Sexual Offences Bill [H.L.]

HL Deb 19 May 2003 vol 648 cc549-682

6.32 p.m.

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

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

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

On Question, Motion agreed to.

House in Committee accordingly.

[THE DEPUTY CHAIRMAN OF COMMITTEES (Lord Murton of Lindisfarne) in the Chair.]

Clause 66 [Committing an offence with intent to commit a sexual offence]:

Lord Astor of Hever

moved Amendment No. 332: Page 30, line 9, leave out "any offence" and insert "an offence of assault. kidnapping or false imprisonment The noble Lord said: Amendment No. 332 is a probing amendment, which seeks to clarify an important point in Clause 66. For cases such as abduction and assault, the clause is eminently sensible. It closes a loophole in the Bill to cover those sexual offences that were never actually committed but where it was obvious that they were intended and where the victim will clearly have suffered a very traumatic experience as a result of the preparatory offence.

Amendment No. 332, however, seeks to limit and define those preparatory offences that the clause is intended to target. We have suggested, assault, kidnapping or false imprisonment, but that is by no means set in stone and a healthy debate may flag up additional preparatory offences that it would be advisable to include. There is, for instance, a ready made list in Schedule 3 of offences that might incur a risk of sexual harm order. Why not adapt that to suit Clause 66 or create a new schedule of offences specifically for Clause 66? It seems absurd to say that any offence could be a preparatory offence as defined in Clause 66. The clause is clearly designed to target only the most serious offences and that should be made clear on the face of the Bill. I beg to move.

Baroness Blatch

I want to ask about the restrictive nature of Amendment No. 332. As I understand it, Clause 66 is designed to punish those who commit an offence in order to facilitate them in the commission of a sexual offence. A person may break into a person's house, he may steal their keys to do so, he may even break into their car and lie in wait in the hack seat, or he may unlawfully detain them in a flat. He may assault them to subdue them. However, if he does not succeed in committing a sexual offence after any of those, he can still be charged under Clause 66, whereas under the amendment he would not be able to be charged.

Amendment No. 332 would allow Clause 66 to apply only where the prior offence, as I have just described, is, assault. kidnapping or false imprisonment". That would remove protection from the person who finds, for example, a would-be sex attacker in their home. In any event, the amendment conflicts with subsection (3), which imposes a higher penalty where there is a kidnapping or enforced imprisonment.

Is my reading of the clause right, and is my reading of the amendment right? If so, the Government have got Clause 66 right.

Lord Falconer of Thoroton

I am grateful to the noble Lord, Lord Astor, for giving us an opportunity to describe the policy behind the offence in Clause 66 and that in Clause 67, which is entitled: Trespass with intent to commit a sexual offence". The policy behind both offences is that we want to ensure that those who show that they have a tendency to commit sexual offences are recognised as sex offenders and treated accordingly.

In the main, those seeking to perpetrate a sexual crime who are prevented from doing so by outside forces—such as the intervention of another individual or hearing the police arrive—are currently charged with any criminal act that is perpetrated only as a precursor to the intended sex offence. That is because, with the exception of a few "with intent" offences in the Sexual Offences Act 1956—an example is abduction with intent to have unlawful sexual intercourse the law provides for a defendant to he regarded as a sex offender only if he is found guilty of an attempted sexual offence. The law on attempts requires that any action is more then merely preparatory to the offence. That means that in cases where the intended sex offence is thwarted at an early stage, the sexual motivation of the offender may not be reflected in any charges brought.

That misses the opportunity to identify and treat those who are inclined towards sexual offending and who might very well go on actually to commit sex offences in the future. We do not feel that that provides either maximum protection or justice for victims of would-be sex offenders. Early identification, punishment, assessment and treatment of actual and potential sex offenders is a key element in the protection of the public from sexual abuse and exploitation and is an important step in securing justice for victims. Therefore, in the interests of offenders and victims, our intention is to frame the criminal law in such a way that it ensures that sex offenders are identified and sentenced accordingly, are offered places on appropriate sex offender treatment programmes whilst in detention and are monitored after release.

The offence that we are introducing in Clause 66 will enable the law to deal effectively and appropriately with anyone who commits any crime with the intention of subsequently carrying out a sexual offence. The approach that we have taken is that the specific nature of the preliminary offence is irrelevant. The important factor is that the defendant is carrying out another crime in preparation for committing a sexual offence. The offence at Clause 66 applies whether the intended sexual offence is a substantive offence or an offence of aiding, abetting, counselling or procuring such an offence and it can be charged whether or not the sexual offence is committed. For example, the offence would apply where a person kidnaps someone in order to rape him or her but is caught by the police before he is able to carry out the intended rape. It would also apply where a person detains someone in their flat with the intention of raping or sexually assaulting him, or where someone physically assaults a victim in order to subdue him so that he can more easily carry out the offence of rape.

As the noble Baroness, Lady Blatch, said, Amendment No. 332, which I fully accept is a probing amendment, would have the effect of restricting the offence at Clause 66 so that it covers only those situations where the defendant commits an assault with intent, kidnaps with intent or falsely imprisons someone with intent to commit a sexual offence. I realise that, taken together with the offence of "trespass with intent" at Clause 67, this would provide offences that broadly reflect the recommendations in Setting the Boundaries.

I agree that these are particularly heinous crimes and that they should be incorporated within the scope of the new offence, but I do not believe that restricting the offence so that it covers only those particular offences does enough to achieve the policy objectives I have outlined.

The important fact that needs to be recognised in law, regardless of the nature of the preparatory offence committed by the defendant, is the intention to commit a sexual offence. In such cases it must be recognised that the substantive offence would have taken place had the attacker not been intercepted or prevented in some way from carrying out his intent. The trauma suffered by victims in cases where the attacker clearly intends to commit a sex offence is directly comparable to that suffered by victims of actual sex offences.

Having an offence that brings any other offence within its scope will enable us to treat as a sex offender someone who, for example, neglects a child by withholding food and drink or medical care with the intention of weakening his resistance so that he can sexually abuse the child, or who commits another lesser sexual offence—such as indecent exposure—in order to frighten a victim before raping or sexually assaulting him. We would also be able to catch the defendant who, for example, stalks his victim, waiting for an opportunity to attack.

We firmly believe that anyone who commits another offence as a precursor to an intended sexual offence should be recognised under the law as a sex offender. He should be sentenced as such—that picks up the point made by the noble Baroness, Lady Blatch—and he should, depending on the seriousness of the case, be liable for registration on the sex offenders register and eligible for treatment under a sex offender treatment programme.

To fail to recognise the sexual element of preparatory offences would not provide justice for victims and would miss the opportunity to ensure the proper treatment of the offender. So, in accepting that it was a probing amendment, I hope that the noble Lord will take the opportunity to read what I have said and reconsider his position before Report.

Lord Hylton

I believe that the Government's intention with regard to Clauses 66 and 67 is good, but how will the intentions of the offender be discovered unless he admits it? For instance, trespass or break ingin could be done for the purpose of burglary, although someone inside the premises could be a potential victim of a sexual offence. The matter is a little unclear.

Lord Falconer of Thoroton

It would be impossible for me to identify in every case how the intention has to be proved; but proved it must be. It could be proved, for example, by confession, by conversations with third parties before the event or by the equipment that the defendant brings with him. It could be proved in a whole variety of ways. I t would be wrong for me to commit myself to that. It is not uncommon in the law that a particular intention has to be proved. It will depend upon the facts in every case. It must be proved beyond a reasonable doubt. But there needs to be evidence.

Lord Astor of Hever

As the noble and learned Lord says, this was a probing amendment. We did not intend it to be restrictive. I think this has been a useful debate. I am grateful to the Minister for his detailed clarification of the Government's thinking behind Clause 66. 1 beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 333 not moved.]

Clause 66 agreed to.

Clause 67 [Trespass with intent to commit a sexual offence]:

Lord Falconer of Thoroton

moved Amendment No. 333A: Page 30, line 24, leave out subsection (1) and insert"( I) A person commits an offence if—

1. (a) he is a trespasser on any premises,
2. (b) he intends to commit a relevant sexual offence on the premises, and
3. (c) he knows that, or is reckless as to whether, he is a trespasser."

The noble and learned Lord said: As I have indicated, our policy on the offence of trespass with intent to commit a sexual offence has always been that anyone who trespasses with the intention of committing a sexual offence in the place where he is a trespasser should be guilty of a sexual offence. That has not changed.

Amendments Nos. 333A and 333B, which are both government amendments, are designed to make sure that the wording of the offence at Clause 67 gives effect to that policy objective.

As currently drafted, the offence places a focus on the point in time when someone technically becomes a trespasser on the land where he intends to commit the sexual offence. That means that the prosecution would be required to prove that the defendant intended to commit a sexual offence at the point in time when he enters the structure or land as a trespasser.

We think that that could lead to arguments in court about the concept of entry and the point in time when it occurs. Proving that the defendant had a sexual intent at the specific point of entry as a trespasser would create unintended difficulties for the prosecution and could make it difficult to secure any convictions.

The other possible problem with the current version of Clause 67 is that it does not make it clear that the person who trespasses must have an intention to commit a sexual offence in the place where he is trespassing.

Our amendments will remedy both problems. The offence will be committed where the person is a trespasser, on land or in a structure or part of a structure, and knows or is reckless as to whether he is a trespasser, and at some point in time while so trespassing, he has the intention to commit a sexual offence in that place. I beg to move.

6.45 p.m.

Lord Skelmersdale

To a great extent, I found the original Bill a great deal clearer. In describing the effect of Amendments Nos. 333A and 333B , the noble and learned Lord suddenly talked about land. I am no lawyer, but does "premises" include a garden?

Lord Falconer of Thoroton

Yes.

Lord Lucas

Again, to clarify for non-lawyers, does the need to separate "premises" from "land" in this way result in something that is universal? In other words, there is nowhere that a person can go that he cannot commit this offence, unless he happens to own or have a right of entry to that particular premises or land? In other words, if a farmer is wandering on his own land and then sticks his nose in someone else's tent, is he a trespasser in that tent?

How do the two interlock? Why do we have to define "premises" in this way? I am sure that this results from my ignorance of how the law of trespass works. Are we leaving something out? Is there an intentional leaving out of some part of the world that would not be covered by either "premises" or "land"? Is there something in which a person might find himself which would not be either? If one is faced with a structure which is on land, to which one has a right of access—but the structure does not belong to one, as would be the case with a temporary structure—is one a trespasser if one enters that structure?

Lord Falconer of Thoroton

Noble Lords are perhaps overcomplicating the matter. "Premises" means going on to someone's land or buildings without permission. Going into someone's car is not going into someone's "premises". I do not think that going into someone's tent on one's own land counts as "premises". However, I shall write and confirm that. We have set out the matter clearly in the Bill. There is nothing hidden, difficult or complicated about it. It is plainly intended to mean that if one goes on someone's land or into someone's building without permission, and the other elements are fulfilled, that is the offence we are trying to identify.

On Question, amendment agreed to.

Lord Falconer of Thoroton

moved Amendment No. 333B: Page 30, line 29, at end insert— "premises" includes a structure or part of a structure;

On Question, amendment agreed to.

[Amendment No. 334 not moved.]

Clause 67, as amended, agreed to.

Clause 68 [Sex with an adult relative: penetration]:

[Amendment No. 335 not moved.]

Baroness Walmsley

moved Amendment No. 336: Page 31, line 11, after "know" insert "and had no reason to believe The noble Baroness said: I shall speak also to the other amendments in the group. As my noble friend Lord Thomas of Gresford made clear in earlier amendments, we oppose a double reversal of the burden of proof. For example, in Clause 69 once the ingredients of the offence have been proved by the prosecution the burden shifts to the defendant to prove on a balance of probabilities that he did not know that he and the other party were related. If he succeeds, he may still be convicted if the prosecution then satisfies the jury, so that it is sure that the accused could reasonably have been expected to know. I find that confusing for a jury and dangerous. We adopt the approach of Clauses 33 to 42, where the burden throughout is on the prosecution to prove that the accused did know of the mental disorder or learning disability—or alternatively, that he could have reasonably been expected to know.

The amendment makes the matter simpler to understand and, save in the most exceptional circumstances, would produce the approach that the Government desire—that the knowledge of belief of the defendant must be reasonably based. We are forced to ask again why that approach seems necessary in cases involving sex with a relative. We are not looking for a particularly liberal approach but rather a consistent one. I beg to move.

Baroness Noakes

The principles behind the amendments have been debated many times. I reiterate the support that we have given in the past to the Liberal Democrat amendments. We find the arguments compelling.

Lord Falconer of Thoroton

I will not weary the Committee by repeating the arguments. We say that if the accused says that they did not know the victim was a relative, then the accused must prove it on the balance of probabilities. If the accused does prove it, the prosecution must prove that it was unreasonable that the accused did not know. That does not cause much complication.

Lord Lucas

Which way would the verdict have fallen on Oedipus?

Lord Thomas of Gresford

We have debated this matter many times and I have discussed it with practitioners. I have not yet found anybody who considers that the Bill sensibly amends the law. It is confusing and will remain confusing. I hope that the Government will take that into account when we debate the matter again on Report. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 337 and 338 not moved.]

Clause 68 agreed to.

Clause 69 [Sex with an adult relative: consenting to penetration]:

[Amendments Nos. 339 to 342 not moved.]

Clause 69 agreed to.

Clause 70 [Exposure]:

The Deputy Chairman of Committees (Lord Murton of Lindisfarne)

I am advised that I must call next Amendment No. 343A.

Lord Falconer of Thoroton

moved Amendment No. 343A: Page 32, line 1, at end insert "and The noble and learned Lord said: The government amendments mean that the clause will cover a person who intentionally exposes his genitals in the knowledge or with the intention that somebody will see them and be alarmed or distressed. Being reckless as to whether alarm or distress will be caused will not be enough. As subsection (2) excluded recklessness with respect to behaviour within a dwelling, except when witnessed by children under 16, it is no longer needed.

A great deal of concern has been expressed, primarily by individual naturists and naturist organisations, that activities currently lawful might be criminalised. Although we believe those concerns to be unfounded, the Government propose to remove the lesser requirement of recklessness. I hope that will assuage such concerns.

The Deputy Chairman of Committees

I apologise for interrupting the Minister but Amendment No. 343A has been wrongly marshalled. It should follow Amendment No. 345. I apologise to the Committee. I thought that I had it right but did not. We move to Amendment No. 343.

Baroness Noakes

moved Amendment No. 343: Page 32, line 1, leave out -genitals" and insert "penis The noble Baroness said: At the risk of generating more schoolboy humour in Private Eye, this is a probing amendment.

The report Setting the Boundaries recommended that the offence be drafted in terms of exposure of the penis. Little evidence was found of female exposure in public and it was felt that the existing Public Order Act offence was sufficient. Will the Minister say whether there is any reason, other than an excessive dose of political correctness, for the formulation of Clause 70 in a gender neutral way?

If the clause remains as drafted, will the Minister say precisely what constitutes "genitals" for the purposes of the Bill? According to my dictionary, "genitals" means the reproductive organs of men—especially the external organs. That is straightforward, which is why the amendment would replace "genitals" with "penis". Existing law is admirably clear, although it uses the rather quaint term "person". I invite the Minister to say what parts of the female body the Government intend to treat as being within Clause 70.

I hope that the noble and learned Lord will specifically refer to female breasts. In Clause 71, breasts are specified separately from genitals—which tends to suggest that the draftsman believed that the latter does not include the former. When researching the matter at home using my husband's university textbooks—which I concede have been around a day or two—I found that the mammary glands, or breasts in common parlance, were classified as reproductive organs—and they are clearly external.

