover not all those with a mental disorder or learning disability, but only those whose capacity to consent is inhibited by their condition.
I hope that the noble Baroness, Lady Walmsley, and the noble and learned Lord the Minister will feel happy to support our amendments, which are designed to cover this very important and fundamental issue. As the clause is currently drafted, there is a dangerous loophole. We need to make sure that this is remedied.
9 p.m.
Baroness Blatch: My Lords, I support my noble friend.
Once again I am glad to see the offence of grooming in the Bill. It is an important addition to the armoury of police and the courts in tackling child sex abuse. Its strength is that we do not have to wait for the sexual abuse to have taken place before the police can act. A single incident of sex abuse can be devastating to a child. It must be better to act pre-emptively to prevent the abuse.
I regret that my own amendment at Committee stage did not meet with more sympathy. I remain concerned that requiring proof of two previous communications will allow paedophiles who do all their grooming in a single, lengthy communication to get away with it.
None the less, it is a good offence, and it is added to considerably by Amendments Nos. 63 and 64 in the names of my noble friends. If a person has a mental disorder which means that they lack the capacity to consent, they are just as vulnerable to grooming as any child. They may, indeed, be even more trusting—in fact, in most cases they probably would be—and even more willing to be befriended by a stranger. They may have less of an idea about what is appropriate behaviour with a stranger.
The noble and learned Lord the Minister said when we debated the amendment in Committee that he would consider it. I hope that our hopes have not been raised only to be dashed tonight, and that the noble and learned Lord will look kindly on the amendment.
Baroness Walmsley: My Lords, I beg to shock the House. I agree with the noble Baroness, Lady Blatch, and the noble Lord, Lord Astor of Hever. I think that the amendment is very close to, if not exactly at, the point that I said in Committee we wanted to reach. It is vital that we get right in the Bill the rights and protection of people with mental disorders, and I believe that the amendment helps to achieve that. Therefore, we on these Benches support it.
Lord Falconer of Thoroton: My Lords, the amendments, unlike those tabled at the Committee stage, are restricted to those who lack the capacity to consent. In extending the offence of meeting a child following sexual grooming to those with a mental disorder who lack the capacity to consent, we would be transposing an offence specifically designed to deal with real cases—cases that have actually occurred—of abuse against children to a completely different situation involving adults. We are not aware of evidence of the need for this offence to protect those who lack the capacity to consent, whereas, as noble Lords will know, plenty of evidence exists with respect to children. If there is evidence, please bring it forward. It is not a criticism of the noble Lord, Lord Astor, either on this occasion or previously, to say that there is a great danger in making offences extend to areas where there is no evidence of a real problem.

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Just as Clause 17 is a response to a specific threat that we know to exist towards children, so Clauses 32 to 49 represent the equivalent response to a specific risk to those with a mental disorder or learning disability, based on evidence presented to the Sexual Offences Review.
The scrutiny of legislation should be restricted to evidence rather than to the consideration of thoughts and good ideas that occur in the course of the scrutiny process without first having had the opportunity to discover whether there is a real problem. As the noble Lord, Lord Astor, would he the first to point out, there is a big issue about striking the balance between, on the one hand, appropriate freedoms for those with mental disabilities—even those without the capacity to consent—and, on the other, children where there is a specific problem.
The clauses covering offences against people with a mental disorder or learning disability, of inducements and so on and the care worker offences are all a response to evidence. The abuse of those with a mental disorder who lack the capacity to consent is far more likely to be perpetrated by someone who has built up a face-to-face relationship of trust with the victim rather than by someone who contacts the victim on the Internet. Setting the Boundaries identified the case for a separate offence,
"to recognise the special and often limited nature of the threats or deception needed to obtain sex with mentally impaired people".
That is why we have put in the Bill the group of offences concerning the use of inducements, threats or deception to take account of the various ways that mentally impaired people can be pressurised into having sex.
We have taken the appropriate measures, based on evidence, to provide justice for those with a mental disorder or learning disability who are subjected to sexual abuse or sexual coercion of whatever kind. I do not believe that Clause 17, which is designed for a quite distinct purpose and based upon specific cases advanced by those with experience in this matter, should be extended in the way proposed. Having thought about the matter very carefully, I do not believe that there is a basis for the amendment.
Lord Astor of Hever: My Lords, I thank my noble friend Lady Blatch for her support. She is absolutely right that those with mental disorders and learning difficulties are equally as vulnerable as children. I also thank the noble Baroness, Lady Walmsley, for her support.
I am sorry that the noble and learned Lord has not accepted the amendment. After all, the Minister said in Committee that the Government would consider it, focusing particularly on those without the capacity to consent. The noble and learned Lord said that I did not mention any evidence in my speech, which I kept deliberately short in an optimistic mood that the amendment would he accepted. However, I shall consider the matter further and read carefully what the Minister said. In the mean time I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 64 not moved.]
