Lords Sitting of 17 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 Blackburn.

Endangered Species
Lord Hoyle Lord Hoyle asked Her Majesty's Government:
What steps they are taking to increase the length of sentences to control the trade in endangered species from two to five years.
The Parliamentary Under-Secretary of State, Department for Environment, Food and Rural Affairs (Lord Whitty): My Lords, I am glad to tell the House that the Government are today tabling an amendment to the Criminal Justice Bill, which received a Second Reading yesterday. It will provide for maximum prison sentences of five years for certain endangered species trade offences.
Lord Hoyle: My Lords, I thank my noble friend for that very welcome announcement. If we are intent on stamping out illegal trade in endangered species, will the Minister also consider appointing more police wildlife liaison officers, as I understand that there are only six at present?
Lord Whitty: My Lords, my noble friend tempts me to go beyond my powers. The deployment and designation of police officers is clearly a matter for chief constables. We understand that most police forces now have at least a part-time wildlife crime officer. They are augmented by the wildlife liaison department, which brings in other agencies in support of the police. That indicates that we take those wildlife offences very seriously.
Lord Dixon-Smith: My Lords, in welcoming the Minister's announcement, we should not allow ourselves to become too self-congratulatory. I hope that the Minister will agree that the announcement would not have been made had it not been for the very hard work of Back-Bench Members on both sides of the House of Commons. What is happening is welcome. The heavy involvement nowadays of the National Criminal Intelligence Service (NCIS) in investigating this trafficking is also welcome. My next question may not be entirely appropriate, but the Minister should know the answer. Is he satisfied that NCIS is adequately resourced to play a proper part in the investigations? Some rare species give rise to very high-value products that are immensely corrupting.
Lord Whitty: My Lords, in response to the first part of the noble Lord's question, I am always happy to endorse the work of Back-Benchers of all parties in both Houses, but the charge of complacency on the
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part of the Government is misplaced. We have always intended to increase the maximum sentence thereby making trade in endangered species an arrestable offence, and we have indicated so. We did not table an amendment during the Commons stages because we needed to take account of the full consultation, but we always intended so to do.
On resources, now that we have a partnership against wildlife crime involving all the agencies, there is significant additional focus on the area. Obviously, that must be kept under review. But the noble Lord is right that, while some of the offences may be inadvertent, others involve very serious criminal activities.
Lord Renton of Mount Harry: My Lords, does the description "endangered species" cover occupants of the Woolsack?
Lord Whitty: My Lords, the technical answer is that that is probably doubtful. If one contemplates the previous incumbent, the noble and learned Lord, Lord Irvine, he had a rather successful period in a unique habitat and therefore does not seem endangered. The present Lord Chancellor, although we might be changing the name of the species, is clearly adaptable to several different changing habitats and is therefore not endangered.

Mental Health Services
2.40 p.m.
Lord Ashley of Stoke Lord Ashley of Stoke asked Her Majesty's Government:
What progress is being made by primary care organisations in England and Wales towards providing the range of care and treatment required by people recovering from mental illness.
The Parliamentary Under-Secretary of State, Department of Health (Lord Warner): My Lords, good progress is being made. The most recent data show that 212 out of 220 assertive outreach teams targeted in the NHS Plan are already in place. Progress is slower for some targets, such as early intervention and crisis resolution teams. But delivery plans prepared by strategic health authorities show that over 80 per cent of team targets and over 60 per cent of new worker targets are on course to be met. That confirms the report by the Commission for Health Improvement, published in February this year which concluded that, although mental health services started from a very low point, progress is being made and that this is bringing tangible rewards of better care and support for service-users and carers.
Lord Ashley of Stoke: My Lords, I offer my noble friend a very warm welcome and wish him every success in his new post.
Noble Lords: Hear, hear!
Lord Ashley of Stoke: My Lords, is my noble friend aware that 58 per cent of those involved in a recent

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survey by MIND of people with mental health problems claimed that they were not receiving adequate treatment from the National Health Service? As that is such an enormous figure involving very vulnerable people, does it not pose a major challenge for the health service, especially as it is supposed to provide a comprehensive service? Will the Government look into those claims, and do what they can to help?
Lord Warner: My Lords, I thank my noble friend for his kind remarks. It is true that the MIND report revealed areas of great concern. We all acknowledge that, with mental health services, we are starting from a pretty low base. But one of the particularly good things happening is the project to strengthen the workforce with up to 1,500 new graduate primary care workers and gateway workers working in primary care teams coming on-stream by the end of 2004. It is a people industry. We are doing a lot of work to encourage more people into this area of work.
Lord Clement-Jones: My Lords, I also congratulate the Minister on his return to the government Benches in such style. I am sure that he has not considered all the nuances of the MIND report on mental health—the hidden costs report to which the noble Lord. Lord Ashley of Stoke referred. However, is not the current National Health Service prescription policy one of the core problems? Sufferers of chronic diseases such as epilepsy and diabetes do not have to pay for prescriptions. The noble Lord, Lord Lipsey, when launching the report on Monday, described the NHS prescription policy as a "dog's dinner". Does the Minister agree with that?
Lord Warner: My Lords, I am not sure what dogs eat, but I shall be happy to look into prescription charges. I do not promise any changes, because I am still finding my way around this subject. I shall study the MIND report, and shall be happy to write to the noble Lord, Lord Clement-Jones.
Baroness Knight of Collingtree: My Lords, notwithstanding the uncertainty of the noble Lord, Lord Warner, about dogs' diets, there is a warm welcome for him from this side of the House in the difficult job that he now faces. Bearing in mind that the problem for mental patients starts when they leave hospital, will the noble Lord assure us that care has been considered, and given, to patients who have left mental care but need constant surveillance, especially with regard to diet and drug intake?
Lord Warner: My Lords, I thank the noble Baroness, Lady Knight, for her kind remarks. I share her concerns about people with psychiatric conditions leaving longer-stay and medium-stay hospitals. The Government are putting much emphasis on strengthening primary care teams. We are bringing in new people to work in the area, so that the support in the community can be strengthened. That is why we
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should be positive about the assertive outreach teams. They sound jargonish, but the people involved work at a local level finding hard-to-help people with mental illness and providing them with support and services.
Baroness Masham of Ilton: My Lords, is the Minister satisfied with the treatment of mentally ill people in prison and the links with the community when they are discharged?
Lord Warner: My Lords, I know from my previous incarnations that big changes are in prospect as the NHS takes greater responsibility for prison health services. We are seeing a changeover, with more prisons in England and Wales for which the NHS is providing the health service. We expect there to be considerable improvements over time. However, there is a backlog of service development in the prison health services just as there is in mental health outside the Prison Service. Progress is being made, and more than 40 prisons now receive health services from the NHS under local agreements.
Baroness Uddin: My Lords, I warmly welcome my noble friend Lord Warner to the Front Bench. I am sure that he recognises that the level of services for black and minority people with mental illness remains highly inappropriate because he had an enormous amount of contact with black men in his previous incarnation. What does my noble friend intend to do about that problem? How will he ensure that the level of service provided is in tandem with our commitment to equality of opportunity legislation?
Lord Warner: My Lords, I thank my noble friend Lady Uddin for her remarks. The Government published a document in March called Inside Outside: Improving Mental Health Services for Black and Minority Ethnic Communities in England. That report signals an important step forward to support the reform of mental health services for people from black and minority ethnic communities in this country. Again, there is a large heritage of change and problems to be tackled. We are trying to engage with these areas of difficulty, and we recognise that the black and minority ethnic communities have much ground to make up in terms of their access to mental health services.
Baroness Noakes: My Lords, I, too, welcome the noble Lord, Lord Warner, to the Front Bench with responsibility for health matters. I am sure that he, like me, is eagerly awaiting the Health and Social Care Bill from another place. I promise him interesting times this summer and autumn. Is the Minister aware of the Royal College of Psychiatrists' estimate that one in three consultants intend to retire early? What will the Government do to deal with that imminent crisis in the NHS?
Lord Warner: My Lords, I thank the noble Baroness, Lady Noakes, for her remarks. I am not sure whether her promise was a promise—or, indeed, a

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threat—but I shall take it in the spirit in which it was offered. I am aware of the shortage of psychiatrists and of the prospect of further retirements that she mentioned. I am not fully up to steam on everything going on in this particular area, so I can only speak with all the authority on this subject that 24 hours in the job justifies. However, I shall look into the matter and will be in touch with the noble Baroness, Lady Noakes.
Baroness Howarth of Breckland: My Lords, we also welcome the noble Lord, Lord Warner. We are sorry to lose him so quickly from these Benches. Having heard about all that will happen in the statutory sector, how does the noble Lord see the role of the voluntary organisations working in this area of supporting mentally ill people? Much of the work is carried out by organisations such as Saneline, MIND and YoungMinds, many of which are struggling. What support will the Government give in addition to that given to the statutory sector?
Lord Warner: My Lords, I thank the noble Baroness for her remarks. She will know that my noble friend Lord Filkin, in his previous incarnation, worked with the voluntary sector through initiatives like the futurebuilders fund to improve capacity in the voluntary sector.
The Government take this area seriously. We want to see the voluntary sector make a full contribution to the development of these kinds of services, which are valued by the public. They often have a unique capacity to make provision with a particular added value. Mental health is an area that will be open to the voluntary sector to use the kind of capacity-building strengths that the Government are introducing to help to develop services.
Lord Pilkington of Oxenford: My Lords, in view of mental health, and other, problems with prisoners—67 per cent of whom are illiterate—is the Minister happy that only one in 20 of them can get to education programmes at Brixton? Is that the policy of Her Majesty's Government? Can the Government help people in this way?
Lord Warner: My Lords, the noble Lord's queries do not have much to do with the Question. I leave him to pursue his inquiries with the Minister responsible.

Directors' Remuneration
2.50 p.m.
Lord Clinton-Davis Lord Clinton-Davis asked Her Majesty's Government:
What additional steps they propose to empower shareholders to act when they consider that pay packages proposed for executives are too generous.
The Parliamentary Under-Secretary of State, Department of Trade and Industry (Lord Sainsbury of Turville): My Lords, in August 2002, the Government introduced the Directors' Remuneration Report Regulations 2002, which give shareholders of quoted companies a vote on the directors' remuneration report. These regulations need to be given time to demonstrate their full effect; we will be reviewing their operation.
On 3rd June 2003, my right honourable friend the Secretary of State for Trade and Industry published a consultation document entitled "Rewards for Failure": Directors' Remuneration—Contracts, Performance and Severance. Any further government action on this issue will be considered in the light of responses to this consultation.
Lord Clinton-Davis: My Lords, is there not a case immediately for cutting out anomalies that arise wherever necessary? Does the Minister agree that severance pay ought to be linked to corporate performance? Is there not a case for ensuring that fund managers are held responsible for the decisions that they make on pay and corporate strategy?
Lord Sainsbury of Turville: My Lords, I totally agree that the absolute key issue here is that there should be an effective linkage between pay and performance. The main people responsible for making this happen are the shareholders, and that is why we brought in the Directors' Remuneration Report Regulations 2002. Those regulations only came into force for companies producing reports after 31st December 2002. It is encouraging how many cases we have already seen where shareholders have made it clear that they were dissatisfied with the remuneration report of companies. We would like to see that continue.
Lord Razzall: My Lords, does the Minister accept that this is probably the tenth time that this Question, or an equivalent Question, has been asked from his side of the House over the past 12 months, all of which he has answered in similar terms? This is obviously a major issue that the Minister must deal with. Noble Lords will realise that the answer that the Minister gives has always had the merit of consistency on the past 10 occasions that he has given it.
Will he give a date by which the Government will make up their mind whether the voluntary system works? It would also be helpful if he could indicate

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whether that date is within the time frame to put legislation, if necessary, in the Companies Bill when it comes forward?
Lord Sainsbury of Turville: My Lords, I agree that I have answered this Question many times in recent years, but I have not been consistent with the Answer. There has been a changing situation. The noble Lord should take on board that we have introduced a major change, and, as I pointed out, this major change is already having a substantial effect.
In the first six months of this year, we have seen major votes: the 51 per cent vote at the GlaxoSmithKline annual general meeting and substantial votes against the remuneration report at the Royal and SunAlliance and at HSBC and at the AGMs of Reuters, BP, Shell and Boots.
It is clear that the action the Government have taken is having real effect, and it therefore seems to me to be eminently sensible to wait and see what effect that has. I am not under any illusions that I will not continuously be asked this Question over the next six months or year.
Lord Marsh: My Lords, does the Minister agree that another way of helping the process along and giving practical advice might be to suggest to shareholders who were dissatisfied with the performance of a company in which they were investing in any way that they should sell the shares and invest elsewhere? I know of people who have done that.
Lord Sainsbury of Turville: My Lords, that is good advice. Companies will take heed of that, as they will of votes at the AGMs, where they do not like it at all, if a substantial number of shareholders vote against the remuneration report.
Baroness Miller of Hendon: My Lords, can the Minister tell the House whether he believes that there could ever be a satisfactory statutory definition of the words "too generous" used in the Question? How can we ensure, on the one hand, that there are no huge remuneration packages for failure while, on the other hand, ensuring that packages are large enough to entice the best brains to come into companies in our country?
Lord Sainsbury of Turville: My Lords, I do not think that Ministers ever have personal beliefs. In this context, they always speak for the Government.
We have a clear view that the Government cannot try to determine exactly what the remuneration of directors should be. It is simply not possible. However, that is not a reason for not trying to give shareholders an opportunity to make their views known to the board. We will see boards taking that very seriously.
Lord Brookman: My Lords, when one thinks of shareholders, one thinks of individual employees, but that is not necessarily the case. When we talk about shareholders, we talk about institutions. My experience is that, when decisions are taken on remuneration—even if the decision is that people should not have such remuneration—they are taken by the big institutions, and the small investors are ignored. Will the Government bear that in mind in any forthcoming legislation?
Lord Sainsbury of Turville: My Lords, I agree with the noble Lord. It is true that most shares are held by fund managers. However, in the revolts against pay packages at AGMs, we have seen small shareholders and fund managers joining forces to make their views known.
Lord Dubs: My Lords, I wish to pursue the point about fund managers. Can my noble friend say a little more about the position of people who own shares indirectly, for example, through PEPs and ISAs or through pension funds such as the parliamentary pension fund? What influence can such indirect shareholders have on the votes cast at meetings?
Lord Sainsbury of Turville: My Lords, the first thing that they can do is make certain that the fund managers take a responsible view. Again, it is a question of people who have invested money in an area making certain that the organisations behave responsibly.
Lord Lucas: My Lords, will the Government compel such pension funds and others to make their votes public, so that we can know what they have voted on our behalf?
Lord Sainsbury of Turville: My Lords, we have no plans to do that at the moment. The issue has been raised several times, and it would be necessary to look carefully at the practicalities.
Lord Hoyle: My Lords, I am pleased that my noble friend says that pay should be related to performance. What view does he take of a state-owned company—Network Rail—paying its directors bonuses of £1.7 million, with five executives receiving £1.2 million, for standards of performance—in efficiency and investment—that were lower than those of the discredited Railtrack?
Lord Sainsbury of Turville: My Lords, there are cases in which one has concerns about particular situations. However, in this case, it is not for the Government to say whether that is right or wrong.

Afghanistan: Opium Production
3 p.m.
Baroness Northover Baroness Northover asked Her Majesty's Government:
What progress they have made in moving towards the commitment in last year's spending review to reduce opium production in Afghanistan by 70 per cent in five years.
The Minister of State, Foreign and Commonwealth Office (Baroness Symons of Vernham Dean): My Lords, this is an ambitious target and has been embraced in the Afghan national drug strategy adopted by President Karzai on 19th May. Progress will be tracked against the annual estimates of cultivation and production calculated by the United Nations Office for Drugs and Crime and the United States. Results will be published later this year. We have made £70 million available over the next three years and will post additional British Embassy drug experts to Afghanistan to assist the Afghan authorities with implementation of their strategy.
Baroness Northover: My Lords, I thank the Minister for that reply. Surely the Chancellor's pledge echoed the words of the Prime Minister: "We will not desert the people of Afghanistan". Yet in 2001 the Taliban almost eliminated opium production. Does the noble Baroness agree that now the security vacuum in Afghanistan has allowed the poppy harvest to expand again and that this year it is on course for a bumper harvest? Afghanistan is once more the leading player in the heroin market in the world. It provides 90 per cent of the heroin in Britain. Does the Minister have any optimism that the pledge to which she has just referred will be met? If that is still the Government's aim, what strategy do they now have for bringing security and prosperity to Afghanistan and for thus eliminating the opium trade?
Baroness Symons of Vernham Dean: My Lords, the noble Baroness should not underestimate our efforts with £70 million over three years and, indeed, British experts going to assist the Afghan authorities. Those are very important building blocks. We shall also be establishing a British Embassy drugs unit in Kabul and a Customs-led law enforcement unit in Kandahar. So real efforts are being made on behalf of the British Government.
The noble Baroness makes the point that has been made before in your Lordships' House about the Taliban. Of course, it is true that in 2001 the Taliban managed to ban cultivation. But that ban was enforced by means of fear and bribery to which I am happy to say the current government in Afghanistan do not espouse. What is important is that last year we managed to destroy about a quarter of the crop, although there was an increase. This year, although there may be some increases, we hope that we shall have reliable figures available. I stress to the noble Baroness that the strategy began less than a month
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ago. We must give it a chance to succeed. As I indicated in my initial Answer, President Karzai signed up to it less than a month ago.
Baroness Gardner of Parkes: My Lords, does the Minister agree that opium is being cultivated in these countries—whether in Peru or Afghanistan—because people are very poor and look on this as the very best cash crop that they can produce? Research in South America showed that provided the people were able to produce another crop that was equally profitable, they moved over. Once that crop became less profitable, they moved back to drug growing. So is it not important to ensure that efforts are made to provide alternative means of living for people who are growing these crops?
Baroness Symons of Vernham Dean: My Lords, the noble Baroness, Lady Gardner of Parkes, has put her finger absolutely on the point. During the years that the Taliban in Afghanistan stopped the cultivation, it did not stop alas the processing and trafficking of those drugs. The Taliban regime went on profiting from drugs while the original producers became poorer and poorer. That is why it is so important to have a strategy in place that does not just involve banning but tries to put something else in place; namely, promoting alternative livelihoods for farmers, improving drug law enforcement, supporting capacity building for other institutions in the country for enforcement, and raising the problems around public awareness in Afghanistan and other countries that are producing drugs.
Lord Blaker: My Lords, is the Minister aware that a report from Afghanistan in the Guardian last week stated that the international effort led by the United Kingdom to reduce poppy cultivation there had failed spectacularly? Following the question from my noble friend Lady Gardner of Parkes, will the Minister say whether the Government have given attention to one of the main problems about substitute crops—that is, the problem of transport?
In hilly countries such as Afghanistan where there are few roads, it is very simple for one person to carry on his back a plastic bag full of heroin which is worth a very large sum of money. It is difficult to think of any other crops that are so valuable and do not require road transport. Have the Government considered other countries with similar characteristics which have faced this problem to determine whether they have reached any conclusion?
Baroness Symons of Vernham Dean: My Lords, it is very important to consider the questions around production and certainly questions around the transportation of drugs. We are putting a very particular effort into Afghanistan, not only because of the parlous position of Afghanistan as we found it and

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the need in terms of its own development, but also because a very high percentage of heroin consumed in this country originates there. Some 90 per cent of the heroin on our streets originates in Afghanistan.
The point that the noble Lord makes about what is happening on the ground is very much part and parcel of the point made by his noble friend Lady Gardner. It is not just a question of how we ban these drugs being grown in various countries in the world and how we ensure that we learn from the experiences in different parts of the world; we must have a real strategy in place. Indeed, I read the article to which the noble Lord referred, but so far the strategy has not had a proper chance to succeed. There will not be any shortcuts. We are in this for the long haul.
Lord Avebury: My Lords, how can the Minister think that there can be a national drugs strategy when President Karzai does not control four-fifths of the country? Does she not think that the real answer is an extension of the mandate of ISAF so that the rule of law can be extended to the areas where the drugs are grown? Furthermore, can the Minister say whether serious concern has been expressed over the payments made last year to farmers for the growing of alternative crops, including anxieties expressed by the British Ambassador in Kabul that fraudulent use was being made of these payments?
Baroness Symons of Vernham Dean: My Lords, of course I agree that it would be very much preferred if the writ of the government ran throughout the country. I stress to the noble Lord that the points I made in answering the noble Baroness, Lady Northover, also included the United Kingdom consolidating its own efforts to help in the country. I note the point that the noble Lord, Lord Avebury, makes about remarks from our own embassy, but we shall be establishing a British Embassy drugs unit in Kabul and our experts will be going in. I believe that we plan to send in 10 experts during the next few weeks to help the authorities on the ground throughout the whole of Afghanistan in combating this terrible ill. We shall also be putting in more of an effort with a Customs-led law enforcement drug unit in Kandahar. So it is not just in one centre but in two centres where we shall be giving some long-term help.
Viscount Waverley: My Lords, preferential access for farmers or free trade?
Baroness Symons of Vernham Dean: My Lords, there was an interrogative by intonation but I am not quite sure of the question asked by the noble Viscount, Lord Waverley. I do not believe that the Government's espousal of free trade runs to the drug trade and I think that the noble Viscount knows that.

Zimbabwe
3.8 p.m.
Lord Astor of Hever Lord Astor of Hever asked Her Majesty's Government:
What representations they have made concerning the illegal detention of opposition politicians in Zimbabwe.
Baroness Symons of Vernham Dean: My Lords, the Foreign Secretary issued a statement at the arrest of Morgan Tsvangirai and other M DC MPs and activists. We also contributed to an EU statement on 3rd June and another on 6th June expressing our concern at the arrest and making it clear that we regard this as further evidence of the Mugabe regime's repressive and intimidating measures against the opposition. Zimbabwe's ruling party should be talking to its opposition, not jailing it.
Lord Astor of Hever: My Lords, I am grateful to the Minister for that response. Images of Morgan Tsvangirai shackled in leg irons and evidence of widespread torture are stark reminders of the escalating brutality against opposition politicians in detention. Have Her Majesty's Government offered support for the establishment of an African Court of Justice to be discussed at the African Union Summit next month?
Pending the establishment of such a court, what co-operation has been forthcoming from African Union members on using existing mechanisms of the UN and other international institutions to arraign Mugabe for flagrant abuse of human rights?
Baroness Symons of Vernham Dean: My Lords, I agree with the noble Lord, Lord Astor of Hever. I think that the images of Morgan Tsvangirai shackled in court were both shocking and—perhaps I may say—disgusting. The noble Lord raises the question of the African Court of Justice. One of the real problems, as I am sure the whole House understands, is that every time the British Government make a statement about what is happening in Zimbabwe, the Mugabe regime turns it around to make it into a bilateral row between two countries. It gives them the opportunity to move away from the rightfully aimed hostility of the international community and to say that somehow it is a residue of colonial rule. We are therefore very careful in what we say about African institutions, which we believe are very much for the African nations themselves to sort out.
The noble Lord referred to what is happening at the United Nations. When I answered the noble Lord's Question on 3rd June, the noble Baroness, Lady Park, asked me what had happened at the UN Commission on Human Rights. I am sure your Lordships will recall that when we tried to table a resolution at the 59th session, it fell because of a no-action motion proposed by South Africa on behalf of the African group. We have to tread very carefully over these issues. We are quite clear about what we think is happening, but we

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do not want this to become a bilateral dispute. It must be dealt with internationally and attract international support.
Lord Acton: My Lords, have the Government been in touch directly with South Africa on this matter?
Baroness Symons of Vernham Dean: My Lords, I understand that this matter was discussed with President Mbeki at the G8 meeting. He said that his understanding was that ZANU-PF and the MDC were engaged in a process of dialogue, which was fully supported by the ANC. He said that he was quite certain that an agreement on the way forward would he reached in the near future. I hope that he is right, but I believe the indications of what has happened in the past week or so must make us quite downbeat about our assessment of that.
Lord Avebury: My Lords, will the Minister join me in welcoming the report that Mugabe has indicated to President Mbeki that he is prepared to step down? Will she also agree that it would be unacceptable for him to hand over to Emerson Mnangagwa and that the whole of the present ZANU-PF regime must take responsibility for the appalling situation in which Zimbabwe now finds itself? In view of the unprecedented joint rebuke by the Secretary-General of the United Nations and Mr. Cohn Powell, the US Secretary of State, will the Minister further agree that it is time for the international community as a whole, and SADC in particular, to recognise that there needs to be a re-run of the elections in order to get rid of the existing brutal and repressive regime?
Baroness Symons of Vernham Dean: My Lords, if it were true that Mr. Mugabe had said what the noble Lord, Lord Avebury, reports him as saying, and if he really did it, it would he greatly welcomed. Like the noble Lord, Lord Avebury, I hope that any leader subsequently chosen for Zimbabwe would be chosen by a fair and free election, properly monitored.
Baroness Sharples: My Lords, following the threats made by President Mugabe against our High Commissioner, will the Minister indicate what is the present situation of the High Commission?
Baroness Symons of Vernham Dean: My Lords, the noble Baroness will know that as part of his campaign of trying to turn this into a bilateral row, rather than addressing the real issue of starving his people and his complete abuse of human rights, Mr. Mugabe said that the British High Commission was behind the stay-away last week and has threatened our High Commissioner with being kicked out of Zimbabwe. I can assure all your Lordships that the British Government and the British High Commission had no role whatever in funding or in any way organising the stay-away protest that took place between 2nd and 6th June. The British Government and British High Commission do not and will not support any illegal
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activity. Knowing our High Commissioners as I do, I am sure that Sir Brian Donnelly and his staff remain in very good heart.
Lord Hughes of Woodside: My Lords, my noble friend is right to be very careful about what she says. Is she aware that it is extremely difficult to read the situation from this distance? We are repeatedly told about discussions between the MDC and the government concerning a proper constitutional settlement, yet recently the MDC has publicly said that under no circumstances will it have any truck with Mr. Mugabe or, following the noble Lord, Lord Astor, with any of the ZANU-PF regime, and the general strike called last week was to bring down the government. In view of the vastly deteriorating situation, is there not a case for all sides, both in this House and in Zimbabwe, to have a care as to what they say and to try to institute further discussions in the hope that the tragedy will not deepen any further?
Baroness Symons of Vernham Dean: My Lords, that is very wise advice from my noble friend, especially in view of the possibility of inflaming an already very dangerous situation in Zimbabwe. I am sure that your Lordships will be mindful of the fact that Morgan Tsvangirai and a number of his colleagues are already in prison; that Morgan Tsvangirai is in the middle of one treason trial; that he may stand charged with another set of treason accusations; and that he may have to face yet a further trial, if he survives the first. I would commend to all your Lordships the words of my right honourable friend the Foreign Secretary, when he said:
"Zimbabwe's most urgent need now is the resumption of inter-party dialogue to address the country's rapidly worsening political, economic and humanitarian crisis".
Real, constructive engagement is needed. Whatever our doubts, scepticism or fears, that is what we must support.

Business of the House: Debates, 3rd July
3.16 p.m.
The Lord President of the Council (Lord Williams of Mostyn): My Lords, I beg to move the Motion standing in my name on the Order Paper.
Moved, That leave be given to advance the Second Reading of the Taxation (Information) Bill and the Motion standing in the name of the Lord McIntosh of Haringey from 4th July to 3rd July next.—(Lord Williams of Mostyn.)
On Question, Motion agreed to.

Road Traffic (Amendment) Bill [H.L.]
3.17 p.m.
Read a third time, and passed, and sent to the Commons.

Sexual Offences Bill [H.L.]
3.18 p.m.
Read a third time.
Clause 1 [Rape]:
The Minister of State, Home Office (Baroness Scotland of Asthal)moved Amendment No. 1:
Page 1, leave out lines 9 to 17 and insert—
"( ) A does not reasonably believe that B consents.
( ) Whether a belief is reasonable is to be determined having regard to all the circumstances, including any steps A has taken to ascertain whether B consents."
The noble Baroness said: My Lords, I know that the Committee spent about a day and a half debating this group of amendments. I hope that noble Lords will find that the new proposed amendments will meet the concerns that have been raised during the passage of the Bill about the way in which the test of reasonableness in relation to consent has been drafted, and how it will work in practice.
Objections were raised about basing the test on what a "reasonable person" would have thought or how a "reasonable person" would have acted in the circumstances. Our test was criticised on the basis that it was not clear what characteristics should be assumed by the jury in seeking to take on the role of a "reasonable person".
To satisfy those concerns, the revised version of the reasonableness test moves away from the concept of the "reasonable person" and requires the prosecution to prove that the defendant did not have a reasonable belief in consent. The test is supported by an explanation of the type of criteria to be used to determine whether the defendant's belief in consent was reasonable in relation to the alleged offence. The jury is directed to have regard to all the circumstances at the time, including any steps that the defendant may have taken to establish that the complainant consented to the sexual activity.
Although we recognise that not every sexual act has to be preceded by specific actions on the part of the defendant, especially where the defendant and complainant are in a well established, consensual sexual relationship, it is still imperative that the defendant must be certain that his partner consents to the sexual activity at the time in question. Doubt is most likely to arise in those cases where the defendant and the complainant are not in a well established relationship and where it would be reasonable to expect the defendant to take steps to ensure consent. Our reasonableness test does not require the defendant to have taken any specific steps but makes it clear that where such steps have been taken they must be taken into account by the jury in deciding whether the defendant's claimed belief in consent was reasonable. Some might argue that that goes without saying, but we believe that it is important to send a clear message to everyone that sexual acts with another person must be mutually agreed and that we all have an individual responsibility to ensure that that is the case.
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We believe that the new version of the reasonableness test addresses the concerns previously expressed by several noble Lords and sets the standard that we believe to be right and justified. I hope that I can rely upon the support of the House in those matters.
I turn now to the amendments that have been tabled in relation to the rebuttable presumptions in Clause 76. There has already been a considerable amount of discussion in the House about the justification for the rebuttable and conclusive presumptions now set out in Clauses 76 and 77 of the new print of the Bill. It is not my intention to rehearse all of the arguments that have already been put forward in detail. I know that the noble and learned Lord the Lord Chancellor and the noble Baroness, Lady Noakes, spent some time on that detail.
In support of Clause 76, I must repeat that we believe there to be great value in making clear in statute the circumstances in which consent is unlikely to be present and in which the jury should be entitled to presume, either rebuttably—or, in the case of clause 77, conclusively—that the sexual activity complained of was non-consensual. However, one criticism that has been levelled against the rebuttable presumption provisions is that they unfairly placed a persuasive burden on the defendant in relation to his belief in consent, and that the clause was muddled and difficult for juries to understand because of the way in which the burden of proof shifted between the prosecution and the defence.
In order to alleviate those concerns, I am tabling government Amendments Nos. 86, 87, 88 and 89. They amend the provisions relating to rebuttable presumptions in Clause 76 so that they place an evidential, rather than a persuasive, burden on the defendant. The way in which the rebuttable presumptions will now work is that, where the prosecution is able to prove that the defendant did a relevant act, as defined in Clause 78, that the circumstances described in subsection (2) existed and that the defendant knew that those circumstances existed, the complainant will be presumed not to have consented to the relevant act and the defendant will also be presumed not to have reasonably believed that the complainant consented.
In order for those presumptions not to apply, the defendant will need to satisfy the judge from the evidence that there is a real issue about consent that is worth putting to the jury. The evidence relied on may be, for example, evidence that the defendant himself gives in the witness box, or evidence given on his behalf by a defence witness, or evidence given by the complainant during cross-examination. If the judge is satisfied that there is sufficient evidence to justify putting the issue of consent to the jury, then the issues will have to be proved by the prosecution in the normal way.
If the judge does not think the evidence relied on by the defendant meets this threshold, he will direct the jury to find the defendant guilty, assuming the jury is sure that the defendant did the relevant act, that the

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circumstances in subsection (2) applied and that the defendant knew that. I hope that the House will agree that the revised provisions in Clause 76, in which all noble Lords have had a hand, will be easier to understand and that they effectively address the concerns that have been raised
I understand that the noble Lord, Lord Campbell of Alloway, tabled Amendment No. 91, which seeks to remove Clause 76, in order to raise concerns about the way in which the reformulated clause empowers the judge to decide whether a defendant has produced sufficient evidence to raise an issue about consent for the issue to merit consideration by the jury. I would like the House to consider that similar evidential burdens exist across the statute book—for example, at Section 53 of the Regulation of Investigatory Powers Act 2000 and Sections 12(4), 39(5)(a), 54, 57, 58, 77 and 103 of the Terrorism Act 2000. I understand the concerns of the noble Lord, Lord Campbell of Alloway, but I also know that he is familiar from his long practice at the Bar with the judicious and well-founded way in which our judges address the issue. I hope that he will share my confidence in the judiciary and feel that, if there is an issue that should be left to the jury, the judges of our country can be relied on to make sure that they are so left.
A non-statutory example of an evidential burden is to be found in relation to the law on provocation. Unless the judge finds that there is sufficient evidence that the defendant was provoked to lose his self-control, he will withdraw the defence of provocation from the jury. As far as I am aware, evidential burdens work well and have not been the subject of criticism in those circumstances, and I see no reason why adopting an evidential burden in relation to the presumptions in Clause 76 should be unwelcome or problematic.
As Amendments Nos. 2, 4, 6 and 8, tabled by the noble Lord, Lord Campbell of Alloway, are purely consequential—to remove references to Clause 76 elsewhere in the Bill if Clause 76 were to be struck out—I do not feel that I need to make a formal response to them. The noble Lord has also proposed, by way of Amendment No. 94, that Clause 78 should be struck from the Bill. That would not be a purely consequential amendment that would follow on if Clause 76 were to be struck out, as Clause 78 also defines relevant acts for the purposes of Clause 77 and is therefore integral to the functioning of Clause 77. For those reasons, I must oppose any suggestion that Clauses 76 or 78 should be struck from the Bill.
I turn to the conclusive presumptions in Clause 77. I am tabling government Amendments Nos. 92 and 93 in response to the concerns raised by the noble Lord, Lord Carlile, during Committee stage. Subsections (1) and (2) of Clause 77 provide that where the only evidence adduced by the defendant in relation to consent is based on something said or done by a third party, it will be conclusively presumed that the defendant acted unreasonably. The noble Lord, Lord Carlile, suggested that it would be unfair to impose a conclusive presumption in relation to the reasonableness test where the defendant was a person
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with a mental disorder or learning disability who could not be expected to understand that a third party was deceiving him as to the truth.
On reflection, we believe that the noble Lord is right, and our amendments remove that provision from Clause 77. Where the defendant bases his belief in consent solely on evidence from a third party, the jury will now be required to consider, in the normal way, whether such a belief was reasonable in all the circumstances of the case. There are now only two circumstances, set out in Clause 77, in which it shall be conclusively presumed that consent was not present—namely, where the defendant deceived the complainant about the nature or purpose of the sexual act or where he deceived the complainant as to his identity by impersonating someone known personally to the complainant. The conclusive presumptions are based on existing statute and case law and we are satisfied that it is right that the new legislation should reflect that position.
For the reasons I have given, I regret that 1 cannot accept any of the amendments that have been tabled. I hope that the House will support the government amendments. I beg to move.
3.30 p.m.
Lord Campbell of Alloway: My Lords, as the burden of the debate seems to be my amendment, I wonder whether it is convenient for me to deal with it now or whether the House would prefer that I let the Front Benches go first.
Lord Thomas of Gresford: My Lords, it may perhaps be more appropriate for those who have had the argument to state our position. I do not know whether to say we were entering the broad sunlit uplands or whether I was more reminded of the Pastoral Symphony. We have had the peasant dancing and the thunderstorms and now we have come to the broad theme of the final movement in which the Minister is now playing her part. I am glad to say that they are playing my tune, so we on these Benches fully support the amendments.
Baroness Noakes: My Lords, I welcome the noble Baroness, Lady Scotland, to our deliberations at this late stage of the Bill. She is most welcome. I thank her for introducing the amendments in the way that she did. These amendments typify the constructive approach that all parties have taken throughout the passage of the Bill.
While I welcome the noble Baroness to our proceedings, I hope that she will not take it the wrong way if I say that we miss the noble and learned Lord the Lord Chancellor today. Both he and his excellent team of officials at the Home Office have won the respect of these Benches for the open-minded way in which the Bill has been tackled. We believe that the Bill will leave this House a very much better Bill than when it arrived. I wish to place on record the appreciation of these Benches for the work that the noble and learned Lord the Lord Chancellor did to achieve that.