We will eventually reach government amendments to eliminate recklessness, which would overcome many of the problems with the clause if breasts were technically within it. There may still be an issue over whether exposure could cause alarm or distress. It is not absolutely clear that a woman breast feeding or sunbathing topless in public—thereby exposing her breasts would be beyond the scope of the clause. Those activities are not universally approved of and if breasts are included, will it be necessary for a woman first to ensure that no one is within sight whom she knows might be alarmed or distressed'? I emphasise that I am seeking clarity. I beg to move.

Baroness Blatch

I know that my noble friend is trying to elicit clarification from the Government but if the amendment were accepted, it would prevent the offence being used against females who expose themselves. While that is uncommon, as my noble friend said, it is not unheard of. The amendment would unduly limit the law. It would be saying that the man and woman who paraded naked together in public could not be convicted of the same offence. Given that the Government are anxious that the Bill should be non-discriminatory, it would be strange to accept an amendment that discriminates between men and women.

The primary concern should be the protection of the public. A child may be as distressed by the sight of a naked woman in public as by a naked man. That child deserves to be protected. If Members of the Committee do not think that happens, there was a case in my area recently of a woman who deliberately exposed herself in a large picture window overlooking a boys' playing field. That case was considered locally but offence was certainly given.

Restricting the offence to one particular part of the male anatomy leaves out the rest of the external male genitalia. There may be a technical issue about what is reproductive and what is not. Is it possible that a male flasher who is sufficiently careful could conceal part of his genitalia while exposing another part—thereby providing himself with a technical defence to a Clause 70 prosecution?

That might sound absurd, but we must remember that there are people out there for whom exposing themselves is an obsession. They spend time devising ways of exposing themselves and they present a menace to the public. If we are properly to address the problem and to improve on the current law against "exposing the person", which suffers from the same defect as this amendment, we must not legislate in ways that can be evaded.

This is a serious problem that must be tackled in a serious way. Indecent exposure or flashing in public is a serious public nuisance which causes great distress and alarm. The victims are often young women and children. It also appears to be frequent. Almost daily one hears of such cases. It does not take long to find examples. A trawl of local newspaper stories since the Bill was introduced on 28th January turned up over 50 reported cases of flashing in England and Wales.

On the very day the Bill was introduced a man indecently exposed himself to a 10 year-old girl on a train. It was reported in the Sheffield Star on 5th February, which stated: The 10-year-old remains scared to venture from her house … after a man flashed at her as she sat with her mum". The article talks of the girl's continuing terror, which has resulted in time off school. We can have a schoolboy giggle about these matters, but for some people the experience is extremely distressing.

Indecent exposure ranges from the flasher waiting in park and woodlands to those who expose themselves in busy town centres. For example, on 2nd April a shopper indecently exposed himself to checkout girls while paying for groceries at a supermarket in Swindon. Last month, a young woman was flashed at while sitting in a Burger King in Walthamstow. These are all traceable examples. Another woman was indecently exposed to by a young man as she travelled on a bus to Kingston at 9.50 in the morning.

Such examples are the tip of the iceberg. They emphasise that there is a problem that the new law must address. We need to look at ways of strengthening the provision, not weakening it. I know that my noble friend Lady Noakes is looking for clarification from the Government about how it will work in practice. My only plea is that if a woman is guilty of this offence, she should be as guilty as a man would be because she causes equal distress.

7 p.m.

Lord Campbell of Alloway

I seek clarification from the Minister. I always thought that the penis was part of the genitalia. If I am wrong, I stand corrected, but I thought that was the ordinary understanding of the matter. What on earth is the amendment about?

Lord Falconer of Thoroton

I appreciate that indecent exposure is characterised in people's minds as the flasher, commonly thought to be a male preserve. It is not beyond the bounds of the imagination to conceive of a situation where exposure of the female genitalia could be employed to alarm or distress someone. The noble Baroness, Lady Blatch, gave an example of the effect that might have on a young child. We do not think it right to make the provision apply only to men: therefore we do not think the amendment takes the right approach.

Female genitals do not refer to breasts, but to the external female genitalia. Male genitalia will include the penis, but it will also go beyond that, as the noble Baroness, Lady Blatch, mentioned. I believe that that answers all the questions raised.

Baroness Noakes

I thank the noble and learned Lord for that extremely brief reply. He asserted that the definition did not include breasts, but I do not think that that is absolutely clear. I shall take the matter away and, in the interests of progressing this evening, beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

The Deputy Chairman of Committees (Lord Lyell)

Before we come to Amendment No. 343A I have to advise the Committee that it was marshalled in the wrong place. I shall be calling it, but the next amendment we come to is Amendment No. 344.

Baroness Walmsley

moved Amendment No. 344: Page 32, line 1, at end insert "for the purpose of obtaining sexual gratification The noble Baroness said: My concern in this part of the Bill has always been to protect naturists going about their perfectly harmless business and to prevent their falling foul of over-zealous police officers and magistrates. In that respect I greatly welcome government Amendments Nos. 343A and 348A. My amendment should also protect naturists from mischievous members of the public who might seek to use Clause 70 as a defence against accusations of voyeurism.

I do not practise naturism but I can certainly imagine its attractions. The human body is nothing to be ashamed of, and we must ensure that we are not over-prescriptive in what we allow people to do, either in private or in the company of other consenting, like-minded people. Exposing our skin to the sun and air is something we all like to do to a greater or lesser extent, especially when the sun shines and we are on a beach. It is estimated that there are about 1 million naturists in Britain. They enjoy swimming, walking, sports and gardening while returning to the way they were born, unencumbered by clothing. In other parts of Europe there are many millions more.

There has been considerable concern among the naturist community about Clause 70. I am delighted that the Government have responded to it. Unless the Bill is amended, naturists run the risk of having their names added to the sex offenders' register and facing up to a two-year sentence. As one of them put it in a letter to me: There needs to be a clear distinction between those who enjoy nude recreation, which is harmless, and that which is unsuitable in any public place, even a beach on a hot day". My amendment is simple and consistent with the wording in other parts of the Bill. The words, for the purpose of obtaining sexual gratification", appear elsewhere where there is a need to clarify that an offence is committed only when this caveat applies. Amendment No. 346 is not quite as clear. Adding the words, "the exposure is sexual," does not indicate the intention or mens rea of the person committing the exposure. Using those words in the Bill, an innocent activity could be interpreted by others as being sexual when it is not. I therefore prefer my own wording or that of the Minister to that proposed by the noble Baroness, Lady Noakes. I beg to move.

Baroness Noakes

I welcome the Government's Amendments Nos. 343A and 348A, which are in this group. It shows that they have listened to the concerns expressed about Clause 70, in particular by naturists but also by artists' models. The noble Baroness, Lady Walmsley, outlined naturists' concerns. I am sure that the Minister knows that many have taken the trouble to write to noble Lords who are taking part in the debates on the Bill. Naturists are a minority who intend no harm to others and simply want to be allowed to practise their way of life in a law-abiding way.

I am pleased that the Government have removed the element of recklessness from the offence, but I have a residual concern about Clause 70 as it will stand after the government amendments. Unlike the rest of the Bill, it does not deal with a sexual offence: it does not directly or indirectly refer to a sexual act. That partly lies behind the amendment in the name of the noble Baroness, Lady Walmsley.

One could say that using the word "genitals" implies some form of sexual activity, but that cannot be the case as a matter of construction. That is why I tabled Amendment No. 346 to require the exposure to be sexual. I have not required the intention to be sexual, as the noble Baroness, Lady Walmsley, prefers: I am making sure that the act of exposure is in itself sexual. That problem may remain after the Government's amendments to remove the recklessness element.

I shall use the example of a naturist on Brighton's naturist beach to illustrate my concerns. By way of background, British Naturism commissioned a public opinion poll in 2001 that found that, although the vast majority regarded naturists as harmless, 2 per cent regarded their activities as criminal and 7 per cent thought them disgusting.

Let us consider the effect of the Bill after the Government's amendments for a naturist on the naturist beach in Brighton, which I am told exists. A naturist intentionally exposes his genitals; that is what naturism involves. He knows that someone will see them because, I understand, the naturist beach at Brighton is not especially well screened from the rest of the beach. He also knows that a person who sees them may well be caused distress, because the person may he one of the 7 per cent and the naturist knows that if one of them is there and sees his genitals, that person would be caused distress.

When we discussed the previous amendment, I raised the case in relation to women either breast-feeding or sunbathing nude. If breasts were included, the same question would arise of whether that activity, even if it could distress only a minority of people, would still fall under the clause, because it is not limited to sexual acts, unlike the rest of the Bill, which deals with sexual activity in one way or another.

So how can the Minister be sure that by removing recklessness, he has in effect produced the protection that is required, which could easily be achieved by including an amendment such as mine in the Bill?

Lord Campbell of Alloway

I support the amendment; it is wholly essential. What happens if an elderly gentleman gets caught short in his motor car on the way home? First, he intentionally exposes his genitalia to spend a penny. Secondly, he knows that someone will see him, if he happens to be in an urban area. Thirdly, he knows not only that the person who sees him will be caused distress, but that he himself will be caused distress.

We must take on board the point made by my noble friend Lady Noakes: the intention must not be to expose one's genitalia when one gets out of a car to spend a penny; it must be in some sexual context. The amendment would save the old gentleman. I wholly support it and I hope that the noble and learned Lord will treat this rather jocular intervention somewhat seriously.

Lord Lucas

1 have tabled three amendments in this group, although in fact I would be delighted if the Government were to accept the amendment moved by the noble Baroness, Lady Walmsley, which, I think, really deals with the problem at its heart.

We are here trying to deal with flashers—disgusting characters they are; I have come across them on too many occasions. We are not trying to deal with someone who for some other reason exposes his genitals. I would especially cite in this context the streaker. I do not want someone who streaks at a Lord's cricket match stuffed on the sex offenders' register. That is not a sexual offence; it may be due to a bit of alcohol and exuberance; but it has nothing whatever to do with intentionally offending the public.

If the Government do not want to pursue that route, there are other points that I wish to make and that are made by my amendments. First, I do not see that the law has or should have any part to play in what happens in a person's private dwelling house, so I would like the words, "in a public place", inserted. Secondly, we should require that someone knows and intends that someone should be caused alarm and distress. There must be a guilty mind, an intention to cause distress. Just because your maiden aunt, whom you know shrieks at the sight of a naked ankle, happens to see you and you know that she happens to be around should not stop you sunbathing in the nude in your own garden if that is what you want to do. My third amendment does a bit of what the Government are doing, but more largely and successfully. I am delighted that they are doing it, but they have not gone far enough.

7.15 p.m.

Baroness Mallalieu

I support my noble and learned friend's Amendments Nos. 343A and 348. I am delighted that he has paid attention to the letters that I know that all of us who have played a part in the Bill have received. Indeed, I must say that the naturists have conducted a superb campaign. They have made their points forcefully with superb individual letters. Few of us who have been on the receiving end can have received as large a post bag on many issues.

What is unfortunate is that they felt it necessary to do so in the first place. I know that others have said it at other stages, but I am bound to say that if the Bill had received proper pre-legislative scrutiny, we should not have alarmed a law-abiding group who, frankly, did not deserve to have to make the effort that they have to put right something that should have been made plain at the outset in even the most preliminary draft Bill.

That said, clearly we all accept that there is not only an offence but one that needs to be redefined. The noble Baroness, Lady Blatch, has referred to the prevalence of that offence; in my experience both personally and at the Bar, those that are reported and prosecuted are only the tip of the iceberg. There can be few youngish women who have not at some stage had experience of it, often running into double figures.

Mostly, they ignore it, because it is a fact of life late at night, especially when women are on their own or travelling alone. It can sometimes be shrugged off and ignored or treated as a joke, especially in company; hut, equally, it can be extremely frightening late at night and extremely worrying for young people. It must be dealt with.

I hope that we will receive some guidance from my noble and learned friend. If I may say so, the question asked by the noble Lord, Lord Campbell of Alloway, about the elderly gentleman being caught short, is a defence which, as a member of the Bar, I have run on many occasions when defending people in such circumstances. It is very difficult to prove what is in the mind of the person accused of the offence.

I hope that the Government will state that, where there are instances of streakers, such as those referred to by the noble Lord, Lord Lucas, they do not intend to use the Bill to deal with such an offence. The clause should be clearly aimed at people who cause distress late at night to women on their own or in circumstances in which they are away from others. I hope that my noble and learned friend can at least make that clear. I think that his amendments fit the bill, providing that he can assure us that they are intended to deal with those nuisances. After all, on the whole—I have not come across one exception to this—they are offences committed by inadequate men. That is the truth of it.

Baroness Blatch

Not for the first time, I fear, I find myself speaking alone on the Bill. The Government's new proposals for this offence are a retrograde step. They will radically weaken the protective element of the offence. I regret that.

I touched briefly on the scale of the problem of indecent exposure when I addressed Amendment No. 343, tabled by my noble friend Lady Noakes. That is a serious problem that requires a serious law to address it. I was therefore keen to keep Clause 70 as drafted in the Bill.

Clause 70 is currently a good attempt to deal with that social nuisance and certainly could not be said to be casting its net too widely. It requires, first, evidence of intentional exposure of the genitals; secondly, an intention or knowledge that someone will see the exposure; and thirdly, an intention, knowledge or recklessness that it will cause alarm or distress. The example cited by my noble friend does not fall into any of those categories.

If anything, rather than being framed too widely, I am concerned that the "alarm or distress" test could be interpreted too narrowly by the courts. It is easy to imagine defence lawyers pushing the test of what is genuinely alarming or distressing to the margins by pseudo-sociological claims that the public is more tolerant of social nudity. We now find, however, that the Government are capitulating to pressure from nudists and making the test even harder. Whereas under the current wording a conviction can be secured where a person is "reckless" as to whether he causes alarm or distress by exposing his genitals. Amendments Nos. 343A and 348A raise the bar and require that he intended to cause alarm or distress, so causing alarm or distress would not be enough on its own.

Proving that intention may be extremely difficult. A man may stroll naked along the high street and enter a supermarket—it has been done—terrifying children and families as he goes, but if he can prove that he had no intention of causing alarm or distress he will be acquitted. Certainly government Ministers seem prepared to go a long way in defence of those who expose themselves in public.

In his evidence to the Home Affairs Committee on 29th April, Home Office Minister Hilary Benn made it clear that he did not wish to see this offence restricting the activities of naturists or activities such as the mass display of public nudity which took place just across the river at the opening of the new art gallery in County Hall. The White Paper which introduced this Bill is entitled Protecting the Public, but here the emphasis seems to have shifted towards protecting those who wish to expose themselves in public. Mr Benn told the committee that, there is a world of difference between a streaker at a football match where it is quite hard to say that alarm or distress would be caused and somebody who exposes themselves to a woman when they are alone in a railway carriage". I agree that there is a difference, but if the streaker runs in front of a stand containing dozens of schoolchildren or only yards from a young child and her mother at their first ever football match, should not they also be entitled to some protection? Interestingly, Mr Benn rejected calls for an amendment along the lines of Amendments Nos. 344 and 346, adding that a test of the exposure must be, for the purpose of obtaining sexual gratification". He stated: What matters and what should matter in relation to this offence is the alarm or distress that is caused to the individual rather than the particular motivation". Surely that marks a great inconsistency in the Government's approach. On the one hand, a Home Office Minister says that the alarm or distress caused is the key factor. On the other hand, the Minister is today moving an amendment which requires proof, riot that alarm or distress was caused, but that the perpetrator intended to cause distress, a much more difficult test. Even if that was in fact alarm or distress, it will be a defence to say that it was not intentional. Presumably even a total lack of regard for whether anyone would be distressed is not enough, since that would be mere recklessness. In his evidence, the Minister volunteered the fact that the common law offence of outraging public decency would operate as a fallback if an incident of public nudity was not caught by Clause 70.