Lord Falconer of Thorotonmoved Amendment No. 65:
Page 7, line 38, leave out "75" and insert "81"
The noble and learned Lord said: My Lords, the amendments in this group are of a minor and technical nature. Amendment No. 65 is necessary for the proper operation of the Bill in Northern Ireland. Amendments Nos. 108, 122 and 127 replace "a" with "another" in Clauses 33, 38 and 43 for the sake of consistency with other clauses.
In Committee I tabled an amendment in relation to the definition of a community home for the purposes of the abuse of trust offence. Amendment No. 141 makes a similar change for the purposes of the care worker offences. I beg to move.
On Question, amendment agreed to.
Baroness Noakesmoved Amendment No. 66:
Page 8, line 5, leave out paragraph (a).
The noble Baroness said: My Lords, Amendment No. 66 seeks to make the offence of meeting a child following sexual grooming an offence which could be tried only on indictment.
We welcome the new offence created by Clause 17 and the Government's decision in Committee to raise the maximum sentence to seven years. The issue raised by the amendment is whether it should be possible for the offence to be tried summarily, thus involving a sentence of only six months or a fine.
When we debated this issue in Committee the noble and learned Lord said that the summary option was to deal with, for example, a 19 year-old talking to a child of 15 years and 11 months. I do not believe that using ages gets to the heart of the issue. A vulnerable 15 year-old is entitled to as much protection as a 12 year-old. As the Minister knows, it is always difficult to know where to draw lines, but having chosen the lines—18 years for the defendant and 16 for the victim—we should stop at that and not choose examples around the margins to justify an approach to penalties.
The offence is a serious one. It is designed to catch sexual predators—both on and offline—who entice their intended victims into situations where sexual offences could be committed. The offence does not entail a sexual activity but it is the nearest thing. If a child is involved in sexual activity under Clauses 9 to 11, there is only a possibility of an indictment. These are serious offences and there is no option of a lesser offence. It is my contention that this approach should be carried over into Clause 17. Making the offence indictable only would encourage the police and the CPS to see this as the very serious offence that it is intended to be and not one which should encompass marginal cases.

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If the Minister is not in favour of removing the possibility of summary conviction from the whole offence, what is his attitude towards children under 13? Should they not be protected by a stronger offence with no soft option of a summary trial? I beg to move.
Lord Falconer of Thoroton: My Lords, I know that the noble Baroness is pursuing in this amendment a more general concern that she raised earlier in debate to ensure that certain sex offences could be dealt with only at the Crown Court. Amendment No. 66 would remove the provision that the offence at Clause 17 can be tried summarily as well as in the Crown Court. I believe that it is important in the grooming offences that we retain the possibility of summary trial.
In this offence, the offending behaviour that we are targeting is at a preparatory stage before a substantive physical sexual offence against a child has been committed. The essence of this offence is an adult meeting or travelling to meet a child, following two meetings or communications with them, intending to engage them in sexual activety at either that meeting or a subsequent one.
The adult charged with the offence may never have met the child concerned. He may have simply communicated with the child online or via a telephone text message. He may not have said or done anything overtly sexual towards the child. It may be the first time that he has been charged with anything remotely like a sexual offence. It might be a 19 year-old and a 15 year-old. Evidence may be obtained relating to the defendant talking to other people which indicates that the sexual offence considered would not be at the more serious end of sexual offences. As in all those cases, it is incredibly important to keep this in perspective and to recognise that the landscape is from the not so serious to the extremely serious offence.
Therefore, for example, the paedophile seeking to groom children for offences should plainly be tried in the Crown Court. But is every 19 year-old who sends a text message to someone suggesting that they meet with a view to perhaps going to the cinema and committing what technically constitutes a sexual offence always to be tried in the Crown Court? I am not so sure and I believe that the right course to take is to look at each case on its merits. I think we can trust the CPS to do that. It is not right to limit where charges for this offence can be heard. I understand the motive behind it, but it is the wrong approach. For those reasons, I shall be resisting the amendment.
Baroness Noakes: My Lords, I thank the Minister for that reply. I believe that the difference between us is that he sees this offence as covering a wide range of activity for—example, a 19 year-old texting a 15 year-old about a sexual liaison. I have never considered the offence created by Clause 17 as remotely covering those types of activities, which are not serious sexual predator activity. To use the examples cited earlier, this is about men going out with condoms and ropes in their pockets to entrap young, vulnerable children,
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having enticed them to a meeting. It is not about text messages between teenagers slightly above and slightly below the age limits.
I am particularly concerned about under-13 year-olds and sending the right messages. I may return to this issue later. In the mean time, I shall read carefully what the noble and learned Lord said. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
9.15 p.m.