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I turn to the amendments. From the outset we on these Benches supported the search for a reasonableness formula that is capable of being workable and effective. We believe that the formulation set out in Amendment No. 1 achieves that.
At various stages of the Bill I raised with the Government what sort of reasonableness they intended and I tabled amendments to seek to ensure that the characteristics of the defendant, such as extreme youth or mental incapacity, would be taken into account in determining reasonableness. At Report stage the noble and learned Lord the Lord Chancellor said that the judge and jury could be relied upon to identify the characteristics that should be taken into account.
I was, however, concerned when the noble and learned Lord, Lord Cooke of Thorndon, described the position in New Zealand. The High Court there has held—in connection with the reasonableness test which it has had for some time—that intellectual impairment should be disregarded. My simple question to the Minister is this: do the Government intend that the Bill, with the amendments that we are discussing, will require judges and juries to take into account, in the appropriate circumstances, factors such as intellectual impairment and extreme youth? Or do the Government believe that, as in New Zealand, such factors will have to be disregarded?
I turn to the presumptions in Clauses 76 and 77. We welcome the way in which the rebuttable presumptions in Clause 76 now involve an evidential rather than a persuasive burden. However, we remain concerned that the list set out in subsection (2) may be taken as a definitive list of circumstances that are relevant. We remain concerned about the exclusion of threats of non-immediate violence, of economic harm and of other abuses of a relationship of power.
We have some concerns about the conclusive presumptions in Clause 77 as we believe that they may, in admittedly rare circumstances, work against justice. We accept the Government's position on Clauses 76 and 77 but I register those concerns.
Let me not end on a down note. We genuinely appreciate the way in which the Government approached these issues. I am pleased on behalf of these Benches to support the Government's amendments.
Lord Campbell of Alloway: My Lords, on this matter I want to say at the outset that I have confidence in the judiciary—the noble Baroness well knows that—and I have every confidence in juries. She also knows that. I have every confidence in the presumption of innocence, and I expect that she will accept that. But I have no confidence whatever in what has been produced by the Front Benches of the three political parties as regards Clause 77.
Before I come to that—it is the nub of this debate, I think—I want to say that the partially objective/subjective approach on Amendment No. 6 on Report
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would have been supported if it had been tabled at Third Reading. I support Amendment No. 1 today and the sister Amendments Nos. 3, 4 and 5, which in effect achieve a like result. But I have one question on which I seek confirmation: is the intellectual disability of the accused taken account of in this formulation? It is not in New Zealand, which has another formulation. I am not sufficiently expert to know whether it is or is not taken into account in the formulation that we are discussing. That is a matter of crucial importance which was first raised by my noble friend Lord Astor of Hever at Second Reading. It was taken up and expanded by, I believe, the noble Lord, Lord Carlile of Berriew, by other noble Lords and, to some extent, by myself, in Committee. If this is a truly partially objective/subjective approach, then I seek that confirmation. If there is any doubt about it, for avoidance of doubt could the clause be redrafted to take account of that when it reaches another place?
Now I turn to the nub of contention. Before I come to it, of course I accept Clause 77, as amended by Amendments Nos. 92 to 93, because that in effect reflects the all but inevitable position that would arise in any event on conviction. This will not be a very long dissertation but it is intended to be objective so that we may see the fine print and examine the consequences which I do not believe for a moment have been properly examined by the three noble Lords concerned in arriving at this deal.
It is accepted at the outset that but for Clause 76 the overall burden of proof remains on the Crown to establish beyond all reasonable doubt on a charge laid under Clause 1(3), as it will be amended, that the accused did not reasonably believe in all the circumstances that there was consent, taking account of any steps taken to ascertain whether there was consent. That is a straightforward simple question to be put to the jury. It is readily intelligible.
Now we come to Clause 76. As proposed to be amended, it imports Byzantine complexity, albeit as a start that the Crown must establish beyond all reasonable doubt that the accused knew of one or perhaps all of the circumstances in Clause 76(2). If he did not and the Crown cannot prove that, the clause does not apply. There starts the problem, for, on this highly complex provision, the question then arises whether sufficient evidence has been adduced to raise the issue of consent. That is no mere matter of evidential presumption. It is a determinative factor of conviction or acquittal, and serves as an aid to conviction. It involves the putative injustice of erroneous conviction.
On that crucial issue, there will inevitably be submissions from the Bar on whether sufficient evidence has been adduced to raise the issue. Those will have to be heard, as the noble Baroness will agree from her experience, in the absence of the jury but in open court. If the judge rules that insufficient evidence has been adduced, when he comes to sum up he has in due course to direct the jury that, in the words of the amendment,
"the complainant is to be taken not to have consented".

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He also has to direct the jury that the accused is to be taken as not to have believed that there was consent.
That is the mandatory, statutory duty of the judge under the clause. It is nothing more or less than a direction to convict. Surely, sufficiency of evidence on a charge laid under Clause 1(3) should be governed by Clause 1(3), not by extraneous provisions that strain the test in favour of conviction. Above all, surely it is not a matter for the judge to give a direction in law—that is a matter for the jury. It is a traditional function of the jury. The judge's jurisdiction in that regard is always, as the noble Baroness knows better than I do, to deal with a defence submission that there is no case to answer. There is no question of a judge having by statute to sum up for a direction. That is what Amendment No. 87 will entail, and that is why I oppose it.
There is very little else to say; I am sorry that I have taken so long. Evidential presumptions such as these in such circumstances should not be introduced to defeat the presumption of innocence, the overall burden of proof on the Crown and the traditional functions of the jury. I recognise that the amendments have been accepted in good faith by the noble Baroness or her predecessor and the noble Lord, Lord Thomas of Gresford. No doubt there have been negotiations on which I congratulate all concerned on having moved the Government so far in other directions. However, as I said on Report, this is my sticking point.
For the reasons that I have given, I ask the House to look at the matter objectively, and to look at the fine print and the consequences, one of which will be that the rulings of the judge will be subject to appeals against conviction on which retrial might be ordered. We are opening up a totally novel avenue, to no good cause and for no good reason other than as part of a compromise on a good deal. This part of the deal is not good. There is no reason why Clause 1(3) should require the assistance of implementation by implementing provisions of such an order that do not ride consistently with it. I hope that that is objective; I hope that at least it is a question worthy of noble Lords' examination in due course.
There is nothing else to say on the group of 15 amendments, to which we have to stick. Effectively, I have covered most of them, especially the important ones. I accept Amendment No. 1 and its sister amendments. I accept Amendments Nos. 92 and 93 to amend Clause 77. I would prefer not to have to deal with Amendment No. 94 now, because it is consequential on other amendments, especially Amendment No. 91. With the leave of the House, I would like to deal with that later and, in view of what I have said, when the time comes I would like to move Amendment. No. 2.
3.45 p.m.
Lord Cooke of Thorndon: My Lords, before the noble Baroness replies, I rise to sound a partly wistful but nevertheless supportive note. Previously in the House, I gave support in the light of the experience of New Zealand to the inclusion of some objective
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element in the defence of belief in consent when rape is charged. As the debate then developed, the House appeared to be in sympathy with that view. The then Minister tabled an amendment that would have made the criterion whether in all the circumstances, including any steps taken by person A to ascertain whether person B consents, A could reasonably be expected to doubt whether B consents.
In my respectful view, that was an inspired piece of drafting, focusing on what society could reasonably expect of the particular defendant, and harmonising with the decision of the majority of the Appellate Committee in the case of Morgan Smith on the cognate subject of provocation. Under that formulation, the jury would give the verdict on behalf of the community on what might be a difficult issue. I echo what the noble Baroness, Lady Noakes, said about the desirability of making it as clear as possible that the individual characteristics of the defendant—such as some degree of mental infirmity, properly proved—are to be taken into account. That was also echoed to some degree by the noble Lord, Lord Campbell of Alloway.
The formula tabled by the former Minister might well have made Clauses 76 and 77 unnecessary, thus simplifying the legislation while conveying the important and simple message that this sort of intrusion is not to occur without a green light. In the event, the Minister never moved that amendment; nor has it been possible to explore the question with him, as the birth labour of a revolution took over. However, I recognise that in the amendments now proposed by the noble Baroness, the Government have moved considerably, and that at times simplicity and economy of drafting may have to yield to political expediency in the light of group pressures. It may be that only a small minority of cases would have any different result if the formula tabled but not moved were enacted.
There may not be a great deal of practical difference between what the Government now propose and what was at one stage proposed. Bearing that in mind, together with the apparent concord between the Front Benches, I propose to attempt no obstruction while joining in the hope for some clarification as to the intention of the House and preferably of Parliament as a whole on the question of taking characteristics—all reasonably relevant characteristics—into account.
Viscount Bledisloe: My Lords, I should like to ask the noble Baroness two questions. First, I gather from her opening remarks that she assumes that, under her Amendment No. 1, the characteristics of the defendant can be taken into account. Can the noble Baroness explain how she gets that from the wording? Does she assume that "all the circumstances" include the characteristics? It is normally held that "circumstances" relate to the surrounding fact, and that "characteristics", which are something different, relate to the defendant. Alternatively, is it because the clause to be inserted specifically refers to "A"—namely, the defendant—arid it is from there that one

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gets these characteristics? I see the noble Baroness nodding her head to indicate that my second answer describes her logic. I am grateful to her.
Secondly, on her Amendment No. 87, in relation to the need for the judge to rule whether there is sufficient evidence, the noble Baroness expressed in eulogistic terms her confidence in the ability of the judiciary to rule on this difficult matter. If that is the opinion of Her Majesty's Government, why are they not equally prepared to rely—in similarly eulogistic terms—on the discretion of the judiciary in matters of sentencing?
Lord Lucas: My Lords, I congratulate the noble Baroness on taking on the Bill. I am delighted that she has missed the worst of it; we are now in relatively calm waters. However, I counsel her against using the Regulation of Investigatory Powers Act and the Terrorism Act as precedents. Both seek to limit the freedom of the individual for the benefit of the state. The House had to push back quite hard in that respect. I certainly remember the RIPA; and terrorism Acts in general have had that pattern to them. Any provision introduced in those Bills should not be regarded as a good precedent for bringing into civil legislation; such provisions generally relate to extraordinary circumstances, and involve measures of which one would wish to be careful.
I should like to ask the noble Baroness a couple of questions. The amendment refers to,
"any steps A has taken to ascertain whether B consents".
Am I right to presume that that consent must be continuous? Is it the case that the offence of rape can be committed if consent is withdrawn at any time during the act? Must not the consent be specific—thus consent to vaginal penetration is not consent to anal penetration? Therefore, if I, as a publisher, am to evolve a form that A can fill in at the time and have B sign, it ought to be in the form of an electronic record that can be continually updated, so as to provide adequate evidence for the clause drafted by the Minister.
In general, I am delighted with the change. It came, I think, from the drafting of the noble Lord, Lord Thomas of Gresford, in Committee. I welcomed it then, and I am delighted to see it reflected in government amendments today.
Baroness Scotland of Asthal: My Lords, I thank all those who have complimented me on taking up my new role, but particularly the noble Baroness, Lady Noakes, and for her recognition of the sterling work done by my noble and learned friend the Lord Chancellor and his excellent team of officials. I, too, should have far preferred that he, rather than I, stood before your Lordships this afternoon. It was ever thus. My only comfort is that I am at least singing the song of the noble Lord, Lord Thomas of Gresford.
I turn to the concerns expressed by the noble Baroness, Lady Noakes, the noble Lord, Lord Campbell of Alloway, and echoed by the noble and learned Lord, Lord Cooke, about characteristics.
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They were also mentioned, I think, by the noble Viscount, Lord Bledisloe. My Lords, we fully expect that characteristics such as mental incapacity and extreme youth will be taken into account in line with the existing caselaw on such issues. We would not expect our courts to follow the New Zealand approach. We believe that we can rely principally on caselaw as regards reasonableness.
The noble Lord, Lord Lucas, commented on Clause 80(2), which provides that penetration is a continuing act, and therefore consent must continue throughout. The Bill seeks to underline that sexual intimacy must be consensual. Those who enter into it—in whatever form—must take steps to assure themselves that their partner in such activity is in full agreement to all that is transpiring. It would be wrong to say that assent to one activity can be properly construed as an assent to all activity. That is a distinction that we seek to draw. I therefore thank all those who have supported the compromise.
I see the attraction that the original formulation had for the noble and learned Lord, Lord Cooke. We saw the attraction ourselves, but we said that we would take it away for consideration and bring back a consensual set of amendments. We have now done that and the import of what we propose remains the same. There is no policy difference between the initial intention expressed in the amendment that was previously before the House, but not moved, and the amendment that is before us now.
I appreciate, too, the strong feelings expressed by the noble Lord, Lord Campbell of Alloway, about the direction. The ways in which we have structured the provisions will show that fear not to be well founded. We are confident that the court will be alive to the concern that the noble Lord has expressed about the possibility of appeal and will not take injudicious account of issues that should properly not be admitted. I leave the comments made about sentencing to another day.
On Question, amendment agreed to.
4 p.m.
Lord Campbell of Allowayhad given notice of his intention to move Amendment No. 2:
Page 1, line 18, leave out "Sections 76 and 77 apply" and insert "Section 77 applies"
The noble Lord said: My Lords, on the advice of the Table, I cannot divide on the amendment, because it would leave out Clause 76, which is a substantive amendment on which I have to divide the House at a later stage. That being so, unless any other noble Lord wishes to speak on this matter, I am minded not to move the amendment for the reason that I have given.
[Amendment No. 2 not moved.]
Clause 3 [Assault by penetration]:
Baroness Scotland of Asthal Baroness Scotland of Asthal moved Amendment No. 3:
Page 2, leave out lines 13 to 21 and insert—

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

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( ) Whether a belief is reasonable is to be determined having regard to all the circumstances, including any steps A has taken to ascertain whether B consents."

On Question, amendment agreed to.
[Amendment No. 4 not moved.]
Clause 4 [Sexual assault]:
Baroness Scotland of Asthalmoved Amendment No. 5:
Page 2, leave out lines 30 to 38 and insert—

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

( ) Whether a belief is reasonable is to be determined having regard to all the circumstances, including any steps A has taken to ascertain whether B consents."

On Question, amendment agreed to.
[Amendment No. 6 not moved.]
Clause 5 [Causing a person to engage in sexual activity without consent]:
Baroness Scotland of Asthalmoved Amendment No. 7:
Page 3, leave out lines 11 to 19 and insert—

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

( ) Whether a belief is reasonable is to be determined having regard to all the circumstances, including any steps A has taken to ascertain whether B consents."

On Question, amendment agreed to.
[Amendment No. 8 not moved.]
Clause 10 [Sexual activity with a child]:
Baroness Noakesmoved Amendment No. 9:
Page 5, line 8, after "indictment" insert—

(a) where subsection (3) applies, to imprisonment for life, and

(b) in any other case,"

The noble Baroness said: My Lords, in moving this amendment, I shall speak also to Amendments Nos. 10 to 14 and 25. All the amendments concern sentencing provisions where offences against children under 13 are involved.
Amendments Nos. 9 and 10 relate to Clause 10 and ensure that the maximum penalty for the sexual touching of a child under 13, where penetration is involved, is the same as that under Clauses 6 or 7; namely life. Clause 80(6)states:
"Touching … in particular includes touching amounting to penetration",
and it is quite possible that Clause 10 could be used to prosecute the sexual penetration of a child under 13. Amendments Nos. 11 and 12 relate to Clause 11 and align the maximum penalty for causing or inciting the penetration of a child under 13 with the penalty in that clause.
The aim of the amendments is to ensure that there can be no possibility that an offence involving penetration of a child under 13 ever picks up a lesser maximum sentence than life. Without the amendments, a prosecution may well, whether in error or for some other reason, be taken under the softer of the clauses. That should not be an option. The Minister's response on Report was that 14 years was enough if the wrong section had been used to prosecute the offence. We disagree with that.
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Amendments Nos. 13 and 14 are slightly different, although they are again directed at offences involving the under-13s. The amendments would remove the possibility of a summary conviction involving negligible penalties where an offence against a child under 13 was committed under Clauses 12 or 13; that is, engaging in sexual activity in the presence of a child, or causing a child to watch a sexual act.
As I explained on Report, my motivation in introducing the amendments was to ensure that the Bill was internally consistent. The equivalent offences for those with a mental disorder are set out in Clauses 34 and 35. Those offences offer no option for summary proceedings. I remain mystified as to why the Government think that an offence against a child of 13, for whom no issue of consent will ever arise, could result in a lower penalty than the equivalent offence against a mentally disordered person who cannot in fact consent. The Minister did not answer that on Report.
Lastly, Amendment No. 25 deals with the grooming offence in Clause 17. It had been my contention at earlier stages of the Bill that the sexual grooming offence is a serious offence which should be triable only on indictment. The Government have not accepted that, which leads me to fear that the new offence will be used for marginal cases. In any event, if it can be proved that a person meets the requirements of Clause 17 in relation to a child under 13, that is a very grave matter. It should not be possible for such a person to be tried summarily because, by definition, it is a serious offence which merits a significant penalty. My amendment would achieve that for offences in relation to the under- 13s. I beg to move.
Baroness Scotland of Asthal: My Lords, I understand precisely the concerns that the noble Baroness has expressed by way of her amendments. The amendments deal only with those situations where the child victim was under 13. In the vast majority of offences against children aged under 13, we would envisage the non-consensual offences in Clauses 6, 7, 8 or 9 being charged. It will be in only exceptional circumstances that the offences in Clauses 10 or 11 are charged. That will be principally where it is only during the trial that evidence emerges that the child is aged under 13.
Increasing the maximum penalty to life for Clauses 10 and 11, where the victim is under 13 and penetration takes place, is consistent with the offences in Clauses 6, 7 and 9. However, doing so would raise questions about consistency with other offences in the Bill, which could be charged in cases involving penetration of or by a child under 13, albeit that that is very unlikely. We would have to consider, for example, the familial child sex offences, abuse of a position of trust and all the mental disorder offences. We need to take a careful look at all the offences to which this issue applies and at the best way of ensuring consistency throughout the Bill. We should also consider whether doing that might detract from our policy of ensuring that the specific under-13 offences are charged every time that a sexual offence is committed against a child of that young age.

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I do not believe that the amendment will achieve the necessary consistency. Therefore, I would like to take the issue away and consider it in the context of the whole Bill. I very much regret that it has not been possible for us to do that before today.
The purpose of Amendments Nos. 13, 14 and 25 is to make the offences in Clauses 12, 13 and 17 triable on indictment only—the noble Baroness made that clear—where the victim was a child under the age of 13. Clause 12 makes it an offence for an adult aged 18 or over, for sexual gratification, to engage in sexual activity in the presence of a child. Clause 13 makes it an offence for an adult aged 18 or over, for sexual gratification, to cause a child to watch a sexual act.
Clause 17 makes it an offence for an adult aged 18 or over to meet or travel to a meeting with a child having communicated with that child, possibly in a non-sexual way on two previous occasions, with the intention of committing a sexual offence against the child either then or subsequently.
Although these offences will involve some extremely serious behaviour, it is possible to envisage other cases where this method of trial might not be required. Sexual activity includes things such as kissing or sexual fondling between people who are close. Where, for example, an 18 year-old, for the purpose of sexual gratification, shows a photograph of two people kissing or sexually fondling to a 12 year-old, we would not necessarily want that case to be triable on indictment only. It is right to retain flexibility about the mode of trial for these cases.
One of the sad things that we have had to recognise is that there is a multiplicity of ways in which offences can be created. They cover the whole spectrum from the most minor to the most serious. We have to retain a little flexibility. Last evening we were talking about another concept of making the punishment fit the crime. We need a slightly lighter touch in relation to those matters.
In Clause 17 the adult must intend to commit a sexual offence against a child and that offence could be any of those in Part 1 of the Bill, including, for example, the offences in Clauses 12 and 13. So where a young adult meets or travels to meet a 12 year-old, having communicated with her in a non-sexual way twice previously, in order to show her photographs of two people sexually fondling, it is conceivable that the case could be suitably dealt with at a magistrates' court.
Although I fully accept that in the majority of cases those committing any sexual offence against a child under the age of 13 should be tried in the Crown Court, I am reluctant to remove the option of summary trial for those which do not involve physical contact with the victim. For the reasons that I have given I resist these amendments.
Lord Northbourne: My Lords, before the noble Baroness sits down—although if she does not sit down I cannot speak—given the extreme complexity of the crimes which we are creating today, it seems relevant
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to ask what action is going to be taken to enable people, particularly younger people and teenagers, to know about these crimes and to understand what they are allowed to do and what they are not. What seems clear to us does not always seem clear to people brought up against a different background of sexual behaviour.
Baroness Scotland of Asthal: My Lords, that is very much what the Government are trying to do in both education and health in order to inform young people as to what is appropriate and proper behaviour; how to keep themselves safe, and what is the norm. A number of my noble friends on the Front Bench have spoken of all those issues. Education and healthcare are going to be very important indeed. I also hope that your Lordships' proceedings will help to elucidate these issues and will be used to some good effect.
4.15 p.m.
Baroness Noakes: My Lords, I thank the Minister for her reply and in particular for saying that the amendments to Clauses 9 and 10 will be taken away and looked at. I was disappointed that on Clauses 12 and 13 the Minister did not address the point of consistency with the equivalent offence in relation to those with mental disorder in Clauses 34 and 35. I ask the noble Baroness to take that matter away as well and look at it again. It was not my purpose today to seek the opinion of the House, but to put again on the record these important issues. I hope that the Minister will include that in a thorough review of the offences involving under-13s.
Baroness Scotland of Asthal: My Lords, I am very happy to reassure the noble Baroness. I said that we would take the amendments away and consider the issue of consistency across the piece. I cannot guarantee that the result will be what she would wish, but we shall certainly think about it.
Baroness Noakes: My Lords, on that basis I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 10 not moved.]
Clause 11 [Causing or inciting a child to engage in sexual activity]:
[Amendments Nos. 11 and 12 not moved.]
Clause 12 [Engaging in sexual activity in the presence of a child]:
[Amendment No. 13 not moved.]
Clause 13 [Causing a child to watch a sexual act]:
[Amendment No. 14 not moved.]
Clause 14 [Child sex offences committed by children or young persons]:
Baroness Walmsleymoved Amendment No. 15:
Page 6, line 10, at beginning insert "Subject to subsection (3),"
The noble Baroness said: My Lords, I add my congratulations to the Minister on her promotion and welcome her to our deliberations this afternoon, not

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least because I believe that she may be bringing me some good news. I also associate these Benches with the words of the noble Baroness, Lady Noakes, about the noble and learned Lord the Lord Chancellor. It is because he and his officials have listened that I am expecting that good news today.
In moving this amendment I shall also speak to Amendment No. 16. The purpose of the amendment is to meet the Government's own wishes, as expressed by the Minister in Committee. He said,
"In those cases where sexual activity between minors is truly mutually agreed and there is nothing to suggest that the activity is in any way exploitative, we would not expect and would not want the full weight of the criminal law to be used against them".—[Official Report,, 1/4/03; col.1176.]
I understand that the Minister plans to undertake to translate that statement into guidance for the Crown Prosecution Service and others. While welcoming this commitment, unfortunately it will not totally meet the concerns about criminalising consenting sexual activity of under-16s expressed at all stages of the Bill.
On Report the Minister resisted an amendment to delete Clause 14, first, on the inaccurate grounds that this would prevent under-18 year-olds being prosecuted for the abuse of 13 to 15 year-olds. The objection was incorrect since the deletion of Clause 14 did not prevent a prosecution of under-18s for the straightforwardly abusive sexual assaults and sexual activity without consent offences under Clauses 1, 3, 5 and 7 of the Bill.
The only offences from which the Report stage amendment exempted under-18s were the relatively minor and obscure ones of inciting a child to engage in sexual activity, engaging in sexual activity in the presence of a child, and causing a child to watch a sexual act. However, in order to meet this objection this amendment now preserves these lesser offences for under-18s, but none the less ensures that consenting sexual activity between under-18s and 13 to 15 year-olds is not a criminal offence. In other words, there is the defence of consent.
The Minister may believe that guidance to the prosecution services will suffice, but unfortunately this is not the case. For a start, no government can fully control the police and prosecution services except by clear legislation which states what is, and what is not, a crime. While cases may be rare, there will undoubtedly be some unnecessary prosecution, perhaps as a result of parents laying complaints or police and CPS zeal for zero tolerance of child abuse.
More importantly, deciding not to prosecute may come far too late for children who have had their private lives investigated by strangers and have been accused of committing an offence. Their behaviour should not be a criminal offence in the first place. And how can it be right to create an offence which is not to be prosecuted? This seems a very bizarre form of government.
The Minister gave three other reasons at Report stage for refusing to decriminalise consensual sex between 13 to 15 year-olds and other young people. Those were, first, that although the act might appear
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consensual it might not really be so, because the teenager had been coerced or exploited into having sex; secondly, that many children welcome the protection that is offered by an age of consent; and thirdly, that we have a duty to send teenagers the message that they must not have sex at an early age.
Taking those objections in turn, the first really does not hold water since, if there is any evidence that the teenager has been coerced or exploited into agreeing to sex then obviously she or he has not given a valid consent. But if there is no evidence of that, then plainly a prosecution should not occur. The second objection relates to the first, since it suggests that teenagers—particularly girls—are unable to give a valid refusal to sex and are having to rely on the criminal law to fend off boys' unwanted pressure. Surely the main point is that girls should be helped to feel strong about their sex lives and their bodies, and understand that they have a personal power whether to consent. A logical consequence of the Minister's argument is that 15 year-old girls will be unable to resist their boyfriends on their sixteenth birthday. In any event, the allegation that "many children" welcome consenting under-age sex being criminalised is often made, but rarely supported by quoted research. It appears to be one of those anecdotal "facts" that are often brandished in debate.
Some real research that can be quoted is, first, that the National Survey of Sexual Attitudes and Lifestyles in Britain shows that a quarter of women and nearly a third of men in the current 16 to 44 age group had sexual intercourse under the age of 16 and that the average age for first sexual activity was 14 for girls and 13 for boys. So we are talking about the unlikely idea that children welcome the criminalisation, not of behaviour they might be faced with in the abstract, but of behaviour most of them are currently engaged in. Given the extent of sexual activity under the age of 16, we cannot be surprised by research published in 1999 in the British Journal of Family Planning on teenage attitudes which shows that, in fact, the law has very little impact indeed on their sexual behaviour.
There are two problems with the Minister's third objection, that decriminalising consenting sex sends the wrong message to under-16s because we want to discourage them from all forms of sexual activity. First, the criminal law is a very poor tool for affecting consenting sexual behaviour. One should look at how unsuccessful the criminal law was at stopping homosexuality. Secondly, criminalising teenage sex sends other harmful messages to teenagers.
First, it tells them that the criminal law is stupid. How can we ask young people to respect the law and at the same time tell them that two 15 year-olds having a grope is a criminal offence for which there is no defence? Secondly, the message is sent that adolescent sexual exploration, a perfectly natural thing, is wrong, bad and a matter for state intervention. The psychological damage that may do to healthy sexual development is incalculable, but profoundly important to the individuals concerned. Finally, it may make under-16s furtive about seeking help for the consequences of their sexual activities—in particular,

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of course, preventing teenage pregnancies and combating the "epidemic" of sexually transmitted infection that we have been hearing about from the House of Commons Health Select Committee.
In short, this amendment seeks to help children by improving the Bill so that the law genuinely reflects their experiences and accurately states what is abusive, criminal and unacceptable behaviour. The Government hoped to modernise legislation in this area, but so far they are giving our teenagers a dangerously muddled and damaging law. I am most anxious to hear what the Minister has to say. I beg to move.
Baroness Noakes: My Lords, I have added my name to the amendments standing in the names of the noble Baroness, Lady Warmsley, and the noble Lord, Lord Thomas, because I continue to believe that the criminalisation of consensual sexual activity among teenagers is bad. Those noble Lords who have seen the birthday cards of young people attaining their 16th birthdays, with many references to "it" now being legal, will know that in that age group the so-called age of consent is something of a joke. The activity criminalised by the Bill goes way beyond sexual intercourse and includes heavy petting and looking at dirty magazines, for example. We are not simply talking about the age of consent for sexual intercourse.
I support the thrust behind the amendment, which uses consent as a determining feature. But I also accept that there may be cases where the issue of consent is not clear cut; for example, where a young person is pressured to consent in some way. Whether those hard cases, which are not numerous when compared with the numbers involved in perfectly normal and healthy sexual activity, should drive the form of the law is a moot point. I know where I would place the balance, but the Government have different ideas.
From discussions with the Minister's officials I understand that much work has been going on to establish how guidance can be given to those involved in enforcing the law at the various stages, including the final warning scheme, which I had not heard of until last week, but details of which the Minister's officials have kindly sent to me. I look forward to hearing what the Minister has to say on the way in which guidance will be given so that normal teenage sexual activity is not pursued in the courts. I hope that the Minister will answer four areas of concern. What will the guidance contain? When will it be given and to whom? What consultation will be conducted before the guidance is given? Will the guidance be publicly available?
I hope that the Minister will be able to reassure us on those points.
Lord Monson: My Lords, I fear I disagree with both noble Baronesses. Under Clause 10 someone of just over 18 who kisses or engages in what used to be called light petting with a boy or girl of, say, 15 and three-quarters, can be sentenced to 14 years' imprisonment, even though the activity is consensual—indeed, it may have been initiated by the younger person—and the
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age difference is only two and a quarter years. That worries me but not the Liberal Democrat Benches. If I am mistaken, I apologise.
The proposal is that someone just under 18 may not only kiss, but indulge in full sexual intercourse with another person of just over 13 without any penalty at all—although the age difference is as much as four and three-quarter years. That is inconsistent and anomalous. If something is wicked when committed by a person of 18 years and one month, it must be equally wicked when committed by someone of 17 years and 11 months. Equally, if the activity is harmless when committed by someone of just under 18 it must be harmless when committed by someone of just over 18. Clause 10 goes too far in many respects, but the amendment goes in the opposite direction of being excessively permissive.
Baroness Blatch: My Lords, the noble Lord, Lord Monson, referred to the inconsistency of what sentencing would be if the amendments were accepted. Talking about petting and normal teenage coming together and forming relationships trivialises the reason for having an age of consent at all. Let us make no mistake, the amendments sweep away and invalidate almost completely the notion of an age of consent.
It is no good either my party or the Government wringing their hands about promiscuity among young people, as they do, especially about young people from the age of 11 up to the age of consent at 16, wondering what we are going to do and throwing billions of pounds at all sorts of task forces, quangos and organisations to discourage that type of behaviour when we sit in Parliament and pass laws which state. "If you want to do that it is entirely natural. We shall produce guidelines about how you can do it but one thing we will not do is to take a view that it is wrong."
Parents will be in despair about what is being said today. Certainly, young people will be very confused about the messages. I suggest that they will be more confused as a result of the amendments rather than less confused. If the Government are minded to accept the amendments, young people will be told in effect that the Government take the view that, frankly, the age of consent is immaterial and does not really matter; therefore why bother with it.
One of my technical questions to the Minister is to ask what would be the status of the age of consent should the amendments be accepted. They would be contradictory on the statute book, so it would be important to know what they mean. The amendments will send the wrong messages. We should be very concerned about early sexual activity. There are ways of dealing with that. No one has brought an example to this House of the police taking action against two young people who are not having sexual intercourse but are engaging in what is called teenage petting, the phrase used by the noble Lord, Lord Monson, and taking that to court as an offence. That simply does not happen. However, there needs to be protection for young people.

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The noble Baroness, Lady Walmsley, referred to coercion. She did not exactly use the phrase, "a figment of the imagination", but there is such a thing as coercion among young people. Some girls feel very pressured about such things. Often, they do not want that pressure. Having the age of consent in place would be something they could sometimes use as one of the shots in their armoury to help them to say "no". I agree with the noble Baroness that we must help young people to make proper choices about whether or not they engage in sex. But it is better to err on the side of saying, "It is better not to engage in sex under the age of 18 than simply to go along with it". There is a whole issue of messages. This is a message I would not want to be a party to sending to young people and their parents.
4.30 p.m.
Baroness Jay of Paddington: My Lords, I very much regret that I was not in my place for the start of the remarks made by the noble Baroness, Lady Walmsley. However, she and I discussed this issue and I am sure that I understand the points she wants to make. I have considerable sympathy for the amendments, for the reasons which she and the noble Baroness, Lady Noakes, clearly made.
I think that the noble Baroness, Lady Blatch, would agree that at earlier stages of the Bill we agreed all round the House that on the whole we regretted the explosion of very early sexual activity among young teenagers. I hope that she would not characterise that as wringing our hands. At earlier stages of the Bill, the noble and learned Lord, Lord Falconer of Thoroton, the predecessor to the noble Baroness, Lady Scotland, referred to the fact that he thought—I would go a long way towards agreeing with him—that social welfare agencies and, indeed, guidance, were a more appropriate way to deal with many of the issues to which everyone who has spoken earlier in the debate has referred, and with whom I would agree.
I look forward very much to the reply by the noble Baroness, Lady Scotland, and welcome her very much to this responsibility which I am sure she will deal with enormously sympathetically. However, as I said at Second Reading and in Committee, I continue to feel that it would be difficult for many of us who have been concerned with these issues for a very long time to accept that however strong the guidance and however appropriate the work of the social welfare agencies in dealing with the wider social and educational problems of very early teenage sex, we would be unhappy to see this whole issue residing anywhere in the criminal justice system.
Lord Lucas: My Lords, this is one of those very rare occasions on which I entirely agree with the remarks of the noble Baroness. It seems to me to be an example of one of the consequences of moving so far to make rape and other sexual offences so heavily punished and so widely drawn in dealing with ills with which we wish to deal in the adult population that we quail when we look at the consequences of the changes we have made in dealing with the young.
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We really cannot have our cake and eat it. If we are to move so far in these offences that we dare not prosecute a 17 year-old who is having sex with a 14 year-old, there is much argument in favour of the amendment tabled by the noble Baroness, Lady Walmsley, for saying that that should not be a crime. But then, as my noble friend Lady Blatch said, we would no longer have an age of consent. The alternative is to allow the question of whether or not someone should be prosecuted to be entirely an administrative decision, to have law not made by Parliament but just a blanket authority given by Parliament as to whether or not people should be prosecuted and for it to be recognised that this is entirely within the purview of the executive and its administrative parts. I believe that that is an extremely dangerous way to proceed.
Accepting that we are going where we are with the Bill, which I think in the long term will turn out to he a blind alley in terms of making sexual offences so heavily punished that it really becomes quite difficult to convict ordinary malefactors for them, if we want to spare our young from the consequences of moving in that direction I should like to see us making it explicit that there are lighter sentences and lighter conditions on the young if they trespass but not going as far as the noble Baroness, Lady Walmsley, proposes and making such matters not crimes at all. If we do that we lose the age of consent. The concept of the age of 16 is a great defence to those under 16s who wish not to be involved in particular in full sexual activity. If we abandon that, as the amendment proposes, we will do our young a great disservice.
Those who wish to indulge in sexual activity under that age doubtless will continue to do so. Those who do not will feel a lot safer if the age of consent were to remain unbreached.
Lord Northbourne: My Lords, perhaps I may say, briefly, how much I agree with the noble Lord, Lord Lucas, and that I support the compromise he suggests.
Baroness Scotland of Asthal: My Lords, I hope that I shall be able to give pleasure to both sides of the argument, which is a very unusual and happy position in which to hope to be. I warmly thank the noble Baroness, Lady Walmsley, for her compliments and my noble friend Lady Jay, who it gives me great delight to see sitting on the Privy Counsellors' Bench for this debate.
Perhaps I may say straightaway that I hope I shall be able to fulfil the expectation of the noble Baroness, Lady Walmsley, as regards guidance. I am confident that it was her persuasive voice, along with a number of others, which led to clarification of the guidance. I need to be quite firm that the age of consent has meaning, as the noble Baroness, Lady Blatch, requested, and provides a very helpful indication of what is and is not appropriate and acceptable behaviour.
The effect of Amendments Nos. 15 and 16 is that a person aged under 18 would not commit one of the child sex offences in Clauses 9 to 13 if he engaged in

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what he reasonably believed to be consensual activity with a person aged 13 or over but under 16. Although the amendments refer to Clauses 9 to 13, I assume that what is intended is that the exception should apply to Clauses 10 to 13 as Clause 9 deals only with victims under the age of 13.
The effect of the amendment would be to undermine the protection in law that the age of consent offers children. Setting the Boundaries, the report of the review of sexual offences, looked at the age of consent and concluded that it was,
"well established, well understood and well supported",
and that as a result there should be no change to it.
The age of consent is a simple concept. We will weaken it and the protection it gives if we remove it, even for two young people together, or try to draw artificial distinctions between conduct which is or is not covered by it. As we have said, there is a huge range of sexual behaviour, from sexual kissing through masturbation to penetration. It is not sensible to try to prescribe a sexual code based on an age of consent.
While it is widely held that a sexual relationship is far more likely to be abusive if the age gap between the two parties is significant—for example, between a 15 year-old and a 40 year-old adult—the bottom line is that adults do not have a monopoly on child abuse and we cannot assume that sexual relationships between young people will be fully consensual just because they are the same age. We know that other children often abuse children, and the law must be able to protect them. It is a tragedy that children who are abused and have themselves been abused at a tender age have a higher propensity to become abusers themselves. It is something that we have to accept and seek to address.
The underlying assumption in the amendment is that the non-consensual offences of rape, assault by penetration, and sexual assault will deal with all of those situations where there is lack of consent to sexual activity between teenagers. So why are we criminalising acts that are consensual?
The review of sex offences heard evidence that children can and do behave in a sexually abusive way towards other children. There can be subtle or even blatant pressure or bullying—but stopping short of coercion—which secures the consent of the child to sex. Sometimes, even where there is an element of coercion, the child continues to believe that the other person genuinely cares for her and she will not give evidence against him. There are therefore cases of behaviour which all would agree were abusive but for which a non-consensual offence cannot be proved. It is for those reasons that we need Clause 14.
We accept, however, that genuinely mutually agreed, non-exploitative sexual activity between teenagers does take place and, in many instances, no harm comes from it. It is therefore important that we ensure that these children do not end up being prosecuted or issued with a reprimand or final warning, and we will introduce additional safeguards to ensure that this is not the case. We will therefore be amending guidance to the police in relation to their use
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of reprimands, as has been foreshadowed by both the noble Baronesses, Lady Walmsley and Lady Noakes. It will make sure that the reprimands and final warnings are not issued when it is clearly not in the public interest to do so. This will be reflected in the criteria used to determine the most appropriate response to an allegation, where it will be made clear that, for example, lack of coercion or the fact that the two children were close in age would be taken into account as mitigating factors.
The guidance to be issued by the Director of Public Prosecutions to custody officers under the provisions of the Criminal Justice Bill will provide that the decision whether children under 18 should be charged with child sex offences will be reserved for Crown prosecutors rather than the police. The Crown Prosecution Service will be issuing guidance to its prosecutors about which factors should be taken into account when making such decisions. The type of factors to be considered would include the relevant ages of the parties; the emotional maturity of the parties and whether they entered into a sexual relationship willingly; any coercion or corruption by a person and the relationship between the parties; and whether there was any existence of a duty of care or breach of trust.
This is a difficult and sensitive area in which the views of well-informed people of good intention are genuinely divided. We believe that we have struck the right and sensible balance between acknowledging that consensual sexual activity may take place between children under the age of 16 while, at the same time, protecting all our children from sexual abuse.
The noble Baroness, Lady Noakes, asked me some specific questions which I would like to answer. She asked "When?" as far as the guidance is concerned. We will seek to ensure that the guidance is prepared and coincides with the commencement of the Bill's provisions. As to consultation, we will discuss these matters with the police and the Crown Prosecution Service. The noble Baroness will know that the current guidance is not in the public domain. We will look at these issues, but I certainly cannot give the noble Baroness any guarantee that there will be a change in practice.
What is important is that we effect appropriate control on the ground, that these issues are dealt with sensitively and well, and that the fears which have been expressed by the noble Lords, Lord Lucas, Lord Monson and others, are properly taken into account. We believe that the balance is about right and we invite the noble Baroness, Lady Walmsley, to withdraw her amendment—having, I hope, succeeded in giving her the good news she sought.
4.45 p.m.
Lord Monson: My Lords, before the noble Baroness sits down, would she not agree that there could be a most bizarre and unintended consequence if this amendment were to be accepted?