I shall speak briefly on the common law offence when we reach Clause 74. Suffice to say that it is a most unsatisfactory law with a very high test and a very low conviction rate. In practice, that means very low sentences. I am more concerned about where these government amendments will leave us.

There are people who claim to be quite serious about nudity as a form of political expression. They would argue that they had no intention of causing alarm or distress. An infamous example is that of Mr Vincent Bethell. According to one newspaper report, he had previously been diagnosed as a paranoid schizophrenic. It is clear that he is a man in need of help. He has been convicted repeatedly for stripping naked in public, something he claims to have done around 40 times, including in front of Parliament and Downing Street. He insists that it is all part of a campaign to urge people to get in touch with their humanity and to be less self-conscious about their bodies. Under the new wording, would Mr Bethell still be convicted? I think not.

Earlier this month, 160 people posed naked outside County Hall in the name of art. Under the new wording, it is difficult to imagine that the police could prove any intention whatever to cause alarm or distress on the part of those people. If scores of schoolchildren had been crossing Westminster Bridge at the time and their teacher lodged a complaint with the police, would the new wording offer any protection? Again, I think not.

Then there are the naturists. On 8th April, the chairman of the Central Council for British Naturism gave evidence to the Home Affairs Committee about Clause 70. He complained that, to some, naturism is, a very moral and proper way of life, He even went so far as to call it "a family activity". He said that he did not want naturists criminalised by the new offence and called for an amendment similar to the ones being proposed here.

When Mr Hilary Benn gave evidence to the same committee on 29th April, he said that Clause 70, is not in any way intending to criminalise naturists". It is clear that these amendments are designed to give effect to that reassurance. But does he really mean that he does not wish "in any way" to criminalise naturists; that is, not in any circumstances? What if scores of them invade a public beach? What about those who cause the National Trust endless difficulties because they insist on exposing themselves on public land? Are the Government creating a kind of "nudists' charter"?

I shall comment briefly on the other amendments in the group. Amendment No. 349 deletes subsection (2). Although the Minister's name is not added to it, I assume he will adopt it since his own amendment, Amendment No. 348, does not make sense unless subsection (2) is removed.

Amendments Nos. 344 and 346 would also severely restrict the usefulness of Clause 70. Amendment No. 344 requires proof that the perpetrator intended to obtain sexual gratification from exposing himself. Amendment No. 346 similarly requires that "the exposure is sexual". Requiring proof that the perpetrator had a sexual motive could impose an impossible burden on prosecutors in many cases. Courts may have to deal with spurious claims from defendants that they were exposing themselves for reasons of art, culture, personal freedom or for other non-sexual purposes. The amendment would guarantee that people like Vincent Bethell could go naked wherever they liked without fear of conviction since they could easily adduce evidence, in the form of pamphlets and past speeches, that there was no sexual motive to their exposing themselves.

If someone is, as it were, a bona fide naturist with no sexual motive for exposing himself, these amendments would give him a legal right to stroll naked in public places. In some cases, proving a sexual motive will require a form of mind-reading since the only person able to give evidence of the defendant's intention is the defendant himself. Furthermore, those who do have a sexual motive for undressing in front of strangers could quite easily make a false claim that they were naturists. This would present prosecutors with the difficulty of disproving their claim.

The fact is that most victims of this kind of exposure will not care about the motive. If a mother with young children is confronted in a shopping arcade by a naked man, causing confusion, distress and fear to her children, she will not care whether his motive was sexual. She will simply want to be able to tell her children that the police have arrested the man and that he will be punished for it.

Again, Amendment No. 345 would constitute an unnecessary restriction on the usefulness of this offence. It is a mistake to create a defence for the man who exposes himself somewhere which is not in itself a public place, but from where he can be seen by members of the public. For instance, would a man who stood naked in a shop window be able to escape prosecution under this amendment?

The effect of Amendment No. 347 would be to require proof that the defendant both "knows" and "intends" the consequences of his actions. This makes the mens rea for this offence more difficult to prove. Knowledge and intention are usually alternatives in criminal offences, the presence of either of which allow the court to conclude that there is a guilty mind. Confusingly, Amendment No. 348 appears to lessen the burden on prosecutors by deleting the requirement that there is knowledge or intention that his exposure will be seen.

As Members of the Committee will see, I have many concerns about these amendments. I have spoken at length deliberately because I think that the other side should be heard. I fear that the amendments would not improve the clause. Indeed, they risk substantially undermining its original effectiveness.

Lord Northbourne

I rise to say, with regret, how much I disagree with my friend the noble Baroness, Lady Blatch.

Baroness Gibson of Market Rasen

I am not a lawyer, but I rise to speak because I am rather bothered about the way this debate is going. Some of the examples that have been cited surely would be covered by public decency legislation, which I assume will not be altered by these amendments. I am a little perturbed, therefore, that we are seeking to bring in arguments that will not be covered by this Act but are already covered by public decency legislation.

7.30 p.m.

Lord Campbell of Alloway

I respectfully ask the noble and learned Lord whether, without commitment, he will give serious consideration to the reservations expressed in this group of amendments. Put simply, this is a sexual offences Bill. Clause 70 has nothing to do with sex. There is no sexual intention. There is nothing in the clause to involve criminal intent. With respect, the clause is a bit of a dog's dinner to find in a Bill such as this. Surely, if all that the provision as drafted means, without any qualification by these amendments, is ridiculous, unacceptable conduct, it is already covered by extant law. If I am wrong, will the noble and learned Lord correct me?

Lord Skelmersdale

If this debate shows nothing else, it shows that naturists do know that some people will be caused offence by their actions. So knowing is perfectly respectable. Surely what really matters is the intention. A bona fide naturist would not intend to cause offence or harm to anyone, but I find that this clause is something of a muddle, with or without the various amendments that have been proposed.

Lord Falconer of Thoroton

With respect, I think that the noble Lord, Lord Skelmersdale, is wrong in regard to the clause. I think that we have got the balance about right. First, we are removing the recklessness requirement, so that the naturist will be guilty of an offence only if he knew or intended that what he did would cause alarm or distress. It will not be an offence because he knows—because he has no doubt read about the opinion poll referred to by the noble Baroness, Lady Noakes—-that there is a proportion of the population who, to use the phrasing of the opinion poll, find such actions disgusting. That would not, as a matter of law, make it a criminal offence, because he would not know in the circumstances that "alarm or distress" would be caused—which is the wording of the offence. "Recklessness" is about a risk. Knowing or intending that alarm will be caused is about actually knowing the facts.

So far as concerns the example given by the noble Lord, Lord Campbell of Alloway—namely, if someone in the circumstances posited does what he described entirely because the necessary call of nature required it, without intending to cause alarm or distress—contrary to what the noble Lord says, the person would not know that alarm or distress would be caused. That would be not caught either. So I think that we have covered the two situations that noble Lords have raised in relation to the alleged problem in our draft. That is why we have done it in this way. We take out the dwelling-house exception, because we have removed recklessness; so we support Amendment No. 349. My name has not been added to the amendment, although that was my intention because it follows what we are trying to do. The amendment removes subsection (2).

The noble Lord, Lord Lucas, wants to remove the recklessness option, and we are with him in that respect.

Amendments Nos. 344 and 346 seek to make the offence apply only where the exposure is sexual or the motivation is one of sexual gratification. The noble Lord, Lord Campbell of Alloway, supports that because he says that this is a sexual offences Bill. We oppose it for the following reasons. Of course, where exposure is deliberately done manifestly for sexual gratification, that will be potentially enormously distressing and will cause alarm or distress to the victim. So it is plainly covered already. But there is no doubt that exposure that has as its purpose to alarm or distress can be no less frightening, irrespective of whether there is no explicitly sexual motive behind the action. It is not impossible to recognise and imagine that there are cases where the purpose of the act is to frighten and terrify with no sexual motive. It is that kind of occasion that I believe all noble Lords would wish to cover. What they would not wish to be the result of the proposed amendment is a difficult debate in court about whether or not the motivation for what was unquestionably on the facts a deliberately alarming and frightening occasion—whether or not the motive was sexual gratification—and, the prosecution having failed to prove that it was for sexual gratification, the defendant being acquitted. I agree with the noble Baroness, Lady Blatch, that this would be putting in place an unnecessary hurdle which does not reflect the reality of what happens.

The noble Lord, Lord Campbell of Alloway, asks what happens if it is not sexual motivation, given that this is a sexual offences Bill. It is ridiculous in terms of the law to chop this provision and put it in one place because there is a sexual motivation and in another where there is no such motivation. One has to be sensible about the way in which one creates offences.

Lord Skelmersdale

I cannot let the noble and learned Lord get away with that. He defended the Government's stance on the Bill on the previous day in Committee, when we referred to trafficking for labour. He agreed with me that it would impugn the purity of the sexual piece of the Sexual Offences Bill.

Lord Falconer of Thornton

With respect, what we are talking about here in relation to exposure is the alarm and distress that is caused to people. It has plainly, if one looks at it in laymen's terms, a sexual element. What we are talking about, however, is the definition of the offence. If the noble Lord is seriously suggesting that one puts in sexual gratification as a necessary requirement of the Bill, with great respect to him I think that he is failing to catch what may be a very serious element of exposure and, as it were, leaving in only the matters that might otherwise be described as less important.

Baroness Blatch

I take what the noble and learned Lord says, but will he accept, as I accept, that the amendments provide a number of defences for someone who is offensive and is causing great alarm and distress—and it may be almost impossible to prove that it was for sexual gratification; nevertheless, the severity of the alarm and distress is very real?

Lord Falconer of Thoroton

In the circumstances I am positing, where there is exposure which causes alarm and distress and in the threatening manner I have described, of course the court must look to see what the intention was—whether it was inadvertent or not—but I should have thought that on the facts posited it would not be difficult, assuming that those facts were proved, for the court to come to the obvious conclusion that it was done with the intention of causing alarm or distress.

In every case there will obviously be difficulties about identifying precisely what proof is required—I do not mean in relation to each individual case, but as regards every offence there will always be circumstances in which a defence can be run. But if it is clear that what this provision is designed to catch is people who knowingly seek to cause alarm or distress or intend to cause alarm or distress, that is the area that all noble Lords wish to cover. I believe that we have dealt with that adequately.

The noble Lord, Lord Lucas, suggests in one of his amendments that the provision should be restricted to a public place. With respect, we disagree. Think of the circumstance where someone comes into your house for some legitimate reason and then deliberately exposes himself to you. We have got rid of the problem about the casual guest by getting rid of subsection (2), but I can imagine terrifying circumstances in which, within a house—which is not a public place—this is a way of threatening or frightening someone. So, again, understanding the perfectly reasonable motive behind the amendment, we do not think that it is appropriate.

Finally, do we intend to catch the streaker? No, we do not. Do we intend to catch the naturist? No, we do not. Are we creating a nudist's charter? No, we are not. We are simply saying that being a naturist is not of itself a criminal offence.

Lord Lucas

I am much comforted by the noble and learned Lord's remarks, but will he clarify one point? If I were to drive at speed down the wrong side of a motorway, might I reasonably say that I did not know that I would cause an accident? In other words, in order to show that someone knows something, it must be shown that that person has actual knowledge, rather than just that he or she ought to have known that an action was likely to cause an accident. The wording is quite strong in that context. A great many of our fears can be dealt with by saying that he did not actually know rather than that it ought to have been obvious to him.

The other thing that might comfort my noble friend Lady Blatch is that if the noble Baroness, Lady Walmsley, is right about the number of naturists in this country, there ought to be 10 of them in this House. One wonders who they are.

Lord Falconer of Thoroton

I am not sure whether that would be of any comfort to the noble Baroness, Lady Blatch, although that might depend on who the 10 were. As for "knows" it means that a person knows that what he is doing will cause alarm or distress.

Baroness Noakes

Before the noble Baroness, Lady Walmsley, decides what to do with her amendment, I should like to say that while I would welcome the noble and learned Lord, Lord Falconer of Thoroton, adding his name to Amendment No. 349, I suggest that he does not need to do so because his Amendment No. 348A achieves the same effect.

Baroness Walmsley

I very much welcome the removal of "recklessness" from the clause, but I am still not convinced that there is adequate protection for people such as naturists, streakers and artists' models in what the noble and learned Lord proposes. I do not intend to press the amendment at this stage. I shall read carefully what has been said. It is very important that we do not put in barriers to getting a conviction where we should get one. There needs to be a balance between that and overly risking the criminalisation of perfectly innocent people. It is a question of looking at the balance of the two in the Bill and coming to a conclusion. For the moment, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Falconer of Thoroton

moved Amendment No. 343A: Page 32, line I. at end insert "and The noble and learned Lord said: I have already spoken to this amendment. I confirm that the noble Baroness, Lady Noakes is, as ever, completely right. Amendment No. 348A does the trick and therefore I do not need to support Amendment No. 349, much as I would like to. I beg to move.

On Question, amendment agreed to.

[Amendments Nos. 345 to 348 not moved.]

Lord Falconer of Thoroton

moved Amendment No. 348A: Page 32, line 2, leave out from "them" to end of line 6 and insert "and be caused alarm or distress,

On Question, amendment agreed to.

[Amendment No. 350 not moved.]

Clause 70, as amended, agreed to.

Clause 71 [Voyeurism]:

Lord Falconer of Thoroton

moved Amendment No. 350A: Page 32, line 13, leave out subsections ( 1) to (3) and insert— (1) A person commits an offence if—

1. (a) for the purpose of obtaining sexual gratification, he observes another person doing a private act, and
2. (b) he knows that the other person does not consent to being observed for his sexual gratification.

(2) A person commits an offence if—

1. (a) he operates equipment with the intention of enabling another person to observe, for the purpose of obtaining sexual gratification, a third person (B) doing a private act, and
2. (b) he knows that B does not consent to his operating equipment with that intention.

(3) A person commits an offence if—

1. (a) he records another person (B) doing a private act,
2. (b) he does so with the intention that he or a third person will, for the purpose of obtaining sexual gratification, look at an image of B doing the act, and
3. (c) he knows that B does not consent to his recording the act with that intention."

The noble and learned Lord said: Government Amendments Nos. 350A, 351A and 352A reframe the offence of voyeurism at Clause 71. It is a new offence, so we are concerned to achieve as good a definition as possible. The amendments revise subsections (1), (2) and (3) of Clause 71 as drafted, include a minor amendment to subsection (4) and provide a new interpretation clause to follow Clause 71.

On reflection, we had concerns that the offence as drafted in subsection (1)(a) criminalised those who looked at a moving or still image recorded through voyeuristic means. We thought there were problematic issues about criminalising simply looking at something unless it was an indecent image of a child which is already, in certain circumstances, against the law. It would often be difficult to establish whether that person knew that the person in the image did not consent to the image being recorded or viewed unless, of course, the author was responsible for recording the image. But the offence could potentially have caught readers of pornographic magazines, which seemed to us to be going too far.

These amendments remove from the offence completely the provision relating to looking at an image. They mean that the offence would then cover in subsection (1) a person directly observing, for his own sexual gratification, another person doing a private act, knowing that other person did not consent. This would include, for example, looking at someone having sexual intercourse through a window or peephole where the observer knew the person observed did not consent to being looked at for this purpose and where the observer looked in order to gain sexual gratification. This was already an offence under Clause 71 as drafted.

Subsection (2) would cover a person operating equipment with the intention of enabling someone else, for their sexual gratification, to observe a third person doing a private act where the operator of the equipment knew that the person being viewed did not consent to it. This would cover, for example, a landlord operating a webcam in his tenant's bedroom to allow people on the Internet using a pornographic website to view, for their sexual gratification, live images of his tenant getting undressed if he knew that the tenant did not consent to being so observed.

Subsection (3) would cover someone recording another person doing a private act with the intention of looking at the recording for his own sexual gratification or intending other people to look for their sexual gratification where he knows that the person does not consent to the recording of that act with that intention. This would cover the person who secretly films someone masturbating in their bedroom and distributes the images to others for their sexual gratification. Proof that the intention was the sexual gratification of others could he derived from, for example, the fact that the image was posted on a pornographic website or in a pornographic magazine.