Clause 18 [Abuse of position of trust: sexual activity with a child]:
Lord Thomas of Gresfordmoved Amendment No. 67:
Page 8, line 16, leave out from "the" to end of line 20 and insert "other person is over 13, it is a defence for the defendant to show that he did not know, and had no reasonable cause to believe, that that other person was under 18."
The noble Lord said: My Lords, we move from child sex offences to a series of groups of offences between Clauses 18 and 49—four groups in all—which deal with particular relationships: the position of a person who is abusing trust; the familial relationship; offences against persons with a mental disorder or learning disability; and care workers.
One of the curiosities of the Bill is that those four groups are not all dealt with in the same way. In respect of people in a position of trust, familial relationships and care workers, the policy of the Government is to transfer to a defendant in the particular circumstances outlined in the Bill the persuasive burden of establishing his innocence. I shall not weary those brave few noble Lords who remain with a repetition of what I said earlier.
Interestingly, in the group which appears in the middle of all these—that is to say, the group that concerns people with a mental disorder or learning disability—the persuasive burden is not transferred. If one looks at Clause 32(1)(d), one observes that it is still for the prosecution to prove that the defendant knows or could reasonably be expected to know that the complainant has a mental disorder or learning disability and that because of it that person is likely to be unable to refuse. So the approach of the Government to the four groups is not consistent.
The formulation in relation to the three groups where the burden transfers to the defendant to prove his innocence—I am using shorthand here—passes the persuasive burden to the defendant to prove—I refer to Clause 18(2)—that he believed that the other person was 18 or over, and then transfers the persuasive burden back to the prosecution to satisfy the jury that the belief was unreasonable.
I have already wearied your Lordships in Committee about the difficult mechanisms that are involved in such a transfer. If one had to sum up to a jury, it would in my view be extraordinarily difficult to instruct a jury that in relation to a number of the matters that are set out in this offence it has to be satisfied when it comes to passing the burden to the

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defendant to prove his defence that it is on a balance of probabilities. When the persuasive burden shifts back to the prosecution it has to be sure, having been satisfied on a balance of probabilities that the defendant believed the other person was 18, that the belief was unreasonable.
Those with little experience of the criminal courts may think that this is a simple matter and that juries are capable of being so directed. I reflect upon the words of the noble and learned Lord, Lord Lloyd, earlier today when he talked about the experience of those who drafted the Bill. I think that they are very enthusiastic and very bright, but I am not sure that they are very experienced. I would say the same about the Minister when it comes to criminal matters. It seems to me that the difficulties that would arise in directing a jury have not been properly assessed.
I consider, as I said in relation to the earlier provisions that we discussed, that the passing of the persuasive burden to the defendant in the case we are discussing is likely to offend Article 6(2) of the European Convention on Human Rights. If I were defending a person in that situation, I would certainly make that application. I can distinguish the situation, however, from the charges of rape or more serious sexual offences that we discussed earlier, because the sentences in those cases are very much greater.
I do so also because it is possible to say that, because of the relationship with a care worker, the familial relationship, or that with the person in a position of trust, it is right to impose an almost strict liability and say, "You will not have sex with anyone under the age of 18, anyone with a mental disability who is in your care, or any member of your family under the age of 18. That is the offence". Only then is the defence raised, which might satisfy the fair trial provisions of Article 6(2). There is a distinction to be drawn because, unlike the offences that we discussed earlier, which apply right across the board, we are concerned with imposing an almost strict liability on people in a specific tight relationship.
Having said that—if I were to concede that, and I do so only for the purposes of argument—it is still wrong in principle to adopt the formulation that the Government have adopted, which brings the burden back to the prosecution to prove that a belief was unreasonable. If someone is to take the convention on and say, "We are going to define the offence tightly, but there is a defence of reasonable belie", it seems to me that they should go the whole way and say, "The defence is that you have to prove that you have a reasonable belief", rather than falling back on the prosecution to satisfy the jury that it is sure that the belief is unreasonable.
Those who drafted the Bill have fallen between two stools. They have not been confident enough to say, "We are going to breach the presumption of innocence in these instances, and we are going to say that it is for the defendant to prove something—his reasonable belief—entirely". Instead, they have come to a halfway house where they divide the responsibility between the prosecution and the defence—between the defence and
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prosecution, I should probably say—and hope that that satisfies any challenge that may subsequently be made to it in the courts under Article 6(2).
I am against the provision in principle, because it could offend against Article 6(2). I am against it from a practical point of view, in that the way it is framed is unworkable. Noble Lords have heard today from judges of a greater standing than me who have criticised the unworkability of parts of the Bill. Across the board, in the three groups where the attempt is made, the provisions are unworkable. I would much prefer to see a formulation that follows that—curiously, it is in the middle of everything, between Clauses 32 and 41— which relates to those who have a mental disorder or learning disability. I beg to move.