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If it were accepted, then someone of 17 could sleep with someone of 13, week after week, month after month, perfectly legally hut, the moment the older party reached the age of 18, he or she would become a criminal and be subject to 14 years' imprisonment.
Lord Lucas: My Lords, can the noble Baroness clarify this matter of reprimand and final warning? I admit to being in ignorance about it. If someone is issued with one, do they have a way of clearing that from their record? Do such things have any consequence when it comes to notification or any of the other ramifications of criminal records, in relation to employment in later years?
Baroness Scotland of Asthal: My Lords, they should not have a consequence for employment in later years. We have a very helpful document which sets out the way in which it all fits together. I am sure that it would be of great assistance to the House, and I will seek to ensure that a similar document to that which the noble Baroness, Lady Noakes, currently holds in her hand is put into the Library.
In the most appropriate cases—let us talk about two 13 year-olds kissing. where a parent finds it objectionable that her 13 year-old daughter happens to be found kissing some other person and wants to take action about it—there is provision for there to be no final warning but that the matter should just be raised and dealt with appropriately. We think that that light touch would be very successful in dealing with such issues.
Baroness Walmsley: My Lords, I thank the Minister for her reply and for the changes that are to be made. They are most welcome and do move us in the right direction. I also thank her officials, who have been most helpful in this regard, particularly in supplying me with a copy of the document on final warnings.
Turning to some of the points which have just been made, the noble Lord, Lord Monson, feels that Clause 10 goes too far. He may well be right, but in fact my amendments are to Clause 14. In that regard he talked about penalties for these offences. I am not suggesting that nothing is done, but I believe that the criminal law is a clumsy tool in respect of these sensitive issues relating to young people, who are exploring towards adulthood. I believe that other ways are more appropriate, as the noble Baroness, Lady Jay, said.
In response to the noble Baroness, Lady Blatch, I believe that coercion is covered by other parts of the Bill. I am not suggesting that the age of consent has no meaning, but I believe that the penalties outlined in Clauses 9 to 13 are not appropriate for the sort of consensual behaviour we are talking about. As the noble Baroness, Lady Jay, said, counselling, information and guidance are a much better approach.
The Minister referred in a number of her comments to abuse. We are not talking about abuse here. We are talking about consensual, exploratory activity. Bullying is coercion, in my book, and I believe that other clauses cover it.
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However, I am most glad that we have moved in the right direction. I believe that it is about as far as we can get. I am grateful to the Minister for her comments on what is to be done. In the mean time, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 16 not moved.]
Clause 15 [Arranging or facilitating commission of a child sex offence]:
Baroness Blatchmoved Amendment No. 17:
Page 6, line 24, at end insert—
"( ) he is not subject to the notification requirements of Part 2 of this Act or to any order made under that Part, and"
The noble Baroness said: My Lords, I shall speak also to Amendments Nos. 81 and 85. The first time that I intended to speak today was on my own amendments. My intervention on the previous group of amendments was unplanned. I was not quick enough on my feet to welcome most warmly the noble Baroness, Lady Scotland, to her post and to congratulate her on her promotion, as I had intended. I know that we will enjoy most informed debates with her representing the Home Office on the Front Bench. I also pay my compliments to the noble and learned Lord, Lord Falconer, who has shepherded us through the Bill so far.
Clauses 15 and 74 were amended in Committee to provide a defence to child sex offence charges to those who claim to be acting to protect a child from sexually transmitted infection or physical harm or to prevent pregnancy. Amendments Nos. 17, 81 and 85 are a pared down version of the amendments to which I spoke on Report to limit the defence.
I regard the defence as unnecessary and dangerous. I rehearsed examples, reported in Hansard at col. 1110 on 2nd June, of child sex abusers who hid behind the claim that they were providing sex education. Over-sensitivity to complaints from the sex education industry has led the Government to create a defence that I continue to regard as a paedophile's charter.
I have disagreed consistently with those who have attempted to widen the defence yet further. I am disappointed that the Government are now going along with it. Amendments Nos. 19 and 20, which will be debated in the next group, will allow people to get off charges of facilitating child sex abuse if they can raise a claim that they were acting to protect the child's emotional well-being—whatever that means.
Given the very strong criticisms that the noble and learned Lord, Lord Falconer, made of the proposal only two weeks ago—I will come to them in a moment—I am astonished. I said on both previous occasions when we debated the issue that no one has adduced any examples of respectable sex education professionals being prosecuted simply for helping young people. None of the agony aunts and advisers who apparently want the defence has been unjustly prosecuted. There is no evidence of any problem.
I said that making a law when there were no examples of the problem it was intended to tackle was dangerous. The noble and learned Lord,

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Lord Falconer, rejected that contention. So imagine my surprise when the noble and learned Lord rejected an amendment tabled by my noble friend stating,
"there is a great danger in making offences extend to areas where there is no evidence of a real problem".—[Official Report,, 2/6/03; col. 1138].
I would say that there is a great danger of making defences extend to areas where there is no evidence of a real problem.
I also argued against the defence by saying that paedophiles would rely on it to seek to excuse themselves from child sex offences. I raised that argument on the first day of Report, and the noble and learned Lord, Lord Falconer, rejected it. Yet, on the very next group of amendments, when my noble friend and the noble Baroness, Lady Walmsley, sought to extend the defence to cover emotional well-being, the noble and learned Lord, Lord Falconer, said:
"It would create a potential loophole that abusers could exploit".
He went on to say that it could,
"potentially weaken the protection offered to children".
He also said,
"I believe that we would end up with this becoming a major focus for criminal proceedings … because it would become 'the issue' upon which defendants would rely. We would regret that outcome".—[Official Report,, 2/6/03; cols. 1135–36].
I could hardly believe what I was hearing. It was almost as though the noble and learned Lord had plagiarised my earlier speeches, as those were precisely the concerns that I have about the defence. So what has changed?
I am now even more incredulous, because those words have been forgotten and the Government are now embracing the concept of extending the defence to cover emotional well-being, again without any definition of the term. I would welcome a definition when the amendments are spoken to.
The noble Baroness, Lady Walmsley, realised that the noble and learned Lord was guilty of double standards when she said that extending the defence to cover emotional well-being would not makes things any worse:
"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)".—[Official Report,, 2/6/03; col. 1137].
The final sentence refers to the defence as drafted.
I greatly regret that the defence will remain in the Bill. I still cling to the hope that we can at least insert one common-sense exception. I hope that my noble friend and the noble Baroness, Lady Walmsley, agree. Clearly, a sex offender should never be able to escape a conviction of facilitating a child sex offence or aiding and abetting child sex offences by simply claiming that he is some sort of freelance sex education adviser. I cannot envisage any situation where a registered sex offender has any right to be involved in giving intimate
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sexual advice to children. Whether he has been convicted of child sex offences or a sex offence against an adult, he should not be going around giving sex advice to children and then being allowed a defence on a plate from the next group of amendments.
My amendment, therefore, excludes from the defence individuals who are subject to the notification requirements under Part 2 of the Bill. The previous version of my amendment would have excluded such people for life; however, this version operates only while they remain on the register. The amendment also excludes from the defence those who are subject to a risk of sexual harm order, foreign travel order or sex offences prevention order under Part 2.
I know that the noble and learned Lord, Lord Falconer, spoke during the previous debate about the Criminal Justice Bill and how it could address disclosure of previous convictions. However, the Government have allowed the new defence to be inserted into this Bill; therefore, this Bill is the place for ensuring that it cannot be abused by sex offenders. The Bill containing the provisions for registration of sex offenders and various preventative orders that can be used against them is the place for ensuring that such people cannot make a mockery of the system by relying on those defences to excuse their activity. I beg to move.
Lord Lucas: My Lords, I entirely support my noble friend's amendment. I do not come at all from the same direction as she does in her arguments, particularly as I shall support some of the amendments in the next group, but I very much agree with her that there is absolutely no reason why the sort of trespasses on the principle of the Bill that are allowed by the Bill as drafted and would be allowed by the next group of amendments—for the very good reason of allowing the ordinary comforting and advice that should be available to children—should ever be open to someone on the sex offenders' register.
Baroness Walmsley: My Lords, I have been quoted by the noble Baroness, Lady Blatch, so I feel that I should respond to the amendment. I am afraid that I do not support it, as I think that it is unnecessary. For the same reason that I do not think that paragraphs (a), (b) and (c) of subsection (3) provide a paedophiles' charter, I do not think that proposed paragraph (d)—we will come to it in a moment—does. There is one simple reason for that. Lines 35 and 36 at the end of subsection (3) say,
"and not for the purpose of causing or encouraging the activity constituting the offence within subsection (1)(b) or the child's participation in it".
Those two lines make it almost unbelievable that a former sexual offender who was giving advice to a child, even under any of the proposed exemptions, could get away with such a defence. Those two lines would protect the child from any untoward activity.
Baroness Howarth of Breckland: My Lords, I would support the noble Baroness, Lady Blatch, were it not for the fact that my understanding—I am sure that the

695
noble Baroness, Lady Scotland, will clarify this point—is that any Schedule 1 offender would not be allowed to work with children, and that by giving such advice he would actually be committing an offence under employment regulations. Therefore, the amendment is not necessary, because it is simply not allowed.
5 p.m.
Baroness Scotland of Asthal: My Lords, I respectfully agree in relation to those matters. I thank the noble Baroness, Lady Blatch, for her warm compliments.
The purpose of Amendments Nos. 17, 81 and 85 is to ensure that the exception that we have introduced to protect those acting to protect the physical safety of the child, or to protect him or her from pregnancy or sexually transmitted infection, shall not apply if the accused is a registered sex offender or the subject of an order designed to prevent sexual harm.
We know why the noble Baroness is so concerned about that, and this is a matter that should exercise attention. There is no dispute between us as to the import of the concern that the noble Baroness has set out. None of us wants the exception to provide a loophole for abuse. We have drafted it carefully so as to avoid that possibility.
Although the noble Baroness, Lady Blatch, has fashioned her amendment and expressed it slightly differently, it is very similar to one that she proposed on Report. to exclude from it those who were once, but are no longer, subject to registration requirements or to an order designed to prevent sexual harm. I still do not believe that the amendments proposed are the right way of ensuring protection for the child.
First, they focus on a class of individuals defined by what they have done previously rather than on the purpose for which an individual is acting in a given situation with a real child. Secondly, the class of individuals would include those who have committed sexual offences that did not in any way involve a child. It is not a prerequisite for registration or for any of the orders, save the foreign travel order, that the subject must have a conviction for a child sex offence.
It is better for the court to deal with the particular circumstances before it and, where it is raised as an issue, take a view based on the available evidence of whether the defendant was acting to protect a child, or was rather acting so as to cause or encourage a sexual offence involving a child.
The noble Baroness, Lady Howarth, was right in the comments she made about the exception, but I think that the noble Baroness was talking about those cases where the individual was in employment. In that regard, she is absolutely right. The noble Baroness, Lady Blatch, may be concerned about persons giving advice to a child on their own. That is why I will address my comments to that end.
Provisions in the Criminal Justice Bill that was introduced here yesterday are also relevant to this issue. If someone previously convicted of sexual offences against a child were charged with a new sexual
696
offence involving a child, it would not, under existing law, generally be possible 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 wider range of circumstances. Therefore the court, when considering whether the exception applies, would be able to consider this matter, where relevant, taking into account those previous convictions.
We have taken great care in the drafting of the exception not to open a loophole for abuse, and we believe that we have successfully done this. However, we are certainly not complacent. It may be sensible to exclude from the scope of the exception those who do not go so far as causing or encouraging a sex offence involving a child, but who may derive sexual gratification from simply talking to a child about sexual matters.
In some cases, this may be difficult to prove, but there may be other cases in which evidence as to this motive is available. We will actively be considering in another place whether the exception should be broadened to exclude those who act for sexual gratification.
I do not believe that the amendments tabled are the most appropriate way of addressing this issue and I must, therefore, resist them. I invite the noble Baroness to withdraw the amendment.
Baroness Blatch: My Lords, the noble Baroness, Lady Scotland of Asthal, was right about what the noble Baroness, Lady Howarth of Breckland, said. It covers lots of people who do not have a formal job such as teaching or social work. All sorts of other people can claim to be educating a child, especially if we go down the road indicated by the next group of amendments. They could be addressing the child's emotional well-being, confusion about sexuality or whatever. It is much wider than that.
I am deeply depressed by the response to the amendment, except for that of my noble friend Lord Lucas, who gave his support. It defies belief that somebody on a sex offending register could he allowed a defence by simply claiming to be dealing with a child's emotional well-being or with the education of a child, even in a one-to-one relationship.
In education, one need only think of Connexions. Surprisingly, even the parents of young people below the age of 16 are not allowed to know what the relationship is between an adult mentor and their child. They are not allowed to know who the mentor is or even to know that the child has a mentor. As it is couched, the law allows the mentor to get up close and personal to a young person, without the parents knowing anything about it. It is probable that such people could be engaged in dealing with drugs. sex and sexuality. In that situation, young people would be very exposed, if somebody got into the Connexions field. I have done a little detective work on how people become mentors. Given the number of mentors being employed, it will not be long before a paedophile is

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engaged as a Connexions mentor. It would be interesting to know where culpability would lie in that situation.
I am deeply depressed by the response, and I seek the opinion of the House.
5.8 p.m.
On Question, Whether the said amendment (No. 17) shall be agreed to?
Their Lordships divided: Contents, 72; Not-Contents, 192.

Division No. 2

CONTENTS

Alton of Liverpool. L.

Knight of Collingtree, B

Ashcroft, L.

Lang of Monkton, L.

Astor of Hever. L.

Lawson of Blaby, L.

Blackburn, Bp.

Lucas, L.

Blatch, B. [Teller]

Luke, L.

Bridgeman. V.

Lyell, L.

Brooke of Sutton Mandeville. L.

Marlesford, L.

Buscombe. B.

Masham of Ilton, B.

Carlisle of Buck low, L.

Mayhew of Twysden, L.

CarnegyofLour. B.

Miller of Hendon, B. [Teller]

Colwyn, L.

Noakes, B.

Cope of Berkeley, L.

Norton of Louth, L.

Denham, L.

O'Cathain, B.

Dixon-Smith, L.

O'Neill of Bengarve, B.

Elton, L.

Onslow, E.

Fookes, B.

Park of Monmouth, B.

Fowler, L.

Pilkington of Oxenford, L.

Freyberg, L.

Powell of Bayswater, L.

Gardner of Parkes. B.

Rees, L.

Geddes, L.

Renton. L.

Goschen, V.

Roberts of Conwy. L.

Gray of Contin, L.

Rogan, L.

Greenway, L.

St John of Fawsley, L.

Seccombe, B.

Griffiths of Fforestfach, L

Selsdon, L.

Hanham, B.

Shaw of Northstead, L.

Harris of Peckham, L.

Skelmersdale, L.

Hayhoe, L.

Skidelsky, L.

Howe, E.

Stewartby, L.

Howeof Aberavon, L.

Stoddart of Swindon, L.

Howell of Guildford, L.

Strathclyde, L.

Hunt of Wirral, L.

Tebbit, L.

Hylton, L.

Thomas of Gwydir, L.

Jopling, L.

Ullswater. V.

Kimball, L.

Waddington, L.

NOT-CONTENTS

Acton, L.

Clinton-Davis, L.

Addinglon. L.

Cohen of Pimlico, B.

Ahmed, L.

Corbett of Castle Vale, L.

Alii, L.

Crawley, B.

Amos, B.

David, B.

Andrews, B.

Davies of Coity, L.

Archer of Sandwell, L.

Davies of Oldham, L. [Teller]

Ashton of Upholland. B.

Desai, L.

Avebury, L.

Dixon, L.

Barker. B.

Donoughue, L.

Barnett, L.

Dormand of Easigton, L.

Bassam of Brighton, L.

Dubs, L.

Berkeley, L.

Elder, L.

Blackstone, B.

Evans of Parkside, L.

Borrie, L.

Evans of Temple Guiting, L.

Bragg, L.

Falconer of Thoroton, L.

Brennan, L.

Falkland, V.

Brooke of Alverthorpe, L.

Farrington of Ribbleton, B.

Brookman, L.

Faulkner of Worcester, L.

Brooks of Tremorfa, L.

Filkin, L.

Burlison, L.

Gale. B.

Campbell-Savours, L.

Gibson of Market Rasen, B.

Carter. L.

Golding, B.

Chan, L.

Goldsmith, L.

Christopher. L.

Goodhart, L.

728

Gordon of Strathblane, L,

Paul, L.

Goudie, B.

Pendry, L.

Gould of Potternewton, B.

Perry of Walton, L.

Greengross, B.

Peston, L.

Grocott, L.[Teller]

Phillips of Sudbury, L.

Hamwee, B.

Pitkeathley, B.

Hardy of Wath, L.

Ponsonby of Shulbrede, L.

Harris of Haringey, L.

Prys-Davies, L.

Harris of Richmond, B.

Ramsay of Cartvale, B.

Harrison, L.

Redesdale, L.

Haskel, L.

Rendell of Babergh, B.

Haskins, L.

Rennard, L.

Hayman, B.

Richard, L.

Hilton of Eggardon, B.

Rodgers of Quarry Bank, L

Holme of Cheltenham, L.

Rooker, L.

Howells of St. Davids, B.

Roper, L.

Hoyle, L.

Russell-Johnston, L.

Hughes of Woodside, L.

Sawyer, L.

Hunt of Kings Heath, L.

Scotland of Asthal, B.

Janner of Braunstone, L.

Sharp of Guildford, B.

Jay of Paddington, B.

Shutt of Greetland, L.

Jones, L.

Simon, V.

King of West Bromwich, L.

Smith of Clifton, L.

Kirkhill, L.

Smith of Leigh, L.

Lea of Crondall, L.

Stallard, L.

Lester of Herne Hill, L.

Stone of Blackheath, L.

Levy, L.

Symons of VernhamDean, B.

Lipsey, L.

Taylor of Blackburn, L.

Livsey of Talgarth, L.

Temple-Morris, L.

Lockwood, B.

Thomas of Gresford, L.

Lofthouse of Pontefract, L.

Thomas of Wallis wood. B.

McCarthy, L.

Thornton, B.

Macdonald of Tradeston, L.

Tordoff, L.

Mclntosh of Haringey, L.

Turnberg, L.

Mackenzie of Framwellgate, L.

Turner of Camden, B.

Mackie of Benshie, L.

Walker of Doncaster, L

Maclennan of Rogart, L.

Wallace of Saltaire, L.

Maddock, B.

Walmsley, B.

MarandKellie, E.

Walpole, L.

Massey of Darwen, B.

Warner, L.

Mitchell, L.

Warwick of Undercliffe. B.

Monson, L.

Wedderburn of Charlton, L.

Morris of Aberavon, L.

Whitaker, B.

Newby, L.

Whitty, L.

Nicol, B.

Wigoder, L.

Northover, B.

Wilkins, B.

Oakeshott of Seagrove Bay, L.

Williams of Mostyn, L. (Lord Privy Seat)

Orme, L.

Parekh, L.

Williamson of Horton, L.

Patel of Blackburn, L.

Woolmer of Leeds, L.

On Question, amendment agreed to.

Resolved in the negative, and amendment disagreed to accordingly.
5.20 p.m.
Baroness Walmsleymoved Amendment No. 18:
Page 6, line 31, at end insert "(including but not limited to)"
The noble Baroness said: My Lords, in moving Amendment No. 18, I shall speak also to Amendments Nos. 21 and 22 and the rest of the amendments in this group. I welcome government Amendments Nos. 19, 20, 83 and 84. They go a long way towards achieving what we want. Therefore, I shall not press my amendments.
There is clearly a great need for advice about the emotional side of sexual relations and the pressures that young people feel about them. Agony aunts in teenage magazines, counsellors at the end of a telephone helpline, teachers and other youth workers provide services which are highly valued by young people. A question poll on the CosmoGIRL website a few days ago produced the following results. The question was: "If you have a question about sex who would you turn to?". The result was that 3 per cent responded that they would turn to a doctor or Brook Centre; 79 per cent responded that they would turn to a magazine agony aunt; and 18 per cent responded that they would turn to their parents.
I should like to quote from two of many letters received by these magazines. Thanking a magazine for printing an article about a teenage mother, one girl wrote:
"Thanks a lot for printing [the article]. I showed it to my friend who had recently been pressurised into having unprotected sex with her boyfriend. She has now broken up with him after she had the strength to say no. I was so thankful after reading this article. I am so proud of her".
That letter was written by a 15 year-old.
The second letter said:
"Dear Bliss
I am writing to tell you how much I love your magazine. I am really shy and always feel embarrassed when my friends talk about sex and use slang words because I don't know what they mean.
Please print my letter and tell me what oral sex is (but please don't print my name)".
That was written by a 14 year-old.
Those letters speak for themselves. Parents and doctors are highly desirable as confidants for young people but, for many reasons of their own, young people do not always choose to use them as such. I should therefore like to take the opportunity of making three brief points. First, this is the first time that the law has attempted to make talking to children a criminal offence. There have been several references to the Gillick case during the course of this Bill. The Gillick case was not about advice, it was about
700
treatment—in other words, physical touching which, without proper consent, could be held in law to be an assault.
Under Article 10 of the Human Rights Act, children have a right to,
"receive and impart information and ideas without interference by public authority".
While it is difficult to think what advice and information might not now be covered by the exemptions of Clause 15 as, it is to be hoped, amended today, if a prosecution or a civil action was ever launched about, say, a certain style of sex education, the Government should acknowledge that Article 10 overrides the narrow prescriptiveness of this clause.
Secondly, to make a more general point, the clause demonstrates the Bill's obsessive tunnel vision on child abuse which fails to take in the wider picture of normal adolescent behaviour and ordinary society. For the sake of prosecuting an adult for talking in an inappropriate way to a minor—just talking, not grooming or inciting or touching, which are all separate offences already—the Government were, until this late stage, happy to jeopardise the work of hundreds of thousands of counsellors, advisers, teachers and parents who are all making the difficult process of growing up easier for our children.
Frankly, it beggars belief that anyone will now be prosecuted by the police under this clause. What was far more likely before the Government came around to the point of view expressed by these Benches and others—and could still just happen—was that one of the so-called "family" organisations would have tried to launch a civil action—a Gillick rematch, as it were. Do the Government really want this? I hope that today we shall do enough to avoid that.
Finally, the Government's amendment still remains a hostage to fortune because it is so prescriptively framed. For example, subsection (3)(c) permits assistance which prevents a child becoming pregnant. It assumes that the "child" in question is a girl under 16 years-old. Suppose, as is not unheard of, the "child" is a boy under 16 who is seeking contraceptive advice because he is having sex with an older girl. Strictly speaking no one could help him with his problem because his girlfriend is not a child who is in danger of pregnancy. I am afraid that the clause was written so prescriptively because the Government were paranoid about not allowing "loopholes" for child abusers, although in practice such possible loopholes can be found wherever one looks. Just because a child abuser might try to use a loophole does not mean that he will escape prosecution. Surely it would have been much wiser to have accepted our earlier suggestions which made a general, commonsense declaration that advice and assistance which was in the child's best interests would not be an offence.
However, I do not wish to appear ungracious. I welcome the Government's amendments. I shall be supporting them. As I said, I shall not press my

701
amendments, but I look forward to hearing the Minister's assurances to those bona fide people who help young people. I beg to move.
Baroness Noakes: My Lords, my name is added to the amendments tabled by the noble Baroness, Lady Walmsley, but I am happy to support the amendments tabled by the Government. I should like to say how pleased I am that the Government have listened and responded on this difficult area.
Baroness Jay of Paddington: My Lords, I, too, should like to say how much I welcome Amendments Nos. 19 and 20 tabled in the name of the noble Baroness, Lady Scotland. We have come a long way in this discussion during the course of the Bill, as the noble Baroness, Lady Walmsley, said on her previous group of amendments. It is very welcome that the phrase, "emotional well-being" is also in the Bill as well as the more practical parts of clinical and other professional advice which were added in a government amendment at an earlier stage. I welcome this group of government amendments.
Lord Northbourne: My Lords, I, too, welcome the amendments. But I wondered why only "emotional well-being". Is not physical well-being also important? It is not entirely covered by the others, if I may say so. Perhaps I should leave it at that.
Baroness Howarth of Breckland: My Lords, while I prefer the wording of the amendment moved by the noble Baroness, Lady Walmsley, I, too, am pleased to accept the alternative tabled by the noble Baroness, Lady Scotland. On behalf of the counsellors of Child Line, who felt themselves to be somewhat at risk from the previous position, I am immensely grateful.
However, perhaps I may add a couple of comments. I listened very carefully to what the noble Baroness, Lady Blatch, said about paedophile charters. While I think that the Criminal Justice Bill and other measures will help close any gap, it is crucial that guidance ensures that anyone giving this kind of advice is supervised or works in an organisation where he or she is monitored. That may go some way to meeting the concerns which the noble Baroness, Lady Blatch, rightly puts before the House. It is extremely dangerous for people—just out of their own heads—to give advice to young people. That is not only because it can lead to dangerous behaviour, but also because it can be inappropriate and unhelpful. Therefore, I hope that the guidance will have appropriate caveats about organisations and supervision.
Lord Skelmersdale: My Lords, we seem to have a choice between the formulation of the amendment tabled by the noble Baroness, Lady Walmsley, and the government amendment on page 6, line 34 of the Bill. I should like to say to the noble Baroness, Lady Walmsley, that her amendment is essentially negative, while the government amendment is essentially positive. I prefer the positive approach.
5.30 p.m.
Baroness Blatch: My Lords, as I said earlier, there is a read across between these amendments and those that I lost a moment ago. The Bill, as amended, would allow those on the sex offenders register alleged to have facilitated a sexual act to use the defence of addressing the emotional well-being of or simply educating a young person. In view of the fact that someone on the sex offenders register could be involved in that kind of work, I find this group of amendments deeply distressing.
The noble Baroness, Lady Howarth, helpfully referred to monitoring. One could include monitoring in training. However, we are talking about situations in which young people may be in one-to-one relationships well away from their parents, peers, school classrooms or youth clubs, which may lead to opportunistic activity. The noble Baroness, Lady Walmsley, will know that people take advantage of the moment at which young people display their anxieties about something. In those circumstances, the process of monitoring would be very difficult.
For the record, I should say that Mrs Gillick has been much maligned in the course of our debates on this Bill. The issue at stake for Mrs Gillick, whom I supported, related to the legal role and status of a parent of children under 16. My heart goes out to all parents who try very hard to bring up their children not to engage in under-age sex, to do the right thing, to live a healthy life and to have emotional well being, when someone comes along and legally undermines their roles as parents. That is what happened in the case of Victoria Gillick. She went to court to fight for the right of parents to be responsible and, if anything went wrong, culpable, for their own children; she lost. Perhaps some who have been active on this Bill would not be sorry about that. However, it is important to say for the record that the reason Victoria Gillick went to court was not as the noble Baroness, Lady Walmsley, described it.
Lord Lucas: My Lords, I have tabled an amendment in this group, which supports Amendment No. 18 in the name of the noble Baroness, Lady Walmsley.
When we discussed the previous group of amendments, the Minister, rejecting my noble friend's amendments, said that we should be comforted by our confidence in the ability of the courts to decide whether a particular person has acted in the interests of protecting a child or has sought to cause and encourage the commission of an offence. However, in the same clause, the Minister presents an exclusive list of the ways in which children may be protected, rather than relying on the courts to judge whether any particular set of actions constitutes protecting or encouraging the commission of an offence against a child. By going down the route of an exclusive list, we are in considerable danger of allowing the prosecution of someone acting in the interests of the child, and therefore protecting the child, but who does not come within the list of the proposed four subjects.

703
The fact that we are having a Third Reading of the Bill suggests that that is likely to be the case. We have stumbled on the fourth point and have rescued it just in time; the ball has been caught just before it has hit the ground. But what about the next ball, which we have not seen coming, about which we do not know, which has not been anticipated by the professions likely to be affected by it? Why not adopt the proposal in Amendment No. 18? We will have given the courts enough examples of the kinds of issues that we have in mind. We would merely be giving them a little additional discretion, which they would be able to use to ensure that the intention and reality counted rather than whether it fell within some fairly closely-worded provisions in an exclusive list in the Act.
I very much hope that, if not now, at a later stage the Government will feel able to support Amendment No. 18 and therefore my Amendment No. 82.
Baroness Scotland of Asthal: My Lords, I rise to speak to government Amendments Nos. 19, 20, 83 and 84. I shall resist Amendments Nos. 18, 21, 22 and 82.
I very much welcome the indication given by the noble Baroness, Lady Walmsley, that she does not propose to press her amendments. I also welcome the comments made by a number of noble Lords that they are content with the Government's amendments. The noble Lord, Lord Skelmersdale, went so far as to say that he preferred our amendments, for which I express appropriate gratitude. Had the noble Lord, Lord Lucas, not made his intervention, I should have been tempted to say no more about these amendments. However, for the record, I think I should. Compliments should be paid particularly to the noble Baronesses, Lady Walmsley, Lady Jay and Lady Noakes, for their stalwart pursuit of this issue. I can see that they were quite irresistible to the noble and learned Lord the Lord Chancellor—quite right, too.
It has been clear throughout the debate that competing views on these issues have been strongly and genuinely held. I believe that we all share the intention to protect children from sexual abuse but do not want to hinder the work of those who provide well-intentioned advice to children on sexual and emotional matters. I can reassure the noble Lord, Lord Northbourne, that physical well being is included in the proposed measures. Provision is made in Clause 15(3)(b) for protecting the physical safety of the child. I hope that he is a little reassured about that matter.
Lord Northbourne: My Lords, I had noticed that. However, it seemed to me that it could be said that physical safety is different from physical well-being.
Baroness Scotland of Asthal: My Lords, well-being could include emotional well-being. Physical well-being, of course, also includes physical safety. I believe that the provisions are sufficient to meet the concerns justly expressed by the noble Lord, Lord Northbourne.
704
The agony aunts should be well pleased with the way in which they have been robustly defended by the noble Baroness, Lady Walmsley. I was also very pleased that the noble Baroness, Lady Howarth, spoke for those who do valiant work with Childline. It is therefore important to get right the scope of the exceptions in Clauses 15 and 74, which seek to ensure that those giving such advice for one of the purposes stated should not commit an offence. I do not believe that the noble Baroness, Lady Blatch, intends them to do so.
I say to the noble Lord, Lord Lucas, that there is a distinction between the comments that I made when dealing with the evidential burden and the presumptions with which the courts will have to deal, which directly involve the exercise of the judicial function during a trial, and setting the framework within which we shall all need to work.
We have listened very carefully to the views expressed in the debates on this issue and have concluded that we should extend the exception to cover those who act to promote the child's emotional well being by the giving of advice. The government amendments, Amendments Nos. 19, 20, 83 and 84, do that. The limiting of that new purpose to the giving of advice would help to ensure that the exception could not be exploited by abusers. I have heard what the noble Baroness, Lady Walmsley, said about that. However, it is critically important that we err on the side of caution, because the consequences for children are too dire for us to make a slip.
The second protection is the requirement, already in the clauses, that the provisions should not cover those acting for the purpose of causing or encouraging the involvement of a child in a sexual offence. We are confident that that means that the clause could not be exploited by abusers. I therefore invite all noble Lords to support the Government's Amendments Nos. 19, 20, 83 and 84.
I turn now to the other amendments in this group. Amendment No. 21 proposes a slightly different wording:
"protecting the child from emotional harm".
Although the thinking behind it is the same as in the government amendments, the latter encompasses within its scope a broader range of advice—that which actively promotes well-being rather than the more restricted "preventing harm". The wording in the government amendment will properly include the broader range of advice that is given by agony aunts and others whom the exception is designed to protect, as the noble Lord so succinctly said.
Amendment No. 18 proposes that the exception should be amended to include the words,
"including but not limited to",
to precede paragraphs (a) to (c) in Clause 15(3). Amendment No. 82 makes an identical proposal with respect to Clause 74. That would mean that those acting for purposes other than those specified would be covered by the exception. Although the other purposes would probably still be qualified by the term that they are defining—namely, acting for the

705
protection of the child—it is certainly not desirable to have such an open-ended definition of the phrase, with the potential of exploitation that it would create. The wording of the amendment would create such a broad definition that it would weaken the protections that we have extremely carefully built into the clause. Therefore, I have to resist the temptation offered by the noble Lord, Lord Lucas.
Amendment No. 22 would specify that Clause 15,
"does not prohibit the provision of sex education or counselling services for children on sexual behaviour and associated risks".
We believe that is simply unnecessary, and that those matters are already covered when they are for one of the purposes of Clause 15(3)(a) to (c) and, now, of promoting the child's emotional well-being by giving advice. No one has referred to Amendment No. 22, so unless noble Lords feel that for the record I should address those issues, I do not propose to do so.
I hope and trust that the noble Baroness, Lady Walmsley, and others are pleased with their work and will therefore feel able to support the Government whole-heartedly when I come to move the related amendments.
Baroness Walmsley: My Lords, I thank the Minister for her comments. I regard Amendment No. 22 as simply a belt and braces amendment.
I thank those noble Lords who spoke in the debate, especially the noble Lord, Lord Lucas, who supported my contention that an illustrative list was better than being too prescriptive. I cite in defence my suggestion about a younger boy and an older girl, who would not be protected or be able to be given any advice under the wording of the government amendments.
Like the noble Lord, Lord Skelmersdale, I prefer a positive rather than a negative approach. In this case, I have every intention of being positive. I am not looking a gift horse in the mouth—I am most grateful to the Minister for her amendments.
I would like to say to the noble Baroness, Lady Blatch, that I very much recognise that Mrs Gillick had the best of intentions. I shall make no more comment on that matter. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Baroness Scotland of Asthalmoved Amendments Nos. 19 and 20:
Page 6, line 33, leave out "or"
Page 6, line 34, at end insert "or
(d) promoting the child's emotional well-being by the giving of advice,"
On Question, amendments agreed to.
[Amendments Nos. 21 and 22 not moved.]
5.45 p.m.
Clause 17 [Meeting a child following sexual grooming etc.]:
Lord Astor of Hevermoved Amendment No. 23:
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Page 7, line 20, leave out paragraphs (c) and (d) and insert ", and (c) subsection (1B) applies."
The noble Lord said: My Lords, I shall speak also to Amendment No. 24. The amendments highlight an issue that I raised both in Committee and on Report. I would like to outline why I feel that it is important to extend Clause 17 on grooming to cover those who cannot consent due to a mental disorder or learning disability and why I feel the Government's arguments against widening the clause in that way are not watertight.
First, in considering again the reasons to include this particular category of vulnerable person in Clause 17, I would like to quote the very pertinent point made by the noble Baroness, Lady Howarth, in Committee. She said that,
"particularly in schools and in special schools, young people, including young people with learning disabilities, are being encouraged to learn how to use computers. Using computers gives them greater confidence and they are often able to use those skills to enhance their quality of life, which otherwise would be even less. That puts them into the same category as others who are vulnerable because they have that access".—[Official Report, 1/4/03; col. 1265.]
Those comments make it clear that people with mental disorders and learning disabilities, like children, may be unable to consent to sexual activity but may be encouraged to use computers. The House has already been told of the practices of those who deliberately seek out for exploitation and eventual abuse vulnerable categories of people who cannot consent to sexual activity
It has been suggested that these amendments would restrict the ability of those with a mental disorder or learning disability from having a normal and healthy preliminary sexual relationship. I do not believe that is the case. The clause is about catching those who prey on vulnerable people who cannot consent. The offence is committed only if the person in question could reasonably be expected to know that B could not consent due to a mental disorder or learning disability. I have discussed the matter at some length with the Metropolitan Police, specifically with those who deal with grooming on the Internet, and they say that they can tell easily enough what is exploitative and predatory grooming behaviour and what is harmless conversational friendship.
A further point made to me on Report by the noble and learned Lord, Lord Falconer, who was then the Minister, was that the later clauses, which introduced the use of inducements, threats or deception to take account of the various ways that mentally impaired people can be pressurised into having sex, could deal with the problems my amendments would tackle. However, why should we wait until an offence has been committed? With children, we have a new clause that allows us to step in before an offence is committed. Why should those who cannot consent but are equally vulnerable because they have a mental disorder or learning disability be offered any less protection by the law? That would seem to be a failure to safeguard the welfare of those who may be most open to exploitation and grooming on the Internet.