In contrast to Clause 71 as drafted, the person recording the image would be caught by the offence, whether or not those looking at the image know that the person filmed does not consent to the image being shown for the purpose of sexual gratification and did not consent to the filming. The offence would not catch anyone who published the image because we feel this strays too far from the nub of the offence, which is the covert observation, for the purpose of sexual gratification, of someone engaged in a private act.

Subsection (4) of the offence remains as drafted in the Bill except for the removal of "or operates" in line 34. The operation of equipment is now covered for live observation by the offence at subsection (2) and for recorded observation by the offence at subsection (3). Subsection (4) covers a person who installs equipment, or constructs or adapts a structure or part of one with the intention of enabling himself or another person to commit an offence under subsection (1). This would cover someone who, for example, drilled a spyhole or installed a two-way mirror in a house or made a hole in the canvas of a changing room in a market stall selling clothes with the intention of spying on someone for sexual gratification or allowing others to do so. The person who installed the equipment would also be caught even if the peephole or mirror was discovered before it was used.

Subsection (4) does not cover a person who installs equipment with the intention of enabling a person to commit an offence under subsections (2) or (3). We consider that an offence of this nature would be too complicated. A jury would have to consider whether a person installed equipment with the intention of enabling another person to record a third person doing a private act with the intention of enabling a fourth person to obtain sexual gratification from looking at the image. However, if a person installs equipment in such circumstances, he may still be guilty of conspiring to commit a subsection (2) or (3) offence or of aiding and abetting such an offence.

The new clause after Clause 71 offers interpretation to the terminology used in Clause 71. With one exception, this interpretation is the same as that already in the Bill as drafted but has simply been moved to a new stand-alone clause for the purposes of clarity. The one exception is that there is now a definition of "observation", which makes it clear that observation can cover non-direct observation, for example, where a person observes another by using a mirror.

I apologise for the length and, to some extent, the complexity of this explanation, but I think it is of value to the House that I describe the amendments in some detail. I beg to move.

7.45 p.m.

Lord Skelmersdale

In describing the amendments, the noble and learned Lord used the words "engaged in". I am not sure if it is normal drafting, but in Amendment No. 352A, under the proposed subsection (2) a person has to be "doing a private act" rather than being engaged in a private act. Is this normal drafting terminology? It strikes me as a little strange.

Baroness Noakes

Amendment No. 351 is separately grouped on the groupings list, but it will be pre-empted if the government amendments are passed, as I expect that they shall be since we have no major problems with them. I wish to speak to the amendment, however, so that my concerns are on the table.

The amendment would not fit in today, but I may wish to return to it on Report. It again relates to the concerns of naturists and how they are covered by the new offence of voyeurism. The offence of voyeurism means a "private act" under the current subsection (2). There is no requirement for the exposure to be sexual. but it must be in a structure. Naturists, however, whether within or outside of structures, have a problem with peeping Toms. The essence of naturism is that naturists are often outside, often on their own land and screened as far as they are able to keep people from looking in, as they have no desire to be seen by people who are not in their own group.

The amendment is designed to capture those who are outside and in naturist areas, but subject to the unwanted attentions of peeping Toms. The concerns of naturists are to be able to operate in privacy and not be subject to peeping Toms. I hope that it is not too much out of order to speak to the amendment, but otherwise it would be pre-empted.

Baroness Blatch

I wish to speak to Amendment No. 351. Again, I find myself out on a limb. Naturists have found many friends in this House. We know that they have areas that are properly set aside, usually away from the public gaze. However, my concern with the amendments, and especially with Amendment No. 351, is that a kind of naturists' charter is being established.

The amendment causes problems by making nudists a special category and by creating the concept of, a place in which social nudity is customarily practised". It may be that social nudity is customarily practised on a very public beach, much to the annoyance of locals and holidaymakers who arrive at the beach, only to be confronted by dozens of naked people. I have already mentioned the problems on some National Trust land. Those people may be committing an offence under Clause 70, but if the amendment were accepted, the innocent passer-by who reported them to the police might find himself accused of being a voyeur, contrary to Clause 71.

The fact is that if nudism is genuinely private, its practitioners are already protected. Clause 71(1)(a) protects persons who are "doing a private act"—or "engaging" in one, as my noble friend put it. If, however, the act is public and itself constitutes exposure, it should not be protected. Indeed, it would seem remarkable—not to say impossible—to police, if a person could walk naked along a beach where nudists often gathered, then allege that particular passers-by were obtaining "sexual gratification— in the words of Clause 71—from looking at them.

The offence as redrafted by government Amendments Nos. 350 a nd 352A, which have just been dealt with in a previous group, protects those who are naked within a structure, such as a building or a tent, where privacy can reasonably be expected. To extend that protection beyond the walls of a structure to any, place in which social nudity is customarily practised", could create a new legal right to social nudity. I am sure that that is not the intention either of the Bill or of my noble friend's amendment.

Lord Falconer of Thoroton

The noble Baroness, Lady Noakes, did not comment on my amendments. She spoke only to Amendment No. 351, which was not grouped with them, but I have no problem with dealing with it at the same time.

Baroness Noakes

I spoke on it only because it would have been pre-empted.

Lord Falconer of Thoroton

I am happy to speak about it.

The offence at present protects only those engaging in private acts in places where they could reasonably expect privacy, such as houses and structures of various sorts. The noble Baroness, Lady Noakes, is very unwise to suggest that it be extended in its coverage. No doubt some of those who engage in nude sunbathing or naturism would prefer not to be looked at by passers-by, especially when those passers-by are looking for sexual gratification. However, many of the places where such nudity is customarily practised, such as nudist beaches, are relatively easily overlooked. It would be quite wrong to criminalise those who witnessed such nudity while going about their daily business, even if they derived sexual gratification out of what they saw.

Those who choose to he naked in locations other than structures where they might reasonably expect privacy do so at the risk of someone seeing them and being sexually gratified. Those who engage in social nudity inside structures where they might reasonably expect privacy will be protected by the legislation. However, it would be imprudent to extend it. Therefore, I hope that the noble Baroness will be gratified that the amendment is about to be preempted.

Lord Skelmersdale

Would the Minister answer my question about "doing" an act, as opposed to being engaged in it?

Lord Falconer of Thoroton

That is a difficult question, and one that I shall take back to the parliamentary draftsman, as it would be unwise of me to deal with it myself.

On Question, amendment agreed to.

[Amendment No. 351 not moved.]

Lord Falconer of Thoroton

moved Amendment No. 351A: Page 32, line 34, leave out "or operates

On Question, amendment agreed to.

[Amendment No. 352 not moved.]

Clause 71, as amended, agreed to.

Lord Falconer of Thoroton

moved Amendment No. 352A: After Clause 71, insert the following new clause— VOYEURISM: INTERPRETATION (1) The following apply for the purposes of section 71. (2) A person is doing a private act if the person is in a structure which, in the circumstances, would reasonably be expected to provide privacy, and—

1. (a) the person's genitals, buttocks or breasts are exposed or covered only with underwear,
2. (b) the person is using a lavatory, or
3. (c) the person is doing a sexual act that is not of a kind ordinarily done in public.

(3) Observation means any observation, whether direct or by looking at an image produced in any way. (4) In section 71 and this section— image" means a moving or still image, produced by any means, and structure" includes a tent, vehicle or vessel or other temporary or movable structure.

On Question, amendment agreed to.

Clause 72 [Intercourse with an animal]:

[Amendment No. 353 not moved.]

On Question, Whether Clause 72 shall stand part of the Bill?

Lord Lucas

I should very much like to understand the Government's motivations in the drafting of this clause. There are many things of a sexual nature that people choose to do in private and which most of us would find more or less disgusting. Intercourse with an animal is one of them, but it is one which in some societies is considered normal. As Masters and Johnson established, it is quite prevalent in parts of the country, especially in the countryside as such and among farm boys. They found a 50 per cent incidence in a bit of Ohio that they studied. It is not unknown or uncommon, certainly not in common parlance. To judge from the spam that arrives in your Lordships' House, a good deal of goes on in the world of pornography, too.

I want to know what the motivation is for making this particular sexual practice a crime. I cannot see that it has anything in particular to do with the human aspect of it—I imagine that it has to do with the protection of animals. I do not know whether the Minister has any evidence on the effect of this activity on animals. If the provisions relate to the effect on animals, why is it considered better that the sheep should be dead—should have been killed immediately before the act—rather than living through it? Why is that thought to excuse the act?

Why are animals such as gerbils excluded? The noble and learned Lord, Lord Falconer, may care to look up "felching" in his dictionary, or perhaps the box can do that for him. That is something that is widely referred to on the Internet and he will find it in such common books as the Darwin Awards. There, at least one incidence of that going wrong is amusingly recounted. I want to understand the Government's motivations. Why, among all human sexual perversions, is this one chosen to make an offence? Why has the scope of the offence been set as it is? I am asking so that I can understand better at Report stage how I would like the clause to differ.

8 p.m.

Lord Monson

Is not bestiality already an offence—albeit one of those offences where the prosecution rate is well under one per cent of the incidents that take place?

Lord Falconer of Thoroton

At present intercourse with an animal is an offence under Section 12 of the Sexual Offences Act 1956, which also covers buggery and carries a maximum sentence of life imprisonment. We are repealing Section 12. We take the view that a specific offence is needed to cover sexual activity with an animal and should be separated from offences against people. Clause 72 covers intentional penile penetration of the vagina or anus of a living animal and makes clear that the offence also includes causing or allowing the penis of a living animal to penetrate a person's vagina or anus. That behaviour is generally accepted to be deviant. The offence is not included on the basis of cruelty to animals, which is dealt with in other statutes. We believe that it should be a criminal offence, but the previous maximum penalty of life imprisonment is disproportionate. We therefore propose a reduced maximum penalty of two years' imprisonment or a fine. That is our thinking. I hope that that answers the points raised by the noble Lord, Lord Lucas, and the noble Lord, Lord Monson.

Lord Lucas

I am still interested in why the Government think that committing that offence is different with a dead animal rather than a live one. Why should it be less of an offence if the man has killed the sheep just beforehand? Why should it be less of an offence if the animal involved is inserted as a whole object rather than part of the animal? I should like to hear the Government's justification of the scope of the offence and why it should have been phrased in this way.

Lord Falconer of Thoroton

It is the judgment made about the sort of conduct with animals which should be criminalised. We have drawn the line where we have drawn the line. There is no merit in saying that that is not this bad or that bad. What one has to do is see where we have drawn the line and ask whether we have done that in the right place.

Clause 72 agreed to.

Clause 73 [Sexual penetration of a corpse]:

[Amendment No. 354 not moved.]

On Question, Whether Clause 73 shall stand part of the Bill?

Lord Lucas

I come at the offence from the same point of view. Why have the Government phrased the clause in this way? Is the offence something which happens often? How many prosecutions are there for that sort of thing? How many incidents are there in any given year? Is it something that is frequent enough to merit a separate offence? There are many things that one can do to dishonour a corpse. There was an incident recently when someone put a bacon sandwich into the mouth of a dead Muslim woman. which strikes me as a pretty ghastly thing to do. Surely we do not need to make that a separate offence. There are many ways in which one can mutilate and dishonour a corpse. I do not know which statute it is that they would be caught under. Why do we need a separate offence for something that is probably extremely rare, particularly given the fairly rare opportunities in our current society to commit that sort of offence? I should be grateful for the Minister's enlightenment.

Lord Falconer of Thoroton

There is currently no law that covers sexual penetration of a dead human body or part of it. That is a surprising omission from the criminal law, since it represents a violation of the respect that ought to be shown to human remains. When such behaviour comes to light it is profoundly distressing for the family of the dead person. Existing legislation covers exhuming a dead body without lawful authority, but there is no other protection for the body of the person once he or she is dead. Setting the Boundaries has anecdotal evidence that sexual penetration of dead bodies takes place, albeit in rare and unusual circumstances. It is impossible to quantify the extent of the behaviour, but that is not surprising when the law is silent on the issue. There is, however, no indication that it is anything other than extremely rare. As part of a comprehensive review of sex offences it is important for society to make clear which sexual behaviour is so profoundly deviant as to justify the intervention of the criminal law. The offence could be charged in relation to those who kill their victim and then sexually penetrate the corpse in addition to a charge of murder or manslaughter. It could also be charged against those who have had no role in the death of the individual but subsequently sexually penetrate the corpse.

Clause 73 agreed to.

Clause 74 [Sexual activity in public]:

The Deputy Chairman of Committees

Before I call Amendment No. 355, 1 should point out that in the group are Amendments Nos. 359 and 360. I have to advise the Committee that if Amendment No. 359 were agreed to, I would not be able to call Amendment No. 360.

Baroness Noakes

moved Amendment No. 355: Page 33, line 26, at end insert— ( ) A person commits an offence if—

1. (a) he is in a public lavatory,
2. (b) he intentionally engages in an activity within subsection (3), and
3. (c) the activity is sexual."

The noble Baroness said: The amendment concerns the issue of sex in public. We debated the issue extensively at Second Reading and many who spoke found defects in Clause 74. The Government have now said that they intend to withdraw the clause. To that end the Minister has added his name to the objection to the clause standing part, which is included in the group of amendments.

There is no doubt that Clause 74 is a bad piece of draft law, which is why we propose major amendments to it. I shall not weary the Committee with a detailed exposition of those amendments, but I should like to outline some concerns that are not necessarily eliminated by removing the clause and relying on existing Public Order Act offences and common law offences.

I believe that we share with the Government the desire to ensure that the law proscribes acts that have an impact on the public and are considered by the public to be unacceptable. The Minister will be aware that the comments made by his ministerial colleague in another place, Mr Hilary Benn, led many to believe that this was not the principle which guided the Government. Many believed that the Bill gave a green light to sexual activity in public lavatories provided it was not seen.

I believe that my Amendment No. 355 captures a general public sentiment which is that public lavatories are not places for sexual activity. If we say anything less than this, we imply that there are circumstances in which sexual activity in a public lavatory is acceptable. If there is anything less than a total prohibition, we run the risk of making public lavatories no-go areas for the general public and in particular for children. There are already instances of public lavatories being no-go areas or having to be closed because the existing law, which is not an absolute and explicit ban, is either not good enough or not enforced. Simply removing Clause 74 will do nothing to improve the situation.

The Minister's very helpful letter of 15th April notifying his intention to withdraw the clause noted that the existing common law offence of outraging public decency had successfully been used to prosecute cases of sexual activity in public lavatories. The Court of Appeal case ofMayling, which the Minister cited, established that sexual activity in a public lavatory could be an act which outraged public decency, but the activity had to be seen to be within the offence. The judgment stated that, it is. in the view of this court, clear that more than one person must at least have been able to see the act complained of if the charge is to be made out". So there are two problems with the common law offence. First, sexual activity has to be seen. Secondly, two or more people must have been able to see it. For my part I am not convinced that that is a sound basis on which to leave the issue of sex in public lavatories. The current law is not adequate. In any event, it is not enforced so as to prevent public lavatories becoming no-go areas. That is why we need an absolutely clear prohibition in the law. I shall listen very carefully to what the Minister has to say about Clause 74. I welcome the fact that the Government have thought again about the subject, but I am not yet convinced that they have come up with the right answer. I beg to move.

Baroness Blatch

This is one occasion when I am absolutely at one with my noble friend. I believe that the Government's U-turn will leave a serious lacuna in the Bill, which in my view needs to be filled.