Lord Falconer of Thoroton: My Lords, we have a range of amendments that all follow the same pattern. The first amendment of the noble Lord, Lord Thomas of Gresford, places the burden on the defence. The defendant must show that he did not know, which is knowledge, and had no reasonable cause to believe, which is reasonableness, that the other person was under 18. The whole burden of knowledge, age and reasonable belief in age is being placed on the defendant.
The noble Lord presumably regards that as legal within the European Convention on Human Rights, so the issue for him is not legality, but simplicity. We take the view that, because all these cases are based on existing relationships, if a defendant asserts that he did not know the age, that there was a mental disorder or that there was a family relationship, he should produce evidence to show that. As those matters are within the knowledge of the defendant, it is appropriate to place a burden on him.
We are advised that the burden of reasonableness, which is a more objective question, cannot appropriately be put on the defendant in that respect. That is why it remains with the prosecution.
Does that cause a problem for the jury? The noble Lord, Lord Thomas of Gresford, nods enthusiastically. Those are the very same juries that we both want to trust. Is it difficult to say, "Members of the jury, the defendant says that he didn't know that the person he was caring for suffered from a mental disorder. It is for the defendant to satisfy you of that on the balance of probabilities. If he does satisfy you, the prosecution must satisfy you that that belief, even if he had it, was unreasonable so that you are sure"?
Is that too complicated? Not in my view. I was struck by our earlier debate. The noble and learned judges who contributed greatly to the debate did not at any stage respond to what the noble and learned Lord, Lord Cooke, said about how the reasonableness provision had worked in practice. It did so, according to the noble and learned Lord, Lord Cooke, in a precisely different way from that in which the noble and learned Lords, Lord Lloyd and Lord Ackner, said it would.

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Yes, we must listen to what the judges say, but we must be prepared to form our own sensible views as to what will and will not work in practice.
Lord Thomas of Gresford: My Lords, the noble and learned Lord has clearly forgotten that I said that my drafting was based on the New Zealand principles. It is set out the same way in New Zealand; it is for the prosecution to prove that the belief held by the defendant is unreasonable.
I have followed the New Zealand provisions in drafting the amendments that I tabled in Committee and when considering how to simplify them on Report. I was greatly heartened by the noble and learned Lord, Lord Cooke, who gave such a bill of good health to the New Zealand provisions. That is where I want to be. I think that they are right. The Government's proposal is an unfortunate development of New Zealand practice and legislation.
I have to ask the noble and learned Lord, Lord Falconer, to consider carefully the position. It is no use passing legislation that will be struck down by the courts. We may succeed in getting an amendment through here, which may be reversed in the House of Commons, but if the courts say that it is not good enough, we shall have failed in our duty. I am suggesting a clear view of how Article 6(2)affects such legislation. So I ask the Minister to reconsider the matter; to take advice if necessary, if I may respectfully suggest that, from the Attorney-General or his department on the reverse onus provisions—both the original ones that we discussed earlier and the current ones. It is right that the Minister should say that in the amendments I am concerned about the mechanism and the practicalities. That is true, but I am even more concerned about the principle of reverse onuses of proof.
Perhaps I may in her absence again refer to the contribution, much appreciated around the House, of the noble Baroness, Lady Kennedy of The Shaws, today. She expressed her total opposition to reverse burdens of proof. They are not the way in which the criminal law of this country has developed. They are not the way to protect or to balance the interests of prosecution and defence. I am sure that if they get to court those provisions will fail. I shall return to it, but for the moment I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 68 not moved.]
9.30 p.m.
Clause 19 [Abuse of position of trust: causing a child to engage in sexual activity]:
Lord Falconer of Thorotonmoved Amendment No. 69:
Page 8, line 35, after "causes" insert "or incites"
On Question, amendment agreed to.
[Amendments Nos. 70 and 71 not moved.]
Clause 20 [Abuse of position of trust: inciting a child to engage in sexual activity]:
[Amendments Nos. 72 and 73 not moved.]
Lord Falconer of Thorotonmoved Amendment No. 74:
Leave out Clause 20.
On Question, amendment agreed to.
Clause 21 [Abuse opposition of trust: sexual activity in the presence of a child]:
[Amendments Nos. 75 and 76 not moved.]
Clause 22 [Abuse of position of trust: causing a child to watch a sexual act]:
[Amendments Nos. 77 and 78 not moved.]