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It is wrong to wait until vulnerable people have been harmed before putting an offence in place. There is potential for grooming to take place; that should be sufficient to merit the broadening of the offence. I beg to move.
Baroness Walmsley: My Lords, I support the noble Lord, Lord Astor of Hever. As he clearly said, it cannot be right to wait until harm has been done to people who, although they are not children, are perhaps childlike in their capacity to make judgments and give appropriate consent to unwarranted behaviour.
Baroness Howarth of Breckland: My Lords, I also support the amendment. The noble Lord has already made my speech, so I shall not make it again.
Baroness Scotland of Asthal: My Lords, I should say how well the noble Lord expressed his concerns on this matter. The Government have carefully considered the appropriate response.
The amendments, tabled in the names of the noble Baroness, Lady Noakes, the noble Lord, Lord Astor, and the noble Baroness, Lady Walmsley, would extend the offence in Clause 17 to protect those with a mental disorder who lack the capacity to consent from preparatory, grooming-type activity by those who intend to commit a sexual offence against them. They are effectively virtually the same amendments as were introduced on Report.
The key issue is whether the amendment would be effective and proportionate in better protecting from abuse those who lack the capacity to consent because of mental disorder or disability. We understand the anxiety and fear over that matter. However, it is necessary to consider the effectiveness and consider whether there is any empirical evidence or data to cause us to move on the issue. We have seen no evidence that the proposal responds to a real need that has been demonstrated. That was not the case in relation to the application of the offence to child victims, the need for which was amply demonstrated by real cases. We are anxious about extending an offence which was a specific response to a danger posed to children to adults who, by virtue of a mental disorder or learning disability, lack the capacity to consent. Such adults may be very vulnerable to abuse, but they are not children and their needs are different. Clauses 32 to 46 were specifically designed with those needs in mind, and when we considered the measure, following my noble friend Lord Falconer of Thoroton's undertaking to do so at Committee, we could find no evidence that this measure was needed.
Turning to whether it is a proportionate response, we do not believe it can be, in view of the lack of evidence that it is needed. We do not believe that it is suited to the particular risks posed to those with a mental disorder or learning disability who lack the capacity to consent. In this Bill we are conscious of the balance we must maintain at all times between protection and individual rights. Without persuasive evidence that there is actually a need to extend a
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measure designed to protect children in particular situations of known risk to protect adults in situations in which no risk is known to exist, we do not believe doing so can be justified.
On a personal note, having been involved in a number of cases which dealt with adults suffering from mental incapacity, I can say that there is a real issue because many adults in such situations feel very passionately that they should not be treated as children, that they are often under-estimated. They are able to form relationships on a consensual basis which others find difficult to accept. We are dealing with very sensitive and delicate area and I assure noble Lords that if there were evidence that would have pushed us to take a different course, we would have looked at that very seriously indeed.
Therefore, to summarise, I believe that the measures contained in Clauses 32 to 46 have been designed on the basis of what we know is needed to provide justice and protection for those with a mental disorder or a learning disability who are subjected to sexual abuse. Clause 17 was designed to deal with a quite separate problem affecting children, and there is no comparable evidence that it should be extended in the way proposed. I must therefore resist these amendments. I do understand the anxiety about this issue but I say to noble Lords that it is an issue that will be looked at in the years to come and will be kept in mind.
Lord Astor of Hever: My Lords, I thank the noble Baroness, Lady Walmsley, and the noble Baroness, Lady Howarth of Breckland, for their support. I was disappointed in the Minister's response; she again used evidence as a reason for not accepting this amendment. The noble Baroness, Lady Walmsley, is correct that it cannot be right to wait until harm has been done. I agree with the Minister that we are dealing with a very sensitive area here. I take heart that she said that this will be looked at closely in years to come. In the light of that, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 24 and 25 not moved.]
Clause 18 [Abuse of position of trust: sexual activity with a child]:
Baroness Scotland of Asthalmoved Amendment No. 26:
Page 8, line 6, leave out from "B," to end of line 19 and insert—
"(Ca) where subsection (1A) applies, A knows or could reasonably be expected to know of the circumstances by virtue of which he is in a position of trust in relation to B, and
(cb) either—

(i) B is under 18 and A does not reasonably believe that B is 18 or over, or

(ii) B is under 13.

(1A) This subsection applies where A—

(a) is in a position of trust in relation to B by virtue of circumstances within section 23(2), (3), (4) or (5), and

(b) is not in such a position of trust by virtue of other circumstances.

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(1B) Where in proceedings for an offence under this section it is proved that the other person was under 18, the defendant is to be taken not to have reasonably believed that that person was 18 or over unless sufficient evidence is adduced to raise an issue as to whether he reasonably believed it.
(1C) Where in proceedings for an offence under this section—

(a) it is proved that the defendant was in a position of trust in relation to the other person by virtue of circumstances within section 23(2), (3), (4) or (5), and

(b) it is not proved that he was in such a position of trust by virtue of other circumstances,

it is to be taken that the defendant knew or could reasonably have been expected to know of the circumstances by virtue of which he was in such a position of trust unless sufficient evidence is adduced to raise an issue as to whether he knew or could reasonably have been expected to know of those circumstances."
The noble Baroness said: My Lords, I shall speak to a large group of amendments. Various Members of the House have taken issue with the way in which the drafting of certain clauses in the Bill shifts the burden of proof from the prosecution to the defendant and back again to the prosecution. Apart from concerns that have been raised as to whether reverse persuasive burdens are ECHR compatible, this shifting of burdens has been criticised as unduly complicated and confusing for juries.
We are still of the opinion that it is not unfair to expect a defendant to explain to the jury why he was mistaken about facts that were particularly within his sphere of knowledge, for example that he did not know that he was in a position of trust, or in a familial relationship with someone, that he did not know that someone he was caring for had a mental disorder or learning disability, or that he was mistaken about the age of a child to whom he is related or with whom he is in a close, caring relationship. Nevertheless, in response to the concerns that have been raised, we have decided to table a series of amendments in relation to the abuse of trust offences, the familial child sex offences, the sex with an adult relative offences and the care worker offences, so that the burden of proof rests with the prosecution throughout.
However, the prosecution will be assisted by a presumption in each case, so that the defendant's mental element in relation to the child's age, the nature of the relationship or the other person's mental disorder or learning disability will be taken to have been made out unless the defendant raises an issue as to these matters in evidence.
For example, Amendment No. 26 amends Clause 18 (Abuse of position of trust: sexual activity with a child) so that the prosecution is required to prove all of the facts of the case, namely that a relevant sexual act took place between the defendant and a child under 18 with whom he was in a position of trust, and that for the positions of trust arising in an institution, the defendant knows or could reasonably be expected to know of that position of trust, and that (where the child is 13 or over) the defendant did not reasonably believe that he was 18 or over. Where the defendant claims to have reasonably believed that the child was aged 18 or over, and adduces sufficient evidence to
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persuade the judge that he has raised an issue as to this claim, the prosecution is required to prove that he did not have any reasonable belief.
The effect of our amendment is that, first, the persuasive burden placed on the defendant in relation to his state of mind concerning such issues in the previous draft of the Bill has been removed, and secondly the burden of proof rests with the prosecution, although they are assisted in this by a presumption which places an evidential burden on the defence. The burden no longer shifts from the defence and back to the prosecution in respect of two different elements of the same defence. Rather there is a new element of the offence to be proved by the prosecution. This simplifies the clause.
Amendments Nos. 27, 28 and 29 make the same changes in relation to the other abuse of position of trust offences at Clauses 19, 20 and 21. Amendments Nos. 39 and 40 make similar amendments in relation to the familial child sex offences, in those cases where the defendant claims to have believed that the child was 18 or over, or that he did not know that a familial relationship existed between them. Amendments Nos. 78 and 80 make the same amendments in the clauses relating to the sex with an adult relative offences, in relation to lack of knowledge of the familial relationship. Amendments Nos. 58 to 65 have the same effect in relation to the care worker offences at Clauses 40 to 43.
We believe that these amendments address the concerns that have been raised about the rebuttal presumptions.
I understand that the noble Lord, Lord Lucas, intends to degroup his amendment and therefore I will deal with my response to that amendment when we come to it. I beg to move.
Lord Thomas of Gresford: My Lords, this has been my particular hobbyhorse from the very beginning, at Second Reading, in Committee and on Report. I was concerned with two things: first, whether the presumptions as originally drafted could possibility satisfy the requirements of the European Convention on Human Rights. I was of the view that as the earlier part of the Bill had presumptions which were inevitably fatal, there was an argument here. My other concern was that it was almost impossible to explain clearly to a jury how a persuasive burden could shift from the prosecution to the defence and then back to the prosecution, involving different standards of proof: proof beyond reasonable doubt when the prosecution was concerned, proof on a balance of probabilities when the defendant had to prove something. It was impossible.
Like many noble Lords today, I pay tribute to the noble and learned Lord the Lord Chancellor and to his excellent team. I paid tribute to them on an earlier occasion. They have all worked hard on the Bill and have brought forward a sensible and practical way of dealing with the issues and with the policy that the Government wish to carry forward in this area. I commend the amendments that we are discussing.
6 p.m.
Baroness Noakes: My Lords, I associate myself with the remarks of the noble Lord, Lord Thomas of Gresford. I pay tribute to the hard work that he has done throughout the Bill to produce formulations that might satisfy the Government as regards finding a simpler and better way forward.
Baroness Scotland of Asthal: My Lords, I, too, pay tribute to the enormous contribution that the noble Lord has made. He has contributed to this and to other Bills. I am sure that he will also contribute to a Bill with which we shall deal shortly.
On Question, amendment agreed to.
Clause 19 [Abuse of position of trust: causing or inciting a child to engage in sexual activity]:
Baroness Scotland of Asthalmoved Amendment No. 27:
Page 8, line 31, leave out from "B," to end of line 44 and insert—
"(ca) where subsection (1A) applies, A knows or could reasonably be expected to know of the circumstances by virtue of which he is in a position of trust in relation to B, and
(cb) either—

(i) B is under 18 and A does not reasonably believe that B is 18 or over, or

(ii) B is under 13.

(1A) This subsection applies where A—

(a) is in a position of trust in relation to B by virtue of circumstances within section 23(2), (3), (4) or (5), and

(b) is not in such a position of trust by virtue of other circumstances.

(1B) Where in proceedings for an offence under this section it is proved that the other person was under 18, the defendant is to he taken not to have reasonably believed that that person was 18 or over unless sufficient evidence is adduced to raise an issue as to whether he reasonably believed it.
(1C) Where in proceedings for an offence under this section—

(a) it is proved that the defendant was in a position of trust in relation to the other person by virtue of circumstances within section 23(2), (3), (4) or (5), and

(b) it is not proved that he was in such a position of trust by virtue of other circumstances,

it is to be taken that the defendant knew or could reasonably have been expected to know of the circumstances by virtue of which he was in such a position of trust unless sufficient evidence is adduced to raise an issue as to whether he knew or could reasonably have been expected to know of those circumstances."
On Question, amendment agreed to.
Clause 20 [Abuse of position of trust: sexual activity in the presence of a child]:
Baroness Scotland of Asthalmoved Amendment No. 28:
Page 9, line 13, leave out from "B," to end of line 26 and insert—
"(da) where subsection (1A) applies, A knows or could reasonably be expected to know of the circumstances by virtue of which he is in a position of trust in relation to B, and
(db) either—

(i) B is under 18 and A does not reasonably believe that B is 18 or over, or

(ii) B is under 13.

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(1A) This subsection applies where A—

(a) is in a position of trust in relation to B by virtue of circumstances within section 23(2), (3), (4) or (5), and

(b) is not in such a position of trust by virtue of other circumstances.

(1B) Where in proceedings for an offence under this section it is proved that the other person was under 18, the defendant is to be taken not to have reasonably believed that that person was 18 or over unless sufficient evidence is adduced to raise an issue as to whether he reasonably believed it.
(1C) Where in proceedings for an offence under this section—

(a) it is proved that the defendant was in a position of trust in relation to the other person by virtue of circumstances within section 23(2), (3), (4) or (5), and

(b) it is not proved that he was in such a position of trust by virtue of other circumstances,

it is to be taken that the defendant knew or could reasonably have been expected to know of the circumstances by virtue of which he was in such a position of trust unless sufficient evidence is adduced to raise an issue as to whether he knew or could reasonably have been expected to know of those circumstances."
On Question, amendment agreed to.
Clause 21 [Abuse of position of trust: causing a child to watch a sexual act]:
Baroness Scotland of Asthalmoved Amendment No. 29:
Page 9, line 39, leave out from 1113," to end of line 7 on page 10 and insert—
"(ca) where subsection (1A) applies, A knows or could reasonably be expected to know of the circumstances by virtue of which he is in a position of trust in relation to B, and
(cb) either—

(i) B is under 18 and A does not reasonably believe that B is 18 or over, or

(ii) B is under 13.

(1A) This subsection applies where A—

(a) is in a position of trust in relation to B by virtue of circumstances within section 23(2), (3), (4) or (5), and

(b) is not in such a position of trust by virtue of other circumstances.

(1B) Where in proceedings for an offence under this section it is proved that the other person was under 18, the defendant is to be taken not to have reasonably believed that that person was 18 or over unless sufficient evidence is adduced to raise an issue as to whether he reasonably believed it.
(1C) Where in proceedings for an offence under this section—

(a) it is proved that the defendant was in a position of trust in relation to the other person by virtue of circumstances within section 23(2), (3), (4) or (5), and

(b) it is not proved that he was in such a position of trust by virtue of other circumstances,

it is to be taken that the defendant knew or could reasonably have been expected to know of the circumstances by virtue of which he was in such a position of trust unless sufficient evidence is adduced to raise an issue as to whether he knew or could reasonably have been expected to know of those circumstances."
On Question, amendment agreed to.
Baroness Blatchmoved Amendment No. 30:
After Clause 23, insert the following new clause—
"POSITIONS OF TRUST: SPORTS COACHES
Within six months of the coming into force of section 23, the Secretary of State shall, by order under section 23(1)(b), specify conditions relating to sports coaches registered under the sports governing bodies coaching scheme and who, in that capacity, look after persons under 18."
The noble Baroness said: My Lords, in moving Amendment No. 30, I wish to speak also to Amendments Nos. 31, 32, 33 and 34.
Abuse of trust is an important offence and the Bill will extend it from its previous incarnation in the Sexual Offences (Amendment) Act 2000. The introductory print of the Bill included mentors and personal advisers in the offence. At Report stage the Government accepted my amendment to include part-time pupils as well as full-time pupils under the Bill's protection. The noble and learned Lord, Lord Falconer, said on 2nd June at col. 1150 of Hansard that he would table amendments for Third Reading to bring children's guardians and supervisors within the scope of the offence. Those amendments have not been forthcoming.
I spoke with officials at the Home Office on Friday who informed me that they were awaiting advice from lawyers at the Department of Health who were not available on that day. The noble and learned Lord gave his undertaking on 2nd June, so why was it that the Home Office waited until Friday 13th June to seek advice on these amendments? I informed the officials that I would be tabling my amendments on supervisors and guardians once more in order to obtain a firm assurance from the Government about when the matter would be dealt with in the Bill.
I have also retabled an amendment on sports coaches. The noble Lord, Lord Faulkner of Worcester, who is present, first addressed that issue very elegantly and, I believe, made a very good case. The noble and learned Lord, Lord Falconer, said that he would consider the arguments raised, as, indeed, they were very persuasive. When we returned to the matter at Report stage the noble and learned Lord, Lord Falconer, told the House that the Department for Culture, Media and Sport and the Department for Education and Science had,
"identified weaknesses in sports coaching and set up a coaching task force to examine corrective actions".—[Official Report, 2/6/ 03; col. 1152.]
So, in that case, there is a problem. The noble and learned Lord went on to tell the House about discussions on a possible licensing scheme which may take until 2007 to implement. The noble and learned Lord told us, also at col. 1152, that once the scheme comes in,
"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".
If the evidence is sufficient to lead to a removal of a licence and to the removal of someone from his post, it must be sufficient to constitute an offence under the law; it certainly should be if we are to protect young people. It is simply unbelievable to think that we have
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identified a position of trust where there is clearly scope for sexual coercion and the only protection that young people are offered is the possible threat of a coach losing his licence under a scheme that may or may not be introduced in four years' time.
The noble and learned Lord said that he would be happy to review the position and to consider using the order-making power attached to these offences to bring sports coaches within their scope. But I am unhappy about such a delay. There is an obvious problem here and it must be addressed now while we still have the Bill before us. My amendment would require the Secretary of State to use the order-making power to cover sports coaches within six months of the Act coming into force.
Youth and community workers are another obvious category where there is simply no excuse for leaving young people unprotected. Many thousands of parents commit their children to the care of youth workers for an evening a week, for the weekend, or for weeks away. Youth and community workers have great influence over those children. The idea that abuse of trust will not apply to a youth worker who uses his influence to obtain sexual gratification from those in his care is simply not acceptable.
At Report stage I cited the example of Michael Gregory in connection with a different amendment. Among other things, Mr Gregory ran a youth group in a church. He was convicted of indecently assaulting two girls. Had those girls been over 16, is it possible that he could have escaped conviction if it appeared that the activity was consensual? The abuse of trust offence would not apply.
I should add that I should have liked to address voluntary youth groups as an additional category to be covered by abuse of trust, but I realise that there is considerable overlap between voluntary groups and the definition of "youth and community workers". It is more difficult to devise a form of words which covers them with sufficient precision and, therefore, I have left them out of my amendment. None the less I hope that the noble Baroness will also consider using her order-making powers to address that area of concern.
Finally, I again seek for amendments to include ancillary staff within the abuse of trust offence. I am anxious that we do not pretend to ourselves that only those whose job descriptions require them to work directly with children are capable of abuse of trust. A caretaker is in a special position. We have only to remember the case of the young girls of Soham, Jessica and Holly.
A caretaker who lives in a school is unlikely to fall within Clause 23(5), which addresses education. To be caught he must look after,
"persons under 18 who are receiving education at an educational institution".
His job description will not include looking after children, but he is frequently around children and he is often alone with them at the school and in its grounds. Children view him as part of the establishment. They learn to trust the caretaker. He may be the first port of call for children whose parents have not turned up to

715
collect them at the end of the day. He may even regularly invite children into his home on the school premises. That is not an improbable situation. Anyone who knows anything about schools will know that a number of children hang around school premises after school hours. Certainly the more vulnerable children are more likely to do that, or children who come from care institutions. They become very friendly with caretakers and strike up relationships with them. To suggest that that does not happen or could not happen is to set our face against a reality.
All that contact with children at the school provides plenty of scope for abuse. The same is true for other ancillary staff in the institutions referred to in subsections (2) to (5) of Clause 23. Although technically they may not work with children, their presence in the institution and the confidence which other staff and children place in them may provide significant opportunities for abuse.
If we are truly to learn the lessons of the many child abuse scandals that have occurred, we must recognise that paedophiles work extremely hard to place themselves in all kinds of positions where they have contact with young people. If such a person obtains an ancillary job in a children's home or a school or a young offenders' institution simply in order to be around children and uses that position to manipulate a young person into having sex, he should be punished in the same way as a social worker, a probation officer or a teacher who commits the same offence. It is important that the Secretary of State considers very seriously how these categories of person can he properly brought within the offence.
Parents and families. especially children, should be protected from acts of sexual abuse committed by those who are officially in a position of trust and, in many cases, acting in loco parentis. I beg to move.
Lord Faulkner of Worcester: My Lords, the amendment is not very different from an amendment that I moved in Committee on sports coaches and positions of trust, or from the amendment moved by the noble Baroness on Report on the same subject. There is no disagreement at all about the issue of principle—that 16 year-old and 17 year-old athletes may need to be protected from the sexual advances of their sports coaches.
The relationship between those athletes and their coaches is very special. It can involve long periods away from home solely in the company of the coach. In a very real sense in those circumstances, the coach is in loco parentis. In other words, he is in exactly the position of trust that other parts of the Bill show that legislation needs to cover.
The amendment moved by the noble Baroness on Report was replied to at great length, in his previous existence, by my noble and learned friend the Lord Chancellor. I have re-read what he said. The noble Baroness quoted some of it, and did so very fairly. He said:
"I should he 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".
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He went on to say that the problem with that approach was that the licensing arrangements for the certificate would not be introduced until 2007. He asked what would happen in the meantime, and said:
"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".— [Official Report, 2/6/03; col. 1153.]
Is my noble friend able to say anything further about the earlier measures that the Government may be willing to bring forward if we are able to demonstrate to them that the issue of sports coaches requires immediate attention? I hope very much that the Government will be willing to take the point on board. If they do not feel it necessary to amend the Bill as the noble Baroness has proposed, we need an assurance that young athletes will be protected from the predatory advances of the unscrupulous sports coach.
Lord Thomas of Gresford: My Lords, I am very much in sympathy with the sentiments expressed on both sides. In fact, there was a reference in an amendment that I moved on Report to the position of sports coaches, as some noble Lords may recall. However, there is a downside to the issue. When my son was 15 or 16 years of age, I formed a youth rugby team in my local club. I became a qualified Welsh Rugby Union coach for adults as well as youngsters. For a number of years, I ran a youth side for those aged 16, 17 and 18.
I would not do that now because, under the Bill. I would be vulnerable to a false allegation put forward by anyone—if I dropped them from the team, for example. There is always that possibility. Although there is a great deal of sympathy for the ideas, such provisions would be a disincentive for people to come forward to assist in coaching at any stage.
Lord Northbourne: My Lords, I support the noble Lord, Lord Thomas of Gresford, in that line of thinking. In Committee, I referred at some length to the problems to which the Bill will lead in recruitment in the youth service and probably the education service as well. Although the department wrote me a letter— I think that some noble Lords had a copy of it--that stated that I was talking nonsense, I know that I could prove that I was right if I were given a few thousand pounds to do the research. My own inquiries have indicated that there is a groundswell of anxiety among those who work professionally and as volunteers in areas with children.
I want to take two minutes to approach the matter rather philosophically. I have thought a good deal about it. All the confusion arises from the fact that there is not one instinct that preserves the human race, but two. There is the instinct of sexual attraction, which produces the children and the misuse of which is, of course, the subject of the Bill. However, there is a second and extremely important instinct, which is to care for the nation's children—one's own children, one's grandchildren, and other people's children, for whom many people are prepared to care in loco

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parentis. The Bill does not even give a nod of acknowledgement to that second instinct, which is extremely important in the nurturing of the nation's children and the bringing up of the next generation.
The devil of the Bill, at least so far as it concerns the rather vague crime of sexual touching of children, is in the uncertainty. People who work with children—professionals, parents, grandparents or whoever—have the right to know that there is a balance in how the Bill will be administered. They need to know where the boundary lies between touching that is supportive and for the good of the child, and touching that is damaging and rightly proscribed by the Bill.
I was attracted to the amendments, particularly because they suggest that the Secretary of State should,
"specify conditions relating to ancillary and caretaking staff",
and to, "youth and community workers". That indicates that the Government might condescend to give some guidelines as to what they mean by sexual touching. If we follow Sigmund Freud, all touching is sexual. Exactly what are we proscribing? It certainly cannot be in the kind of touching. It is in the intent of the touching—in the brain of the toucher.
We have not thought carefully enough about what we are saying. The outcome to which the noble Lord, Lord Thomas, referred is one of the downsides that will arise from the Bill. I support the amendment and ask the Government to consider whether they would, in respect of all positions of trust, specify conditions so far as possible as to what they believe is proper and not proper for a person, as a sports coach or youth worker, to do.
6.15 p.m.
Baroness Scotland of Asthal: My Lords, we have had a very balanced debate in relation to the matter. The noble Lords, Lord Thomas of Gresford and Lord Northbourne, have raised some very important issues about trust, confidence and the need to make sure that we do not discourage people from right and proper involvement in the care of children that inures to their benefit.
The amendments would widen the scope of the offence of abuse of trust, which is primarily designed to protect young people aged 16 and 17 from being manipulated into unsustainable relationships by adults who hold a position of trust in their lives. We are dealing with a group of children who can involve themselves in consensual sexual activity if they so desire. My noble and learned friend Lord Falconer responded to all the amendments in detail on Report. The noble Baroness, Lady Blatch, and my noble friend Lord Faulkner of Worcester mentioned that.
On Amendments Nos. 33 and 34, which relate to persons appointed to supervise children or act as children's guardians under certain provisions of the Children Act 1989, I would like to apologise to the noble Baroness and to the House for the fact that the Government have not fulfilled our commitment to table amendments on Third Reading. It is still our firm intention to include the categories within the scope of
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the abuse of trust offences, but it has taken longer than anticipated to confirm legislative references and ensure that the amendments correctly identify the persons whom we wish to bring within the scope, both in England and Wales and in Northern Ireland.
I assure the noble Baroness that as soon as her amendments were tabled on the previous occasion, officials were in contact with their counterparts in the Department of Health and CAFCASS and continue to be so. She will know that the correct legislative references were not contained in her amendments. We have addressed that, and we want to address the matter carefully and fully. She referred to one bit of advice waiting from a legal counsel on 13th June, but that was not the only issue. I reassure her that the matter is being pursued energetically.
It is with some regret that we are unable to deal with it as fully today as we would have wished. We want to make sure that there are no other categories of person who hold a similar position in a child's life and who might as a result merit inclusion in the scope of these offences. This requires us to have detailed discussions with the Department of Health and the Children and Family Court Advisory Support Service. It would clearly make sense to table all such amendments together, and we intend to do this as soon as possible in Committee in the House of Commons.
I turn now to the position of the youth and community workers who are covered by Amendment No. 32. As my noble and learned friend the Lord Chancellor explained on Report, the decision on whether to include another category within the scope of these offences is based on how well the proposed category fits 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.
The basic guiding principles for inclusion are as follows. First, the young person is particularly vulnerable. For example, he or she may he in residential care or on probation in the community. Secondly, the location and/or lack of access to other adults, and the absence of countervailing influence, makes the young person particularly vulnerable. Thirdly, the special influence of the adult, namely that the adult acts in loco parentis, is relevant.
As we have already made clear, we do not believe that youth and community workers fall within these criteria. Although they are employed by local authorities, their role is to run centres or projects that 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.
Ancillary or caretaking staff in institutions and homes, addressed by Amendment No. 31, are already caught within the scope of these offences if they look after the child as defined in the Bill: that is, if they are regularly involved in caring for, training, supervising or being in sole charge of the child. The noble Baroness, Lady Blatch, has also tabled amendments about the use of the term "regularly involved in- in relation to these offences, and I will be speaking to those amendments shortly.

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However, I must make it clear that in our view there is no justification for including any categories of persons within the scope of these offences unless they are regularly involved in caring for a child. This is the level of involvement that we believe justifies inclusion, because it is only when a regular relationship exists that the adult can seek to take advantage of it for a sexual purpose. Unless the adult regularly looks after the child, he does not have the involvement or influence in the child's life necessary to establish a position of trust.
We are satisfied that the offences already cover ancillary and care workers in those situations in which they are able to abuse their position of trust.
Finally, I turn to the position of sports coaches and Amendment No. 34, which was moved on the last occasion by my noble friend Lord Faulkner of Worcester, and today by the noble Baroness, Lady Blatch. The noble and learned Lord, Lord Falconer, made it clear during his response to the same amendment tabled for Report that there is to be a consultation across the national governing bodies of sport to determine whether any action need be taken. It would be wrong for me to pre-empt the outcome of that consultation process by making any further comment at this stage.
Should the consultation process indicate that, contrary to the Government's present belief, sports coaches should be covered by these offences, this can be achieved by means of the order-making power included in Clause 23(1) which allows the Secretary of State to add further categories of those in a position of trust for the purpose of these offences.
For these reasons, I cannot accept these amendments. My noble friend Lord Faulkner of Worcester asked about further measures, and it is too early for me to comment more fully than I have already. However, we will keep him and other noble Lords fully informed on progress if they so desire.
Baroness Blatch: My Lords, I am grateful to the noble Baroness for her full reply. However, I am concerned about much of what the noble Baroness has said.
As regards sports coaches, it is extraordinary that we are going to take four years to put in place a very simple set of measures that was suggested by the noble Lord, Lord Faulkner of Worcester, and supported by the noble and learned Lord, Lord Falconer of Thoroton. Something could be done very quickly. It is extraordinary that no more reassuring comment can be made at this stage.
I am also concerned, on several counts, about my Amendments Nos. 33 and 34, which have in principle and in practice been accepted by the Government. First, the noble Baroness says that the information outstanding from the Department of Health was not the only piece of information lacking. However, on Friday afternoon, her officials said that they were only waiting for the Department of Health to respond, and that the department's legal officer was not in the office that day. I understood that when the legal officer was in the department, there would be a yes-or-no answer.
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That leads me to a serious point about the amendments. They have been accepted on the Floor of the House; they will be technically improved by the Government. I accept the word of the noble Baroness that the Government intend to return to the House with two amendments that seek precisely the protection which I seek for young people with guardian ad litem and supervisers to bring them within the scope of the Bill. However, there is a complete set of new Ministers at the Department of Health, and responsibilities for children are moving from that department to the Department for Education and Skills. Therefore, a whole new set of officials will he dealing with these issues. I would be most unhappy if, when the Bill returns to the House, those amendments have not been put forward in the House of Commons—in which case I will not be able to put an amendment or ask the opinion of the House, because at that stage I would not have an amendment on which to do so.
I ask the noble Baroness—not because I do not take her word—to accept my Amendments Nos. 33 and 34, knowing that they are imperfect, to be amended in the House of Commons. That would give me the mechanism to return to this matter, so that when the Bill returns to this House we can, I hope, all agree that they are acceptable and that they achieve what the noble and learned Lord, Lord Falconer, pledged to achieve. The noble Baroness echoed him today.
I have real difficulty with what the noble Baroness said about youth and community workers. If a mother sends her young children to a youth club regularly—let us say weekly—and then on a week's camp in the country, it is fanciful to imagine that there could be no relationship between that youth leader and those children. Of course there could. That mother does not send them to camp to be abused, but if the person supervising them there sexually abused that 16 or 17 year-old that would be legal. However. the Government say that there could not be a relationship because there was no regular contact, but that person has power over the young person. If you send your children away to camp, you do so in the knowledge that the people supervising them are in loco parentis and will act responsibly. If they do not, there really should be protection for the children themselves, which is of the most importance, but also some assurance to parents that they are sending their children away with the law in place to protect them. The noble Baroness completely rejected that point and I do not accept what she said about it.
In the previous vote that I called, the Government were clearly in favour of sexual offenders on a sexual register receiving a defence under the Bill. They were not prepared to consider bringing youth and community workers within the scope of the Bill, which is deeply unfortunate. However, I will not delay the House, because I know that I shall incur its wrath. I will not push the matter to the vote, but I hope I will go on record as saying that the kind of protection that I want for young people and their families is not supported by the Government in this House. I was hoping that the noble Baroness would say whether she

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would accept Amendments Nos. 33 and 34 on the grounds that I need some way of returning to the matter when it comes back to the House.
6.30 p.m.
Baroness Scotland of Asthal: My Lords, I understood that I was not entitled to speak again but will do so if the House is content for me to do so. We accept the amendments only in principle, because they are incorrect. I cannot accept them so that they are passed today. We have made appropriate arrangements in relation to them. As I understand it, we need only to resolve some technical, reference and other matters and seek to add extra categories if other government departments agree. All I can indicate tonight is that we can agree to them in principle.
Baroness Blatch: My Lords, I had an agreement in principle. I also had an agreement in practice from the noble and learned Lord that what I had wanted would be achieved by the new amendment. I have an assurance on the record that the Government will accept the amendments in a correct form and that they will be added to the Bill in another place. I take the noble Baroness at her word, but—and the noble Baroness made no reference to it—there is a new set of Ministers and a new set of officials dealing with these issues. I hope that that does not become an inhibitor on the way. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 31 to 34 not moved.]
Clause 24 [Positions of trust: interpretation]:
Baroness Blatchmoved Amendment No. 35:
Page 1 I line 21, leave out "regularly"
The noble Baroness said: My Lords, in moving this amendment, I shall speak also to Amendments Nos. 36, 37, 66, 67 and 68. One of the recurring mysteries during consideration of the Bill is the meaning of the word "regular". In the abuse of trust offence and the offences covering care workers who look after people with mental disorders, an offence is committed only once the perpetrator has passed the test of whether his involvement with his victim was regular.
That is a bizarre restriction of the offence. I have asked at each stage of the Bill for a definition of regular, but without success. It could be that today I am going to be lucky and receive a definition.
What does regular mean? Daily, weekly, monthly, hourly? I am worried about the scope that abusers would have for mounting defences in court, on the basis not of the offence, but of whether the word "regular" has been breached.
I accept the reassurances given by the noble and learned Lord, Lord Falconer, about part-time staff. I accept that they may still be caught by the offence if they are in regular contact with their victim, but what if their contact is irregular? I put a scenario to the noble and learned Lord, Lord Falconer, to which he failed to respond. What if prosecutors bring a case against a care worker who takes sexual advantage of several
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Patients in his care, but who works only intermittently in the home in which they live? Sometimes, he may go for months without working there. The sexual activity that has taken place while the person was in a position of trust is the issue. Would the inclusion of the word "regularly" in the offence mean that he can escape conviction? The noble and learned Lord, Lord Falconer, has ridiculed the amendment by saying that removing the word "regular" would prohibit a relationship between a nurse and a 17 year-old who stays for one day in her hospital. The noble and learned Lord said,
"is there to be no allowance for a relationship to occur after the stay in hospital has come to an end"?—[Official Report, 1/4/03; col. 1302.]
That displays a misunderstanding of the Government's own Bill. Once a patient has left the hospital, whether he stays for one day or one year, the relationship of trust has ended. If he then commences a relationship with a nurse who looked after him, no offence is committed.
I am concerned about relationships which begin during the stay. The offence is about taking advantage of a position of trust. Whether that position exists for one day or one month or longer, we should make it clear that sexual contact between the professional and his patient is not acceptable.
The noble and learned Lord said that the word excludes very brief contact in which there is no opportunity to build a relationship of trust with the victim. However, the moment that a child is handed into the care of a social worker, a position of trust is created. The child is extremely vulnerable. The social worker has enormous power and influence over the person in their charge. The creation of the offence recognises that. It fails to recognise that the brevity of the contact is irrelevant. If a person is sexually abused, or sexual advantage is taken of them, by a person who is in a position of trust over them, however cursory that time may be, it is nevertheless still an offence. Anyone in a position of trust should be subject to the offence, regardless of the length of the contact with their victims. I beg to move.
Lord Skelmersdale: My Lords, in her response to the last group of amendments, I observed the Minister taking a sideswipe at the arguments that my noble friend Lady Blatch was likely to produce in support of these three amendments. She said that people in a position of trust build up a relationship if they regularly meet the child—or words to that effect. I hope that I have not misinterpreted her. She is nodding, so she probably did say something like that.
I am prepared to go along with the Minister and accept that one-off meetings between children and people in positions of trust will not result in an unlawful sexual activity. However, what about the supply teacher? That is not regular in any sense of the word that I can establish. As my noble friend Lady Blatch knows far better than me, a supply teacher is called, often at very short notice, on an irregular basis,