The Government appear no longer to believe that there should be a specific offence of sexual activity in public. During the Easter Recess, it was announced to the press that Clause 74 was to be dropped and replaced with an amendment to the Criminal Justice Bill currently before another place. The amendment will make it possible to prosecute, in a magistrates' court, the offence of outraging public decency. Currently the offence can be tried only in a Crown Court, and thus it is meant to deal with the problem of sexual activity in public. One newspaper report also suggests that the public order offence of behaviour likely to cause a breach of the peace could also be used to deal with the problem. If this truly is the full extent of the Government's proposals in this important area of protecting the public, as my noble friend said, they have many serious questions to answer.

On Second Reading, the noble and learned Lord, Lord Falconer, introduced Clause 74 by saying: The offence will send out a strong signal of our intention to protect people from being the unwilling witnesses to overtly sexual behaviour in public that most people consider should take place in their own homes".—[Official Report, 13/2/03; col. 775.] What has happened to the Government's strong signal? Although Clause 74 did raise various anomalies, I believe that the Government's general intention was right. Sexual activity in public is a real problem. In particular, as I shall show in a moment, there is a real problem with public toilets. The problem requires a specific statutory offence to tackle it. Instead the Government now propose to drop Clause 74 and fall back on the longstanding common law offence of outraging public decency. The common law offence is weak and difficult to prove. I shall outline the evidence of that later.

If it is true that the public order offence of behaviour likely to cause a breach of the peace is being proffered as a solution, that, too, inspires little confidence. According to the case summary, the 1982 case of Parkin v Norman found that, Offensive or disgusting behaviour by a homosexual in a public lavatory does not amount to 'threatening, abusive or insulting…behaviour … whereby a breach of the peace is likely to be occasioned' under Section 5 of the Public Order Act 1936, I am not a lawyer, but it seems pretty clear to me that the public order offence provides no protection against sex in public toilets. I should be grateful to know whether the Minister really believes that we can rely on the public order offence to prevent sexual acts in public toilets.

In the absence of Clause 74, the weakness of the provisions on which the Government now claim to be relying is of especially great importance. This is because this Bill is repealing the law of gross indecency. Gross indecency will be removed from our statute book and nothing is to be put in its place. Gross indecency currently outlaws homosexual male activity in public toilets and elsewhere in public. It specifically addresses public toilets because this has been a serious public problem for decades.

In February this year, a five-day police operation targeting lavatories at Baker Street Station led to 34 men being cautioned for gross indecency. In January, Guisborough Police in North Yorkshire were forced to launch Operation Newton to patrol public toilets in their area.

The police said: The toilets have become a meeting den for gay and bi-sexual men, and the problem has escalated to such an extent that on occasions, cleaning staff cannot gain access to clean and close up the premises at night, due to the number of men 'using' them". The Yorkshire Post reported in October last year that Barnsley Council was forced to close a village's public toilets. According to the paper: Shocked Cawthorne residents had called for the toilets to be completely flattened after learning the block has appeared on a website advising men of the best places in England for 'cottaging'—casual homosexual sex in public toilets". I have reports of similar problems in the toilets of Blackburn railway station and those of Aberdeen Central Library. The local press in Staffordshire have reported internet sites advertising public places across the county as venues for homosexual activity. All this proves that there is a great problem that needs to be addressed.

Although rare, there are also cases of heterosexual activity in public toilets. The case of R v Helen Georgina Waring in 200I concerned an act of sexual intercourse with a man in a night club toilet cubicle.

We need a clear and effective law to tackle an identifiable problem. We need a specific offence that criminalises any type of sexual activity—heterosexual or homosexual—in a public toilet.

It was only in 1967 that gross indecency was specifically framed to outlaw homosexual activity in public toilets. The Government boast about sweeping away Victorian laws, but the specific law against acts in public toilets is less than 40 years old.

In 1967, at the height of the swinging 60s and when Parliament was in the throes of legalising homosexual acts in private, it was felt necessary to make clear that "private" did not include, according to Section 1(2)(b) of the Sexual Offences Act 1967, a lavatory to which the public have or are permitted to have access". The then Home Secretary, the late Lord Jenkins of Hillhead, noted during the passage of that Bill: the view was taken in another place that there should be included this special provision relating to public lavatories, which is obviously a social feature of homosexuality as opposed to the heterosexual act".—[Official Report, Commons, 3/7/67; col. 1453.] In one of the Bill's earlier incarnations, the Under-Secretary of State at the Home Office, Lord Stonham, explained Section 1(2)(b) of the Act to the House of Lords on 23rd May 1966. He said it was, intended to cover a case where two men committed an act in a locked cubicle and it would clearly be objectionable if those two men were seen to enter the cubicle and their activities, though not seen, might well be thought to offend other persons who might be using the public part of the lavatory". Outraging public decency existed as a criminal offence at the time of the 1967 Act. There was much discussion during the passage of the Bill about the offence. Yet it was still felt necessary to introduce specific provision for public lavatories. If outraging public decency had been adequate to tackle the problem of sex in public toilets, Section 1 of the Sexual Offences Act 1967 would have been unnecessary.

Clearly, Parliament at that time believed no other law existed that would suffice. So what has changed? First, the problem has not gone away. The Home Office sex offences review published in 2000 concluded: some public facilities are extensively used for sexual purposes, and the law needs to be able to deal with this problem as part of wider powers to deal with sexual activity in public". In 2003, surely we still cannot rely on outraging public decency. It is a weak offence that appears to be difficult to prove. According to Home Office figures, 173 persons were proceeded against in England and Wales in 2001 for outraging public decency. Only 34 were found guilty. That is a 20 per cent conviction rate, which I believe is too low compared with many other offences.

We should bear in mind that outraging public decency is a broad offence that is not targeted solely at sexual activity. One of the most famous cases involved a so-called art exhibit that displayed earrings made from human foetuses. The offence could not be said in any way to be designed specifically to cover the sorts of situations that Clause 74 was targeting. It contains a high test. In the leading case of Kindler (Publishing, Printing and Promotions) Ltd v the Director of Public Prosecutions, the noble and learned Lord, Lord Simon of Glaisdale, said: 'outrage' was a very strong word and 'outraging public decency' goes considerably beyond offending the susceptibilities of, or even shocking, reasonable people". The noble and learned Lord went on to say: recognised minimum standards of decency—are likely to vary from time to time". I am very concerned that some courts might regard this as a licence to stretch the bounds of acceptability. I have no doubt that there are defence lawyers who will willingly argue that moderate sexual activity in a public place is less likely to offend now than it was 20 or 30 years ago and so should not be regarded as outraging public decency.

Even if a conviction is secured, the offence appears to attract low sentences. Of the 34 people convicted of outraging public decency in 2001, only six were sentenced to immediate custody. Nineteen were given a community punishment order, two were fined and five were absolutely or conditionally discharged. Two were dealt with otherwise. There was an infamous example of a serious case that attracted a trivial penalty in 1998. A couple had full sexual intercourse on the bonnet of a car in the short-term car park at Terminal 4 at Heathrow Airport, followed by oral sex at four o'clock in the afternoon, all for the benefit of a film crew making a pornographic video. They were charged and convicted on two counts of outraging public decency and each received a conditional discharge for 18 months. There was evidence that around 6,000 cars a day passed through that car park. Several members of staff at the airport witnessed the offence and gave evidence that they thought that the behaviour was outrageous. Yet, the perpetrators walked away without so much as a fine.

An infamous 1992 case of sex in public seems to demonstrate the lack of confidence that prosecutors have in the concept of outraging public decency. A couple engaged in oral sex on a train packed with families and then, half-dressed, performed full sexual intercourse. A mother with her children complained, as did other people on the train. According to newspaper reports, the couple appeared before magistrates. Outraging public decency is an indictable offence, so whatever they were prosecuted for, it was not that. They received a paltry fine of £50 and £25 costs.

The Government protest that they are strengthening the treatment of the offence by allowing it to be tried in a magistrates' court. That case does not encourage one to believe that that will help. In any event, magistrates will have the same difficulty with proving the offence as the higher courts had. Nor will they feel able to ignore the sentencing precedents set by the higher courts. There needs to be a straightforward offence, like gross indecency, that applies specifically to toilets. Gross indecency simply requires proof that the act took place in a toilet. Outraging public decency demands proof that the act gave rise to outrage, a potentially difficult hurdle to overcome in any case.

Another peculiar weakness is the requirement for proof that the act complained of must have been capable of being seen by at least two members of the public. That was confirmed in the 1995 case of R v Walker. Prosecutors relied on the offence in prosecuting a man who masturbated in his living room in front of a 10 year-old girl. The Court of Appeal overturned his conviction, stating that the offence carried a requirement that, the offence be committed in a place where there exists a real possibility that members of the general public might witness what happens". In our Second Reading debate on Clause 74, some noble Lords caused great mirth by talking about amorous activities on mountainsides, in back gardens and so on. The Government's U-turn on Clause 74 seems designed to rescue it from such attacks. The greatest anomaly of all was caused by the cubicle door of a public toilet. The great question was whether an offence would have been committed under Clause 74, if the door were closed or only if it were open. The Government's new policy continues to overlook the issue of the cubicle door. The greatest anomaly may well remain.

A Home Office spokeswoman said: It always has been and will remain illegal to have sex in a public toilet—regardless of whether the door is open or closed". Can the Minister tell us why his officials are so confident about that, in spite of the evidence that I rehearsed today? Can the Minister explain how there could be two witnesses, if the cubicle door were closed? Even if the police have largely discounted the use of the offence of outraging public decency against sexual activity in public toilets, the Metropolitan Police's response to the Sexual Offences Bill called for sex in a cubicle of a public toilet to remain illegal. It did not even mention the possibility of falling back on outraging public decency.

On several occasions in Committee the Government have amended this Bill for the better. However, on the issue before us now they are not only failing to correct a weakness in their proposals but are actually making a situation worse. Unless the Minister can satisfy us otherwise, it seems that this Bill will leave a serious gap in the law as regards sexual activity in public. I regard the matter very seriously, as Members of the Committee will have gathered. I hope that we return to it at Report stage and that my noble friend's amendment receives some support.

Lady Saltoun of Abernethy

I strongly support Amendment No. 355 in the name of the noble Baroness, Lady Noakes. At the same time I shall speak to Amendment No. 359, which seeks to delete Clause 74(2). It seems to me to be a very restrictive injunction worthy of the Government in nasty nanny mode and determined to interfere in every area of people's private lives. What constitutes a dwelling? Is an hotel bedroom a dwelling? Is a tent a dwelling? Is a sleeping compartment on a train a dwelling? Is a cabin on a ship a dwelling? Is the back of a car on a dark night a dwelling? I would hardly describe them as such, yet to prohibit sexual activity in any of them or indeed outside a building at all seems almost unbelievably puritanical and worthy only of the most bigoted ayatollah or the very nastiest nanny killjoy.

I suppose that it is easy for city dwellers to forget that there are huge tracts of virtually uninhabited countryside, woodland and moorland such as Dartmoor or the Highlands of Scotland, which, although now technically public places since the public are allowed to roam through them at will, are locations where young people have for centuries past pursued their romances which would not be possible in the family home.

Are all these people now to he in danger of fines or imprisonment should they have the misfortune to be seen? The clause should be deleted and replaced with one much more tightly drafted dealing with sex in public lavatories and public places which are populous such as public parks in towns and cities, railway stations and ordinary compartments of trains and so forth. It should not seek to criminalise the couple having a romantic interlude on a starry night on the moors.

Lord Alli

I hesitate to rise at the mention of a cubicle door, gay sex, and a public lavatory. It is a little too much to resist. I concur with what the noble Lady, Lady Saltoun of Abernethy, said. I would certainly resist any extension of criminalising people for having consensual sex. We have to be very careful that we continue to do that.

I suppose that I am one of the few people who probably quite likes Clause 74 as drafted. I understand, however, that the noble and learned Lord intends to remove it and in doing so rely on Sections 4A and 5 of the Public Order Act 1986 and the common law offences of outraging public decency.

Would he consider giving me some reassurance in the interpretation of those offences? The reassurance I seek really relates to making sure that they are "sexuality neutral" in their interpretation. That would go a very long way to reassure those of us in the gay community that it would be safe to rely on these Public Order Acts and public decency definitions. We would hate to see a repeat of the 1986 case of Matheson v Holden, in which the Divisional Court held that the magistrates were entitled to decide that heterosexuals might feel insulted at seeing a gay couple kissing in Oxford Street at 1.55 a.m. An assurance that the law would not be interpreted so that an activity indulged in by a homosexual couple would be deemed offensive, despite having a publicly acceptable heterosexual equivalent, would go a long way to reassuring many of us that the removal of Section 74 from the Bill and the reliance on the Public Order Act and the common law offence of outraging public decency would achieve what I understand to be the Minister's objective.

Baroness Walmsley

My Lords, I rise to speak to Amendment No. 361 and to oppose the Question that Clause 74 stand part of the Bill. I am delighted that the Government have agreed with the Liberal Democrats that the clause should be removed from the Bill. They have clearly not got it right, as the noble Lady, Lady Saltoun of Abernethy, has just demonstrated.

However, I would like to talk about the issue that caused me to table Amendment No. 361. which attempts to ensure that a prison cell should be regarded as a private place for the purposes of the Bill. As I said at Second Reading, the Prison Service has a duty of care to those in its custody. That means that they have a responsibility to reduce harm wherever possible. We know that a great deal of homosexual sex goes on in prison. This carries with it an enormous risk of infection with HIV or hepatitis.

Unfortunately, the state of the law is uncertain and Clause 74 would have muddied the waters even more if it had passed into law unamended. The Prison Service says that sex in prison is unlawful, and they are unwilling to provide condoms, unless prescribed by a doctor, on the basis that to do so would be to condone unlawful behaviour. Many prisoners are unwilling to approach the prison doctor about this, and some doctors will not supply condoms anyway. It is left to charities to fill the gap.

Even if the clause is removed from the Bill, the situation will remain unsatisfactory. The Minister told me at Second Reading that the Prison Service is reviewing its policy on this issue. However, I would be grateful if he could make it clear from the Dispatch Box that the service's duty of care compels it to ensure that prisoners can obtain condoms if they need them. We cannot have cell-block prescribing in this area. It is important to protect the health of prisoners. It is bad enough to be given a custodial sentence without being given a health sentence as well.

As far as the whole clause is concerned, I accept that the Government's intention was to clarify society's view that there are some places where sexual activity is simply unacceptable, as it will cause offence. There has been considerable misunderstanding about the effect of the clause. Some thought that it would ban sex in public toilets, and some thought that it would allow it with the door closed.

I agree with the noble Lord, Lord Alli, that we must treat everyone, of whatever sexuality, equally under the law. Having said that, I do not believe that any kind of sex is appropriate in public toilets. They are public places, whether the door is closed or not, and sound carries. None of us wants to be witness to other people's private behaviour, and we certainly do not want our children to encounter adult behaviour unawares.

I welcome the Minister's statement in his letter on the matter that he is confident that the existing Public Order Act defences and the common law offence of outraging public decency are adequate to cover this matter. Everyone knows that the best way of discouraging sex in public toilets is to have them well lit, frequently visited by cleaning and maintenance staff and well used by the public. I hope that local authorities will, wherever possible, use this method to discourage unwanted bad behaviour, although I am quite aware that shortness of' resources is an issue. Where offences do take place, the police should use the tools that they already have to address the matter.

I am aware that the Government intend to introduce an amendment to the Criminal Justice Bill in another place tomorrow, to make outraging public decency a summary as well as an indictable offence. My colleagues in another place will be exploring the effects of that change with the Government and I look forward with interest to the clarification that they will extract from Ministers there.

We do not want police officers to continue to act as agents provocateurs. We would like there to be a warning if a particular public toilet was causing concern to the public. A warning notice could be displayed in the same way that there are warnings about radar cameras. If people then choose to ignore the warnings, they should accept the consequences. We will return to this matter when we debate the Criminal Justice Bill.