Clause 24 [Positions of trust]:
Baroness Blatchmoved Amendment No. 79:
Page 11, line 32, leave out "full-time"
The noble Baroness said: My Lords, I rise in a state of excited anticipation that the Minister will break the habit of a lifetime and accept my amendments. In Committee, the noble and learned Lord was at least sympathetic to the amendments. He said that he would table some at this stage and would share their wording with me before today. That has not happened, so my hopes were dashed last night, but I understand that I have reason to anticipate that my amendments may be accepted, so without saying any more, I await good news. I beg to move.
Lord Falconer of Thoroton: My Lords, in Committee I went much further than I have in any other unguarded moment and undertook to table government amendments on Report to include part-time students in the offence. I regret that, as the result of an oversight, I failed to do so. However, the amendments tabled by the noble Baroness, Lady Blatch—Amendments Nos. 79, 80, 91 and 92—achieve the effect that I said we were prepared to accept. Her amendments deal with the issues raised by previous amendments. I again thank her for raising the issue; I apologise for not tabling amendments as I undertook; but we agree to the amendments and may now pass them.
Baroness Blatch: My Lords, I am hugely grateful. I thank the noble and learned Lord most warmly.
On Question, amendment agreed to.
Baroness Blatchmoved Amendment No. 80:
Page 11, line 34, leave out "full-time"
On Question, amendment agreed to.
Baroness Blatchmoved Amendment No. 81:
After Clause 24, insert the following new clause—
"POSITIONS OF TRUST: YOUTH AND COMMUNITY WORKERS
Within six months of the coming into force of section 24, the Secretary of State shall, by order under section 24(1)(b), specify conditions relating to youth and community workers who work with persons under 18."
The noble Baroness said: My Lords, I suspect that I shall not be as lucky this time, but here goes.
On Second Reading, the noble and learned Lord said that the Bill aimed to:
"give children the greatest possible protection under the law from sexual abuse".—[Official Report, 13/2/03; col. 772.]
For that purpose, the Bill recognises that those under the age of 18 are in fact children. The abuse of trust offence has been created to protect those under 18 from adults who seek to take sexual advantage of them using their position of trust. It recognises that children are vulnerable to people who exercise influence over them and that some adults abuse positions of trust to gain sexual gratification from those in their charge.
Clause 24 protects children in young offenders' institutions, residential homes, hospitals and care homes, those who are in education and those who are looked after by mentors appointed under the Learning and Skills Act 2000, personal advisers under the Children Act 1989 or youth offending teams. However, it does not protect those looked after by officers appointed to represent their interest under the Children Act nor does it protect those appointed as supervisors under that same Act. Those issues are addressed by my Amendments Nos. 83 and 84, which simply require the Secretary of State to use his order-making powers under Section 24(1)(b) to extend the abuse of trust offence specifically to cover those two categories. The noble and learned Lord the Minister indicated in Committee on 1st April at col. 1295 of Hansard that he would give further consideration to those posts. Given the strong similarities with mentors and personal advisers, which are already covered by the Bill, I cannot see any logical reason for refusing to add those two categories.
The Minister also indicated that he would consider sports coaches—that issue was raised by the noble Lord, Lord Faulkner of Worcester, who is in his place. Amendment No. 86—I hope that I will be forgiven for the presumption that I tabled it on Report—simply places an obligation on the Secretary of State to lay down the circumstances in which such persons would be covered by the abuse of trust offence.
I have also returned to the issue of youth and community workers and voluntary youth groups in Amendments Nos. 81 and 82. I chose the phrase, "youth and community workers" in Amendment No. 81 not only because it is in common usage but because the phrase is already used in statute. Amendment No. 82 addresses the wider category of voluntary youth group workers. The noble and learned Lord said last time that the Government are guided by three criteria when deciding which areas to
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cover with the offence: the vulnerability of the young person, the location and/or lack of access to other adults and the special influence of the adult. The noble and learned Lord used the phrase "in loco parentis" to describe the sort of relationship that he had in mind. Anyone who has allowed their child to go away on a youth group trip knows that youth group leaders fulfil all three of those tests. They often work with highly vulnerably young people; they may take them far away from their homes and the influence of other adults on camping trips and the like; and they are most certainly in the position of in loco parentis. They have real influence; indeed, some youth group leaders are positively idolised by those in their care.
When I called for youth groups to be included in the abuse of trust offence, which is contained in the Sexual Offences (Amendment) Act 2000, the then Home Secretary and the noble and learned Lord the Lord Privy Seal, who was then Attorney-General, indicated sympathy. During the Committee stage of this Bill, even the noble Lord, Lord Thomas of Gresford, indicated that he was sympathetic to extending the offence in that way. He did so in Hansard on 1st April at col. 1293. I hope that I will be able to add the Minister to my list of supporters.