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to a school to replace a permanent teacher who is off sick or who has to go to a funeral or whatever. That must be an irregular happening.
Many years ago, my wife and I employed a young man who was an alcoholic. He subsequently became, while he was still suffering from that indisposition, a care worker in an Alcoholics Anonymous care home on a very irregular basis. One would like to think that few children are alcoholics, but they do exist. He had irregular contact, because of his indisposition, with those children. Those sorts of people—the supply teachers, the part-time social and care workers—could not possibly be covered by the word "regularly" in the Bill. My noble friend is absolutely spot on in this matter.
Baroness Noakes: My Lords, my noble friends Lady Blatch and Lord Skelmersdale have made a compelling case for the removal of regularity from the definitions of abuse of trust and care worker offences. My noble friend Lady Blatch spoke in particular about the abuse of trust provisions, but we should not lose sight of the care worker offences when trying to determine what "regularly" adds to the offence.
Let us consider the example of a care worker who cares for a person who is mentally disordered. Abuse of that mentally disordered person can take place at the first encounter. The Government have already accepted that that is the case. I understand that the Government's position is that no offence is committed under the care worker offences if the care worker is not likely to be caring for the mentally disordered person regularly. Just as a temporary teacher with a young person would not be caught, we have the possibility of casual workers dealing with mentally disordered people also not being caught. We have to remember that many of the services which relate to mentally disordered people are supported only by the heavy use of casual workers and it is highly likely that they will be used. The Government have never explained exactly what they mean by "regular" in this context. While accepting that abuse can take place at the first stage, it does not appear to be a sound basis on which to proceed. I support my noble friend's amendments.
Baroness O'Neill of Bengarve: My Lords, I support the amendments. I believe that the phrase "position of trust" is the governing idea of these clauses. The position is normally held on a sustained basis. Noble Lords have pointed to a number of exceptions and in view of those I do not see how or why one needs to add the requirement of regularity of contact to that of holding a position of trust.
As regards the clauses relating to grooming offences, it was a different matter. There had to be evidence of repeated activity to constitute grooming, but in this case it is surely the holding of the position that is the governing idea.
Lord Lucas: My Lords, we all know what the word "regular" means. When the doctor asks, "Are you regular?" there is absolutely no doubt what he is talking about. He is referring to events occurring at a
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predictable interval of time which is in accordance with the usual practices of whatever one is indulging in. If it is concerned with schools and matters of that kind, it is clearly someone who is in contact with a child every week, once a week or several times a week. If it were a games master one would expect him to be there every week. However, if he is on supply, on job share or some other arrangement, it would be very hard to say that such a person came under the definition of "regular" as it is understood in common parlance and certainly as it is understood by a doctor. I cannot see why that should be a requirement. What is required is that it should not be just once in a blue moon. Perhaps the word is "frequently". The requirement for the metronomic character seems to me to let out a great number of people who will see the child sufficiently and who have a sufficient relationship with it to maintain the position of abuse. I support my noble friend.
6.45 p.m.
Baroness Scotland of Asthal: My Lords, all noble Lords have spoken about concern for the abuse of trust. We need to be very clear about the mischief which this part of the Bill is intended to address. At present, a position of trust is defined as one where an adult is "regularly" involved in caring for, training, supervising and/or being in sole charge of a child or children. That is the way in which we have so far described it.
As has been explained to the House on numerous occasions, the primary purpose of these offences is to provide protection in the criminal law for young people over the age of consent who are considered to be particularly vulnerable to sexual exploitation—albeit in the guise of an ostensibly consensual sexual relationship—by those who hold a position of trust, and hence a position of power and influence in their lives.
The whole focus of the abuse of trust offences is the fact that the adult and the young person are in an ongoing relationship that is founded on trust and this position can be abused by the adult to his own advantage to influence the child to take part in sexual activity.
It is the very nature of the regularity of the adult's involvement with the child that gives him or her the opportunity to manipulate the child into taking part in unsuitable sexual activity, which the child may say is consensual.
Imposing the severity of the criminal law can be justified in those circumstances only where the breach of trust is particularly serious. That is what was in the minds of those who drafted the original offence in the Sexual Offences (Amendment) Act 2000 and included the requirement that only those who look after the young person on a regular basis should fall within the scope of the offence.
It has to be remembered that an offence is committed only while the position of trust exists between the adult and the young person. It applies only to ostensibly consensual sexual activity and is

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aimed at the protection of young people aged 16 and 17. Where the sexual activity is non-consensual or involves children below the age of consent, there are other offences that can be used to punish such activity.
We believe that this is an area where we can rely on the judgment which may differ from case to case. Regular contact may cover a short period of consecutive days of contact at a camp, as described by the noble Baroness. It may equally cover a long period of single days of contact but which, taken together, amount to regular contact such as a supply teacher who sees the child irregularly, but regularly over a period of time so they have the opportunity to develop the relationship which can then be used as the tool which persuades the child to enter what may appear to be ostensibly consensual sexual activity with the adult.
The purpose of including the term "regular" is to exclude one-off encounters which do not allow any sort of relationship of trust to have developed and for that to have been used in order to influence the child.
Casual workers are covered where they provide, or are likely to provide, a regular service. "Employment" is broadly defined at Clause 44(5). A one-off worker is not covered because of the need to protect the rights of a person who is mentally disordered to form relationships of their choice.
These are areas in which we have to have a sense of balance and proportion. These offences are designed to be used where sexual activity takes place within the context of an ongoing relationship of trust. Using the word "regularly" in the drafting accurately reflects, as I have just outlined, the policy we wish to adopt. We do not propose to change that.
A further reason why we believe it is important to retain that word is that the current definition of "looks after" in the Bill reflects the wording in Section 115(3) of the Police Act 1997. It refers to persons whose position involves regularly caring or training, supervising or being in sole charge of persons aged under 18.
I say to the noble Baroness, Lady O'Neill, that we believe that the concerns she has as regards teaching staff who may see a young person from time to time would be covered by the other provision. A person who sees a child once and then not for a while, but forms a relationship, would not be caught. We believe that that is proper. Section 115 sets out categories of persons for whom enhanced criminal record checks can be given to employers. Therefore, if we lose this consistency of definition with Section 115, the abuse of trust offences would theoretically cover persons for whom the enhanced criminal records check would not be deemed necessary before they could be employed in their post. It makes no sense to apply a stricter test in the context of the criminal offence than for the enhanced criminal records disclosure.
I turn to the care worker offences. Amendments Nos. 66, 67 and 68 propose the removal of the requirement that face-to-face contact should occur on a regular basis. The government amendments tabled in Committee have now been incorporated into the Bill.
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They allow for a person to be in a relationship of care with a person with a mental disorder or learning disability from day one of their role in relation to that person where it is likely that contact will be regular. This is because, with the particular vulnerability of the persons that these offences are designed to protect, care workers are able to take advantage of their position from the outset of the relationship. Going any further than that would risk infringing the freedom of choice of those people with a mental disorder or learning disability who have the capacity to consent to sexual activity.
The amendments potentially would prevent someone who was capable of consenting to sexual activity from forging a relationship within one of the limited circumstances in which he was likely to meet a potential partner. We do not wish to interfere with the right of every individual to have a private sex life, and the amendments risk doing just that. For all those reasons I cannot accept the amendments and I invite the noble Baroness not to press them.
Baroness Blatch: My Lords, I am disappointed, because we agree with about 95 per cent of the Minister's comments. The description of how these matters would work is accepted except for the word "regularly". I am grateful for the support of the noble Baroness, Lady O'Neill. She made a point that I should have made more clearly. The nature of the job of a person in a position of trust is as important as the relationship between the child or young person and the person holding that position. If one is in a children's home, staff, as we know, come and go regularly, and employment of someone who comes in for a day or two is cursory. For the young person. whoever is caring for, advising or counselling them is in a position of trust. The trust between the young vulnerable person and the person deemed to be in a position of trust is real even though they may not know each other. The idea that that position can be abused because the Government accept that there has to be a regular relationship between the two is extraordinary.
The Minister said that the perpetrator might see the child irregularly, but regularly over a period of time. Under Pepper v Hart the courts would look to Hansard to ascertain the Government's intention at the time—but that would be a confusing message to send. It defines neither "regularly" nor "irregularly". It allows both to pertain to a particular case. I take the read-across to the enhanced criminal records check with a very large pinch of salt. I have never known legislation that has caused more angst, has been implemented with such ineptitude and has been so badly received in the way it is implemented, how it is applied and the vast numbers of people who are waiting in the wings for it to apply.
We agree that all the Minister's comments reflect how we would wish the matter to work, but the restriction of working "regularly" or "not regularly" should not be there. Anybody who breaches a position of trust at a given time with a person in that age category should be regarded as within the scope of the Bill. I wish to test the opinion of the House.
6.55 p.m.
On Question, Whether the shall be agreed to?
Their Lordships divided: Contents, 149.
7.5 p.m.
[Amendments Nos. 36 and 37 not moved.]
Clause 26 [Sections 18 to 21: sexual relationships which pre-date position of trust]:
Baroness Blatchmoved Amendment No. 38:
Leave out Clause 26.
The noble Baroness said: My Lords, in moving Amendment No. 38 I shall speak also to Amendments Nos. 41 and 69. Amendment No. 38 would remove the pre-existing relationships defence to a charge of abuse of trust. Amendment No. 69 would remove the defence in the case of care workers. I also seek, by Amendment No. 41, to remove the defence from the familial abuse offence. That was inserted by the Government on Report. I am advised by the Public Bill Office that as

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that amendment was taken formally and not voted upon by the House, the House is free to vote on it at Third Reading.
I received a most disappointing reply from the noble and learned Lord, Lord Falconer, when I raised on Report the issue of pre-existing relationships defences. The noble and learned Lord simply failed to deal with the arguments that I put. I shall not rehearse them at length here. However, I received no reply when I asked about the imbalance created in a pre-existing relationship once it becomes a relationship of trust. If a teacher meets a 16 year-old girl at a pub, he chats her up, they then begin a relationship and he later obtains a job at her school, there is a pre-existing relationship which falls under the defence.
The girl now finds that, rather than just being romantically involved with an older man, she is romantically involved with one of her teachers. His allure may be all the stronger for that; his influence certainly is. Perhaps previously he has not been able to persuade her to submit to full sexual intercourse. His new-found power over her may make that much easier. Perhaps previously she saw him only occasionally. Now she sees him every single day. He may flaunt his relationship with her in front of other staff and she may brag of her encounters with him to other pupils.
The Minister will no doubt say that the school's internal procedures should be able to deal with the matter, but is that really good enough? He would walk free because no offence has been committed under the Bill. On the other hand, a fellow teacher—this is really extraordinary—who starts a relationship with a pupil at the same school after he starts work there will face prosecution. So of those two teachers, one would face a prosecution if he has a relationship with a 16 year-old in school and the other, who may have met the pupil on a Saturday evening before he took up the post, has a defence. How are people meant to accept the blatant unfairness of that?
When it comes to familial abuse, I am astonished that the Government want to carve out a defence for this much-needed provision. What if a 25 year-old takes a shine to the 16 year-old daughter of his mother's boyfriend? What if the boyfriend then moves in? Under Clause 31 he would be able to continue his relationship with her. He would be able to move on from occasional trysts to regular sexual intercourse living under the same roof as the girl. How on earth are people meant to accept that these two, now living as brother and sister, can commit activities which are legal only because they began before they moved in together?
In all the cases covered by the pre-existing defence, there is a simple choice. The parties can restrain themselves until they become old enough, in other words past the age of 18; care workers and those in positions of trust, for example, teachers, can give up their jobs and move to another job or give up their sexual relationship again until the person has reached the age of 18. The noble Lord, Lord Rix, supported me in that (at col. 18 of Hansard for 19th June).
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Not only is a pre-existing relationship defence wrong in principle; it is also wide open to abuse. If a prosecution is brought and the perpetrator claims the pre-existing relationships defence. the "evidence" of the pre-existing relationship could be fabricated, and in many cases would be. I raised that point on Report and the noble and learned Lord, Lord Falconer, failed to mention it in his reply. It may be that a teacher begins a sexual relationship with a 16 year-old in his class and the two of them agree that if they are ever asked about this relationship they will claim that it started prior to the position of trust. Abusers are manipulative people. We know that. If we give them a loophole in the law, they will surely exploit it. For such a teacher there is an option. They can wait until the girl is 18 or they can move to another post.
It was said at the previous stage of this Bill that it is not a very healthy, professional experience for a teacher or care worker on the staff to have a relationship with the person in their charge. It is not good for the rest of the young people in a class or those in a care home. It is certainly not good professional behaviour. Although that is dealt with informally by guidance and the Department for Education and Skills saying that it is not good behaviour, there is no sanction whatever. It seems to me that there should be a sanction and, indeed, a protection in law. I beg to move.
Lord Lucas: My Lords, I have a great deal of sympathy with what my noble friend Lady Blatch has said and will listen with great interest to what the Minister says. However, I want to take this opportunity to raise a matter which concerns me very much. It relates to an earlier answer given by the Minister on the matter of consensual under-age sex, when she said that this would be dealt with through the final warning scheme.
Having obtained the document on the scheme and the underlying Act, I see that not only are these reprimands given without any chance of appeal or of erasing it from the record—merely if the police officer thinks that this is something which should be dealt with in that way—but once it has been given, the poor kid is on the sex offenders register for five years.
Baroness Scotland of Asthal: My Lords, I hesitate to interrupt the noble Lord but I think that I should. The whole idea is that those provisions would be amended so as to cover the sort of guidance that the noble Baroness, Lady Blatch, and others were referring to. We have scoped out the sort of guidance that it would include. It could include an opportunity for a warning or something of that sort to be made, which is a very light touch and would not form part of a record. If noble Lords look through the document, they will see that there are grounds and conditions set out therein which indicate the sorts of issues that the prosecutors should take into account before they decide to proceed with any charge in relation to those matters. Looking at the document in toto, we think that the guidance has the framework into which we can seek to insert the sorts of provisions which would give comfort

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regarding the issues we have debated at length. I know that officials have had an opportunity to talk in some detail with the noble Baroness, Lady Noakes, and, I believe, the noble Baroness, Lady Walmsley, and others.
Having taken on this brief at rather short notice, I myself have not had the privilege of going through that document in the sort of depth and detail that I know the other two noble Lords on the Front Bench have. I am assured, however, that my understanding is as I have just described and, as I say that, I notice that the noble Baronesses, Lady Walmsley and Lady Noakes, are nodding vigorously.
I can appreciate why the noble Lord, Lord Lucas, is alarmed, but it does provide us with the framework into which we can slot appropriate guidance to assist the prosecutor in coming to a well-informed judgment on how to deal with this matter. As I have also said, we propose that the CPS, not the police, should deal with these provisions.
Lord Lucas: My Lords, I am comforted because, as it is at the moment, the position is absolutely horrific.
7.15 p.m.
Baroness Scotland of Asthal: My Lords, I believe that Amendments Nos. 38, 41 and 69, tabled by the noble Baroness, Lady Blatch, to leave out Clauses 26, 31 and 46, must be resisted.
These clauses mean that a person in a position of trust, in a relationship covered by the familial child sex offences, or in a care relationship, will not commit the offences at Clauses 18 to 21, 27 to 28, and 40 to 43, if he proves that he and the other person were involved in a lawful sexual relationship which predated the position of trust, familial relationship, or relationship of care.
It may not be to our taste, but the reality is that relationships do exist between people of different generations. I know that it is a matter of some surprise to a number of women in particular that so many men seem to be fascinated by women 30 years their junior; but, no matter how surprised we may be, we have grown to accept it as part of human nature.
Baroness Blatch: My Lords, I am grateful to the noble Baroness for giving way. That was never any part of my case, nor has it been any part of the case made in relation to this amendment. I am not surprised that these relationships exist, and I do not want that to be a part answer to my amendment.
Baroness Scotland of Asthal: My Lords, it is the context in which we have to view some of these issues. The key issue here is whether relationships between two individuals that are lawful should become unlawful because circumstances have resulted in one of the parties now having a position of trust or a caring role in relation to the other, or in the parties living together and/or caring for the other.
If the amendments were accepted, we would not be talking about someone breaching a code of conduct or losing their job. We would be talking about that
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person's involvement in that relationship becoming a criminal offence, punishable by a possible sentence of imprisonment. We have listened to the arguments made, but we continue to believe that the amendment goes too far.
To summarise the arguments we have made previously about this matter, the primary motivation for the abuse of trust offences is the need to protect young people aged 16 or 17 who, although over the age of consent to sexual activity, are considered to he vulnerable to exploitation from a person who holds a particular position of trust or authority in relation to them, and so has a considerable degree of power and influence in their lives. We do not believe that this argument applies to situations in which the sexual relationship was entered into before the relationship of trust. The young person was able to make a free choice about whether to enter into the sexual relationship and must have been over the age of consent. This exception does not apply when the relationship entered into was unlawful at the time; for example. if the young person was under the age of consent or the relationship was with a close blood relative. We are not exempting abusive relationships. We are making an exception for those which began legally, but then circumstances changed and one person entered into one of those relationships covered by Clauses 26, 31 and 46.
A 17 year-old may have freely formed a consensual sexual relationship with a person who subsequently becomes a Connexions adviser, with responsibility for her as well as for a large number of other young people. We take the view that this is not a matter meriting the intervention of the criminal law. No position of trust existed at the time the relationship was formed which could have exerted pressure on the girl. There are other means of dealing with the situation, such as professional codes of conduct, which have rightly been mentioned by the noble Baroness in support of her amendment. In our view, however, bringing the criminal law into play is going too far.
Turning to Clause 31, it is important to remember that the familial child sex offences go considerably wider than blood relationships. An example, as the noble Baroness has indicated, is where two 17 year-olds have a sexual relationship and, as a consequence, their parents meet, fall in love, and all four move in together. If the amendments are accepted, the relationship between their children becomes illegal simply because all are living together. That cannot be right. The relationship would be perfectly lawful if the two young people were living together on their own. Again, relationships that were not lawful when they came into being would not be covered by the exception.
On care worker offences, the relationships of care are defined broadly, because we have listened to those with experience in the area and heard of the extent of abuse inflicted by those who provide a range of services to people with a mental disorder or learning disability. We have, therefore, included in the scope of the offences all those who, for example, provide care, assistance or services to a person in connection with his mental disorder or learning disability. That goes far

733
wider than those who provide physical care in a hospital or other institutional setting, and also covers care provided in the home.
The exception, therefore, allows for the situation where two people are in a lawful sexual relationship. One of them develops a mental disorder or learning disability and the other then provides care to that person at home while maintaining a sexual relationship with him or her. I continue to think that it would be wrong to criminalise such a genuine relationship entered into between two people not in a position of trust or a relationship of care with each other when the relationship began. Our individual preference should not inappropriately criminalise what others may lawfully agree to do consensually.
Baroness Blatch: My Lords, I am very grateful to the noble Baroness, who has given a very full reply. But all the arguments that she has used—leaving aside that of the home carer—apply also to the case of a teacher who has a sexual relationship with a 16 year-old. I notice that the noble Baroness always refers to 17 year-olds. We are talking about 16 and 17 year-olds, so I will use the figure 16. A teacher who has a sexual relationship with a 16 year-old and who cannot profess to have had a pre-existing relationship before taking up the post would be criminalised. That is what the law says. It is what the Bill advocates.
However, a friend of the 16 year-old, in the same school—another 16 year-old—could be having a similar sexual relationship, but because they had a one-night stand the weekend before the teacher took up the post the case would not be caught as the couple could profess to have had a pre-existing relationship. Even the couple who lied about a pre-existing relationship, professing to have had one when they did not, would not be caught under the Bill unless it could he proven that they had not told the truth, which would be almost impossible to discover. It applies to all those cases.
Behind the amendment is the relationship between a professional carer and/or teacher and the person in his or charge. Are we saying that it is acceptable because it is a common occurrence among 16 and 17 year-olds? It does not shock me; I know that it exists. Is it acceptable simply because a teacher and the young person had a very cursory sexual relationship before the teacher took up the post? Would it not be more professional for that teacher and/or carer either to wait until the person turned 18 or to find a job in another school, or care establishment?
That is the argument behind my amendment. But the Government have set their face against that and are prepared to live with what I regard as the anomaly against the Government, not the anomaly that the Government have used against me for my amendment. In the mean time, I beg leave to withdraw my amendment.
Amendment, by leave, withdrawn.
Clause 27 [Sexual activity with a child family member]:
Baroness Scotland of Asthalmoved Amendment No. 39:
Page 13, line 8, leave out from "29," to end of line 22 and insert—
"( ) A knows or could reasonably be expected to know that his relation to B is of a description falling within that section, and
( ) either—

(i) B is under 18 and A does not reasonably believe that B is 18 or over, or

(ii) B is under 13.

(1A) Where in proceedings for an offence under this section it is proved that the other person was under 18, the defendant is to be taken not to have reasonably believed that that person was 18 or over unless sufficient evidence is adduced to raise an issue as to whether he reasonably believed it.
(1B) Where in proceedings for an offence under this section it is proved that the relation of the defendant to the other person was of a description falling within section 29, it is to be taken that the defendant knew or could reasonably have been expected to know that his relation to the other person was of that description unless sufficient evidence is adduced to raise an issue as to whether he knew or could reasonably have been expected to know that it was."
Clause 28 [Inciting a child family member to engage in sexual activity]:
Baroness Scotland of Asthalmoved Amendment No. 40:
Page 13, line 37, leave out from "29," to end of line 8 on page 14 and insert—
"( ) A knows or could reasonably be expected to know that his relation to B is of a description falling within that section, and
( ) either—

(i) B is under 18 and A does not reasonably believe that B is 18 or over, or

(ii) B is under 13.

(1A) Where in proceedings for an offence under this section it is proved that the other person was under 18, the defendant is to be taken not to have reasonably believed that that person was 18 or over unless sufficient evidence is adduced to raise an issue as to whether he reasonably believed it.
(1 B) Where in proceedings for an offence under this section it is proved that the relation of the defendant to the other person was of a description falling within section 29, it is to be taken that the defendant knew or could reasonably have been expected to know that his relation to the other person was of that description unless sufficient evidence is adduced to raise an issue as to whether he knew or could reasonably have been expected to know that it was."
Clause 31 [Sections 27 and 28: sexual relationships which pre-date family relationships]:
[Amendment No. 41 not moved.]
Clause 32 [Sexual activity with a person with a mental disorder or learning disability]:
Lord Adebowalemoved Amendment No. 42:
Page 15, line 33, leave out "refuse" and insert "consent"
The noble Lord said: I shall start by doing something that I forgot to do last night. Now that I have slightly more than four minutes in which to speak, I congratulate the noble Baroness, Lady Scotland, and the noble and learned Lord, Lord Falconer, on their promotions. I do not wish to embarrass the noble Baroness, Lady Scotland, by saying that she is an ample role model to many in my community. I wish her every luck in her new post.
In moving Amendment No. 42, I shall speak also to Amendments Nos. 43 to 57, the other amendments in the group. I was most grateful to the noble Lord, Lord Astor. for speaking to the amendments in relation to these very important clauses on Report. I have studied very carefully the response of the noble and learned Lord, Lord Falconer, and feel duty bound to raise the points again, because I remain deeply worried that using the terms "refuse" and "choose" would leave people with learning disabilities without sufficient protection and would not deliver justice. When I raised the point in Committee, it drew support from noble Lords who shared many of my concerns.
I understand that in response to the amendments tabled on Report. the Government have committed themselves to look at the definition of "capacity", and that that consideration would include the framing of these clauses. I therefore seek assurance from the Minister that the concerns raised by noble Lords about the clauses throughout the passage of the Bill will be given due weight, and that the term "refuse to choose" will be removed from the Bill.
Furthermore, the organisation of which I am chief executive, Turning Point, has brought together a coalition of organisations with an interest in these clauses. I expect that the Minister, and the Minister responsible for the Bill in another place, might find it terribly helpful to meet with them over the summer to ensure that those concerns are properly considered. I would also be grateful if the Minister could make a commitment to meet officials from the coalition so that their concerns can be properly considered.
I have not tabled an amendment to any other clauses because I do not want to provide any opportunity to dilute this very important matter. The key argument of the noble and learned Lord, Lord Falconer, against amending the clause was that it would make the definition in Clause 75 circular. We can resolve that separately. The amendments that I have tabled are more fundamental than technical drafting problems: they are a matter of principle. It is crucial that the Bill provides the same level of protection for people with learning disabilities against sexual abuse as it does for the offences of rape and sexual assault. I do not think that the Bill provides that protection.
My key concerns remain those that I raised in Committee. First, the term "refuse to choose" holds very different meanings in law from "inability to consent-. Capacity to consent is pivotal to
736
determining whether a relationship is appropriate for a person with a learning disability. But the word "choice" used in the Bill does not reflect consent; it reflects compliance and a lack of freedom. That was highlighted in Committee and on Report by the Jenkings case. We heard then how the judge was able to hold that the woman involved could consent through her animal instincts. The woman, therefore, could be held to have chosen to have sex, but not, in any of our estimations, have consented to sex. None of us would want to be responsible for repeating the worst anomaly of law with the accompanying painful consequences. It is therefore clear that the Bill must be amended in the way I propose so as to deliver sufficient protection for people with a learning disability.
My second concern is that using the language "refuse to choose" has a wider impact than questions of legal effect. For adults, it is only in relation to people with mental disorders and learning disabilities that the term "consent" is not used. The offences of rape, assault by penetration, and sexual assault all use the term "consent". I see no reason for using a different term. To do so implies that there is a difference in seriousness between those offences and the offences of rape, assault by penetration, and sexual assault. Anything in the Bill that could be taken as meaning that there is a difference risks implying that offences against someone with a learning disability are not as serious as those committed against any other adult. That is not acceptable. It also fails to respect the integrity of adults with learning disabilities and does not provide parity of esteem with the other offences.
As we know, the noble and learned Lord, Lord Falconer, argued that the definition of consent would be circular if the clauses were amended as proposed. I was pleased that he made a commitment to look at the definition or"capacity". In doing so, the Government must ensure that it is defined in such a way as not to create a circular definition so that we can use the term "unable to consent" in these clauses.
I cannot emphasise enough the importance of these amendments. They are matters of principle fundamental to the integrity of the Bill and that of people with learning disabilities. I should be grateful for assurances from the Minister that the Government will amend the Bill to remove the phrase "refuse to choose", which will address the significant concerns that I have raised. I beg to move.
7.30 p.m.
Lord Astor of Hever: My Lords, the noble Lord, Lord Adebowale, raises again an important issue. We argued for the replacement of "refuse" with "consent" at Report stage. We support the principle that "choosing" and "consenting" are not the same. We do not understand why other clauses all use the term "consent", while only these specific clauses use "refuse". The drafting here is confusing: people with a mental disorder or learning disability are "unable to refuse" because they "lack the capacity to choose". The point is, they simply cannot consent. This overrides whether they refuse, choose or anything else.

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The noble Lord, Lord Filkin, kindly wrote to me on this point and explained that the latter wording had been chosen so as not to provide a second definition since Clause 75, which contains the definition of consent, refers to "capacity to consent". I do not think that that is an adequate explanation. Clause 75 gives a full definition of what "consent" means in this Bill. This does not mean that the term "consent" cannot be used in clauses 32 to 35.
The Government should look again at the drafting of these clauses in another place. The current drafting has worrying implications and adds inconsistency, confusion and a lack of uniformity to the Bill.
Baroness Scotland of Asthal: My Lords, I will straight away thank the noble Lord, Lord Adebowale, for his warm welcome. I appreciate the flattering comments. I do not feel that they are deserved, but I will accept them nonetheless.
The series of amendments tabled in relation to this issue have, I know, caused a lot of concern. The proposal contained in Amendments Nos. 42 to 44, 46 to 48, 50 to 52 and 54 to 56 was debated on Report through amendments tabled by the noble Lady, Baroness Noakes, and the noble Lord, Lord Astor. As has already been said, "capacity to consent" is defined in Clause 32 to 35 as "unable to refuse", rather than "unable to consent", because if the latter phrase were used it would refer back to the definition of consent at Clause 76 and would be circular, as the clause refers to "capacity to consent".
I would understand the concern behind the noble Lord's Amendments Nos. 45, 49, 53 and 57, which would remove the phrase "to choose whether" from the definition of unable to refuse (or consent). if that implied that choice was not related to capacity, but clearly it is in this definition. The amendment proposed introduces an unnecessary tautology when it refers to lacking the capacity to consent if he lacks the capacity to agree.
My noble and learned friend, Lord Falconer, on Report stated that he was not fundamentally opposed to including a generic definition of capacity to consent in statute, but that he needed time to consider the consequences of such a definition: and, if we choose to include one, the best way to formulate it.
We had hoped to take the matter forward on Third Reading, but as my noble friend Lord Filkin explained in his letter to the noble Lord, Lord Astor—which was, I hope, copied to other noble Lords who spoke at Report stage— regrettably it has not been possible to do so. I can assure my noble Lords that this will be pursued and returned to later during the Bill's passage through Parliament when it goes to another place.
I repeat that we are aware of the need in these clauses to balance the need to provide protection with recognising the civil rights of those with a mental disorder or learning disability. I do not feel able to
738
accept these amendments, but I have listened carefully to the debate on this issue. We will take the matters raised into account as part of our further deliberations on the question of the definition of consent generally. I thank both noble Lords who have spoken, because they bring a certain level of expertise and understanding to this issue which the Government are happy to take very seriously indeed.
In relation to the noble Lord's request for a meeting with the coalition, Beverly Hughes, Hilary Benn and the noble and learned Lord, Lord Falconer, have met members of the coalition previously. Officials are in regular contact with the coalition. My honourable friend Paul Goggins many also want to consider a meeting with members again, now that the Bill will soon be passing to the House of Commons. That may be the most appropriate meeting, but there is certainly no resistance to continuing to have that dialogue. I am sure that some accommodation will be possible.
Lord Adebowale: My Lords, I am grateful to the noble Baroness, Lady Scotland, for her response, which provides me with some of the assurances that I need. When the Bill reaches another place, I hope that some appropriate amendments will be made. I am still a little concerned, but I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 43 to 45 not moved.]
Clause 33 [Causing or inciting a person with a mental disorder or learning disability to engage in sexual activity]:
[Amendments Nos. 46 to 49 not moved.]
Clause 34 [Engaging in sexual activity in the presence of a person with a mental disorder or learning disability]:
[Amendments Nos. 50 to 53 not moved.]
Clause 35 [Causing a person with a mental disorder or learning disability to watch a sexual act]:
[Amendments Nos. 54 to 57 not moved.]
Clause 40 [Care workers: sexual activity with a person with a mental disorder or learning disability]:
Baroness Scotland of Asthalmoved Amendments Nos. 58 and 59:
Page 19, line 34, after "disability," insert—
"( ) A knows or could reasonably be expected to know that B has a mental disorder or learning disability,"
Page 19, line 36, leave out subsection (2) and insert—
"( ) Where in proceedings for an offence under this section it is proved that the other person had a mental disorder or learning disability, it is to be taken that the defendant knew or could reasonably have been expected to know that that person had a mental disorder or learning disability unless sufficient evidence is adduced to raise an issue as to whether he knew or could reasonably have been expected to know it."
Clause 41 [Care workers: causing or inciting sexual activity]:
Baroness Scotland of Asthalmoved Amendments Nos. 60 and 61:
Page 20, line 16, after "disability," insert—
"( ) A knows or could reasonably be expected to know that B has a mental disorder or learning disability,
Page 20, line 18, leave out subsection (2) and insert—
"( ) Where in proceedings for an offence under this section it is proved that the other person had a mental disorder or learning disability, it is to be taken that the defendant knew or could reasonably have been expected to know that that person had a mental disorder or learning disability unless sufficient evidence is adduced to raise an issue as to whether he knew or could reasonably have been expected to know it."
Clause 42 [Care workers: sexual activity in the presence of a person with a mental disorder or learning disability]:
Baroness Scotland of Asthalmoved Amendments Nos. 62 and 63:
Page 21, line 1, after "disability," insert—
"( ) A knows or could reasonably be expected to know that B has a mental disorder or learning disability,"
Page 21, line 3, leave out subsection (2) and insert—
"( ) Where in proceedings for an offence under this section it is proved that the other person had a mental disorder or learning disability, it is to be taken that the defendant knew or could reasonably have been expected to know that that person had a mental disorder or learning disability unless sufficient evidence is adduced to raise an issue as to whether he knew or could reasonably have been expected to know it."
Clause 43 [Care workers: causing a person with a mental disorder or learning disability to watch a sexual act]:
Baroness Scotland of Asthal Baroness Scotland of Asthal moved Amendments Nos. 64 and 65:
Page 21, line 21, after "disability," insert—
"( ) A knows or could reasonably be expected to know that B has a mental disorder or learning disability,"
Page 21, line 23, leave out subsection (2) and insert—
"( ) Where in proceedings for an offence under this section it is proved that the other person had a mental disorder or learning disability, it is to be taken that the defendant knew or could reasonably have been expected to know that that person had a mental disorder or learning disability unless sufficient evidence is adduced to raise an issue as to whether he knew or could reasonably have been expected to know it."
Clause 44 [Care workers: interpretation]: [Amendments Nos. 66 to 68 not moved.]
Clause 46 [Sections 40 to 43: sexual relationships which pre-date care relationships]:
[Amendment No. 69 not moved.]
Clause 48 [Criminal investigations or proceedings]:
Baroness Scotland of Asthalmoved Amendment No. 70:
Page 23, line 34, leave out from "given" to "necessary" in line 35 and insert "by a person within subsection (2A) if it appears to that person"
740
The noble Baroness said: My Lords, before I rise to speak to the Amendment No. 70, with the leave of the House I will add an additional two words in relation to the question raised by the noble Lord, Lord Lucas. I must make clear that we hope that reprimands would not be given at all, and that they would be removed for the category about which we spoke. In addition, we are amending the schedule on registration, so that young offenders will only go on the register if they receive a custodial sentence.
I hope that that clarifies the matter, and that it might give even greater comfort to those noble Lords who may be worrying about my earlier lack of precision.
Clause 48 inserts a new provision into the Protection of Children Act 1978 and into the equivalent Northern Ireland legislation allowing named persons—for example, the Director of Public Prosecutions—to authorise the making of indecent photographs of children where this is necessary for the prevention, detection or investigation of crime, or for criminal proceedings.
These amendments to Clause 48 would allow the heads of Security Service and GCHQ also to authorise the "making" of indecent photographs, or pseudo-photographs, of children by their staff, when it is necessary in pursuit of their duties. The duties of staff in both organisations can involve investigation of known paedophiles. GCHQ, for example, may undertake forensic work, assisting the law enforcement authorities for serious crime or national security purposes.
It is not Government policy to talk about operations relating to national security, but we can assure noble Lords that these are real, and not hypothetical, circumstances. For example, in the course of a national security investigation, it may be necessary for staff in the Security Service to seek information of intelligence interest that may be buried within an indecent image and to make a copy for that purpose. I beg to move.
Baroness Noakes: My Lords, I shall speak briefly. When I saw the amendment, I was completely mystified as to why spymasters would need to download child pornography for the purposes of the business about which we are allowed to know nothing. I will take it on trust that the noble Baroness, Lady Scotland, has assured herself that it is a proper activity to make child pornography lawful in this instance and shall not press the matter further. However, 1 register again my extreme surprise.
Baroness Scotland of Asthalmoved Amendments Nos. 71 to 77:
Page 23, line 39, leave out from beginning to end of line 2 on page 24 and insert—
"(2A) Those persons are—"
Page 24, line 7, leave out "or" and insert "and"
Page 24, line 8, at end insert—

741
"( ) An authorisation may be given by the Director-General of the Security Service if it appears to him necessary for the exercise of any of the functions of the Service.
( ) An authorisation may be given by the Director of GCHQ if it appears to him necessary for the exercise of any of the functions of GCHQ (and in this subsection "GCHQ" has the same meaning as in the Intelligence Services Act 1994 (c. 13)).
( ) An authorisation—

(a) must be in writing,

(b) must specify the person to whom it is given and the purpose for which it is given, and

(c) may specify conditions to which it is subject.""

Page 24, line 15, leave out from "given" to "necessary" in line 16 and insert "by a person within paragraph (2A) if it appears to that person"
Page 24, leave out lines 20 to 25 and insert—
"(2A) Those persons are—"
Page 24, line 30, leave out "or" and insert "and"
Page 24, line 31, at end insert —
"( ) An authorisation may be given by the Director-General of the Security Service if it appears to him necessary for the exercise of any of the functions of the Service.
( ) An authorisation may be given by the Director of GCHQ if it appears to him necessary for the exercise of any of the functions of GCHQ (and in this paragraph "GCHQ" has the same meaning as in the Intelligence Services Act 1994 (c. 13)).
( ) An authorisation—

(a) must be in writing,

(b) must specify the person to whom it is given and the purpose for which it is given, and

(c) may specify conditions to which it is subject.""

7.45 p.m
Clause 65 [Sex with an adult relative: penetration]:
Baroness Scotland of Asthalmoved Amendment No. 78:
Page 30, line 19, leave out from "sexual" to end of line 29 and insert —

"(ba) the other person (B) is aged 18 or over,

(bb) A is related to B in a way mentioned in subsection (1A), and

(bc) A knows or could reasonably be expected to know that he is related to B in that way.