I am a liberal and I believe in freedom and responsibility. In a free country, consenting adults should be able to do as they please in private, so long as they do not frighten horses. However, I should put sex in public toilets into the category of frightening the horses—or at any rate, the children. We should discourage it in a sensible and effective way without trespassing on the reasonable freedoms of other people. I therefore oppose the Question whether Clause 74 stand part of the Bill and look forward to the Minister's response to my concerns about condoms in prisons.

Lord Falconer of Thoroton

As is obvious, I have added my name to those opposing the Question whether Clause 74 stand part of the Bill and will gladly explain why I have done so. Before I do that, I shall take up three points. The first point is about sexuality and neutrality in relation to enforcement, whatever the offences; we strongly support that. I hope that the noble Lord, Lord Alli, and the noble Baroness, Lady Walmsley, are reassured by that. Secondly, the points made by the noble Lady, Lady Saltoun of Abernethy, indicate some of the problems in the current draft of Clause 74. Thirdly, on the Prison Service's approach to condoms, the precise definition in Clause 74 does not affect what the policy is. I shall not go further than that at the moment; we are discussing the Sexual Offences Bill rather than wider prison policy.

We believe that sexual activity in public places, which we agree entirely includes public lavatories, can cause outrage or offence to those who witness it or become aware of it by other means, such as hearing what is going on. No one should have to witness or experience such activity as they go about their daily business. Our aim has always been to ensure that the law provides sufficient protection from such behaviour, which everyone in this House feels should take place in private; that means "not in a public lavatory".

Setting the Boundaries proposed a new additional public order offence, as the noble Baroness, Lady Blatch, identified.

Baroness Blatch

I agree with the Minister's comments. Heterosexual activity or homosexual activity that takes place in a public lavatory, that is not witnessed and that does not outrage public decency when the event takes place, is still an offensive activity. I link that with the point made by the noble Baroness, Lady Walmsley, who said that one way of eliminating the behaviour was to have such places well lit, to visit them frequently and to make sure that the public use them. However, whether they are well lit and clean, and whether the cleaners can go near them in view of the sort of people who use them, they are not used by the public because of the reputation surrounding them and because a meeting place is established around such public places. Must the people offend on the spot or are they deemed to be offending the public outraging the public—simply by having sex in a public toilet, although the act was not witnessed, heard or overseen by anyone?

Lord Falconer of Thoroton

It is our view that that does not have to be witnessed on the particular instance so long as it is capable of being witnessed or seen; that includes being heard.

The noble Baroness seeks to address me from a sedentary position, which is not normally how she addresses me. On the offence of outraging public decency and in relation to public order offences, what is being referred to is the capability of being seen or the capability of causing offence. The noble Baroness shakes her head. Consider the situation in which no one else was there but acts of the sort that she described were filmed on CCTV. Could that found the basis of a charge under outrages against public decency or Section 5 of the Public Order Act? We say "Yes". That view is shared by Messrs Smith and Hogan, the authors of the leading textbook on criminal law. I hope that answers the question of the noble Baroness. She shakes her head. I have tried to do my best in relation to that.

Setting the Boundaries, as I indicated, proposed a new additional public order offence. It was intended to complement existing legislation, principally that in the Public Order Act 1986 and the common law offence of outraging public decency. However, Clause 74 was problematic because it required proof that one of the sexual acts specified in Clause 74(3) was involved, which meant—for the purposes of proof, subject to the CCTV point—that generally the specific activity would need to be observed. I do not criticise the amendment of the noble Baroness, Lady Noakes, but it incorporates all the subsection (3) acts, so it gives rise to precisely the same problem.

Moreover, following publication of the Bill, there was a perception that Clause 74 was intended to be the sole means of dealing with sexual activity in public and that its provisions, therefore, needed to cover comprehensively all such activity.

A number of amendments have been tabled by noble Lords to change the framing of the clause. These do not in our view solve the problem with Clause 74 because—and the noble Baroness has precisely put her finger on it—what about the closed cubicle door? That is exactly the problem with which everyone seeks to deal. It is difficult to know from hearing noises which act specified in Clause 74(3) is taking place. That is the problem with our draft and with all the amendments.

In the light of the confusion, we have decided that the best way forward is not to proceed with Clause 74 but rather to rely on the existing common law offence of outraging public decency which covers all lewd, obscene or disgusting behaviour that outrages public decency. It focuses, therefore, on the broad nature of the behaviour and on the impact it causes, rather than on technicalities. Currently, as has been pointed out, it is triable on indictment only. We take the view that cases under the Act should also be capable of being tried at the magistrates' court so that the law can be used more flexibly. As has already been said by noble Lords, we are tabling an amendment to the Criminal Justice Bill, to be discussed tomorrow in another place, to make it an either way offence.

In addition, Section 5 of the Public Order Act 1986 adds further protection in that it covers sexual activity within the sight or hearing of a person likely to be caused harassment, alarm or distress. Sexual activity in public is an offence against public decency rather than abusive behaviour specifically targeted at a particular victim or victims, as are the other new offences in the Sexual Offences Bill. That is why we have taken this offence out of the Sexual Offences Bill and included an amendment to outraging public decency instead in the Criminal Justice Bill to make the offence triable either way.

The maximum sentence on summary trial will be six months—the most that a magistrates' court can currently pass—although that will be raised to 12 months when the Criminal Justice Bill becomes law. That cannot be done in this Bill because outraging public decency covers more than sexual behaviour. We do not intend to propose any other amendments to the offence.

The common law is flexible, which enables it to adapt to changing circumstances and standards of behaviour. We are confident that outraging public decency and Section 5 of the Public Order Act between them are sufficiently flexible to cover unacceptable sexual behaviour in toilets and—I make this clear—including in cubicles behind closed doors.

I trust that the Committee will agree that the action we propose is the most effective and appropriate way to address the issue. We are agreed on what we wish to achieve in the context of the problem in relation to public toilets. I trust that noble Lords who have tabled these amendments will believe that we have the balance about right. For the reasons I have indicated, 1 support the Motion that the clause should not stand part of the Bill. I hope noble Lords will forgive me if I do not address in detail amendments that deal with the detail of Clause 74.

Baroness Noakes

I thank the noble and learned Lord for that response. I hope I will not disappoint him when I tell him that I was not entirely happy with what he said about the extent to which sexual activity in public lavatories would be caught by a combination of the existing common law offence and the Section 5 offence. I am not fully convinced that the behind closed cubicle doors offence is seen as falling within the ambit of those offences. Such cases are typically about being seen. Clause 74 also has an element of that problem, but I believe that it is capable of being overcome.

The noble Lord, Lord Alli, made a plea for the law to be neutral in its approach to sexuality, which we completely support. I wonder whether the noble Lord would be satisfied to rely on the existing offences, which have been applied with a bias towards being disapproving of homosexual activity as opposed to being neutral towards homosexual and heterosexual activity. There remains a case for clear and unambiguous expression of the law on what is or is not allowed to take place in public lavatories.

I will consider the matter again carefully but believe that we should return to it on Report. I welcome the removal of most of the rest of Clause 74, which was very unsatisfactory, but we have not put all the other issues to rest in today's useful debate. Meanwhile, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 356 to 361 not moved.]

Clause 74 disagreed to.

Before Schedule 1:

Lord Falconer of Thoroton

moved Amendment No. 362: Before Schedule I, insert the following new schedule— EXTENSION OF GENDER-SPECIFIC PROSTITUTION OFFENCES Sexual Offences Act 1956 (c. 69) 1 In section 36 of the Sexual Offences Act 1956 (permitting premises to be used for prostitution), at the end insert "(whether any prostitute involved is male or female)". Street Offences Act 1959 (c. 57) 2 In section 1(1) of the Street Offences Act 1959 (loitering or soliciting for purposes of prostitution), after "prostitute" insert "(whether male or female)". 3 (I) Section 2 of that Act (application to court by woman cautioned for loitering or soliciting) is amended as follows. (2) In the heading of the section, for "woman" substitute "person". (3) In subsection (1)—

1. (a) for "woman" substitute "person",
2. (b) for "her" in each place substitute "his", and
3. (c) for "she" in each place substitute "he".

(4) In subsection (2)—

1. (a) for "woman" in the first place substitute "person",
2. (b) for "he" substitute "the chief officer", and
3. (c) for "woman" in the second place substitute "person cautioned".

(5) In subsection (3), for "woman" substitute "person cautioned". Sexual Offences Act 1985 (c. 44) 4 (1) The Sexual Offences Act 1985 is amended as follows. (2) For the heading "Soliciting of women by men" substitute "Soliciting for the purpose of prostitution". (3) In section 1 (kerb-crawling)—

1. (a) for "man" substitute "person",
2. (b) for "a woman" substitute "another person",
3. (c) for "women" in each place substitute "persons", and
4. (d) for "the woman" substitute "the person".

(4) In section 2 (persistent soliciting of women for the purpose of prostitution)—

1. (a) for the heading of the section substitute "Persistent soliciting",
2. (b) for "man" substitute ''person",
3. (c) for "a woman" substitute "another person", and
4. (d) for "women" substitute "persons".

(5) In section 4 (interpretation)—

1. (a) omit subsections (2) and (3),
2. (b) for "man" substitute -person",
3. (c) for "a woman" substitute "another person",
4. (d) for "her" in the first place substitute "that person", and
5. (e) for "her" in the second place substitute "that person's"."

On Question, amendment agreed to.

[Amendments Nos. 362A and 362B not moved.]

Schedule 1 [Section Offences to which Section 75 applies]:

Lord Falconer of Thoroton

moved Amendment No. 363: Page 67, line 9, leave out "to 67 The noble and learned Lord said: Amendments Nos. 363 and 364 improve the accuracy of the wording in relation to two offences in Schedule 1—committing an offence with intent to commit a sexual offence and trespass with intent to commit a sexual offence.

The age of the intended victim of the sexual offence, not the offence or trespass committed, is relevant for the purposes of Section 75. The amendment seeks to improve the clarity of the paragraph. I beg to move.

On Question, amendment agreed to.

Lord Falconer of Thoroton

moved Amendment No. 364: Page 67, line 11, at end insert— (ba) an offence under section 66 or 67 where the intended offence was an offence against a person under 16;

On Question, amendment agreed to.

Lord Bassam of Brighton

moved Amendment No. 365: Page 67. line 25, at end insert— ( ) section 53 or 54 of that Act (abduction of woman), The noble Lord said: Amendments Nos. 365 to 374 update the Northern Ireland offences in Schedule 1, which provides a full list of those offences that can be tried in Northern Ireland—even if they are committed outside the United Kingdom. The amendments ensure that all appropriate offences are included. I beg to move.

On Question, amendment agreed to.

Lord Bassam of Brighton

moved Amendments Nos. 366 to 374: Page 67, line 29, at end insert— ( ) section 2 of the Criminal Law Amendment Act 1885 (c. 69) (procuration of girl under 21), ( ) section 3 of that Act (procuring defilement of woman using threats, etc.), Page 67, line 30. leave out "the Criminal Law Amendment Act 1885" and insert "that Act Page 67, line 3 I , leave out "or Page 67, line 33, at end insert "or ( ) section 7 of that Act (abduction of girl under 18); ( ) an offence under— (i) section I of the Punishment of Incest Act 1908 (c. 45) (incest by males), or (ii) section 2 of that Act (incest by females); Page 67, line 34, after "under" insert "— (i) section 21 of the Children and Young Persons Act (Northern Ireland) 1968 (c. 34 (N.I.)) (causing or encouraging seduction, etc. of girl under 17), or (ii) Page 67, line 34, leave out "the Children and Young Persons Act (Northern Ireland) 1968" and insert "that Act Page 67, line 37, after "children);" insert— (ea) an offence under Article 9 of the Criminal Justice (Northern Ireland) Order 1980 (S.I. 1980/704 (N.I. 6)) (inciting girl under 16 to have incestuous sexual intercourse); (eb) an offence under Article 15 of the Criminal Justice (Evidence, Etc.) (Northern Ireland) Order 1988 (S.I. 1988/1847 (N.I. 17)) (indecent photographs of children); Page 68, line 1, leave out sub-paragraph (i) and insert— ( ) section 17 of this Act (meeting a child following sexual grooming etc.), or Page 68, line 5, leave out sub-paragraph (2) and insert— ( ) Sub-paragraph (1), apart from paragraphs (e) and (eb), does not apply where the victim of the offence was 17 or over at the time of the offence.

On Question, amendments agreed to.

Schedule 1, as amended, agreed to.

Lord Falconer of Thoroton

moved Amendment No. 375: Before Clause 76, insert the following new clause— EXCEPTIONS TO AIDING, ABETTING AND COUNSELLING (1) A person is not guilty of aiding, abetting or counselling the commission against a child of an offence to which this section applies if he acts for the purpose of—

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

and not for the purpose of causing or encouraging either the activity constituting the offence or the child's participation in it. (2) This section applies to—

1. (a) an offence under any of sections 2, 4 and 6 (offences against children under 13):
2. (b) an offence under section 9 (sexual activity with a child):
3. (c) an offence under section 14 which would be an offence under section 9 if the offender were aged 18;
4. (d) an offence under any of sections 18, 28, 33, 38 and 43 (sexual activity) against a person under 16.

(3) This section does not affect any other enactment or any rule of law restricting the circumstances in which a person is guilty of aiding, abetting or counselling an offence under this Part.

On Question, amendment agreed to.

Clause 76 [Offences against children under 13]:

Baroness Walmsley

moved Amendment No. 376: Page 35, line 6, at end insert— ( ) Where a person charged with an offence under section 4, 6, or 8 of this Act is, at the time of the alleged commission of the offence, under the age of 16 no prosecution is to be brought without the prior consent of the Attorney General. The noble Baroness said: Amendment No. 376 is part of my campaign to have children treated differently from adults in the Bill. Under the amendment, anyone committing a so-called offence against a child who is himself under 16 at the time would not be prosecuted without the permission of the Attorney-General. The Law Commission report of 1998 on consent to prosecution contained recommendations for rationalisation in this area. It recommended, among other things, that the need for consent be retained if prosecution for the offence would violate the defendant's rights under the European Convention on Human Rights.

It is arguable that an offence that criminalises both parties in a snog on the back seat of a school bus or the male in the case of sexual intercourse when both parties are so young might be considered disproportionate and therefore violate the human rights of the people concerned. Therefore I hope that the Minister will agree with the amendment. I beg to move.

Lord Falconer of Thornton

This amendment returns to an earlier debate. I am aware that concerns have been expressed about the prosecution of children who engage in apparently consensual activity. For example, a girl aged 13 could face a strict liability charge for mutually agreed sexual activity with her friend aged 12. We have had detailed discussions on the subject, during which I have made it clear, as I do again, that our purpose is to protect children from sexual abuse and exploitation. That is why it is important for the law to make provision for children to face charges relating to ostensibly consensual sexual activity where there is evidence to suggest that it is exploitative or coercive.

It is not our intention to punish children unnecessarily. We would not expect the Crown Prosecution Service to bring charges against a child unless it were in the public interest. The code for Crown prosecutors and other CPS documents contain detailed guidance about the circumstances in which a prosecution would be in the public interest. The new legislation does not create any new issues with regard to the prosecution of children. It follows that existing guidance as to prosecution will be appropriate for the new offences created by the legislation.

It has not been suggested that the CPS does not exercise its discretion wisely in relation to the prosecution of children. On the basis of what we know I am satisfied that the CPS will continue to exercise that discretion in a fully competent manner following the Bill's introduction. I am also reassured by the fact that once the Sexual Offences Bill has been given Royal Assent, careful consideration will be given to the question of whether the guidance should be updated, not only in relation to the prosecution of children, but in relation to the prosecution of all offenders.