This morning, as it happened, I received a letter from the noble and learned Lord the Minister on a point relating to Scottish jurisdiction, which gives an important illustration of the limitations of the abuse of trust as drafted. In the previous debate, I posited a situation in which a child from England goes away on summer camp as part of the Duke of Edinburgh award scheme and has sex with one of the camp organisers who lives in Scotland. The Minister referred to that scenario in his letter and said that the necessary relationship of trust would not exist and that no offence would be committed. I find it extraordinary that such an obvious example should be left out from the scope of the offence. Parents who send their children away on such camps would be horrified to think that their child was not protected from the offence in that situation. I wonder whether the Minister will give further consideration to extending the offence to cover that situation also.
In Amendment No. 85 I return to the issue of childminders. The noble and learned Lord indicated last time that he thought that childminders did not have sufficient influence over 16 and 17 year-olds to merit being brought within the scope of the offence. However, that ignores the fact that many parents leave the childminder in charge of all the children in the house, not just the younger ones. It ignores the fact that the childminder and the older child may spend hours alone together after the younger children have gone to bed. It also ignores the enormous trust that parents place in those they invite into their home to look after their children. It ignores the many opportunities for abuse while the parents are away from home.
My Amendment No. 87 addresses ancillary and caretaking staff who work in the institutions listed in Clause 24(2) to (5). It is not just those who work directly with the children who have a position of trust.

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All staff, particularly those who live on the premises, such as caretakers, have plenty of opportunity to get to know the children who live or study there. That gives them opportunity to take advantage of them.
I mentioned on Second Reading the example of Eric Drummond, a school caretaker who was found guilty in October 2001 of repeatedly sexually abusing children. I also mentioned the case of Holly Wells and Jessica Chapman, where the relationship with the caretaker might prove to have been significant.
It is quite wrong not to recognise that caretakers can and do find themselves in a one-to-one relationship with a child. Often it is the most vulnerable children who are left behind at school—those children who are not collected by their parents. The caretaker can then strike up a friendship and become particularly friendly with the child, with all the scope of empty classrooms and an empty school to get up to no good.
I strongly believe that all these areas ought to be covered and I hope that on reflection the noble and learned Lord will accept that these amendments are very worthy of consideration. I beg to move.
Lord Faulkner of Worcester: My Lords, I shall comment on Amendment 86, to which the noble Baroness, Lady Blatch referred. She was kind enough to refer to the contribution I made in Committee, when I moved an amendment that would have included sports coaches within the provision of the positions of trust elements of the Bill.
In that debate, my noble and learned friend was kind enough to say that I had,
"hit the spot in respect of a large number of the criteria, particularly as he described a picture in certain circumstances of the vulnerable adult being isolated because of the control that a sports coach has." [Official Report, 1/4/03; col. 1295].
I look forward to what my noble and learned friend Lord Falconer says about this aspect. I know that he will have reflected on it. I have had further submissions from the NSPCC and others about the provision of sports coaches. It is a very substantial subject. There are 57 recognised and funded English national sports governing bodies and over 25,000 coaches hold qualifications recognised by those bodies.
The NSPCC and Sports Coach UK are conducting an audit to determine how many of these coaches work with young people. My suspicion is that it is a substantial number. I hope that this Bill can be used in some way to protect the vulnerable young people who are in the care of these sports coaches at a time when they are away from home and the sports coaches are, as the noble Baroness says, acting in loco parentis. These are young people who need assistance and I hope my noble and learned friend will indicate that he is willing either to accept this clause or to propose something similar to it.
Lord Thomas of Gresford: My Lords, reeling as I am from the epithet that even I—even I—supported the noble Baroness, I should like to point out to her that
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in my Amendment No. 178, which deals with the more serious offences, I included as one of the circumstances to be taken into account, whether,
"the defendant exercised authority over the complainant in the fields of education, employment, sport or service".
I was concerned with almost all the areas to which the noble Baroness has referred. I do not necessarily support the listing of everybody in this way, because when you make out a list you always leave somebody out. Nevertheless, I hope she will accept that I have very much in mind the spirit in which these amendments are moved.
9.45 p.m.
Lord Hylton: My Lords, I have been associated with at least two residential youth centres and I am still a governor and trustee of an adult centre which sometimes takes in groups of young people. With that background, I support the intention and general direction of this group of amendments.
It is most important that positions of trust should not be abused. Nevertheless, if all or part of the group of amendments should meet with the approval of the Government and come to be enacted, I want to express the strong hope that the conditions laid down will not be so complicated and onerous as to deter the recruitment of suitable volunteers—for example, lay advocates of people held in residential institutions.
Baroness Noakes: My Lords, my noble friend Lady Blatch has raised some important issues about the scope of the abuse of trust offences. If there is a case for the protection of 16 and 17 year-olds, which I understand is what we are talking about under these offences, it is illogical to ignore circumstances where a position of trust can be set out. A teacher in a school will be covered, but not someone who teaches people in other settings; for example, in a sports setting or for the Duke of Edinburgh's Award. I cannot see the logic in that and I therefore believe that my noble friend's amendments are along the right lines. However, I fully accept that a boundary must be drawn or we will end up with all offences involving 16 or 17 year-olds being brought within the net.