(1A) The ways that A may be related to B are as parent, grandparent, child, grandchild, brother, sister, half-brother, or half-sister.
(1B) Where in proceedings for an offence under this section it is proved that the defendant was related to the other person in any of those ways, it is to be taken that the defendant knew or could reasonably have been expected to know that he was related in that way unless sufficient evidence is adduced to raise an issue as to whether he knew or could reasonably have been expected to know that he was."
Lord Lucasmoved, as an amendment to Amendment No. 78, Amendment No. 79:
Line 6, after "grandparents," insert "uncle, aunt,"
The noble Lord said: My Lords, the list in Amendment No. 78, as far as I can see, is a collection of relatives who may be expected to share or will share consanguinity of 25 per cent or more. The relative missing from the list is a blood uncle or blood aunt.
742
They are likely to have a fair degree of contact with their nephews and nieces, and one might expect sexual relationships to develop in some circumstances. If the objection to incest is the closeness of blood, rather than something more emotional, why are uncles and aunts not included? I beg to move.
Baroness Scotland of Asthal: My Lords, I know that the noble Lord would like to be inclusive in that regard and include uncles and aunts in the scope of the offence of penetrative sex with an adult relative under Clause 65. I assume that it is only an oversight that he has not tabled a similar amendment to Clause 66, headed "Sex with an adult relative: consenting to penetration". The same issue arises.
Our general policy on the offences in Part 1 has been that the criminal law should intervene only if sexual behaviour is non-consensual, exploitative or abusive and that it has no role to play in consensual activity that does not cause harm. With regard to consensual sexual activity between adults who are closely related by blood, we continue to feel that the criminal law has a role to play in upholding morals and making a statement about behaviour that is not acceptable.
Although the familial child sex offences have been drawn more widely than the old incest offences in order to reflect the opportunities for the abuse of children that exist in the family unit, we are content that the primary motivation for the "sex with an adult relative" offences should be concerned with morality and eugenics—gene mutation in children born of same-blood unions.
I appreciate that aunts and uncles are prohibited by law from marrying their nephews and nieces, but that is also true of other categories of relative for example, adoptive parents and their adoptive children. Uncles and aunts have never been included in the incest offences, and we can see no reason to make sexual activity between such relatives a criminal offence now. I regret to say that, for those reasons, I cannot accept the amendment.
Lord Lucas: My Lords, I am content not to pursue the question of morality. I am happy to leave the noble Baroness and the Government to theirs. On the eugenics matter, I must say that there is no difference between a relationship between an uncle and his niece and a relationship between a young girl and her half-brother. They are exactly the same, and one would expect that, on average, there would be 25 per cent consanguinity.
I am surprised to see that, if we criminalise the relationship between a young girl and her half-brother, which is likely to be perfectly ordinary and innocent and less likely to be abusive than a relationship between an uncle and a niece, the Government will not, on the basis of eugenics, also include the uncle-niece relationship.
I shall not press the amendment and beg leave to withdraw it.
Amendment No. 79, as an amendment to Amendment No. 78, by leave, withdrawn.
Clause 66 [Sex with an adult relative: consenting to penetration]:
Baroness Scotland of Asthalmoved Amendment No. 80:
Page 30, line 40, leave out from "sexual" to end of line 9 on page 31 and insert—
"(ba) the other person (B) is aged 18 or over,
(bb) A is related to B in a way mentioned in subsection ( 1 A), and
(bc) A knows or could reasonably be expected to know that he is related to B in that way.
(1A) The ways that A may be related to B are as parent, grandparent. child, grandchild, brother, sister, half-brother, or half-sister.
(1B) Where in proceedings for an offence under this section it is proved that the defendant was related to the other person in any of those ways, it is to be taken that the defendant knew or could reasonably have been expected to know that he was related in that way unless sufficient evidence is adduced to raise an issue as to whether he knew or could reasonably have been expected to know that he was."
Clause 74 [Exceptions to aiding, abetting and counselling]:
[Amendments Nos. 81 and 82 not moved.]
Baroness Scotland of Asthalmoved Amendments Nos. 83 and 84:
Page 34, line 25, leave out "or"
Page 34, line 26, at end insert "or
(d) promoting the child's emotional well-being by the giving of advice,"
[Amendment No. 85 not moved.]
Clause 76 [Presumptions about the absence of belief in consent]:
Baroness Scotland of Asthalmoved Amendments Nos. 86 to 89:
Page 35, line 4, leave out paragraph (b).
Page 35. line 7, at beginning insert "the complainant is to be taken not to have consented to the relevant act unless sufficient evidence is adduced to raise an issue as to whether he consented, and"
Page 35, line 7, after "have" insert "reasonably"
Page 35, line 8, leave out "he proves that he did believe it" and insert "sufficient evidence is adduced to raise an issue as to whether he reasonably believed it."
Lord Lucasmoved Amendment No. 90:
Page 35, line 20, at end insert —
"( ) the defendant had committed, or knew that another person had committed, an offence under section 62 in relation to the complainant, and the defendant did not reasonably believe that the complainant was no longer suffering from the effects of the substance that had been administered;"
The noble Lord said: My Lords, on Report, I moved an amendment on this subject. The noble and learned Lord, Lord Falconer of Thoroton, said that he quite
744
liked it but it required changing and he would bring something back at a later stage. He has not, so I have. I beg to move.
Baroness Scotland of Asthal: My Lords, Amendment No. 90 would extend the list of rebuttable presumptions in Clause 76 to include circumstances in which the defendant has sex with the complainant knowing that he or someone else has intentionally administered a substance to the complainant without the complainant's consent, in order to stupefy them and to facilitate sexual activity, and the complainant is still suffering from the effects of that substance.
The noble Lord is right: he tabled a similar amendment on Report, and the Government undertook to consider it. As my noble and learned friend the Lord Chancellor said at the time, it is extremely hard to imagine how the defendant could successfully argue, in such circumstances, that he believed in consent. However, in the light of the amendments to Clause 76 that we have tabled, which will change the way in which the question of consent and belief in consent is considered in the circumstances covered by the clause, we need more time to think carefully about whether it is appropriate for such circumstances to be covered.
If we decide that it is appropriate, we will not, unfortunately, be able to accept the amendment, as worded. I acknowledge that the noble Lord, Lord Lucas, has changed the wording from that in the amendment tabled on Report, but I still cannot accept the amendment, as it stands. The amendment still refers to a defendant's knowledge of the circumstances, which is already dealt with in subsection (1)(d), and the text switches between the present and past tenses. The fact that the amendment is not drafted in the same way as the rest of Clause 76 is a question for parliamentary counsel, and NA, e would need time to consult him. We will return to the question in Committee in another place.
Lord Lucas: My Lords, I am grateful. I had hoped that the advent of age discrimination legislation would mean that when I got chucked out of this place I could become a parliamentary counsel—clearly not. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 91 not moved.]
Clause 77 [Conclusive presumptions about consent]:
Baroness Scotland of Asthalmoved Amendments Nos. 92 and 93:
Page 35, line 29, leave out subsections (1) and (2).
Page 36, line 3, leave out "referred to in subsection (3)"
Clause 78 [Sections 76 and 77: relevant acts]:
[Amendment No. 94 not moved.]
Clause 79 ["Sexual"]:
Lord Lucas Lord Lucas moved Amendment No. 95:
Page 36, line 37, after "consider" insert "in all the circumstances"
The noble Lord said: My Lords, we discussed this on Report. I did not manage to get any agreement from the noble and learned Lord, Lord Falconer of Thoroton, but I got a long and helpful reply.
I shall explain my remaining concern. The use of the word "sexual" in many places in the Bill troubles me. It is a word that can have many connotations, and ordinary activities can be seen as having a sexual element. If I touch a young girl on her bottom, that can be said to be sexual, whatever my intent, because it is, in common parlance, a sexual gesture or action.
On Report, we explored with the noble and learned Lord, Lord Falconer of Thoroton, how that would be dealt with under Clause 79. He gave me a good deal of comfort about how the logic would flow. However, Clause 79(b) says that an activity is sexual if,
"a reasonable person"—
I am glad to see that the "reasonable person" has not left the Bill altogether—
"would consider that it is sexual because of its nature, its circumstances or the purpose of any person in relation to it".
Touching a young girl on her bottom would be sexual, I think. It would be considered sexual by a reasonable person because of its nature. But it might be that if the reasonable person also considered the circumstances or the purpose, all in all the action might not be considered sexual. What concerns me is that the wording here might allow a court to merely consider some of the circumstances, because the final words of the paragraph allow,
"or all or some of those considerations",
rather than taking into account all the relevant circumstances. If all the relevant circumstances were to be taken into account, I should he happy. Hence, the words that I want to insert. I hope that the noble Baroness will be able to give me comfort that I merely have not read the clause as widely as I should have done. I beg to move.
Baroness Scotland of Asthal: My Lords, I think that the noble Lord can be comforted because Clause 79(b) states,
"its circumstances or the purpose of any person in relation to it".
That is broad indeed. However, if it would assist, I am happy to explain more fully. Clause 79 is fundamental to many of the offences in Part I and has been drafted so that it captures only activity that would generally be thought of as sexual.
Our definition requires the jury to use three criteria in its assessment of whether an activity was sexual—namely, the nature of the act itself, the circumstances in which it took place and the purpose of any person in relation to the act. But the first part of the test rules out any activity that a reasonable person would never consider sexual by reason of its very nature—for example, removing a person's shoes. We do not want to capture activity that no reasonable person would consider to be sexual just because the defendant happened to have a secret fetish not known to the victim. Only where the jury thinks that the activity was
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possibly sexual—for example, touching a person's leg—would the jury need to go on to look at the defendant's state of mind to see if that touching was in fact sexual or whether his purpose or other circumstances mean that it was innocent. Therefore, even the touching mentioned by the noble Lord, Lord Lucas, of the young lady's bottom could be argued in certain circumstances not to be sexual. But I appreciate and agree with the noble Lord that it may be an uphill battle trying to satisfy anyone that that was so.
Debates on this issue have centred around concerns that the definition may unintentionally draw within its scope those who are touching the private parts of another person for legitimate, non-sexual reasons, such as an emergency medical purpose or to touch a child on the bottom to push it out of the way of a speeding car. We have drafted the definition carefully so as to exclude such touching. But in each case, although the action would satisfy the first part of the test, in that a reasonable person would think that touching a child on the bottom may be sexual, the second part of the test would clearly rule it out because the circumstances of the action, if it was done to avert an accident, are such that no reasonable person would consider it was sexual.
I trust that the example I have just given explains why Amendment No. 16, tabled by the noble Lord, Lord Lucas, is unnecessary. The definition, as drafted, already requires that where the second stage of the clause needs to come into play, the circumstances can already form part of the consideration of a reasonable person in determining whether the behaviour is sexual.
The noble Lord, Lord Campbell of Alloway, is not here, so I assume that his amendment will not he moved.
Lord Lucas: My Lords, I am grateful for that explanation. I shall certainly read it in Hansard. When the Minister said what the clause stated, she used the word "and" where the clause uses "or". That is the core of my problem with it. As I read the clause, it would be open to the court just to take into account the fact that the action was sexual because of its nature and to disregard the circumstances.
Baroness Scotland of Asthal: My Lords, Clause 79 states:
"For the purposes of this Part, penetration. touching or any other activity is sexual if—
(a) from its nature, a reasonable person would consider that it may (at least) be sexual, and
(b) a reasonable person would consider that it is sexual because of its nature, its circumstances or the purpose of any person in relation to it, or all or some of those considerations".
The "or" which gives the menu is in paragraph (b). It is not in between paragraphs (a) and (b). So there is a two-stage process. Any of those matters in relation to (b) can impinge on any particular sense. I think that the noble Lord has the security he seeks within the way that the clause is now phrased.
Lord Lucas: No, my Lords, he does not. But that may be his fault. I entirely agree that the problem is

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within paragraph (b) and the menu of "ors". The condition is satisfied if any single one of those is satisfied. Therefore, if,
"a reasonable person would consider that it is sexual because of its nature"
and the answer is, "Yes", paragraph (b) is satisfied. It is unnecessary for a court to take the rest of the conditions into consideration too. That is my concern.
Baroness Scotland of Asthal: My Lords, perhaps I may help the noble Lord further. Paragraph (b) states:
"a reasonable person would consider that it is sexual because of its nature".
Under paragraph (h), that must be considered. The circumstances must then be considered. The menu of "ors" includes,
"or the purpose of any person in relation to it, or all or some of those considerations".
The last part of paragraph (b) states,
"or all or some of those considerations".
So all of that menu may be present or just one or two parts of it. Therefore, the noble Lord, Lord Lucas, has everything he needs—I promise.
Lord Lucas: My Lords, I shall read what the noble Baroness said and I shall write if I am further concerned. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 96 not moved.]
Baroness Noakesmoved Amendment No. 97:
After Clause 135, insert the following new clause—
"REVIEW OF OPERATION OF ACT

(1) The Secretary of State shall publish each year a review of the operation of the Act.

(2) The review shall cover the following matters—

(a) conviction rates in respect of the offences contained in the Act, including trends in conviction rates;

(b) sentencing experience in respect of the offences contained in the Act in comparison with the maximum sentences prescribed by the Act.

(3) The review may contain any other matters that the Secretary of State considers to be relevant to an understanding of the effectiveness of the operation of the Act.

(4) The first report under this section shall cover the period from the commencement of the Act to the 31st March following the second anniversary of the commencement of the Act.

(5) A copy of the review shall be laid before both Houses of Parliament."

The noble Baroness said: My Lords, noble Lords will be aware that when one reaches the amendment calling for an annual review, the end is certainly not far off. Amendment No. 97 asks for an annual report on the operation of this Bill once it becomes law. We have debated a similar amendment to this several times. In drafting it I have listened to the concerns expressed by the Minister. For example, the amendment allows for a two-year period of operation of the Act before the reporting requirement kicks in and is less prescriptive than any earlier version.
The only absolute requirements are those set out in subsection (2)—the conviction rates and sentencing experience in respect of the offences contained in the Act. Those data are essential for the most basic of analysis that anyone would reasonably want to carry out in respect of the Act. Therefore, its publication could not be regarded as onerous.
Subsection (3) of the amendment states:
"The review may"—
not "shall"—
"contain any other matters that the Secretary of State considers to be relevant to an understanding of the effectiveness of the operation of the Act".
That is, we are prepared to trust the Government to decide what should be included in a report and how the tasks should be tackled. I understand the Government's reluctance to commit to any specifics in advance, which is why I have drafted the amendment in this way. The Government could report that they were reviewing nothing, but at least they would be open to question. I do not believe that this amendment can be described as onerous or inappropriate. In the spirit with which our discussions on the Bill have been conducted, the amendment is reasonableness itself. I beg to move.
Lord Northbourne: My Lords, I support this amendment. It is extremely important. Earlier today I drew attention to two conflicting factors—that is, the sexual drive on the one hand and the natural instinct to preserve, support, educate and care for children on the other.
When the noble and learned Lord, Lord Falconer of Thoroton, was at the Dispatch Box at earlier stages of the Bill, he referred several times to the importance of achieving the right balance between convicting the guilty and protecting the innocent. Manifestly, the Government believe that they have achieved the right balance. I said at Committee stage—and, because I could not be here, the noble Lord, Lord Lucas, said it on my behalf at Report stage—that we have honest doubts about whether that has been achieved. My own inquiries indicate that there is a great deal of anxiety among ordinary, decent people working with children.
I urge the Government to accept this amendment. First, it would enable the Government with honour to look again at and if appropriate fine tune some facets of the Bill. Secondly, the effect of the Bill would be to show to people working in the field that the Government want to be reasonable and to get matters right.
Perhaps I may give your Lordships an example. The other day I spoke to a very responsible and serious youth worker with whom I have worked for 17 or 18 years. I said, "What do you think about the present situation in relation to sexual offences?" He said, "The trouble is that this is the only offence in the book in relation to which you are assumed guilty unless you can prove yourself innocent". That may be an illusion; it may be wrong; it may not be the law. However, that perception is held by a number of good people, and it is a perception of which we should be aware. I support the amendment.
8 p.m.
Lord Monson: My Lords, I agree with virtually everything that my noble friend has just said. I congratulate the noble Baroness, Lady Noakes, on the rewording of her amendment, which, as she said, amounts to reasonableness itself.
Baroness Blatch: My Lords, I also rise to support the amendment. Having sat on the Government Benches in the position now held by the noble Baroness, I am aware of the reluctance on the part of government departments to accept an amendment such as this. There is huge pressure from officials in the department to say, "We promise the House that we will monitor the position to see how this proposal works", and the reluctance continues. More than once I have succeeded in having my arm twisted by the arguments in this place for the importance of a monitoring report to the House.
I have listened carefully to all the points made by the noble Lord, Lord Northbourne, and others. In particular, the Bill covers much new ground, many sentences have been strengthened and some areas of concern have been eased or weakened. It seems to me that it is now absolutely imperative to ensure not only that there will be a promise to report back any concerns but also that it will be monitored, so that modifications may be made by tabling amendments and making adjustments for newer statutes. It seems to me that there should be an obligation on the Government to make such a report consistent with the amendment set out by my noble friend, which I support.
Baroness Scotland of Asthal: My Lords, nothing would give me greater pleasure, particularly as it is so late, than to be able to please the noble Baronesses, Lady Noakes and Lady Blatch, the noble Lord, Lord Northbourne, and the noble Lord, Lord Monson. However, I am not quite able to do so.
The Sexual Offences Bill is, of course, a major piece of legislation. We shall need to keep a very close eye on the operation of the new offences following the enactment of the Act. The noble Baroness, Lady Blatch, has quite rightly said that the Bill introduces some very new provisions. It will be important to monitor what happens in relation to those.
However, we are not sure that the best way of doing that is necessarily through a statutory requirement to produce an annual report to Parliament ad infinitum. We would therefore like more time to consider how best to monitor the operation of the Act, and we shall make our position clear as the Bill passes through the Commons. A number of models could be adopted more capable of keeping an eye on policy developments. Bearing in mind the new area, it may be that that will be the better course. We have not been able to settle the best way to follow it through, but we believe that there is a need for it.
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I therefore invite the noble Baroness to withdraw her amendment. I can certainly assure her that we shall continue to consider the issue and shall make our position plain when the matter reaches the other place.
Baroness Noakes: My Lords, the Minister's point does not surprise me. I shall take her at her word that consideration will continue to be given and that the position will be made clear when the Bill goes to the other place.
However, I want to underline the point that this amendment was not tabled lightly or as a vexatious amendment. However, because of the many difficult issues that have arisen as we have considered the Bill, and recognising that simply agreeing the Bill and turning it into an Act will not wish away those difficulties, I earnestly implore the Minister to use her new position of great authority within the Home Office to ensure that positive thought is given to this matter, so that positive assurances can be given to the other place.
I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Schedule 3 [Sexual offences for purposes of Part 2]:
Baroness Scotland of Asthalmoved Amendment N o. 98:
Page 77, line 15, leave out "16" and insert "18"
The noble Baroness said: My Lords, on the last day of Report my noble and learned friend Lord Falconer of Thoroton mistakenly accepted two amendments tabled by the noble Baroness, Lady Walmsley. Those amendments reduced the threshold age of a victim of homosexual offences, which triggers the application of the notification requirements on the defendant, to 16 in England and Wales and 17 in Northern Ireland. I can, of course, understand why the noble Lord was bedazzled. However, I now seek to correct that anomaly.
As I explained in response to these amendments, we hope to establish a review to remove from the register those convicted of entirely consensual homosexual offences with persons aged 16 or over, or 17 or over in Northern Ireland. However, I feel that it is important to address each case individually in order to ensure that we do not remove from the register those who would have committed an offence, had they carried out the act leading to their conviction under the law as it will apply under the Bill, and who therefore remain a risk to the public. Government Amendments Nos. 98 and 102 therefore seek to remove the noble Baroness' amendments from the Bill.
Baroness Walmsley: My Lords, as the Minister rightly said, these technical amendments result from a most uncharacteristic and small mistake by her predecessor, the noble and learned Lord the Lord Chancellor. Because of the reassurances that he gave me on that occasion about the way in which those affected by the amendments would be treated, I am very happy to accept the government amendments.
[Amendments Nos. 99 to 101 not moved.]
Baroness Scotland of Asthal moved Amendment No. 102:
Page 82, line 44, leave out "17" and insert "18"
Baroness Scotland of Asthal: My Lords, I beg to move that this Bill do now pass.
Moved, That the Bill do now pass.—(Baroness Scotland of Asthal.)
On Question, Bill passed, and sent to the Commons.

Employment Equality (Sexual Orientation) Regulations 2003
8.9 p.m.
Lord Lester of Herne Hillrose to move, That this House invites Her Majesty's Government to withdraw the draft Employment Equality (Sexual Orientation) Regulations 2003 and to lay new regulations amending regulation 7(3) so as to conform with the EC Framework Directive 2000/78/EC.
The noble Lord said: My Lords, the Motion raises an issue of law. The Government seek parliamentary approval of the draft regulations to give effect to the obligations imposed on the United Kingdom by the EC Framework Directive 2000/78/EC. Because the Government have chosen to proceed by way of subordinate rather than primary legislation, the power to make those regulations is conferred by Section 2(2) of the European Communities Act 1972. That is a power to transpose the directive faithfully into our domestic law. If the regulations fail to do so because they would allow an employer to discriminate on grounds of sexual orientation in circumstances not permitted by the directive, they are beyond the powers conferred by Parliament in Section 2(2) and are unlawful.
It is Parliament's duty as national lawmaker to legislate in accordance with Section 2(2) of the 1972 Act and the directive. It is the Government's duty to introduce legislation that they consider to be fully compatible with Section 2(2) and the directive.
The legal advice given the Government is confidential. However, Parliament has the great benefit of an independent scrutiny committee—the Joint Select Committee on Statutory Instruments—one of whose main tasks is to draw to the special attention of each House its opinion that there appears to be a doubt whether delegated legislation for which parliamentary approval is being sought is intra vires or that it appears to make some unusual or unexpected use of the powers conferred by the statute under which it is made. Before doing so, the committee gives the Government the opportunity to explain their position. The committee receives not only expert advice but the most expert legal advice of senior counsel. The committee is a vital safeguard and the executive and legislative arms of government would be wise to heed the committee's advice.
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Speaking for myself, I would not have pursued this Motion if the committee had been satisfied that the draft regulations were intra vires. However, last Friday, the committee determined that the special attention of both Houses should be drawn to them on a number of grounds. The committee's main concerns are with Regulation 7(3), which is the subject of my Motion. Before I address those concerns and explain why the House should give effect to them by supporting the Motion, it may be helpful to set the context.
Article 4(1) of the EC Framework Directive allows in very limited circumstances that a difference of treatment may be justified when a characteristic related to sexual orientation constitutes a,
"genuine and determining occupational requirement. when the objective is legitimate and the requirement is proportionate".
That is known as the GOR—genuine occupational requirement—exception.
In practice that means that an employer who wishes to impose a requirement relating to sexuality—for example, that a person working with lesbian women should be a lesbian, or that a person working with gay men should be gay—must demonstrate that being lesbian or gay is essential for the kind of work which is to be undertaken; that there are good reasons for imposing the requirement; and that the requirement is an appropriate one to apply given those reasons. The requirements apply to applicants for employment as well as to existing employees. The burden of proof lies with the employer.
Regulation 7 deals with the genuine occupational requirement exception, though it has a very strange heading. I have asked the Minister whether he can explain the heading because the whole of the vice of Regulation 7(3) may be explained by the use of the word "etc ". The heading refers to, "genuine occupational requirements etc". I would like to know what is meant by "etc" because all that Regulation 7 is supposed to be dealing with is genuine occupational requirements. It would be helpful to know what that short Latin phrase means.
Regulation 7(1) sets out the circumstances in which the anti-discrimination provisions set out in Regulation 6 do not apply; and Regulation 7(2) sets out, with some minor variations, the genuinely occupational requirement exception. The problem lies not with the GOR exception itself in Regulation 7(2), although it is very wide. The problem arises in the approach taken in the context of religious organisations in the further exception that has been added in Regulation 7(3). It is with this that the Joint Committee has been particularly concerned.
Regulation 7(3) concerns employment for the purposes of an organised religion. It does not have a genuine occupational requirement provision. Instead it creates a broader exception which allows the employer to impose a requirement relating to a person's sexuality either in order to comply with the doctrines of the religion, or because of the nature of the employment and its context, to avoid conflicting with what are described as the,

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"strongly held convictions of a significant number of the religion's followers".
The paragraph further provides that the exception applies if the potential employee does not meet the requirement, or if on reasonable grounds, the employer is not satisfied that the requirement is met. It is, I think, derived from a provision for which I was partly responsible in ancient history in the Sex Discrimination Act, 1975, long before doctrines such as proportionality or the Equal Treatment Directive were in force.
At paragraph 1.17 of its report, the committee concluded that there is doubt about the compatibility of Regulation 7(3) with the directive. The committee reported that there is therefore a doubt as to whether Regulation 7(3) is intra vires, in other words, that there is any power in Parliament to enact it. In paragraph 1.15 it explains its reasoning in this way. The committee stated:
"Against this background, the committee is not persuaded that the only acts permitted by Regulation 7(3) are those permitted by Article 4.1 of the Directive. Organised religions vary considerably in their structure; the identity of the employer will vary according to the structure of the religion. It seems to the committee wholly within the bounds of possibility that, for example, an employer considering employing a custodian who would, as part of his or her duties, have care of religious artefacts might determine not to employ a worker solely on a ground related to his or her sexual orientation in order to avoid conflicting with the strongly held religious beliefs of a significant number of the religion's followers. Even if those beliefs were held only by a minority of the religion's followers, and by those located at only one of the several places where the post holder might be required to work, the discrimination would seem to the committee apparently to be allowed by Regulation 7(3)".
The committee went on:
"Yet it is open to question whether either the intention or effect of Article 4.1 [of the Directive] is to allow the personal beliefs, (even of a majority within an organisation) to determine the position, on the basis that they are part of the context in which the work is to be carried out and, in the view of the employer the factor is decisive. Even if a characteristic of the worker could be said to be a 'genuine and determining occupational requirement' in these circumstances there seems to the committee to be a doubt as to whether the requirement is proportionate as the Directive requires".
That is expressed in the diplomatic language customary to our committees, which means they think that as it stands the regulation exception is legally dubious.
The Select Committee explained that Regulation 7(3)—I now refer to paragraph 1.11 of its report—may,
"permit difference of treatment based on characteristics relating to sexual orientation where the characteristic could not be said to be a 'genuine and determining occupational requirement' which was proportionate".
The committee further explained that Regulation 7(3),
"might allow the employer to impose a discriminatory requirement on an employee or prospective employee whose functions or proposed functions did not promote the core activities of the organised religion concerned".
It is, as the Joint Committee explains, important that Article 4 of the directive be construed strictly, and that the regulations do not provide for exceptions
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which only a very broad interpretation would permit. It is surely wrong as a matter of principle and, as the Joint Committee explains, of dubious legality, that a person in an administrative or ancillary role within a religious organisation should be excluded from employment because they do, or do not, have a particular sexual orientation. To require a person applying for the position of a church cleaner to be heterosexual when that has absolutely nothing to do with whether he or she can wield a mop and bucket not only flies in the face of reason, but is contrary to the express terms of the directive. It is not just cleaners but librarians and a wide variety of others who will be affected—in both paid and unpaid, voluntary work.
The committee went on at paragraph 1.20 of the report to conclude that the position of those affected by Regulation 7(2) and (3) is uncertain. It is not only the possibility that the regulations are ultra vires which should concern this House but that they are unclear on their face. That is a proposition which I should have thought would appeal to all sides of the House—law should be certain both on its face and in its effect. Regulation 7(3) is neither. It is unclear which employers will be able to take advantage of the exemption—churches certainly, religiously inspired hospices, possibly—and which employees will be subject to it—ministers of religion certainly, church cleaners, possibly. This is a profoundly unsatisfactory state of affairs which will lead to expensive and distressing litigation—litigation which will be particularly distressing as it will inevitably involve a public analysis of the very private business of a person's sexuality.
The Government may argue—I hope that they do not—that the lack of clarity in the regulations could be remedied by departmental guidance. That would be highly unsatisfactory. Not only would it be an implicit admission that the regulations are not themselves sufficiently clear—which they should be—but such guidance would not be binding on courts and tribunals. It would in fact be contrary to the principle of legal certainty.
My final substantive reason for pursuing the Motion is also one to which the Joint Committee has drawn the attention of this House in paragraph 1.25 of its report. The committee considered that, in the light of Regulation 7(3), the department would have been prudent to undertake further consultation with representatives of persons likely to be adversely affected by Regulation 7(3) before the regulations were laid before Parliament.
When the original version of the regulations was published for consultation purposes in October 2002, there was no Regulation 7(3). It is reasonable to presume, therefore, that the drafters of the regulations considered that the much narrower Regulation 7(2) provided the only legitimate form of exception. Regulation 7(3) appeared only after the consultation and was included expressly to meet the concerns of those who argued that the regulations should not seek to meddle with matters of religious doctrine. There appears to have been no attempt to consult further with those who will be adversely affected by the

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inclusion of Regulation 7(3) even though, as officials who gave evidence to the Joint Committee admitted, there would be such people.
I have asked the Minister to deal in his reply with a Question that I tabled for Written Answer asking which of the organisations that made the representations about the draft regulations supported the amendment to Regulation 7 to include the obnoxious Regulation 7(3). The default in consultation is even more regrettable when, as I have indicated and as the Joint Committee has explained, that regulation is unclear in its terms and effect.
Those of us who had strong doubts about the validity of the exception in Regulation 7(3), because of its vagueness and over-breadth, were not at all surprised by the unanimous conclusions of the Joint Committee. We hoped and expected that the Government would reconsider and lay fresh draft regulations before Parliament that followed their original version, on which there was extensive public consultation. We are dismayed that the Government have not done so.
Unless we are able to persuade the Government in this debate. what will be the practical consequences? I shall deal with them briefly. The regulations will become law. They will bear no brand of illegality on their forehead. Unless and until legal proceedings are brought to establish the cause of invalidity and to have Regulation 7(3) annulled, it will remain effective as a sweepingly broad exemption clause apparently permitting a religious body to refuse to employ not a priest but a cleaner or messenger because of their sexuality. In other words, Regulation 7(3) will encourage unlawful discrimination even though, as I am sure that we shall be told, that is not the Government's intention.
I have no doubt—I stake my professional judgment on it—that the courts would eventually decide that Regulation 7(3) was contrary to the principles of legal certainty and proportionality. Either the regulation will be struck down, or it will be drastically read down. But why on earth is it necessary to have recourse to the costly and protracted procedures of challenge in the courts, when it is so easy in this case for the Government and Parliament to enact legislation that avoids the vices of undue vagueness and over-breadth?
I believe that the answer to the puzzle of why the Government have not moved, in the light of the Joint Committee report, is a mixture of confused thought and political obstinacy. The Government and—I am sorry to have to say it—especially the Prime Minister and his advisers were persuaded at the end of the consultation by some religious bodies, including some even in the Church of England, I regret to say, to widen Regulation 7(3) even though it was both unnecessary and unlawful. It was unnecessary because the original version of Regulation 7 contained sufficiently wide exceptions, and unlawful because it authorised sexual orientation discrimination in circumstances not required by the needs of the particular post or the context in which the jobholder would work.
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I very much hope that the Minister, for whom I have the utmost respect and feel sadness that he has to do as he is doing, will be able to tell the House that the Government have decided that their first thoughts are to be preferred to their second. If not, it will be our intention on these Benches to seek the opinion of the House, still hoping to make a law that will not mislead or be an abuse of the powers conferred in the 1972 Act. If we are unable to muster sufficient support against the Government's whipping, especially at this late hour, I predict with the utmost solemnity—one does not lightly do so in public—as a practising lawyer of almost 40 years' standing that the Government will face ultimate defeat and humiliation in the courts after costly and effective litigation.
Moved, That this House invites Her Majesty's Government to withdraw the draft Employment Equality (Sexual Orientation) Regulations 2003 and to lay new regulations amending Regulation 7(3) so as to conform with the EC Framework Directive 2000/78/EC.—(Lord Lester of Herne Hill.)
Baroness Turner of Camden: My Lords, I believe that the regulations are intended to put into effect the agreed EU directive banning discrimination in employment on several grounds, including religion or belief and sexual orientation. I have in the past attempted to introduce Private Member's Bills aimed at outlawing discrimination in employment relating to sexual orientation but, for various reasons, those have not succeeded. With these regulations, it seemed that we were in the process of correcting what many of us saw as a continuing injustice. However, I have been lobbied by my own union, Amicus, because it feels that the exemptions proposed could make things worse for gay and lesbian people in religious organisations. As I understand it, there are major exclusions which would exclude faith organisations from having to comply. Would this mean that someone who is not a practising member of a given faith could be rejected for a job? Could a lesbian or gay employee be discriminated against in the event of co-religionists taking exception to his or her continued employment, simply because it offended their religious susceptibilities? Surely that would not be acceptable. I cannot believe that that was the Government's intention.
Further, can employers deny a same-sex partner access to a benefit such as a survivor's benefit in an occupational pension scheme if they specify that this benefit is restricted to married partners only? We have already debated this injustice in the House. There have been some really awful cases in which one partner to a long-term relationship dies, and the other does not benefit from a survivor's pension. The surviving partner also risks losing the home in which they lived, because inheritance tax, which would not apply to a married couple, must be paid. I had hoped that these regulations would put right some of these injustices, but this does not appear to be the case.
I received briefing from several organisations other than my own union. The Law Society says:
"In the absence of any limiting words in Regulation 7(3)(b)(I), we consider that a church which asserts, as a matter of doctrine, that homosexuality is a sin will be able to deny employment to

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homosexuals in any capacity whatever, without reference to the nature of the job. This is hard to reconcile with the purpose of the Directive".
The Joint Committee on Statutory Instruments—the text of whose report has been explained to us in some detail this evening by the noble Lord, Lord Lester— clearly believes that Regulation 7(3) breaches the European Directive.
I support the Motion of the noble Lord, Lord Lester, and I hope that in the light of this debate, the Government will feel inclined to accept what he has said. We cannot leave interpretation to tribunals. Regulations must be clear.
8.30 p.m.
Lord Pilkington of Oxenford: My Lords, there is a fundamental problem. There are human rights, and there are corporate rights. Everyone has supported the idea that faith communities can choose the people they employ. In Hitler's Germany, he destroyed faith communities, and the state decided who they could employ. It is a fundamental tenet of modern democracy that the communities within the state, be they trade unions or Churches, can decide whom to admit. The state does not decide that. My Lords, you may disagree with them; you may find them a narrow, funny lot—but it is their right. The noble Baroness sat on the European committee, as I did, together with many European Union members. England is not alone in this. A lot of other people have said that they are not prepared to accept that a faith community should be dictated to by the state—by people who have no commitment to their religion. I do not know what the religion of the noble Lord, Lord Lester, is, but I do not think that it is mine.
It is crucial that we allow derogation in this matter. It is being allowed in Germany, Ireland and a lot of other countries. Why should we not do it? People do not have to be cleaners in the Anglican church or the Jewish synagogue. You may think that they are bizarre or from the Planet Zor, but they are entitled. If we do not watch out, we will stray into the secularisation seen in France in the late 19th century, when the state started to dictate to the Church what it could do. They could not have monks or things like that.
Therefore, it is terribly important that the Government stand firm on this issue, together with the governments of a number of European Union countries. I do not have the advantage of the research team of the noble Lord, Lord Lester, so I cannot furnish my argument with quotes, but corporations within the state have a fundamental right to their own identity and we must support that.
The Lord Bishop of Blackburn: My Lords, I thank the Government and the noble Lord, Lord Sainsbury, for tabling the regulations and the noble Lord, Lord Lester, for his untiring work on behalf of human rights. The Church of England, in common with many other Churches and faith communities in our country, strongly supports the creation of a legal framework to safeguard basic rights and to promote dignity, equality
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and respect for all members of society. The law cannot by itself change attitudes, but as we have seen in the past with legislation against race and gender discrimination, it can helpfully set the boundaries for acceptable behaviour.
It is an undoubted anomaly that discrimination against Jews and Sikhs has up to now been unlawful because they are ethnic groups as well as a religious community, whereas discrimination against Muslims, Hindus or Christians has not been. It is also wrong that prejudiced views about sexual orientation have been able to deny people employment. The two sets of regulations before us tonight address those problems and I welcome them.
They both, inevitably, raise particular issues for faith communities in their own internal affairs. That is not a code for saying that we seek special treatment. It is simply an echo of the assertion of paragraph 24 of the preamble of the European directive in relation to the status of Churches, religious associations and communities. That paragraph continues:
"With this in view, Member States may maintain or lay down specific provisions on genuine, legitimate and justified occupational requirements which might be required for carrying out an occupational activity".
To put it more simply, the directive recognises that Churches and faith communities need to maintain their character and identity and sometimes to be able to set requirements which should not arise in the case of a secular employer. In respect of the religious discrimination regulations, that much is surely common ground. Religious organisations self-evidently need to be able to safeguard their identity and ethos without the fear of constant litigation which is such a feature of our modern society. Where, for example, being a Christian, a Muslim or a Mormon is a genuine occupational requirement, the regulations now permit what in other circumstances would constitute unlawful discrimination.
In relation to sexual orientation, the arguments, unsurprisingly, become more contentious. There has been a good deal of misrepresentation in the press about the position of a wide range of faith communities, to the extent of it suggesting that we are keen to dismiss gay clergy and staff. Perhaps I may briefly explain why the original draft regulations published last October caused much concern and why we believe that the new regulations are better and more compatible with the directive. It can be expressed very simply. Churches and faith communities need to retain a broad measure of freedom to determine their own requirements in relation to the sexual conduct—not orientation—of those who wish to serve or represent them. What those requirements should be is already a matter of lively debate in many faith communities as we ponder how to respond to the rapid changes in attitudes and ethics that our society has witnessed in recent decades. But that debate is surely something which the Church of England, the Roman Catholic Church, the black majority churches, the Muslims and the very many other faith communities in our diverse society must each be allowed to have in their own way. I urge the House to recognise that there are genuine