The right course is to rely on the CPS's discretion. There is not much difference between us in what we wish to achieve. We would not be justified in adding to the Attorney- General's workload by requiring his personal intervention in every case involving a defendant aged under 16 at the time of the alleged offence. The statutory obligation that the noble Baroness proposes, for understandable reasons, is not necessary. I hope that in the light of what I have said she will feel reassured.

Baroness Blatch

Before the noble Baroness, Lady Walmsley, returns to this issue, may I refer to a case that has arisen since we last met as a Committee? A 15 year-old lesbian girl has left home to live with a lesbian lover older than herself in some squalor—from what we can all gather and know about the case—and against her parents' wishes. Where does that leave the parents in terms of their rights as parents, given that the law would deem them to be responsible for their children? Social services have said that they have no intention of doing anything about the case; they do not intend to intervene. They are entirely happy and have condoned the relationship between the two people, yet the girl is only 15.

What is the position of that girl under the present law, and what would he her position under the Bill once enacted?

Baroness Walmsley

I remind the Committee that we are talking about offences committed against people under 16.

Baroness Blatch

I said that that girl was 15—under 16.

Baroness Walmsley

The noble Baroness, Lady Blatch. does not tell us the age of the woman with whom the young girl of 15 went to live. The noble Baroness said that she was older. The amendment refers to everyone—both parties —being under 16, so I suspect that the intervention of the noble Baroness is not specifically relevant to my amendment.

Turning to the Minister's response, he showed touching confidence in the CPS guidance; I look forward to the guidance being reviewed and updated. But I feel that the inappropriate criminalisation of a young person and the experience that he or she would undergo during that process are so appalling and damaging that I have no shame in placing yet another hurdle in the way by suggesting that the Attorney-General be involved.

If the CPS guidelines have the effect that the noble and learned Lord suggests, there will be few such cases and it would be appropriate for the Attorney-General to have to consider them, given the harm and damage that prosecution could do to a young person's recovery, development or future life opportunities. However, for the moment, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 76 negatived.

Lord Bassam of Brighton

I suggest that the Committee be adjourned and reconvene no later than 9.26 p.m.

[The Sitting was suspended from 8.56 to 9.26 p.m.]

Clause 77 ["Consent"]:

Baroness Walmsley

moved Amendment No. 377: Page 35, line 8, leave out from "Part," to end of line 9 and insert "consent means free agreement by a person with the capacity to agree The noble Baroness said: In moving Amendment No. 377, I shall speak also to Amendment No. 378. The issue of consent and the capacity to consent is crucial in this Bill. Amendment No. 377 seeks to provide a clearer and better definition of consent than that contained in the Bill. The two things are quite fundamental and thus it is important to define them clearly.

Unfortunately, activities coming within the remit of the Bill lower the thresholds for sexual behaviour which could be deemed to be an offence, bringing in some which are in fact widespread among young people under the legal age of consent. For example, sexual touching is quite common and there is a great deal of actual intercourse among under 16 year-olds. Although some of this activity may be coercive, the vast majority is consensual and experimental. This means that any change to legislation must strike a delicate balance between protecting those who are manipulated while ensuring that those who willingly take part in early sexual experimentation are neither criminalised nor discouraged from seeking the health and education advice they need. It is therefore vital to be quite clear about issues relating to age and the capacity to consent.

Setting the Boundaries uses the definition of "free and genuine agreement" for consent and states that capacity for under 16 year-olds should include the need to demonstrate that the child understands the nature and reasonably foreseeable consequences and implications of the act. Clause 77 adds "capacity" to the proposed definition, but fails to define it; hence my amendment.

Experimental, mutually agreed early sexual activity must lead to a reasoned, proportionate and sensible response involving respect for the child's growing capacities as enshrined in Article 5 of the UN Convention on the Rights of the Child, which says, enabling the child to act according to his or her developing understanding and maturity". Current Department of Health guidance on consent recognises that there is no set age at which a child becomes competent to consent to treatment. However, the courts have stated that under 16 year-olds can give valid consent if they have, sufficient understanding and intelligence to enable him or her to understand fully what is proposed". That is sometimes known as the "Gillick competence". Even the Mental Health Act recognises that children aged under 16 are capable of deciding on their own treatment.

In my amendment I have used a phrase similar to that used in Clause 33(2) in relation to people with learning difficulties. It is not wholly satisfactory since one might wonder exactly what "sufficient" means. However, I thought it might be acceptable since a similar phrase already appears elsewhere in the Bill. I beg to move.

9.30 p.m.

Lord Falconer of Thoroton

As the noble Baroness indicated in her helpful speech, Recommendation 4 in Setting the Boundaries proposes that the word "consent" should be defined in statute as "free agreement". Her amendment seeks to adopt that proposal instead of the definition set out in Clause 77, while the second amendment in this group seeks to define "capacity".

We are all agreed that a definition is needed which makes the point that consent is agreement that is genuinely and voluntarily given, so that it is made quite clear in statute that submission—for instance, agreement given by someone who has been unlawfully detained or is under threat of violence to himself or a third party—could not be interpreted as consent.

There are probably a variety of words that could be used to achieve this policy objective and we have considered a number of options; but, after careful consideration, we have chosen the wording in Clause 77. I believe that it says exactly what we mean, in language that is clear and straightforward. We have moved away from the term "free agreement" that was proposed in Setting the Boundaries because of the concern, however remote, that it might give the impression that some pecuniary or other consideration may be involved in obtaining consent. However, we still give in effect the intention behind the words "free agreement" because we have ruled out submissions by requiring that the person must have the freedom to make the choice. We think that the test should be whether the complainant was in a position where he was able to make his own decision about whether or not to agree, and, being able to make the choice between agreeing and refusing, he chose to agree. We believe that the drafting of Clause 77 captures that position clearly.

The second amendment in the group, again moved very clearly by the noble Baroness, provides for a definition of "capacity"—a word that appears both in Clause 77 as it stands and in Amendment No. 377.

Whether a person has the capacity to consent is obviously relevant to whether he is properly able to consent. Those who might not have the capacity to consent are, as the noble Baroness rightly acknowledged, people with a mental disorder and children. Both categories are already covered separately by the legislation. The offence is designed to protect people with a mental disorder under Clauses 33 to 51, and those to protect children are in the earlier part of the Bill.

In the light of all those offences, it is unlikely that a court would have to look at issues of consent where such people are concerned. For example, if a child under 13 is raped, no issue arises as to consent. If a court has to consider consent—for example, in relation to a rape charge involving a child of 14—and therefore needs to consider the child's capacity to consent, I think we can rely on the court to give a sensible interpretation of the word. I therefore think it unnecessary and unwise to include a definition of capacity in the generic definition in Clause 77.

I hope that that is helpful. I think that our intention is broadly the same, and for the reasons given I cannot accept the amendment.

Baroness Walmsley

I thank the Minister for that clarification. I would not want to be accused of being inconsistent. Normally, I would say that I rely on the courts and should like to leave it to the courts. But in this particular case, where the Bill contains a number of definitions that are entirely necessary to a clear understanding of its provisions, I think that a definition of "capacity" is required. However, for the moment, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 378 not moved.]

Clause 77 agreed to.

Clause 78 [Presumptions about the absence of consent]:

[Amendment No. 379 not moved.]

Lord Falconer of Thoroton

moved Amendments Nos. 380 to 384: Page 35, line I I, after "proved" insert "(a) Page 35. line 12, after "act," insert— (b) that the complainant did not consent to it, (c) Page 35. line 13, after "and" insert "(d) Page 35. line 15, leave out paragraph (a). Page 35, line 19, leave out "the defendant" and insert "he

On Question, amendments agreed to.

Lord Falconer of Thoroton

moved Amendment No. 385: Page 35. line 20, leave out subsection (2). The noble and learned Lord said: I support this amendment and beg to move it formally.

On Question, amendment agreed to.

[Amendment No. 386 not moved.]

Lord Falconer of Thoroton

moved Amendment No. 387: Page 35, line 23, leave out "referred to in subsection (1)

On Question, amendment agreed to.

Lord Lucas

moved Amendment No. 388: Page 35, line 25, leave out from "complainant" to end of line 27 and insert "or another person, causing the complainant to fear for his own or the other person's immediate safety The noble Lord said: I wish to speak also to Amendments Nos. 390 and 392, and, if I may, trespass at the same time on my noble friend's Amendments Nos. 389 and 391.

The effect of all the amendments is to broaden the ambit of Clause 78(3). There are several ways in which they would do that. First, they would add the concept of harm to the concept of violence. Secondly, my noble friend's amendments would take out the word "immediate" to allow future expectation to be there along with present harm. Thirdly, they add the concept of "serious detriment", which takes us away from physical violence into something which might be more associated with property or some other comfort of life.

The purpose of the clause is to set out circumstances under which it can be presumed that someone has not consented to sex. I do not really see the difference in that context between saying to a woman, "If you don't have sex with me now, I will stick this knife in you", to saying, "If you don't have sex with me now, I will stick a knife in you tomorrow". I really do not see that one is a substantially lesser threat than the other. If it is proved that violence was threatened in the future, I cannot see that that is any less a circumstance under which the absence of consent should be presumed than if immediate violence is threatened.

Secondly, I do not see that violence is necessarily the only thing to threaten someone with. There are many things in life that one holds dear over which someone else may have power. If that is sufficient to trigger the provisions in my amendments or in some similar amendments, if that is sufficient to cause a man or woman to fear to such an extent that they would rather have sex than risk those things happening to them. I cannot see any great difference from the threat of immediate violence. If we are going down this road, we should not allow the inventive rapist to escape from the effects of the clause by slightly shifting the ground of that threat. We should seek to capture a threat of that magnitude and nature in whatever form it comes. I beg to move.

Lord Campbell of Alloway

I have listened with respect and attention to the arguments of my noble friend. I am afraid that I do not find them at all convincing as a basis for amending these provisions.

Baroness Noakes

I shall speak to Amendments Nos. 389 and 391 in this group. Unlike my noble friend Lord Campbell of Alloway, I find what my noble friend Lord Lucas said very compelling. Although Amendments Nos. 389 and 391 are in my name, I associate myself with the remarks of my noble friend Lord Lucas in introducing the amendments in his name, particularly the concept of "serious detriment". We discussed this briefly in relation to the amendments to Clause 78 on our first day in Committee when I raised the issue of the absence from the list of "serious detriment" which had been included in Setting the Boundaries. If we have a list of circumstances in which a rebuttal of presumption will arise under Clause 78(3), it seems very odd to omit a major set of circumstances which should give rise to a rebuttal of presumption, at least alongside the other examples.

Amendments Nos. 389 and 391 deal with the removal of the word "immediate". The assumption behind including the word is that if a person is not to be harmed immediately, he or she can presumably go to the police and get adequate protection. Therefore, the threat of harm, if it is not immediate, is somehow not a real one to be taken seriously hen considering whether the offence of rape has been committed.

That is much too simplistic an analysis, however, and does not take account of the way in which rape, or other sexual offences, can take place in the context of existing abusive relationships. If threats are made of future harm, whether to the victim, to a child or to another relative or friend, those threats can carry an absolute conviction, very powerfully, to the person who is being attacked. That person, if he or she is in an abusive relationship, may feel completely powerless to resist. It is just as real as any other form of threat.

I do not believe that Setting the Boundaries recommended the use of the word "immediate". Indeed, it stressed that the test should be based on the perception of the victim, which is what we are discussing. How does the victim feel about the threat that is being made? For those reasons, we hope that the Government will consider these amendments.

Baroness Blatch

I support both my noble friends, because they have both made a compelling case. One is being asked to prove that the threat was of immediate violence, when the threat may be that the person making it will come and get the victim at another time, or a threat may be made some time later. The points that my noble friends made are very powerful, and I support them both.

Lord Falconer of Thoroton

The two essential points raised by this group of amendments are over the removal of the word "immediate" and the addition of "the serious detriment".

No one would dispute what the noble Baroness, Lady Noakes, said about the potency of the threat of violence in future. Everyone would accept that it can lead to terror. However, the critical issue raised by the amendments in relation to the word "immediate" is whether it is appropriate to impose a persuasive burden in such circumstances. In effect it would mean that once the threat of violence had been established, the burden would shift to the defendant. That is the question. With respect, I do not believe the question to he whether one could have a threat in the future that was such as to deprive people of consent. Of course it could, but it should not be forgotten that quite a significant shift would be effected.

Before placing a persuasive burden of that kind on the defendant in relation to belief and consent, we must be sure that the circumstances included are those in which it is fair to conclude that consent was not present unless the defendant can prove, on the balance of probabilities, that he believed that the complainant consented.

We have been extremely careful to cover only actual or threatened violence immediately before the relevant act. The only exception to that is set out in subsection (4), which covers the situation in which there is a series of sexual acts, and the violence or threat occurs immediately before the first. In our view, threat and violence must be both realistic and immediate to justify inclusion in Clause 78—for example, when an intruder holds a parent in one room and forces submission to sexual intercourse by threatening that his partner will assault or kill the child of the complainant in the next room.

The amendments that have been tabled will create a rebuttable presumption in relation to threatened harm or violence at any time in the future, enabling a complainant to claim that he had submitted, for example, because the defendant had made an unrealistic violence against someone who could expect to seek protection from the police. When one deals with such rebuttable presumptions, one must be careful to analyse their effect and ensure that they are properly targeted. I say that without in any way seeking to detract from the powerful case made by the noble Baroness, Lady Noakes, for establishing how damaging such threats could be.

The threat of future violence is clearly a matter that the jury should be asked to consider, but they should be asked to do so in the normal way, taking into account matters such as whether there was a realistic expectation of the alleged threat being carried out and whether the complainant would have been able to take any steps to prevent the threat being realised. In short, juries might consider all the circumstances, as they are able to, as to what the effect of the threat might be. In my view, linking submission to the fear of violence at some unspecified time in the future is certainly not too distant or uncertain to found a conviction. However, it is too distant and uncertain to justify inclusion in the rebuttable presumptions list. It is an issue that needs to be tested by the jury in the normal way. Recognising the merit of the argument put in the general question, I do not think that it is appropriate to remove the word "immediate" from the list of rebuttable presumptions.

Amendment No. 391 would introduce into subsection (3) the situation where the complainant was in fear "of serious detriment to himself or another person". I appreciate that that would be in line with the proposal in Setting the Boundaries. However, we deliberately decided to exclude fear of serious detriment because we think that the term is too imprecise and would create uncertainty in the law. What might constitute serious detriment for one person might not be the same to somebody else. The question of whether the threat realistically could be carried out and whether the detriment could really be serious enough to justify submission would be wholly dependent upon all of the individual circumstances of each case—including subjective elements such as the age and mental capacity of the complainant. For example, the threat to kill a family pet would normally not be enough to persuade an adult to submit to a sexual assault, but it might have a devastating effect on certain adults, a child or a person with a mental disorder.

Similarly, the threatened loss of one's job could be extremely serious in some circumstances but not so serious in other circumstances, depending upon all of the facts. Again, I have no wish to underestimate the potency and importance of such a threat. The question is not whether that can found a rape charge—it plainly can. The question is whether it is appropriate to include that in the rebuttable presumptions. We recognise the sincerity of the amendments. Nevertheless, we think that we could not agree to them.

9.45 p.m.

Baroness Blatch

I add a slightly different dimension to the matter. The fear of the threat of violence may be immediate. It may be so material that it governs the activities of the complainant. The violence may not be immediate, but the threat and the fear of that violence could be immediate. My noble friends Lady Noakes and Lord Lucas had a point when they referred to "immediate". "Immediate", so far as subsection (3)(a) is concerned, means that the violence should be immediate. However, the fear of the threat of violence may well be immediate, but the actual violence could follow at another time.