I am not sure that all my noble friend's amendments are correct, but, equally, I do not believe that the Government have drawn the line in the right place. I hope that the Minister will be able to make further moves on the issue.
Lord Falconer of Thoroton: My Lords, although I cannot accept Amendments Nos. 82 and 84 because of the way in which they are drafted, I will be tabling amendments in time for Third Reading to bring within the scope of the abuse of trust offences those appointed as children's guardians under Section 41 of the Children Act; those appointed to supervise children under Section 35 of that Act in conjunction with Parts 1 and 2 of Schedule 3 (those references relate to supervision orders); and those appointed under Section 36 in conjunction with Part 3 of Schedule 3, which relate to education supervision orders. I will explain the justification for that when I move the

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amendments at Third Reading, but I am satisfied that such persons meet the criteria for inclusion within the scope of the abuse of trust offences.
I shall deal with Amendments Nos. 81, 82, 85, 86 and 87, tabled by the noble Baroness, Lady Blatch. In deciding whether to accept them, we have had to consider how well the proposed categories fit within the guiding criteria for the abuse of trust offences and whether it is appropriate to criminalise consensual and what would otherwise be lawful sexual relationships in such circumstances. As the noble Baroness, Lady Noakes, pointed out, we are dealing with 16 and 17 year-olds.
The noble Baroness, Lady Noakes, asked: if we are criminalising some relationships, why not criminalise all?—but immediately indicated what a mad view that was. There needs to be some line and criteria and principles. As the noble Baroness, Lady Blatch, reminded the House, we said in Committee that the young person is particularly vulnerable—for example, in residential care or on probation in the community. The second principle is location and/or lack of access to other adults, and the absence of countervailing influences makes the young person particularly vulnerable. The third principle is the special influence of the adult: that is, that the adult acts in loco parentis.
Those seem sensible criteria to apply. However, in applying them to the proposals, I do not believe that youth and community workers, voluntary group workers or child minders fall within them. Although youth and community workers are employed by local authorities, their role is to run centres or projects which children attend voluntarily. They do not act in loco parentis and they do not have a position of power or influence in children's lives. We believe that they fall on the other side of the line. The same can be said of voluntary youth workers who do not have a statutory role. They run or help out at youth clubs or are involved in other community activities with children who participate out of choice and whose lives and futures cannot be adversely affected by the disfavour of a voluntary helper.
Child minders generally do not look after young people aged 16 and 17, and even if they are in the house at the same time as a young person in order to look after younger siblings the position of trust simply does not exist between the child minder and the 16 or 17 year-old.
As far as concerns ancillary or caretaking staff in institutions and homes, such people will already be caught within the scope of the offences if they look after the child as defined—that is, they are regularly involved in caring for, training, supervising or being in sole charge of the child. If they do not look after the child in the way that I have defined, then the basis for their inclusion is not justified because they do not have the necessary involvement or influence in the child's life. Nor is the child cut off from other adults because of their existence. Again, I do not think that they should fall within the category.
Finally, I turn to sports coaches. The matter is an important issue, and there was a very powerful speech by my noble friend Lord Faulkner of Worcester, which
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is important to consider carefully. I have spoken in detail to other government departments concerned. The Government's plan for sport published by the Department for Culture Media and Sport and the Department for Education and Science in March 2001 identified weaknesses in sports coaching and set up a coaching task force to examine corrective actions. The task force reported in July 2002 and made several recommendations to reform the recruitment, education, employment and deployment of coaches. Key among those was the establishment of a national coaching certificate.
DCMS has now made a firm commitment to introduce that national coaching certificate. The final outcome will be to transform the current, largely voluntary, workforce into a recognised coaching profession. The certificate is to be set against national standards and developed at five levels. A core curriculum will be devised for the qualifications awarded by national governing bodies of the sports across the UK. Two possibilities remain to be decided—whether adoption will be necessary for national governing bodies to be eligible to receive public funds and whether coaches would need the certificate in order to obtain a licence to practise.
DCMS believes that the latter is right in principle but final decisions will be taken in due course. The review was not primarily driven by concerns about child sexual abuse within sporting relationships, but that is one of a number of concerns that the national coaching certificate will aim to address. Once the measures are introduced, any coach who uses his position to manipulate a young athlete in his charge into a sexual relationship may lose his licence and his livelihood.