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issues of religious liberty here. If that is accepted the question is how best to safeguard that liberty in the way the noble Lord, Lord Pilkington, has just described, while providing proper protection against the discrimination which gay and lesbian people have had to endure.
A difficulty immediately arises as a result of the varying ways in which sexual orientation can be used. As regards the Church of England—and I believe that this will be true for many of the Christian denominations and other faiths—there are no circumstances in which we would wish to be able to discriminate against people on the grounds of their orientation as such. I feel like repeating that.
We do not have posts or orders where there is a requirement to be heterosexual, or indeed homosexual. But we do have some posts and orders where, irrespective of sexual orientation, be it heterosexual or homosexual, the requirement remains for marriage or abstinence. Our difficulty is that under the regulations that sort of requirement would be open to challenge as unlawful discrimination if it were not for Regulation 7(3). The tribunals are unlikely to recognise a clear distinction between orientation and behaviour manifesting orientation. That is the difficulty.
Regulation 7(2) by itself does not give the protection we need because it applies only where being of a particular orientation is an occupational requirement. All of our posts in the Church of England are open to people of any orientation provided that they are prepared to observe the disciplines of the Church where that is required. We have no intention of discriminating against anyone simply because of their sexual orientation.
It was because of the inadequacy, as it was perceived, of Regulation 7(2) that the Archbishops Council of the Church of England, together with many other faith groups, expressed such concern at the earlier draft regulations. We welcome the way in which the Government have listened and responded. It is not that, as a Member of another place said, Downing Street caved in to the prejudices of extreme religious organisations. I doubt even the most unfriendly critic of the Church of England could level that description against it—an extreme religious organisation.
Finally and briefly I say a word about the doubt raised by the Joint Committee on Statutory Instruments to which the noble Lord, Lord Lester, has referred as regards the lawfulness of Regulation 7(3) under the directive. Ultimately, that is a matter for the courts who would no doubt have to struggle to reconcile some of the internal inconsistencies within the directive. On the basis of advice from our standing counsel, Sir Anthony Hammond QC, in our view Regulation 7(3) fully meets the requirements of Article 4(1) of the directive.
In particular the regulation is confined to employment for purposes of an organised religion. It fulfils a legitimate objective—protecting the right to religious freedom—and it is proportionate. It is emphatically not about pandering to prejudices. The
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provision comes into play only where doctrine and strongly held religious convictions are at stake. I cannot believe that that religious doctrine comes into play in the employment of cleaners or librarians—we do not employ many of the latter in the Diocese of Blackburn: they would be a very rare category indeed.
I am sure that the courts and tribunals will be able to see through spurious defences. Not to provide protection for genuine religious convictions would risk the law engaging in a collision course against the consciences of many who take a conservative view, with a small "c", on sexual ethics. That would be a very worrying development and not one that I believe would prove beneficial in the end to these regulations or to the well-being of the diversity, culture and religion of our nation.
Lord Lester of Herne Hill: My Lords, can the right reverend Prelate help me on one matter? Where in Regulation 7(3) are words of limitation which require the principle of proportionality to be applied or require that the discrimination should only be in relation to what is a genuine occupational requirement?
8.45 p.m.
The Lord Bishop of Blackburn: My Lords. an amateur is here in conflict with a lawyer. For me the importance of the matter is to comply with the doctrines of religion and religious convictions. That is the main point for us. I was going on to say before the noble Lord intervened that the present drafting would not have been exactly our choice. However, it attempts to strike a fair balance between the rights of individuals and the freedom of faith communities to apply their own beliefs and convictions in relation to those who serve and represent them .
I urge the House to resist the Motion and to approve both sets of regulations.
Baroness Miller of Hendon: My Lords,…
Lord Avebury: My Lords, surely the noble Baroness is not winding up?
Baroness Miller of Hendon: My Lords, no, I intended to speak—I am not winding up. I would never upset the noble Lord, Lord Avebury.
The Motion is to withdraw the first of the two regulations that we are considering this evening. The regulations stem from when the Government decided to sign up to Article 13 of the Treaty of Amsterdam in 1997. For the first time that gave the EU power to legislate in the area of religious and sexual orientation discrimination. Prior to that it could not happen. The previous Conservative government consistently vetoed that. Giving power to the EU to dictate national Government policy in such a sensitive area was always bound to be a minefield. It has proved to be so. One of the first acts of the Labour Government in 1997 was to sign up to Article 13. Three years later,

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in October 2000 they agreed to the EU Council directive that established a general framework for equal treatment in employment.
Under pressure from religious groups at home, and led by the Irish, the Government were able to obtain concessions in the directive to protect religion. Those concessions were not as wide-ranging as could have been wished for, but they went some way towards recognising the different considerations that apply to religious employers.
We now have these regulations that are intended to implement the directive. Given that the Government have helped to obtain the concessions for religious groups, it is disappointing that they have not made the religious exemptions as clear and as firm as they might have. As with all badly drafted laws, as the noble Lord, Lord Lester, has said, it will take much litigation to establish the boundaries of religious protection. That is as true in the religion regulations—the next matter that we shall debate—as it is in the sexual orientation regulations. We would not have started from here if all of that had not happened. However, we are here.
I have listened carefully to the arguments advanced by the noble Lord, Lord Lester of Herne Hill, inviting your Lordships to disapprove of the sexual orientation regulations. I have also had the advantage of studying in advance the letter that he wrote to my noble friend Lord Cope of Berkeley summarising those arguments. I have some sympathy for the strictures about the adequacy, or indeed the suitability, of the regulations. However, these Benches cannot support the rejection of the regulations, which, if rejected, would strip out at least the religious exemptions from the orientation regulations. Despite their shortcomings, to reject the regulations would be akin to throwing the baby out with the bath water. Without them there would be nothing whatever to protect the very people that the regulations are intended to protect.
The nub of the noble Lord's argument is in relation to Regulation 7. Paragraphs (1) and (2) enable an employer, in effect, to discriminate in any case where, as the noble Lord explained, the employee's sexual orientation is a genuine and determining occupational requirement. In his letter to my noble friend, the noble Lord, Lord Lester, conceded that Regulations 7(1) and 7(2) were uncontroversial and squarely within the language of the directive.
However, it is Regulation 7(3) which is objected to by the noble Lord, Lord Lester. That paragraph was not included in the original draft regulations circulated for consultation last October. I wonder at whose behest and on the basis of what representations it was added. Regulation 7(3) permits what in effect amounts to discrimination if the employer is an organised religion and the discrimination as to sexual orientation is to comply with the doctrines of that religion or to avoid conflict with the strongly held beliefs of a significant number of that religion's followers.
In the brief which many of your Lordships undoubtedly will have received, the Law Society asked whether a charity connected to an organised religion
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would enjoy the same exemption. Perhaps the Minister could tell the House when he replies. What a fertile ground for litigation that phraseology contains in defining an organised religion, the doctrines of that religion, the strongly held beliefs of followers and, last but not least, how many followers make a significant number. What is an organised religion? Will the courts or, worse still, as the noble Baroness suggested, employment tribunals, have to decide on the ecclesiastical purity of some of the weird and wonderful sects that thrive in our community? I name no names for fear of giving offence, but your Lordships could each undoubtedly think of a so-called religious movement which cannot really be dignified with the name of a religion. What are their beliefs, and how strong is "strongly held"? What is a significant number? A significant number of Catholics will be substantially more than a significant number of the Seventh-Day Adventists, or is the number to be gauged in percentage terms, in which case should the percentage not be defined in the regulation which should refer to at least "x" per cent of the religion's followers?
The objection by the noble Lord, Lord Lester—to reduce it, if I may, in my words to its simplest terms—is that it would permit discrimination not only on the grounds of the sexual orientation of, for example, clergy and teachers but also on the grounds of the sexual orientation of an office clerk or, as he said, the cleaning lady or caretaker who may never come into contact with students or worshippers in the course of their duties.
I am certain that every Member of your Lordships' House would strongly disapprove of what might be described as bigotry and unreasonable, indeed, unreasoning, blind prejudice. However, those of us—I include myself in this number—who wish to protect the rights of various minorities, in this case those of homosexual orientation, must not at the same time overlook the rights of other members of the community. There are those who find homosexuality objectionable. I certainly do not include myself or, indeed, I think, anyone in this House. Although I am a very religious person I certainly would not accept the word "abomination", which is used in Leviticus. I think that is quite disgraceful.
We may not agree with such a prejudiced view but—this is the important part—as the regulation carefully stipulates that the employer's belief must be reasonable, I believe that there is both protection for the employee and a quite difficult defence for the employer. Those same people may similarly want to object and to discriminate against persons who live together, in the very quaint Victorian phrase, "without the benefit of clergy".
Paradoxically, the regulations prohibit discrimination on the grounds of the sexual orientation of an employee but do not prohibit discrimination on the grounds that the employee is living with a member of the opposite sex to whom he or she is not married. That in itself is discriminatory,

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but typical of the biased way in which this type of anti-discrimination legislation is framed. All employees are equal but some are more equal than others.
A few moments ago I referred to fertile grounds for litigation in defining the operation of Regulation 7. If we go by the precedent of previous anti-discriminatory regulations, I fear that these regulations, regardless of what I am sure are their good intentions, will land employers with claims for substantial compensation because of actions over which they have absolutely no control. The same Law Society brief very strongly shares that view.
Leaving aside the religious defence, if a fellow employee refuses to work with a colleague because of his sexual orientation, or if that employee in the course of an argument uses abusive language about the other employee's sexual orientation, then there is little doubt but that a claim for damages against the employer will follow. There is a difference in principle between discrimination on the grounds of a person's sex or race and this new type of discrimination for which we are being asked to legislate today. An employer would have no doubt about a employee's sex—at least, I hope he would not—or, in most cases, his or her race; but there would be no way that an employer could be certain of the sexual orientation of an employee or a potential employee. The same would apply to his or her religion. We could therefore find a person being refused employment or dismissed on perfectly normal grounds, and then launching a claim that it was a case of discrimination on the grounds of his sexual orientation—of which the employer was not even aware.
Your Lordships will not have overlooked the fact that under this type of legislation, once the employee has established a mildly plausible case of the possibility of discrimination, that employer is faced with the almost impossible task of proving the negative. In following these directives, we have imported the concept of guilty until proved innocent.
To sum up, we find these regulations to be poorly and ambiguously drafted but we think that they are the best of a bad job, and certainly the best that the Government have offered to us.
The noble Lord, Lord Lester, has expressed the opinion that Regulation 7(3) is ultra vires the European Communities Act. I certainly would not dream of arguing a point of law with the noble Lord. There is another law, however, called Duggan's Law, which says that for every expert opinion there is an equal and opposite opinion. In this case, the opposite opinion is expressed by Professor Leigh of the University of Durham, whom I am quite sure the noble Lord, Lord Lester, recognises as a leading human rights academic, as well as being an adviser to governments at home and abroad. He argues:
"It is overly dogmatic to argue, as the Joint Committee has, that Regulation 7(3) is ultra vires the European Communities Act. The Government has sought a compromise between two strongly held positions. In doing so, it has followed models of United Kingdom legislation already in force, notably, the Sex Discrimination Act 1975 and the Sex Discrimination (Gender Reassignment) Regulations 1999".
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He continues:
"Similar exceptions from sexual orientation discrimination laws for religious bodies can be found the whole world over, from states in Australia and the United States of America and Ireland".
Deplorable as discrimination on grounds of sexual orientation undoubtedly is, respect must be given to the genuinely and sincerely held beliefs of others. Surely we should not trample over those rights on account of an academic, technical argument about the validity of the exception.
In the circumstances, if the noble Lord, Lord Lester, presses his Motion to a Division—he said that he probably would—we will not be able to support him. Similarly, and with equal reluctance, we will support the passage of these regulations. We very much hope that the adverse consequences about which I have spoken, and which the Law Society fears, will not materialise.
I cannot do better than to conclude by quoting from a brief that undoubtedly many noble Lords received from the Evangelical Alliance. It states:
"Although we recognise that the Regulations as laid before may cause some difficulties to faith groups across the UK in coining years, we consider that the Sexual Orientation Regulations are the best we can hope for and expect at this present time".
I agree.
9 p.m.
Lord Alli: My Lords—
The Lord Bishop of Worcester: My Lords—
Baroness Crawley: My Lords, we have had a contribution from the Bishops' Benches, and I am sure that noble Lords look forward to hearing from another Member on those Benches, but perhaps we could speak in some order. I call on my noble friend Lord Alli, followed by the noble Lord, Lord Avebury, and then the right reverend Prelate the Bishop of Worcester.
Lord Alli: My Lords, I support the Motion of the noble Lord, Lord Lester, to disapprove these regulations. I sincerely urge the Government to withdraw them and to think again. The noble Lord, Lord Lester, set out very clearly and in detail what he and others consider are the faults of the regulations. My principal concern, and the one that I will address, is the role of the Church of England and other organised religions in this debate.
I find it impossible to believe that the Government—one committed to fairness and equality—should seek to allow the continued discrimination against gay men and women if those who seek to discriminate against them believe in God. What an irony: if you are God-fearing, you can weed out, discriminate and persecute gay men and women, and, if you are not, you cannot. Frankly, the exceptions in Regulation 7(3) are a joke. They make a mockery of equality legislation. My noble friends on the Front Bench should seriously reconsider those provisions.

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I believe in God and am fully prepared to put my head above the parapet. I do so to condemn those in the Church of England and other organised religions who seek to use the lives of ordinary gay men and women as a crucible in which to play out their own internal theological disputes. How can it be sensible that, on the one hand, the Church is about to appoint a gay bishop, and, on the other, it is about to sack gay staff.
We see the way in which a tradition in the Church seeks to persecute gay men and women. Even today, the right reverend Prelate the Bishop of Oxford is under intense pressure following his appointment of Dr Jeffrey John as the Bishop of Reading. The fact that he is celibate is immaterial because he has a history of homosexuality. That is enough for his critics to want him out. It seems irrelevant that he might be the best man for the job.
I will take some convincing that these regulations will not be unfairly used to persecute good men and women. I fully accept the right of the Christian Church to appoint Christians to its ministry, of a mosque to appoint a Muslim, or a temple to appoint a Hindu. That is their right, and it is one that the Employment Equality Regulations protect. But I cannot accept that it is right for an organised religion to dictate that those in its employment should or should not be of a particular sexuality—no more than that they should or should not be of a particular race.
I invite noble Lords to imagine the case of the mythical librarian in an evangelical theological college. She is a Christian with deeply held convictions, but she is also a lesbian.
Do we really want to sanction regulations that would require her either to be untrue to herself or to risk losing her job? If we were to approve these regulations, that is precisely what we would be doing, and it would be shameful.
It seems to me that the Church of England, whose representations to government appear to have been influential in bringing about the addition of Regulation 7(3), is seeking to do a dangerous thing. In its support of the extension of the circumstances in which it would be lawful to discriminate on the basis of sexuality, it is effectively absenting itself from normal civil society.
Not so long ago, being a Roman Catholic in this country led to persecution and execution. When we had a Roman Catholic monarchy, the same was true for Protestants. Thankfully, we now live in more tolerant times; but the Church history of this country in the 16th century is still being played out in other parts of the world. How can we try to advocate decent civil society in other countries when we legitimise the practice of discrimination against gay men and women by religious institutions?
What is the difference between an absolute right to remove someone from their job because they are gay and an absolute right to put somebody in gaol because they are gay? Shall I tell noble Lords what the difference is? The difference is in the degree of
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prejudice in the law. This feels more like a provision dreamed up by the Taliban than one suitable for a mature democracy.
I recognise that this country has an established Church. It is represented in this House. However, I say to the Lords spiritual on the Bishops' Benches that if they try to use the privilege that they enjoy—the extraordinary privilege that we all enjoy—of law-making, by using the civil law as a means of exempting themselves or their religion from the norms and values of civil society, they will have diminished their role in society. Gay people may be a minority in society, but so too are those who actively profess a faith.
Each is entitled to protection, but not at the expense of the rights and dignity of the other. That is what equality means. Today we have the opportunity to demonstrate that this House is a modern Chamber, one that acknowledges that religion has a place in the national debate, but not a dominant or superior one.
We have the opportunity, in supporting the noble Lord's Motion, to influence the kind of society we, and others, want to live in. That society recognises and celebrates differences, and does not allow irrelevant factors to determine a person's life chances. One's sexuality is an integral part of one's identity. It is what makes us human.
I give my noble friends on the Front Bench due warning that I will oppose these regulations, and I will do all in my power to try to convince them to change their minds. This is a Government of which I am proud, but this law is a huge stain on a worthy record on equality. I have never voted against my party or Government, but in all honesty, noble Lords cannot expect a turkey to vote for Christmas, no matter how important it is in the Christian calendar.
I support the noble Lord's Motion to disapprove these regulations, and I very much hope that the Government will think again.
Lord Avebury: My Lords, on an issue of such important principle as this, I hope that many other Lords on the Benches opposite have listened to what the noble Lord, Lord Alli, has said and would put principle above party. This is not a party matter; it is a fundamental question of the freedom of gay people in our community.
I am sorry that the noble Baroness, Lady Miller of Hendon, has been illogical about this. First, she condemned these regulations on the grounds that they will cause endless problems in the tribunal, in the interpretation of the words here such as the noble Baroness, Lady Miller of Hendon, mentioned several times. All of the phrases that occur in Regulation 7(3) will cause major difficulties in the tribunal and endless arguments. At the end of the day, as my noble friend says, it is likely that the whole of Regulation 7(3) will be struck down. What are we going through this for? Why create such a lot of work for lawyers in the employment tribunal, when we know what the result will be at the end of the day?

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In spite of the noble Baroness's reference to one individual who has expressed a contrary point of view, I prefer to accept the opinion of my noble friend and of the Select Committee. The article on which the employment regulations are supposed to he based explicitly rules out,
"discrimination on another ground".
That is at the end of 4.2, and it has not been mentioned yet.
It is reasonable that differences in treatment may exist if there is a genuine occupational requirement, but, with great respect to the noble Baroness, we would not have had the minefield that she mentioned if the Government had stuck with their first thought and confined themselves to Regulations 7(1) and 7(2).
The directive envisages circumstances other than genuine occupational requirement in which difference of treatment on grounds of age—but not for any of the other characteristics mentioned—are permissible. Specifically, the directive does not allow for differences in treatment on grounds of sexual orientation. other than the GOR. Therefore, the directive cannot be held to allow the managers of employment for the purposes of an organised religion to apply either of the criteria in 7(3) of the sexual orientation regulations.
It is not an answer to say, as Barbara Roche did in her letter to Stonewall, that the expression,
"for the purposes of an organised religion".
had a limited meaning. She acknowledged that faith schools might come under the provision. I imagine that religious NGOs, aid organisations, missionary societies and newspapers such as the Catholic Herald, the Church Times and Q-News would all be able to make a case. if they chose to do so. The exact scope of the exemption is unclear because there is no immediately relevant case law on the words,
"for the purposes of an organised religion",
which, I believe, were taken from Section 19 of the Sex Discrimination Act 1975. I have been informed of two cases under the old Section 4 of the Race Relations Act 1976 at employment appeal tribunal level, which dealt with employment for the purposes of a private household. In both cases, the expression "for the purposes of" was given a broad interpretation. I suggest that it may read across into this order. In any case, it will give rise to many cases in which it will be claimed that it does.
The point is not the number of organisations that will be covered by the expression. Article 4.1 does not allow any discrimination on such grounds, contrary to the assertions of the DTI in its evidence to the Select Committee. It is certainly true that the doctrines of certain religions criticise people who are gay, but I am not aware of anything in the Bible or the Qur'an that says that employers should not hire gay people. That was confirmed by Mr Magyar of the DTI, who said, in answer to a question from the noble Lord, Lord Lea of Crondall, in the Select Committee:
"We are not aware of any cases in which religious doctrine requires a post to be filled by persons of a particular orientation".
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Therefore, it is impossible to satisfy the tests in 7(3)(b)(i), because the doctrines of no religion say anything about the employment of people of a given sexual orientation.
The second leg of 7(3)(b) is where the nature of the employment and the context in which it is carried out are such that hiring somebody of a particular sexual orientation would conflict, as has been quoted, with the strongly held religious convictions of a significant number of the religion's followers. When my noble friend Lord Russell asked Mr Magyar which part of the directive he relied on for the wording of 7(3)(a), he answered that it was in Article 4.1, which deals with the GOR, which is a different matter. If we agreed to the provision, we would allow the bigotry and prejudice of some of a religion's followers to dictate its employment policy. I think that it would be the first time in any western country when anti-gay conduct has been approved by legislation.
If the argument is that the sacred books are highly critical of gays, so they are of many other human characteristics, such as wanting something that one has not got. The exception—
9.15 p.m
Lord Pilkington of Oxenford: My Lords, perhaps I may interrupt. Has the noble Lord considered that various other members of the European Union are actually implementing this directive?
Lord Avebury: My Lords, I think that the noble Lord was under a misapprehension. I did not intend to refer to his speech but I shall do so now that he has invited me to elaborate on his remarks. He said that trade unions or Churches may decide who to admit to their communities and that faith communities should not be dictated to by any state. We are not concerned here—
Lord Pilkington of Oxenford: My Lords, I asked the noble Lord a simple question. is the noble Lord prepared to accept that other members of the European Union—for example, Ireland or Germany—have accepted the amendments to the directive. I do not want him to comment on my speech, which was minor and neither here nor there. I just want him to answer my question. What is the rest of the European Union doing?
Lord Avebury: My Lords, I do not believe—but I am subject to correction if I am wrong—that any other European country has, in its regulations, an equivalent of Regulation 7(3). I may be wrong—
Lord Pilkington of Oxenford: You are wrong.
Lord Avebury:—and I dare say that your Lordships could refer me to regulations in Saudi Arabia perhaps where equivalent provisions exist.
Lord Pilkington of Oxen ford: How unfair.
Lord Avebury: My Lords, but in any case, with respect, we are legislating for the United Kingdom and

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not for Ireland or Germany. We should therefore not be guided by what has happened in other countries, but we should stick to what should be done in the United Kingdom.
The exception,
"emerged during the recent consultations on our draft regulations",
as the Minister told Stonewall. Specifically, it came almost verbatim from paragraph 24 of the Church of England response to the DTI consultation document, which called for the insertion in Section 5 of these regulations, the words:
"Nothing in parts II to IV of these Regulations shall render unlawful anything done for the purposes or in connection with an organised religion so as to comply with the doctrines of the religion or avoid offending religious susceptibilities of a significant number of its followers".
That explains where the words came from, to answer the question posed by the noble Baroness, Lady Miller. It got there by Church of England lobbying which, as the noble Lord, Lord Alli, explained, was not subject to any consultation.
However, as soon as I saw these words I wrote to Mr David Tredinnick, the chairman of the Select Committee on Statutory Instruments, pointing out that they were outside the scope of the directive and asking whether Standing Order 151 in the Commons and Standing Order 74 in your Lordships' House, where they deal with the vires of a statutory instrument, should make specific reference to orders which go beyond the scope of their parent European directives. Mr Tredinnick replied that standing orders did not need alteration because these powers were already contained in the existing wording. Indeed, I am sure that they are, but the debate in your Lordships' House today emphasises the importance of putting this on the face of the standing orders.
As my noble friend said, the Select Committee has now reported that there is doubt as to whether Regulation 7(3) is intra vires. It draws these regulations to the special attention of both Houses in very strong and, I think, unprecedented language. I am open to correction, but I do not think that the Select Committee has ever had occasion to use this power before. It also criticises the Government for consulting on Regulation 7(3) with only a small number of representatives of Churches and not with representatives of any body which is likely to be affected by the changes.
When these orders were considered by the Joint Select Committee on 3rd June, it had to make do with photocopies because the printed versions had not yet been published. The Select Committee has done very well to get its report out quickly, but it was available on the web only late on Friday afternoon. That has not given your Lordships time to consult with the representatives of those who may be affected in the light of the committee's strictures.
As with much of the business of the House these days, the Government's idea seems to be to pile it on with the minimum time for consideration, hoping that shock and awe will eliminate legitimate objections. I
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hope that they have miscalculated on these regulations and I look forward to supporting my noble friend in the Division Lobby.
The Lord Bishop of Worcester: My Lords, although we on these Benches are not a party and are not whipped, your Lordships will understand that it is with some hesitation that anyone speaks against the very strong representation of not only the Archbishops' Council of my own church but also the leadership of many other denominations and faith communities.
The words of the right reverend Prelate the Bishop of Blackburn undoubtedly reflect what the Government have heard from our Church. I suspect that they reflect the views of perhaps the overwhelming majority of bishops, and I am sure that the House will weigh them in that light. In speaking at this point, therefore, I do not seek to give to my words and arguments the kind of weight of support that he rightly would claim as his. However, I hope that the House will understand that there are occasions on which it is quite important to place on the record of a debate such as this the view of a minority, of whom I am glad to be one. I take the view that the representations made on behalf of my own Church are not proportionate to the problem with which they seek to deal. I shall support the noble Lord's Motion.
There are in the Church and in religious communities two debates of very great significance. First, there is the debate about sexual ethics. That debate needs to be conducted with respect and coolness, particularly in view of the nature of the subject. I do not for one moment attribute prejudice or bigotry to those who disagree with me in that debate. There are significant arguments with which it is important for the mind of the Church to engage. We are doing so, and we are seeking every opportunity to enable others to consider their positions on this topic. I want that process to continue.
Secondly, there is another less prominent debate that I suspect may be more important in the long term; namely, the debate in religious communities about the human rights tradition. I believe that that is a very important development in modern society. I also believe that it is frequently pursued to the neglect of the rights of communities in society and with an interest only in the rights of individuals. To that extent, I have much sympathy with those who say that, as a balancing factor, it is important to attend to the rights of religious communities to maintain their own characters and their own lives.
However, there are two reasons why at the end of the day I still find myself regretting the form in which this particular regulation has been brought before the House and supportive of the Motion tabled by the noble Lord, Lord Lester. First. there is the phrase about the beliefs of a significant number of the followers of a religion. I have said, and I repeat, that I do not hold in disrespect those who out of Christian, Jewish, Muslim, Sikh or Hindu conviction believe that the conduct of sexual life has to be within marriage, or by abstinence. However, I find unacceptable the use of

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phrases such as "beliefs" and "significant number", which open the door to some kinds of campaigning about which all of us would wish to be ashamed.
I have to say to your Lordships that it is not only in religious communities that such campaigns can be mounted. In Worcester, I have watched the British National Party clothe itself in religion, precisely for the purpose of undertaking campaigns of that kind. Therefore, I find it extremely difficult to accept that we should he advancing, with the support of religious communities, a regulation that includes such an open-ended licence for people to advance things that are not the doctrines of the Church and may not be the doctrines of any religion. Frankly, they are their own gut reactions, which they clothe in those doctrines because they believe that it will advance their cause. That concerns me very greatly indeed.
My second difficulty is that I do not believe that the rights of religious communities are unlimited in relation to the civil law of society. A balance must be struck, time and time again as a matter of fact, about whether religious communities may preserve their distinctive character or whether that distinctive character goes too far outside what the public good has come to see as right. I frankly believe that on many issues those matters will be very controversial. For example, we have seen the controversy about the rights of animals in relation to techniques of slaughter that have substantial religious support and tradition behind them. We shall not avoid what is a serious debate in all areas of society, all our Churches and all our faith communities. Certainly, we shall not be able to avoid it in this House.
My concern is that a regulation has been presented to us today that cuts through that debate as though the issue was completely clear. I do not believe that it is, and I do not believe that the language is clear. I am not worried so much about litigation and long deliberations in courts of law. What worries me much more is what might happen on the streets, when people wind up communities. I do not believe that we have yet explored nearly far enough the possibility of creating language in a regulation that is sufficiently limiting and proportionate to defend those things that are undoubtedly necessary for a character of a religious community but also require that community to live within the insights of society as a whole. That is why I have taken it on myself to voice a minority judgment and to express my support for the Motion of the noble Lord, Lord Lester.
Lord Lea of Crondall: My Lords, I follow the right reverend Prelate in one respect—his caution against exaggeration on either side of the debate. There is a worrying tendency in this debate for people to go well beyond the question of the vires of the transposition of a European directive. The temperature of the debate has been raised well outside the scope of the Motion that the noble Lord, Lord Lester, purported to move. The noble Lord used the word "annul", but in his Motion the word is "amend".
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I am a member of the Joint Committee on Statutory Instruments. Indeed, the noble Lord, Lord Avebury, mentioned the point that I probed on that committee. However, although I am a member of the committee and strongly support its report, I shall not be voting either way on the Motion. I shall make a couple of points about that.
First, as the right reverend Prelate pointed out, two debates are going on here. In one respect, one of them is ultra vires, since all we ought to be debating tonight is whether we agree about the question of doubt about the vires of Regulation 7(3). We should not be having the broad debate that we seem to be getting into. We should not be raising the stakes of tonight's debate as noble Lords on all sides have been, by making points that imply that the European directive transposition gives us a lot of scope to do this or not to do that. In fact, it is quite remarkable that we are having this debate on the transposition of a European directive, because there is no argument about the fact that we are transposing a European directive. The noble Baroness, Lady Miller of Hendon, made some remark about how this would have been done differently by a different government—I do not know whether that is the point that she was touching on—but broadly speaking, we all know that we are transposing a European directive with very little wriggle-room for how we transpose it.
The only wriggle-room for how we transpose European directives is to some extent what is made explicit in our transposition through regulations and what is left implicit. Regulation 7(3) in some respects makes explicit what, it can be argued, is implicit in Regulation 7(2), both following Articles 4.1 and 4.2 of the European Directive. For those noble Lords who doubt what I have just said, let me remind you of what is stated in Article 4.1 of the European Directive of which this is the transposition. The Equality Directive provides that Member States may provide that a difference of treatment which is based on a characteristic related to religion, belief, disability, age or sexual orientation,
"shall not constitute discrimination where, by reason of the nature of the particular occupational activities or the context in which they are carried out, such a characteristic constitutes a genuine and determining occupational requirement."
The ultimate reason why, in a sense, it does not matter what we do tonight, and the reason why industrial tribunals will inevitably have to look at some cases—there is no way in which the Archangel Gabriel could come down here and say what are the words to avoid anybody going to an industrial tribunal—is that these transpositions are going to he ambiguous when it comes to the behaviour of an individual and they will have to be tested. There is no easy way out of that, and whatever happens when the House divides, as it is said it will tonight, it should be recognised that this is a very important transposition of a European directive and it is unreasonable for people to say that this is a set-back for people when it is clearly a step forward, or if we do the opposite, to say that it is a leap further forward. This is a very solid step forward in protecting people's rights. People are grossly exaggerating what an industrial tribunal would

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find on a case by case basis if Regulation 7(3) were not there. I caution noble Lords to deal with the rather narrow point of what is ultra vires. There is some doubt about it, but there is not as much difference as has been said in some parts of the debate this evening.
Lord Mayhew of Twysden: My Lords, I agree with the noble Lord, Lord Lea of Crondall, about the importance of distinguishing between arguments on the merits of the objective of these regulations and the particular regulation we are talking about, and on the other hand the technicalities—to use his word—of the means by which that objective is achieved. It was inevitable that this debate should give rise to very well informed and passionately felt submissions on each side of the arguments about the merits of the objective. I do not feel qualified to engage in that, and it would not be to the point that I want to address if I were to do so. The point seems to me to be a very narrow one; it is whether the committee was justified in what it said in its report at paragraph 1.11, two sentences of which I wish to cite. The report states:
"The Committee considered that regulation 7(2) was justified by Article 4.1 of the Directive, but that regulation 7(3) might permit difference of treatment based on a characteristic related to sexual orientation where the characteristic could not be said to be a 'genuine and determining occupational requirement' which was proportionate, as envisaged by the Directive".
The question alone that I should like to address, and which forms the core of what the noble Lord, Lord Lester of Herne Hill, said to us some time ago now, is whether the committee was justified in observing that doubt. I have very great sympathy with those who drafted the regulations. It is an extraordinarily difficult subject. To transpose—to use the word used by the noble Lord, Lord Lea—the requirements of Article 4.1 into our own domestic legislation in a way which meets the norms that we look for, high among which is certainty, is an enormously difficult job.
The right reverend Prelates, seated opposite in such impressive numbers, will never have preached a sermon of this character themselves but they will recognise the characteristics of a sermon in which the preacher displays and shares his doubts but fails to come to a conclusion that can be described as teaching. I am afraid that my own contribution tonight at this late stage is going to have that melancholy characteristic.
It seems to me that one starts with looking at Article 4.1 and one sees there that the draftsman has recognised that it is necessary to take account of the specific susceptibilities that arise when a characteristic related to, for example, sexual orientation constitutes a genuine and determining occupational requirement by reason of the nature of the particular occupation or activities concerned, provided that it is proportionate and so forth. That is the language that has found its way into Article 4.1 and that is the way in which the draftsman of the article has sought to meet those susceptibilities. The question—it is quite a narrow one—is whether the recently added Regulation 7(3) contains language that reliably falls within that
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requirement of being a genuine and determining occupational requirement. Regulation 7(2) does and the committee was happy about that, but does Regulation 7(3)? It has to be able to come within the envelope, or under the umbrella, of being a genuine and determining occupational requirement.
The language of Regulation 7(3) speaks of employment,
"for purposes of an organised religion"—
I pass over the arguments about that. Regulation 7(3) further states that,
"the employer applies a requirement related to sexual orientation".
I pass over the purposes which then follow.
Does a requirement related to sexual orientation always fall within and never outside the ambit of a genuine and determining occupational requirement? I refer to a particular sexual orientation which is a genuine and determining occupational requirement. That is the question. Of course it is possible to have more than one view. Sir Anthony Hammond QC advised the department. I have the greatest respect for him. He was legal adviser to the Home Office and after that Treasury Solicitor. But when I read the record of the committee's evidence taking, it seems to me that there was revealed a very sensible ground upon which it had doubt. Mr Magyar, the legal adviser, was very frank. He said:
"I think that the two provisions are covering slightly different situations. 7(3) may be slightly broader but both—".
He was interrupted at question 31 by Mr Andrew Bennett, who asked:
"Only slightly broader?".
Mr Magyar replied:
"I would say so. The criteria are drafted strictly".
He went on to express his opinion that there was no part of Regulation 7(3) that did not fall within the language that I have mentioned. The committee was worried about the provision being slightly broader. Is it so broad that, in any respect, it becomes ultra vires?
I do not know as yet how I am going to vote on the matter, and I shall be influenced very strongly, not only by some of speeches that I have heard—I shall not particularize—but by what the Minister is going to say. I am interested in whether he accepts that there is a doubt, whether he thinks that there is a doubt but it is worth putting up with, or whether he thinks that it might not in all circumstances be better not to throw the baby out with the bathwater. We have heard that expression already from my noble friend. He might think that it might be wiser to look after the baby for a little longer and change the bathwater.
At the moment it seems that, in this rather passionate debate, we run a risk of overlooking our duty to legislate in a way that is certain and clear, and will not put unfortunate people to the expense and stress of litigating to find out what we really meant and then going to appeal and so on. I have shared my

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doubts. I have not attempted to teach. In those circumstances. it has been the worst kind of sermon. I want to hear what the Minister says.
Baroness Whitaker: My Lords, pace what my noble friend Lord Lea said, and indeed the noble and learned Lord, Lord Mayhew of Twysden, I just want to add a very small footnote to what the right reverend Prelate the Bishop of Worcester said in his very profound address. The noble Lord, Lord Lester of Herne Hill, set out the dubious legality of Regulation 7(3), and my noble friends Lord Alli and Lady Turner have eloquently described the implications.
I just want to say that it seems to me that Regulation 7(3) does not also follow the spirit of Article 13 of the Amsterdam Treaty, which I had some involvement in drafting. Article 13 is a fundamental part of our new basis of agreed rights. It flows ultimately from the UN Charter, the European Convention and the Human Rights Act, rights that we need to assert as our common ground in our multicultural society. Exactly for the reason that the faiths and beliefs of our societies ought to be respected, we need to respect them within a common ground of tolerance underpinned by universal human rights and fundamental freedoms.
Freedom from discrimination in employment, qualified only on the narrowest grounds, is one of the most important of these. Freedom from discrimination on the grounds of sexual orientation is another. This last freedom is the least honoured in everyday culture. One can hear prejudice which, if it were about women or people from different ethnic backgrounds, would be repudiated—even prosecuted—spoken quite freely about sexual orientation. It is time to take a stand, and I do urge the Government to think again.
9.45 p.m.
Lord Clement-Jones: My Lords, this is less of a speech than it is a set of questions to the Minister. We have heard some fine speeches today, many of which have been very technical about the relationship of these regulations to the original directive. However, when looking at whether these regulations are acceptable, it is the outcome that is important—the impact that they will have on individual lives.
The right reverend Prelate the Bishop of Blackburn, whom we all respect, made it clear that he would only wish these regulations to be taken so far. Rather than bar homosexuals in regard to sexual orientation, I think that he was talking about abstinence. The same debate continues about the appointment of the Bishop of Reading.
However, the first question is whether or not a religious organisation such as the Church of England, when putting an advertisement in a newspaper, for instance, could say "heterosexuals only need apply". Will that be legal? At what level of employment will that be legal?
Secondly, at interview, an employer will ask questions of prospective employees. What kind of questions will the employer be entitled to ask? Will he
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be able to ask if the candidate is gay, lesbian, in a relationship, or celibate? These questions flow from the regulations. Perhaps the Minister can clarify whether it would be perfectly proper for a religious organisation to ask them.
I live in Clapham, where the Board of Education of the Church of England is sponsoring a city academy. Many people had their doubts about whether it was proper for the board to be a sponsor. What is the nature of the sponsoring relationship in those circumstances? What signals are sent out to parents and prospective pupils? Will the school be able to interrogate potential employees about their sexual orientation or not?
My questions are practical, not technical. They address issues that will be of great importance if these regulations are passed tonight. I fervently hope that they are not passed.
Lord Brennan: My Lords, I ask for the patience of the House in listening to a short speech. I sincerely admire the strongly held convictions of my noble friends and colleagues on the other Benches. I hope that they respect the strongly held beliefs of the people who disagree with them. This is not the occasion to enter into a debate of Church and religion versus gay and lesbian rights. The question is whether or not these regulations are intra vires.
Some things need to be plainly said by way of background. First, the Human Rights Act 1998 does not provide a right against discrimination of the kind that we are debating this evening. That is why the Minister certified that these regulations were compatible with the Act. Secondly, the preamble to the directive explicitly recognises the ability of member states to take into account in formulating the directive the interests of religious and Church organisations within each member state. In addition, we must bear in mind that the law in this country—I repeat, the law—allows Churches and religious organisations to act in a way that is similar to that contemplated by Regulation 7(3).
Section 19 of the Sex Discrimination Act is a similar provision. So far as I am aware, it has not produced a large-scale litigation suggested by the noble Lord, Lord Lester. Equally, Section 60 of the School Standards and Framework Act 1998 explicitly provides that the governing body of a voluntary-aided school shall have regard in connection with the termination of employment of a teacher to any conduct on his or her part that is incompatible with the precepts, tenets or religion of the school in question. That is the law of our country now. Those considerations illustrate the flaw in seeking to convert the regulations into the confrontational position that I said was not justified.
I hope that the noble Lord, Lord Lester, will forgive me for saying that the confidence that any lawyer reposes in the quality of his own opinion is rarely a guide to its reliability. I include myself in such an analysis. However, when the Joint Committee considered Regulation 7(3), it had before it and took

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into account, at paragraphs 1, 12 and 13, seven discrete but cumulatively effective arguments in favour of the legality of Regulation 7(3). It is open to lawyers— commentators are not lawyers—to doubt whether provisions are in fact within the vires of the directive or not. The reassurance that I give to the House that the directive is being properly applied involves the point made by the noble and learned Lord, Lord Mayhew. It is not a question of whether Regulation 7(3) stands or falls; it is a question of whether, in any particular case in which a Church or religion seeks to rely on Regulation 7(3) in its defence, it is required to show under Article 4.1 that the directive in this context commands the analysis of Regulation 7(3) and that the decision represented a genuine and determining occupational requirement that has been applied proportionately.
Lord Lester of Herne Hill: My Lords—
Lord Brennan: My Lords, I am sorry; I do not propose to give way. This is a long debate. If the noble Lord will forgive me, he took a long time himself.
This is not an occasion for battle; it is an occasion for balance between different rights. The Government sought to strike the right balance between competing interests. I believe that they have done their best and we should agree to the regulations.
Lord Sainsbury of Turville: My Lords, I welcome this opportunity to explain the rationale behind Regulation 7(3) of the sexual orientation regulations and to clarify its scope. We have a duty to think very carefully indeed before making any exception for equality legislation. A provision that concerns the sexual orientation of people employed for the purpose of organised religion is clearly a particularly sensitive matter, and it is right that we should consider the evidence set out by the Joint Committee on Statutory Instruments in its 21st report of 2002–03 before going on to consider the merits of the regulations as a whole.
The noble Lord, Lord Lester, is widely respected on all sides of the House for his long-standing commitment, experience and achievements in the fields of equality. He set out the issues and his own views in a characteristically measured and fair way. In doing so, he did a service to the House.
Before I go any further, I must mention the report of the Joint Committee on Statutory Instruments. Again, it is a measured and genuinely constructive contribution to the debate. The committee concluded that the doubt about the vires of Regulation 7(3) was sufficient to draw it to the attention of both Houses but the committee has not, contrary to some rumours, said that the regulations are ultra vires. Indeed, it notes that the Government's arguments about the compatibility of Regulation 7(3) with the directive might succeed if tested in the courts. We are firmly of the view that it would.
We have made a considerable investment in working with a wide range of stakeholders on equality policy since 2000. In addition to bilateral meetings, seminars,
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conference and on-line research, there have been no fewer than three national consultation exercises in the past three years, prompting just short of 4,000 submissions. I believe that they have provided an invaluable basis of evidence from which to take decisions.
I say to the noble and learned Lord, Lord Mayhew, that the baby has been sitting in the bath water for a very long time with people throwing ducks and sponges at it. It is now time to take it out of the bath, dry it, and send it to bed. I hope that the House will do that this evening.
The first exercise informed our negotiations with other member states. The second focused on principles which would underpin new equality legislation. But, as so often happens, it was the third consultation with the publication of detailed draft regulations, which helped us to highlight and resolve practical difficulties.
It became clear that with the regulations as drafted the Churches would have some difficulty upholding the doctrine and teaching of their faith in relation to particular posts. I suspect that quite a variety of faiths represented on the Benches this evening may disagree quite strongly with other religious beliefs, but we recognise and respect the fact that they are genuinely held.
In the same way we do not believe that these regulations should interfere with religious teachings or doctrine, nor do we believe it appropriate that doctrine should be the subject of litigation in the civil courts.
The right reverend Prelate the Bishop of Worcester made a very interesting and fine speech, but I say to him that the logic of his comments about taking out the words "strongly held religious convictions" means that we would have to go back to a situation where religious doctrine and the reasonableness of it, would have to be debated in tribunals.
The employment directive is explicit in recognising the status of Churches and religious associations. As Lord Russell said once in this House,
"The difficulty comes not when evil is pitched against good, hut when two goods are pitched against each other".
In this case, they are religious traditions and the sexual orientation regulations. We have to draw a careful line between the two within the terms of the employment directive. I believe that we have succeeded in doing that.
I turn to the point made by the noble Lord, Lord Lester, who asked what the "etc" meant in the heading,
"Exceptions for genuine occupational requirements etc".
The "etc" does not introduce additional points; it refers to the issues which relate to GOR exceptions. It does not refer to further possible situations, but deals with genuine occupational requirements and the issues which relate to them.
This is not a question of extreme positions. Article 4(1) of the European directive is quite clear that religious considerations can be taken into account. What we are debating this evening is exactly where that line is drawn.