We believe that relying on those future measures will be the more appropriate way to deal with any problems that are identified and currently, subject to a point that I shall make, we are not minded to bring sports coaches within the scope of the offences. I have also considered the argument that sports coaches often act in loco parentis, especially where a talented young person is undergoing intensive training. Our problem lies in distinguishing that situation from the person who coaches the local football team on a Saturday morning. We do not think that there is any satisfactory way of drawing the line so that we do not, for example, criminalise the actions of the 18 year-old college student who falls in love with, and has a consensual sexual relationship with, one of the members of the local netball team, just because he helps to coach them one evening a week in his school holidays.
It is also the case, at a time when we are trying to encourage more people into the sports coaching profession, that we do not want to discourage them through fear of false allegations and prosecution for relationships that are consensual and not in any way abusive. I think that the right way forward is for us to reassess the position once the national coaching certificate has been introduced.

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Should it transpire that that does not solve any problems which might exist, I should be happy to review the position and to consider using the order-making power attached to these offences in order to bring sports coaches within the scope. There is one problem in that approach, about which I am particularly conscious of the strength of feeling in the House. The certificate will not be introduced until 2007. What will happen in the mean time?
We believe that the right approach is to consult now to take a view on whether the approach that we suggest is the right one, and if not, whether earlier measures need to be considered. Having considered carefully, we believe that there is a way forward in relation to sports coaches which does not involve amending the Bill at this stage, but it is on the basis of the steps that I have proposed.
For those reasons I am unable to accept the amendments. However, as I made clear at the outset of my remarks on Amendments Nos. 83 and 84, I shall table amendments on Third Reading to deal with the points raised.
Baroness Blatch: My Lords, I thank the Minister for the amendments which are to be accepted. I look forward to seeing the particular wording at the next stage of the Bill. I ask the Minister to think again about the first of the three criteria—vulnerability.
It is true that in one sense of the word some children—that is, the kind described by the Minister—are indeed vulnerable. However, I would regard a child of mine going away on a summer camp with youth and community workers supervising them as being vulnerable even if they were entirely adjusted with no problems and from a sound home. It seems to me that vulnerability needs to be considered in a slightly wider sense than simply children from children's homes or children who are neglected at home and do not have the security of a loving and nurturing home life.
As I have said, youth and community workers take children away from home. They are acting in loco parentis. Surely, every parent in the land has a right to expect that that position of trust will be honoured and that if it is breached, it is a real breach of trust and something which the parents would expect not to happen. It seems extraordinary that such people are not brought into the scope of the Bill. As my noble friend Lady Noakes said earlier, some of those people are the very people who come within the scope of the Bill; that is, teachers who then do voluntary youth work and go away with children to summer camps or on expeditions. I have been fortunate in that my children have all gone away on expeditions and have always come home safely. I am grateful for that. However, we should all at least remember that parents expect their children to be safe when they go away.
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As regards the points raised by the Minister on childminders, I still believe there is a case there. If two parents go away leaving someone with the care of their children or if working parents leave someone with the care of their young children where there are older children in the house, they do not expect that trust to be breached by childminder having a sexual relationship with a 16 or 17 year-old. I believe that if that were to happen, there would be a serious breach of trust.
I do not want to pre-empt the reaction which the noble Lord, Lord Faulkner of Worcester, may have about sports coaches. Like me, he will want to read what the Minister said. The noble and learned Lord had a great deal to say about sports coaches. I partly welcome some of the comments made by the Minister: in particular that the Secretary of State would consider using the order-making powers. However, the sting in the tail is that it would be a very long time before the Home Secretary would be in a position to be able to make a judgment on whether that order-making power should be used.
Sports coaches are in a very special position. More and more under the policy of inclusion—I applaud the Government for this—talented young people are given sports coaching, some of it one-to-one. On the other hand, I accept the Minister's point about the difficulty of recruiting. The noble Lord, Lord Hylton, referred to not introducing changes in such a way that would deter good people.
The Minister referred to the system of certification and national standards for sports coaches that is to be introduced by the DCMS. When that raft of changes is in place, we shall not need to bring the issue within the scope of the Bill because if coaches breach their trust they could lose their licence.
Teachers are certified to practise teaching and are subject to national standards and endless codes of practice—yet they fall within the scope of the Bill and its abuse of trust clauses. The Minister said enough about sports coaches and I would like to read his response.
Even the noble Lord, Lord Thomas of Gresford, supported me at the previous stage. I say that with great deference to him. I admire the noble Lord and all that he does in the House, so I am overwhelmed by his support. When even the noble Lord, Lord Thomas, supports me I feel that I must be on to something. I thank the noble Lord for his support today, even though it was qualified. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments 82 to 87 not moved.]
Lord McIntosh of Haringey: My Lords, I beg to move that consideration on Report be now adjourned.
Moved accordingly, and, on Question, Motion agreed to.
House adjourned at two minutes after ten o'clock.