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Under these circumstances I believe that the Government need to take a lead—and we did that in preparing Regulation 7(3). It resolves the problem of interfering with doctrine and teachings while remaining consistent with the directive. We believe that Regulation 7(3) is lawful because it pursues a legitimate aim of preventing interference with a religion's doctrine and teaching and it does so proportionately because of its narrow application to a small number of jobs and the strict criteria which it lays down.
There is no need to copy out the words "genuine", "determining", "legitimate", "proportionate", because the provisions embody the obligations which are set out in the directive.
Having explained why Article 7(3) is necessary, I wish to focus on the scope of the provision. I agree entirely with the noble Lord, Lord Lester, that this is a crucial issue. As well as dealing with the points that he and the Joint Committee on Statutory Instruments have raised, I hope that it will assist the House if I pick up on others which have been reflected in press reports over the last week.
When drafting Regulation 7(3), we had in mind a very narrow range of employment: ministers of religion, plus a small number of posts outside the clergy, including those who exist to promote and represent religion. The words on the page reflect our intentions. The first clause reads:
"This paragraph applies where— (a) the employment is for the purposes of an organised religion".
First, this is no "blanket exception". It is quite clear that Regulation 7(3) does not apply to all jobs in a particular type of organisation. On the contrary, employersmust be prepared to justify any requirement related to sexual orientation on a case by case basis. The rule only applies to employment which is for the purposes of "organised religion", not religious organisations. There is a clear distinction in meaning between the two. A religious organisation could be any organisation with an ethos based on religion or belief. However, employment for the purposes of an organised religion clearly means a job. such as a minister of religion, involving work for a church, synagogue or mosque.
A care home run by a religious foundation may qualify as a religious organisation, for example. I do not wish to make light of differences which the involvement of a church, mosque or synagogue can make to the culture of an organisation, but I believe that it would be very difficult under these regulations to show that the job of a nurse in a care home exists,
"for the purposes of an organised religion".
I would say exactly the same in relation to a teacher at a faith school. Such jobs exist for the purposes of health care and education.
The noble Lord, Lord Clement-Jones, asked about a number of human issues that turn out also to be technical. He raised the question of an advertisement. That could not say "only heterosexuals need apply"
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unless it was a genuine occupational requirement that the job holder be heterosexual. That would depend on the application of the clause.
Regulation 7(3) does riot stop there. Even if an employer can show that the job exists for the purposes of organised religion, and that is a significant hurdle, he may only apply a requirement related to sexual orientation if one of two further tests are met. In the first test the requirement must be applied to comply with the doctrines of the religion. We do not believe that that test would be met in relation to many posts. It would be very difficult for a church to argue that a requirement related to sexual orientation applied to a post of cleaner, gardener or secretary. Religious doctrine rarely has much to say about posts such as those.
If the first test is not met, what about the second? There the church will have to show that the requirement related to sexual orientation is necessary,
"because of the nature of the employment and the context in which it is carried out, so as to avoid conflicting with the strongly held religious convictions of a significant number of the religion's followers …".
I shall dispel one or two myths. It is neither sufficient for the requirement to be imposed simply because of the nature of the work and the context in which it is carried out, nor may the requirement be imposed simply because of the religious convictions of the followers of the faith. Both elements have to be satisfied before the second test can be met. They are strict tests and will be met in very few cases. That is contrary to the impression created by some of the more sensational comments that have found their way into the press over the past few weeks.
Lord Lester of Herne Hill: My Lords, I realise that the Minister intends to move on to another aspect. He used the word "necessary". What he said was that it had to be shown to be "necessary" in terms of Regulation 7(3)(b) too. Where is that word to be found, and how can the proportionality test be read into the words of the provision?
Lord Sainsbury of Turville: My Lords, it is necessary to be shown that that is the case. That is clearly stated in Regulation 7(3). It says that the paragraph applies only "where"—and therefore it is necessary that—those tests are applied. I would have thought that that followed clearly in Regulation 7(3).
As I said, the second test is then applied and there are the methods that have been referred to. Both elements have to be satisfied before the second test can be met. It is, therefore, a very strict test and one that will be met in very few cases. The position of a cleaner or a librarian, which has been raised many times, has to be judged against those criteria. They are strict criteria and one cannot say in a specific case what the situation will be. In such cases one has to apply the criteria and see whether or not they are fulfilled.
The noble Baroness, Lady Miller, raised the question of what was meant by a significant number of followers. Ultimately, that is a question of fact for the tribunals or the courts and will depend on the

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circumstances of each case, but it is not expected that this question should prove more difficult to resolve than other questions of fact which are regularly faced by the courts. Sexual orientation Regulation 7 has to be phrased in those terms to be workable in practice. If we had stricter wording, referring, for example, to a majority of' the religion's followers, that could lead tribunals and courts to expect detailed statistical analysis to be submitted to them on the number of followers with religious convictions about particular requirements or the numbers without such religious convictions. I think we would all agree that that would not be practical.
Finally, what is the difference between Regulations 7(2) and 7(3)? There are two differences. First, Regulation 7(2) is of general application. It covers any employment where being gay, straight or bisexual is a genuine occupational requirement. By contrast, Regulation 7(3) applies only where employment is for the purposes of an organised religion and either religious doctrine or the nature and context of the job, together with the religious convictions of the religion's followers, gives rise to a genuine occupational requirement. Regulation 7(3) then applies to very few jobs. Only in very limited circumstances would a requirement imposed on someone whose job does not involve participation in religious activities be justified under Regulation 7(3).
Secondly, Regulation 7(2) applies where sexual orientation is a genuine occupational requirement. In other words, one has to be gay, straight or bisexual to do the job. Regulation 7(3) applies where a requirement related to a sexual orientation is a genuine occupational requirement. It is slightly wider than Regulation 7(2) in that respect but reflects the wording of Article 4.1.
To conclude, Regulation 7(3) is necessary if the regulations are not to interfere in Church doctrine. We understand how the Joint Committee on Statutory Instruments reached its conclusion and our extensive consultation leaves us in no doubt about the strength of feeling among the gay and lesbian community. But having considered all the arguments carefully, we are satisfied that Regulation 7(3) is infra vires and that from December the courts and tribunals will be able to construe this tightly drawn exception in a way that is consistent with the directive.
I understand entirely why we have focused in this debate on the provisions in Regulation 7(3). While an important part of the regulations, it is, of course, only a small part. We must not forget that there is no protection currently for those who experience harassment, discrimination or victimisation at work on grounds of their sexual orientation.
These regulations are designed to outlaw that kind of unacceptable treatment for the first time. They have a wide application. They cover employment and training across England, Scotland and Wales whatever the size of the organisation, whether in the public or private sector. They represent a significant addition to our domestic equality legislation and will make a practical difference to the lives of millions of people. I
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believe that they should be welcomed. I do hope that that has served to reassure the House and that the noble Lord, Lord Lester, will feel able to reconsider his Motion.
Lord Lester of Herne Hill: My Lords, first, I thank everyone who has taken part in this important debate for having done so at this late hour, especially the Minister for his full, clear and helpful reply. Secondly, perhaps I may make clear that, like the Minister, I very much welcome the regulations and do not agree with the attack made upon them by the noble Baroness, Lady Miller of Hendon, suggesting that somehow they are not regulations that should generally be supported. I strongly support them. In particular, I strongly support the commitment to equality of treatment without discrimination placed on sexual orientation that they embody. As the Minister knows from previous debates, I regret only that they are by way of subordinate legislation and therefore can cover only employment and occupation. However, that is a matter for another day.
Thirdly, I must make it quite clear that there is no dispute about the need to balance, on the one hand, the fundamental right to religious freedom with, on the other, the fundamental individual right to equality without discrimination—indeed, not just an individual right, but the right of a vulnerable minority. I cannot improve on the wisdom, on this occasion as previously, of the right reverend Prelate the Bishop of Worcester in what he has said about that. There is a question of a fair balance, however, and I entirely accept that the Government have been struggling to secure a fair balance.
Fourthly, the debate today reminds me of debates on the Human Rights Bill when, at an early stage, the Churches sought—in a completely misconceived way, I have to say respectfully—a blanket exemption from the application of the Human Rights Bill to the Churches. At that stage the Government quite rightly did not accept their pressure and the religious freedom provision in the Human Rights Act goes no further than is necessary.
The central question raised this evening, as the noble and learned Lord, Lord Mayhew, rightly reminded us, is a quite narrow but important one. The question is whether, when one looks at Regulation 7(1), (2) and (3), Regulation 7(3) is, in the words of the Minister, a narrowly and carefully tailored provision based on the strict criteria of' proportionality. That is the question.
If your Lordships would for the last time take up Regulation 7 and look at it again, Regulation 7(2) is quite clear, because it uses as its touchstone the notion of proportionality. One has to be of a particular sexual orientation; there has to be a genuine and determining occupational requirement; and it must be proportionate to apply that requirement in the particular case. That would apply equally to a religious context or any other context.
The vice, as I have described it, of Regulation 7(3) is one of over-breadth and vagueness. Leaving aside the vagueness of what is meant by "organised religion",

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the vice in Regulation 7(3)(b), if one looks at it carefully, is that there are no words of limitation. It is sufficient for the employer to apply,
"a requirement related to sexual orientation"—
very wide words—
"because of the nature of the employment and the context in which it is carried out"—
and, these are the limiting words—
"so as to avoid conflicting with the strongly held religious convictions of a significant number of the religion's followers".
So it is to comply with the strongly held convictions of a significant number of the religion's followers. There is no requirement of a genuine occupational qualification, no requirement of proportionality, no strict test and no strict criteria.
I agree with the noble Lord, Lord Brennan, that one should never trust one's own opinions, even if one is so foolish as to express them in public. I only expressed my opinion in the way I did because I am supported by the Joint Select Committee on Human Rights and their opinion, and I take comfort from that.
I have listened very carefully to the Minister and I agree with him that a tribunal or court might seek to read down Regulation 7(3) in the way that he suggests, to try to make it compatible with the directive. It is a technique that the judges increasingly have to adopt with badly drafted regulations. My plea this evening is to seek to avoid the courts having to remake these regulations by a process of interpretation, because it is our job as lawmakers to try to get the law right. I do not seek a fatal amendment opposing the regulations; I simply ask that they be sent back so that proportionate language can be inserted.
No noble Lord who spoke in this passionate, rational debate commended the language used in Regulation 7(3). The right reverend Prelate the Bishop of Blackburn, who did his very best to explain the justification for the regulations, said at the end of his important speech that he, too, was unhappy with the language that had been used because of its over-breadth.
With great respect for what the Minister said, the regulations are not satisfactory. The only way that we can show our disapproval is by seeking the opinion of the House. I regret, therefore, that I must now test the opinion of the House.
10.15 p.m.
On Question, Whether the said Motion shall be agreed to?
Their Lordships divided: Contents, 50; Not-Contents, 85.

Division No. 3

CONTENTS

Addington, L.

Colville of Culross, V.

Alli, L.

Dundee, E.

Avebury, L.

Gibson of Market Rasen, B.

Barker, B.

Greaves, L.

Clement-Jones, L.

Greengross, B.

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Hamwee, B.

Rodgers of Quarry Bank, L.

Harris of Richmond, B.

Roper, L. [Teller]

Hereford, Bp.

Russell-Johnston, L.

Janner of Braunstone, L.

St.John of Bletso, L.

Joffe, L.

Saltoun of Abernethy, Ly.

Lester of Herne Hill, L.

Sharp of Guildford, B.

Mackie of Benshie, L.

Shutt of Greetland, L.

Maclennan of Rogart, L.

Skelmersdale, L.

Maddock, B.

Smith of Clifton, L.

Mar, C.

Taverne, L.

Mar and Kellie, E.[Teller]

Thomas of Walliswood, B.

Masham of Ilton, B.

Tope, L.

Mayhew of Twysden, L.

Tordoff, L.

Newby, L.

Turner of Camden, B.

Northesk, E.

Wallace of Saltaire, L.

Northover, B.

Walmsley, B.

Norton of Louth, L.

Wedderburn of Charlton, L.

Oakeshott of Seagrove Bay, L.

Wigoder, L.

Parekh, L.

Wilkins, B.

Rennard, L.

Worcester, Bp.

NOT-CONTENTS

Acton, L.

Hoyle, L.

Andrews, B.

Hughes of Woodside, L.

Archer of Sandwell, L.

Hunt of Kings Heath, L.

Ashcroft, L.

Hunt of Wirral, L.

Ashton of Upholland, B.

Hylton, L.

Bassam of Brighton, L.

Jones, L.

Berkeley, L.

Kirkhill, L.

Black of Crossharbour, L.

Knight of Collingtree, B.

Blackburn, Bp.

Laird, L.

Blatch, B.

Lindsay, E.

Borrie, L.

Lofthouse of Pontefract, L.

Brennan, L.

Lyell, L.

Brooks of Tremorfa, L.

McCarthy, L.

Campbell-Savours, L.

Macdonald of Tradeston, L.

Carlisle of Bucklow, L.

McIntosh of Haringey, L.

Carter, L.

Miller of Hendon, B.

Chan, L.

Mitchell, L.

Chester, Bp.

Monson, L.

Cohen of Pimlico, B.

Neill of Bladen, L.

Cope of Berkeley, L.

Nicol, B.

Corbett of Castle Vale, L.

Northbourne, L.

Crathorne, L.

O'Cathain, B.

Crawley, B.

Pendry, L.

Davies of Coity, L.

Pilkington of Oxenford, L.

Davies of Oldham, L. [Teller]

Ramsay of Cartvale, B.

Dixon, L.

Richard, L.

Dubs, L.

Rooker, L.

Elder, L.

Sainsbury of Turville, L.

Evans of Temple Guiting, L.

Sawyer, L.

Farrington of Ribbleton, B.

Scotland of Asthal, B.

Faulkner of Worcester, L.

Seccombe, B.

Gale, B.

Selborne, E.

Golding, B.

Stoddart of Swindon, L.

Goldsmith, L.

Symons of Vemham Dean, B.

Gordon of Strathblane, L.

Taylor of Blackburn, L.

Goudie, B.

Tebbit, L.

Gould of Potternewton, B.

Turnberg, L.

Grocott, L. [Teller]

Ullswater, V.

Hanham, B.

Waddington, L.

Hardy of Wath, L.

Warner, L.

Haskel, L.

Williams of Mostyn, L. (Lord President of the Council)

Hogg of Cumbernauld, L.

Hollis of Heigham, B.

Woolmer of Leeds, L.

On Question, Motion agreed to.

Employment Equality (Sexual Orientation) Regulations 2003
10.25 p.m.
Lord Sainsbury of Turville: My Lords, I beg to move.
Moved, That the draft regulations laid before the House on 8th May be approved.— (Lord Sainsbury of Turville.)
Lord Wedderburn of Charlton: My Lords, the regulations are to effect a European directive that protects me from discrimination on grounds of religion or belief. The regulations, which the Minister moved formally, are quite different. They protect those who have religion—religious belief —or similar philosophical beliefs. My beliefs are not similar to religion; they do not rest on revelation or faith. However we define religion, I do not share or have beliefs that share any similar basis. For the Government to protect in British law only those who have a similar belief is, first, outwith the European directive and, indeed, outwith the European tradition.
Willing though I am at this time of the night to discuss the Fire Services Bill, I am not willing to weary your Lordships with a list of European documents that, as many noble Lords will know, protect those who have a belief founded on religion.
Lord Sainsbury of Turville: My Lords, I must ask the noble Lord which regulations he is talking about. I formally moved the sexual orientation regulations.
Lord Wedderburn of Charlton: My Lords, I am covered in apology. I apologise to the noble Lord. I will speak when we come to the relevant regulations. I misheard.
Lord Sainsbury of Turville: I apologise for that.

Business of the House: Fire Services Bill
10.28 p.m.
Lord Grocott: My Lords, before we move to the next order, I shall make a short business statement.
As your Lordships will be aware, the Third Reading of the Sexual Offences Bill went on a little longer than anyone anticipated. The net effect of the debate this evening was that, had we proceeded to the business as arranged—the Second Reading of the Fire Services Bill—we would not have started the Second Reading debate until at least now, if not considerably later, depending on how long the next order took.
The usual channels discussed the matter and decided that it would not be fair to the House to deal with an important Bill at this time of the evening. I hope, therefore, that your Lordships will agree that it makes sense that, to ensure the minimum dislocation, the Second Reading of the Fire Services Bill should take
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place on Thursday of this week, immediately after the Report stage of the Railways and Transport Safety Bill.

Employment Equality (Religion or Belief) Regulations 2003
10.29 p.m.
Lord Sainsbury of Turvillerose to move, That the draft regulations laid before the House on 8th May be approved.
The noble Lord said: My Lords, I welcome the opportunity to introduce the religion or belief regulations and to clarify their scope. We have already debated the sexual orientation regulations. These regulations contain many of the same provisions in dealing with concepts of harassment, indirect and direct discrimination and victimisation. The regulations also contain a provision dealing with genuine occupational requirement.
There is no specific protection at the moment for those who experience discrimination at work on the grounds of their religion or belief. Members of Muslim, Christian and other communities have been dismissed, victimised and turned down for work unfairly simply because of their faith. Of those who are not religious, atheists and humanists, for example, have also experienced discrimination at work because of their beliefs or absence of them.
These regulations will make this kind of unacceptable treatment unlawful. They have a wide application. They will apply to those who offer employment and training right across England, Scotland and Wales, whatever the size of the organisation, whether in the public or private sector and whether secular or religious.
Defining an act of discrimination is as challenging now as when the Sex Discrimination and Race Relations Acts were designed in the mid-1970s. There has been no more difficult question in equality law than defining religion. One alternative would have been to list religions, but that would have been an inflexible solution. Far from providing employers with the certainty that they want, such a list would very quickly become out of date. That assumes, of course, that an exhaustive list was ever a realistic aim, even in the short term. It is not.
A broad definition of religion, in general terms, is the only workable solution. Over 70 per cent of respondents to consultation agreed. Coherence is another important issue. In preparing the legislation, we have been open to new approaches where appropriate and necessary. Our driving principle has been to ensure that the regulations should be consistent with other requirements wherever that is practical. Your Lordships' House has already considered in the Employment Equality (Sexual Orientation) Regulations some of the provisions we also intend to adopt in these regulations.

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That means for concepts such as direct and indirect discrimination, the form of words used here mirrors that used in other regulations here tonight. They also follow those used in other legislation, such as the Race Relations Act. These concepts are important points for many religious communities. I do not have to remind your Lordships of some of the tragic incidents that followed September 11th where individuals were attacked because of their faith or because they associated with people of a particular faith.
For the first time in UK discrimination legislation, these regulations include explicit protection against harassment. The regulations also outlaw victimisation in much the same terms as existing equality legislation. They allow for positive action. Of course, complaints made under these regulations will mainly be considered by employment tribunals in the same way as complaints on the grounds of sex, race and disability.
As ever, there are some exceptions. It would be odd if legislation designed to outlaw religious discrimination took away the ability of organisations to have an ethos genuinely based on faith. That, no doubt, is why the directive contains a specific provision dealing expressly with churches and religious organisations. Employers with an ethos based on religion or belief will be able to recruit employees from their own faith group where they can demonstrate that this is a genuine occupational requirement. Obvious examples are that one must be Jewish to be a rabbi and Catholic to become a Catholic priest. However, we have deliberately not prescribed which posts will be covered by a genuine occupational requirement on religion.
We believe that Government are not qualified to do that. It makes more sense for employers to consider whether the functions of the post require someone to have a particular faith. But an employer must be prepared to justify its actions. It is not sufficient for an employer simply to show that it has a religious ethos. Exemption will apply only where, having regard to the ethos and to the nature of the job or context, it is a genuine occupational requirement for the post-holder to have a particular belief. Even then it must be proportionate to apply the requirement in each case. If challenged, the employer will need to defend its decisions before an employment tribunal.
This exception is focused on an individual's faith. There is nothing in these regulations which will allow organisations to discriminate against gays or lesbians or indeed to justify any act which is unlawful under the sexual orientation regulations. Of course, all employers, with a religious ethos or not, can expect their staff to uphold certain standards of conduct, but those conduct rules cannot discriminate on any other ground such as sexual orientation.
These regulations are important. They provide protection for the first time from discrimination and harassment at work on the grounds of religion or belief. I commend them to the House.
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Moved, That the draft regulations laid before the House on 8th May be approved.—(Lord Sainsbury of Turville.)
Lord Wedderburn of Charlton: My Lords, I hesitate to rise again in order to speak, having detained your Lordships for 30 seconds in quite the wrong place, for which I again apologise.
My noble friend the Minister has now moved regulations on grounds which, within the bounds of his speech, are absolutely incontrovertible, but he did not address the point. The point is that the purpose of the European directive is to lay down a general framework for combating discrimination on the grounds of religion or belief. That is what the directive says, but it is not what these regulations say.
The Minister says that these regulations contain nothing against gays or lesbians. I am not surprised that he said that. The point is that they do not protect atheists or humanists who do not have a similar belief. Where did the word "similar" come from? Was it another quest to Downing Street for temporal power by the religious bodies? I ask the question in all honesty, because I genuinely do not know. Did the Archbishops or the Pope ask for the word "similar'" to be included?
I see noble Lords shaking their heads. They are happy with their faith and their religion. No one tries to attack that. Why do some noble Lords object to our saying—
Lord Brennan: My Lords, I thank the noble Lord for giving way. I raised my hand, which he astutely observed. The word "similar" in these regulations is used in relation to the quality of the belief, not its nature. The phrase "similar philosophical belief' addresses the state of mind in which someone holds that belief to the same thinking quality as a religious belief. It is not used to assimilate it in any way with a religion.
Lord Wedderburn of Charlton: My Lords, the noble Lord has his own definition. However, that is not the definition in the regulations. He, again, shakes his head. I am not prepared to have him say whether, in terms of honesty, my belief is similar to one of religious belief. I know religious people who quite genuinely and honestly say, "Your belief is nothing like ours. Your belief is outrageous and something for which you should be punished, if not here, at any rate hereafter". People have said that to me. The noble Lord does not say that to me, because he is a reasonable man and whatever he believes falls within the regulations. I am telling him that I do not fall within these draft regulations that contain the word "similar".
The noble Lord suggests that it means religious belief or some honest, strongly-held philosophical belief. Let him move an amendment. Of course, he cannot move an amendment to regulations; that is why this is done by regulation. I do not accept that the word "similar" protects everyone who is genuinely prejudiced on the grounds of honest and sincerely held belief. The noble Lord's argument does not controvert

789
that. I know people who have been prejudiced for their atheist and humanist beliefs. I point out to the Minister that his regulations do not protect those people. If he does not fail in the courts on the sexual orientation regulations, by heaven, he will one day fail on these regulations. Is the Minister satisfied with that position?
Lord Lester of Herne Hill: My Lords, noble Lords on these Benches very much welcome the equality regulations, as we welcome the others that have already been debated. We welcome them because they remove a long-standing anomaly in our anti-discrimination law. The anomaly has always been that I, as a secular Jew, for example, am protected because Jews are regarded as an ethnic group. I am protected against discrimination because of my ethnicity. However, if I were a religious Jew, I would not be protected, and a Muslim who is regarded as not being a member of an ethnic group has, at present, no protection at all. Clearly, therefore, the time has long been ripe for legislation of this kind to combat religious discrimination, just as it has combated racial discrimination in the past.
With regard to the scope of the legislation, my strong regret relates to the anomaly that will now be created in covering employment and occupation only, because the powers conferred by the European Communities Act to proceed by way of subordinate legislation fetter the Government's ability to cover anything beyond employment and occupation. It makes absolutely no sense that 1, as a secular Jew, am protected under the Race Relations Act against discrimination in housing, education or goods and services, whereas I would not be so protected under these regulations as a religious Jew, a Muslim, a Sikh, a Christian or a member of any other faith. That is an anomaly that a future government will surely have to tackle by means of comprehensive and coherent equality legislation. I hope that my Bill has provided some encouragement for that.
I have already given rather late notice to the Minister that I would be grateful for an answer to a question I raised last week in the race relations equality debate. I asked how many of those consulted were in favour of proceeding by subordinate legislation in this area, rather than by primary legislation. I ask the question tonight because this is the last opportunity for the answer to have the slightest relevance to your Lordships' House. If that question could be answered tonight rather than later, I should be very grateful.
I, like the noble Lord, Lord Wedderburn, feel a certain bewilderment. The explanatory notes on the regulations, contrary to the view expressed by the noble Lord, Lord Brennan, say:
"Regulation 2 defines various terms that are used throughout the Regulations. In particular … 'religion or belief is defined as being any religion, religious belief or similar philosophical belief. This does not include any philosophical or political belief unless that belief is similar to a religious belief".
Frankly, I do not understand that. In my equality Bill, I dealt with the matter by saying that it includes a lack of belief. If the regulation says that discrimination
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because of a lack of religious belief was part of the invidious grounds, that would comply with the European Convention on Human Rights. Of course, that would not apply to employment, but it would apply to the International Covenant on Civil and Political Rights, to the Universal Declaration on Human Rights, and the International Labour Organisation conventions.
The Minister said in his helpful introduction that atheists and agnostics are protected, but I do not believe that the explanatory notes on regulation or the way in which the regulation is worded supports that view. The Minister's statement, which might be known as a Pepper v Hart statement, shows what the Government's intention is. However, the intention is not reflected in the language of the regulation. It would be useful if the Minister in his reply could make it absolutely clear that discrimination because of a lack of religious belief was intended to be covered—so that if a humanist, an agnostic, an atheist or any other godless person or person without faith who is discriminated against is covered. In that way. the tribunal that has to interpret the regulations will at least know that that is the intention.
The directive certainly refers to "religion or belief', and belief certainly includes a lack of religious belief—in other words a philosophical or political belief as well as a religious belief. Northern Ireland legislation specifically covers discrimination on grounds not only of religious belief but of political opinion. That legislation goes wider than this. I seek reassurance from the Minister that at least the intention is to protect atheists, agnostics. rationalists, secularists, humanists and all the others who make up the ungodly and irreligious, including myself.
Baroness Miller of Hendon: My Lords, it is late and I am going to try to be very brief. We welcome these regulations, which prohibit discrimination on the grounds of religion or belief in employment or vocational training. Although I do not think there is much evidence of widespread discrimination on religious grounds in England, Scotland and Wales, I think there is a problem in Europe. In the interests of a uniform code of practice throughout the free labour market in the EC. the United Kingdom has to pass this legislation, and it is right that it should do so.
There are a couple of things that I wish to ask the Minister. The regulation refers to religion and to belief; I would be interested if he could say what is a belief, as distinct from a religious belief. That comes to the heart of the matter. Is there any difference? In his reply, will the Minister define both religion and belief? If he cannot I will understand because draftsmen run away from that and I am not sure that it helps too much if we cannot give a correct answer, or a total answer.
I apologise to the Minister for not having given him notice of my next point and I am not expecting an answer tonight, but I should like some information on it if possible, so perhaps he will write to me. EU Directive 2000/78/EC, on which this present set of regulations is founded, says at Article 4.2.

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"Provided that its provisions are otherwise complied with, this Directive shall thus not prejudice the rights of churches or other public or private organisations, the ethos of which is based on religion or belief … to require individuals working for them to act in good faith and with loyalty to the organisation's ethos."
Note the words "churches" and other "public" and "private organisations". The directive, it would seem, permits private organisations to be exempt in certain appropriate cases. The question is whether the regulations give a degree of exemption to private commercial concerns, as distinct from the Churches or what are described as "private organisations". The wording of the regulation could possibly be construed as only meaning, for example, organisations such as religious charities, environmental charities and so on. To illustrate that point, I have received a joint letter from three commercial companies that said,
"We are believers in the Lord Jesus. known … as the Brethren."
The letter continues,
"We operate small family orientated businesses where we are committed to maintain righteousness, truth, integrity and such moral standards as are set out in the Holy Scriptures.
We have a company ethos which sets out what is expected of all who work in our business … expecting all who work with us to …he loyal to that ethos …
As Christians we believe that all sexual activity outside marriage…is against the teachings of the Holy Bible and we feel the need to protect our … workplaces from anyone who because of their lifestyle or beliefs would tend to corrupt others."
I imagine the majority of people do not approve of the fundamentalist teachings of the Brethren, but one would have to say that they are based on their sincerely held beliefs. That is the point. Will the Minister, at a convenient moment for him to write, confirm whether these companies will, or will not, be forced to employ people who they consider do not live up to their very high moral standards? Will he confirm that the organisations that may enjoy exemption on genuine grounds include ordinary commercial concerns? I emphasise the word "genuine".
We welcome these regulations and would not dream of opposing them.
Lord Brennan: My Lords, I raise a particular problem about these regulations while otherwise welcoming them very warmly. The problem relates to Regulation 20, which rightly applies the regulations to institutions of further and higher education. The problem arises as to what is comprised by that phrase,
"institutions of further and higher education".
Regulation 17 expressly excludes schools, but there exist in this country 16 Catholic sixth-form colleges, which ordinary folk would call schools. However, for funding purposes various statutory provisions in recent years have assigned sixth-form colleges into the category of further education. So by dint of one entirely discrete legislative provenance those sixth-form colleges on the face of these regulations are caught by Regulation 20, by its use of the phrase "further education".
That is an anomaly that needs some attention because the directive seeks to protect employment opportunity. It uses the phrase "vocational training"
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obviously in the sense of tertiary and higher education at that level. The anomaly is accentuated by the fact that under Section 30 of the Further and Higher Education Act 1992, and a statutory instrument made under it in 2001, these sixth-form colleges are required by the legislation to operate in accordance with their Catholic trust deed; in other words, to provide places for Catholics. But this regulation would make that legislative intent on its face not tenable, or even illegal.
That is a significant problem because the 16 schools to which I referred are situated mostly in areas of significant deprivation and need, and most of them are successful. In the provision that they make for education only a small amount of what they provide is what might be termed "vocational"—craftwork and so on. It is therefore the position that by the combination of all those rather unusual circumstances the regulations catch a set of schools which can hardly have been regarded as the intent of the directive. Those problems have been—
Lord Wedderburn of Charlton: My Lords, could the noble Lord add to our knowledge on this matter? May I say that in asking that question I have very great sympathy with the case that he is advancing? Could he say whether these 16 bodies are supported by public funds?
Lord Brennan: My Lords, they come within the funding arrangements of various education Acts which have been passed by this House. But the fact is that in most of them the balance between Catholic and non-Catholic is about—I say "about" in a broad sense—55 per cent Catholic, 45 per cent non-Catholic. They are seeking to meet a local need as well as preserving to that small extent places for those of the Catholic faith.
Representatives of the Catholic Church have met various representatives of the ministry and the problem has been looked at afresh. It clearly seems to represent an anomaly. I know that the Government are considering the matter and I have made these points simply to place them on the record should we ever have to revisit this question.
Lord Sainsbury of Turville: My Lords, the definition of "religion" under Regulation 2 is not a very precise one. It simply states:
"In these Regulations, 'religion or belief' means any religion, religious belief, or similar philosophical belief".
It is clearly the intention that where people have strongly held views, which include humanism, or atheism or agnosticism, they would be covered under the phrase "or similar philosophical belief".
The noble Lord, Lord Lester, referred to his Parliamentary Question. I believe that was the Question in which he asked Her Majesty's Government to what extent the submissions received on the draft equality regulations had argued for the use of primary rather than secondary legislation or for a single equality Act extending beyond the employment

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field. I am sorry that the reply did not reach the noble Lord. I rescued it from the burning embers of the Lord Chancellor's Office. It states:
"Of the 620 responses to Equality and Diversity: The Way Ahead, published in October 2002,18 or 3 per cent said they would have preferred the Government to use primary legislation rather than secondary legislation as a way of implementing the employment and race directives. Sixteen responses, 3 per cent, suggested that new legislation on sexual orientation, religion and age should extend beyond the field of employment. In both cases the responses came from unions, faith groups and other representative bodies. One hundred and six—39 per cent—respondents to the parallel consultation on the future of Great Britain's equality institutions, Equality and Diversity: Making it Happen, argued for measures to harmonise anti-discrimination legislation, in particular through a single equality Act".
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I will sign that answer off tomorrow and let the noble Lord have it.
Lord Lester of Herne Hill: My Lords, of course, quality as well as quantity matters.
Lord Sainsbury of Turville: My Lords, so far as the questions raised by the noble Baroness, Lady Miller, and the noble Lord, Lord Brennan, are concerned, I think it best if I follow the points up and give a considered answer by letter tomorrow. I commend the regulations to the House.

Licensing Bill [H.L.]
Returned from the Commons agreed to with amendments and with a privilege amendment; it was moved that the Commons amendments be printed.
House adjourned at five minutes before eleven o'clock.