Lord Falconer of Thoroton

The effect of the draft at the moment is that there would have to be violence used at the time that the offence was committed or that there was a threat of immediate violence; in other words, that the threat made was that violence would immediately be used. We do not wish to go beyond that so far as the rebuttable presumptions are concerned. Even a current fear that violence would be used at some unspecified time in the future, which I think is what the noble Baroness is implying, would not be good enough in the current draft. I have set out in detail why I do not think that that is enough. It plainly can be enough to found a conviction, but it should not be enough to give rise to a rebuttable presumption.

Lord Campbell of Alloway

As we are having an objective discussion on an extremely serious subject concerned with the due administration of the criminal law, I agree wholeheartedly with everything that the Minister said. His response was expressed in terms I might have sought to use myself, but much better. Many people who enter this domain have no concept of the conduct of a case, of the position of the defence, the prosecution or anything. They read many tracts that are sent by well meaning religious societies or this, that and the other organisation but with no practical experience of the courts. It is right that the Minister has put the matter straight.

Baroness Howarth of Breckland

Having decided not to speak much this evening, I feel the need to say to the noble Lord, Lord Campbell, that although some of us may not understand the detail of the law, our hearts are really with the victims of these crimes. Having listened to the previous debate, I understand the issue of rebuttal. However, I am concerned if we cannot deal anywhere in the Bill with situations in which victims are put in fear of a whole range of what the Minister described as issues and threats. I should like reassurance that that issue can be addressed somewhere in the Bill or in other legislation.

Lord Campbell of Alloway

May I ask the noble Baroness, with respect, very quickly, whether she includes among the victims of a rape trial those who have been erroneously convicted under false accusation?

Baroness Noakes

Before my noble friend decides what to do with his amendment, perhaps I might say to my noble friend Lord Campbell of Alloway that although I am not a lawyer, I come with some humility to take part in our consideration of the Bill. I hope that we will be able to contribute some insight although we may not do so with the full lawyerly knowledge of others. I hope that many noble Lords will have a valid contribution to make.

I turn to the amendments. I was reminded of the debate that we had on our first day in Committee about Clause 78 and the role of presumptions whether rebuttable or conclusive. I think underlying some of the concerns which have surfaced in this debate is a concern about the construction of Clause 78 as we amended it on our first day. I suspect that it is that to which we shall return on Report.

Lord Falconer of Thoroton

I reassure the noble Baroness, Lady Howarth, that where there is a case in which someone consents entirely because of a threat of violence in the future, that can found a conviction of rape. I hope that I have made it clear that nothing I have said should detract from that proposition—which was advanced very forcefully and effectively by the noble Baroness, Lady Noakes. I also completely join the noble Baroness, Lady Noakes, in saying that these debates would be pointless if they were only debates between lawyers. I hope that I have made that absolutely clear in all that I have said and done. I hope it is also clear that, above all, I am speaking to this as a Minister rather than as a lawyer.

Lord Lucas

I always thought that the proper relationship between the rest of us and lawyers is that we decide what to do and the lawyers tell us how to do it. I am extremely grateful to the noble and learned Lord for that long exposition of the Government's thinking behind the wording they have chosen for the Bill. Ultimately I do not share the relative lightness that he attaches to future violence. One can govern countries with the threat of future violence. Saddam did it very successfully for a very long time. As my noble friend said, we shall return to the subject in the context of Clause 78 as a whole. I therefore beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 389 to 392 not moved.]

Baroness Noakes

moved Amendment No. 393: Page 35, line 35, after "physical" insert "or mental The noble Baroness said: I rise to move Amendment No. 393 which adds "or mental" to paragraph (e) of subsection (3) of Clause 78. We amended Clause 78 on our first Committee day, but the principle of the amendment remains in relation to the redrafted clause.

If accepted, the amendment would trigger a rebuttable presumption of lack of consent if the complainant could not communicate consent because of his or her mental disability. The paragraph as currently drafted triggers a presumption only if physical disability is involved. We do not understand the rationale for that. A person may not be able to communicate consent if he or she is so paralysed that he or she cannot communicate wishes. However, what is the logical distinction between a physical disability and a mental one?

I am aware that for the purposes of the offences under Clauses 33 to 37 a person who cannot communicate choice by reason of a mental disability is treated as being unable to refuse, and that hence they appear to be adequately catered for by the offences in the Bill.

My concern arises if for some reason the prosecution were mistakenly to commence proceedings for rape under Clause 1. That could happen because the nature of the mental disability was not immediately apparent. It is not a fanciful suggestion as some forms of mental disorder, such as autism, present themselves in more complex ways than, say, severe learning difficulties.

The Minister explained his reasons for moving his amendments to restructure the way the Bill dealt with under-13s. He said that one reason was to ensure that if there was an error as to age, and the defendant was charged under the wrong section, there may be a problem if the indictment had to be amended at a later stage and the defendant charged under another section. He explained the discretion that judges have and how they could not be relied on to accept an amended indictment.

If proceedings are commenced under subsection (1) and it is discovered that the defendant had not communicated lack of consent because of a mental disability, then the offence should have been charged under Clause 33. It may be too late to amend the indictment, according to the logic of what the Minister explained to us when he sought to restructure the way the Bill dealt with the under-13s clauses. My concern is that in a case such as this there may be no possibility to shift to Clause 33. There would not be a rebuttal presumption of lack of consent and it is possible that there would be an acquittal.

This amendment would give a belt and braces approach, which would allow the rebuttal presumption to come up under Clause 78 if an offence had been indicted under Clause 1, even though Clause 33 might turn out to be the better clause. My concern is that we ensure that there is no possibility that some forms of sexual offence escape being brought to justice. I beg to move.

Lord Campbell of Alloway

I support this amendment for the reasons I have given on two previous occasions and that are fully reported in the Official Report.

I complement my noble friend on her manner of presentation.

Lord Lucas

I have a difficulty—and I hope the Minister will help me—in imaging what kind of physical disability would prevent someone being able to communicate consent. It would seem to require unconsciousness. If you have a mental facility and any means of communicating and any degree of consciousness, you can communicate consent. It is astonishing what people who have very little physical ability left can do by way of communication, as Stephen Hawking and others have demonstrated. I find it difficult to imagine what circumstances the Bill as drafted will catch and I would be grateful if the Minister could enlighten me.

Lord Falconer of Thoroton

The noble Baroness, Lady Noakes, rightly acknowledges that we are already introducing a range of offences at Clauses 33 to 37 which are designed to protect those with a mental disorder that prevents them from being unable to refuse to take part in sexual activity. These offences specifically cover those who are unable to communicate their consent to sexual activity because of a mental disorder.

As I understand it, the noble Baroness is asks in her argument, what happens if you are charged under Clause 1 and it is too late to amend the charge to put it under Clauses 33 to 37? I accept this is a possibility although a remote one. We do not think it is appropriate to cover that by Clause 78. As the noble Baroness knows, the presumptions in Clause 78 relate only to the defendant's belief in consent. Even when the presumptions apply, as the noble Baroness knows, the complainant's lack of consent, as opposed to belief in consent, will have to be proved in the normal way. This will almost certainly involve cross-examination of the complainant. Very little is gained by what the noble Baroness is proposing. I entirely accept the circumstances that she posited, but is it sensible, in such a rare case—we cannot amend to cover a Clauses 33 to 37 offence—that would not normally, as the noble Baroness will acknowledge, involve cross-examination of a complainant. As we have said on previous occasions, they normally deal with medical evidence, which is the normal material that would be used under Clauses 33 to 37.

I understand the motive behind the amendment and understand why it has been tabled, but I do not think that it is necessary or appropriate or would provide much help. I hope that the noble Baroness will give that point some consideration when she is deciding what to do about the amendment.

10 p.m.

Lord Lucas

I had hoped that the noble and learned Lord would reply to my question too.

Lord Falconer of Thoroton

I am sorry. I can easily imagine circumstances in which a physical incapacity would make it impossible or difficult for the victim to indicate that he or she did not consent. It might be that if the defendant knew the victim, he would know that he or she was not consenting. I can easily imagine circumstances in which the position of the victim was such that transmitting a lack of consent would, through physical incapacity—for example, unconsciousness or a medical condition that made any sort of communication impossible—be very difficult. It is wrong to rule that out.

Lord Lucas

That reaches the fringes of possibility. Unconsciousness or anything approaching it is covered by paragraph (d). I have never seen a physical disability that resulted in a total inability to communicate, unless it is, at the same time, a mental disability or unconsciousness.

Baroness Howarth of Breckland

I declare an interest as the vice-chair of the John Grooms association for disabled people. I could describe a wide range of physical disabilities in which people have quadriplegic disorders or communication or verbal disorders. It may mean that they are not intellectually impaired, but they are certainly physically impaired and would find communication—immediate communication, certainly—difficult. Sometimes, they take time to communicate, and, in those circumstances, that would cause considerable difficulties.

Baroness Blatch

Does it not also hinge on what constitutes consent? A case was brought to my attention not too long ago in which a person who was paralysed from the waist down was driving home in a modified car and stopped in a lay-by for a rest. A person came up intending, she thought, to assault her sexually. She simply said, "I'm paralysed and can do nothing, so have your way with me". It was not consent in the real sense of the word, but she knew that she was completely helpless. It so happened that God was on her side that night, and the other person was so shocked by what had happened that he moved away and did not continue his advances.

There is an issue about what is consent. In that case, it was not consent; it was someone saying, "I can do nothing about it, so you might as well get on with it".

Lord Falconer of Thoroton

I am very grateful. Noble Lords have given better answers than I gave. The noble Baroness, Lady Howarth of Breckland, gave a sensible answer.

I may not have understood the facts fully, but, in the example given by the noble Baroness, Lady Blatch, the victim, in fact, made it absolutely clear that she did not consent. In effect, she said, "I don't consent, but there is nothing that I can do about it". That would not he caught by the subsection because she was able to indicate her view clearly.

Baroness Noakes

I thank all noble Lords who took part in this short debate. There are interesting issues relating to physical and mental disability to be debated.

I shall consider carefully what the noble and learned Lord said about the way in which a mental disability would fit into the presumptions as to belief in consent, set out in Clause 78. I am not convinced that it deals with the point. There may be an issue about the effect of mental disability in circumstances that are, perhaps, not that rare. I quoted autism, but there are other forms of mental disability that do not necessarily present themselves as showing that, at a particular point in time, a person did not have the capacity to consent. I shall consider the matter again, and I thank the Minister for his response. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Falconer of Thoroton

moved Amendment No. 394: Page 35, line 38, leave out "when" and insert "immediately before

On Question, amendment agreed to.

Lord Falconer of Thoroton

moved Amendment No. 395: Page 35, line 40, leave out "when" and insert "immediately before

On Question, amendment agreed to.

[Amendments Nos. 396 and 397 not moved.]

Lord Campbell of Alloway

moved Amendment No. 397A: Leave out Clause 78 and insert the following new Clause— DEFENCE OF HONEST BELIEF AS TO CONSENT The provisions of this Act as concerns England and Wales shall not abrogate the jurisdiction of the judiciary to entertain the defence of honest but mistaken belief as to consent as judicially established, and to ensure that an accused who had no guilty mind should not be convicted. The noble Lord said: If this amendment were to commend itself to the Committee it would slight the mould not only of Clause 78, but of Clauses 1, 3, 5 and 7. There was no comprehensive debate on day one on Clause 11(3), as implemented by Clause 78, which lie in irreconcilable conflict with this amendment which inserts retention of the defence of honest belief in consent.

As yet it would not appear that Members of the Committee, who have given notice to move that Clause 78 does not stand part, have made common cause on retention of this defence supported by this amendment. But on this occasion, at this hour, on a matter of this importance, there is no prospect of deploying any reasoned argument of persuasion which could even persuade my own Front Bench.

The purpose today is to engender debate on which the opinion of the House shall not be taken until Report if leave for that purpose to withdraw this amendment were granted. I have said that I would take three minutes to open this matter so may I take one more? The salient questions arising are, first, why was this defence judicially established; how does it work in practice and why should it be abolished? Secondly, what are the intended consequences of abolition and are they acceptable? The third question is whether, by weighting the scales of justice to inhibit the prospects of acquittal, the unintended consequence of the collateral damage shall be the inevitable enhancement of the risks of erroneous conviction. Those are the three salient questions for consideration by the Committee.

It is no intended discourtesy to your Lordships in the Chamber to suggest that due examination of this question cannot truly be afforded at this hour today. Such debate should ensue on Report when the merits of the argument may be addressed objectively by the House. I beg to move.

Lord Falconer of Thoroton

We have already had a debate on the reasonableness defence. The noble Lord gives due warning that the issue is coming back on Report, but I do not think that anything would be served by our debating it again.

Lord Campbell of Alloway

I am grateful to the noble and learned Lord. We have not, with respect, had a comprehensive debate. The beginning and the end have been separated by a period of six Committee days. What we shall have on Report, if your Lordships give me leave, is a comprehensive debate on which an objective examination may be made. We have not yet had that debate—whatever the noble and learned Lord may say, we have not had it. Let us have it on Report.

Baroness Blatch

Before my noble friend sits down, I would like to ask a procedural question. If the Committee has dealt with the question of whether Clause 78 should stand part of the Bill, why was this amendment not pre-empted?

Lord Campbell of Alloway

If that question is addressed to me, I do not think that I can query—whatever may be the instructions from the Christian Institute on this affair and whatever other instructions may be given—the decision of the Table that the amendment is proper. I am greatly distressed that my noble friend, who is deputy leader of my party, should take such exception to the amendment.

Baroness Blatch

I am deeply distressed that my noble friend should ascribe my question to the Christian Institute—it was a genuine, procedural question. I was neither against my noble friend nor for him. In fact, I have taken no part in the debate on Clause 78. I asked the question simply because the procedure seemed odd. If Clause 78 has been considered by the Committee and deemed to stand part of the Bill, I thought that, procedurally, the amendment might have been pre-empted. It was an entirely innocent, procedural question on my part.

Lord Campbell of Alloway

May I ask, as that response has been made, why the objection was made by the deputy leader of my own party, and not by the Government?

Baroness Blatch

It was not an objection. It as an entirely innocent, procedural question.

Baroness Noakes

Perhaps I may help both of my noble friends. I heard it not as an objection but as a query. The Committee debated Clause 78 stand part, but the Question was not put when we did so, which was on our first Committee day. It is therefore perfectly proper to debate Amendment No. 397A where we find it.

Lord Campbell of Alloway

I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Falconer of Thoroton

moved Amendment No. 398: Divide Clause 78 into two clauses, the first (Presumptions about the absence of belief in consent) to consist of subsections (1) to (4) and the second (Conclusive presumptions about consent) to consist of subsections (5) to (8).

On Question, amendment agreed to.

Clause 78, as amended, agreed to.

Clause 79 [Section 78: relevant acts]:

Lord Falconer of Thoroton

moved Amendment No. 399: Page 36, line 27, leave out "section 78 applies, references in that section" and insert "sections (Presumptions about the absence of belief in consent) and (Conclusive presumptions about consent) apply, references in those sections

On Question, amendment agreed to.

On Question, Whether Clause 79, as amended, shall stand part of the Bill?

Lord Skelmersdale

I know that we have already debated the issue, but I omitted to ask a question earlier that I should have done, for which I apologise to the Committee. The second offence is that under Section 3—assault by penetration. Does the Interpretation Act apply to the relevant acts, which can be committed by women as well as men?

Lord Falconer of Thoroton

I believe that it does but I would like to confirm that in writing to the noble Lord.

Clause 79, as amended, agreed to.

Clause 80 ["Sexual"]:

10.15 p.m.

Lord Northbourne

moved Amendment No. 399A: Page 37, line 8, after "Part" insert ", subject to subsection (2), The noble Lord said: I shall speak also to Amendments Nos. 400, 400A, 400B, 400C, 401A, 401B, 403A, 403AA, 403B and 403C. That is what is called the scatter-gun approach.

This group of amendments is about the definition of the sexual touching of children. The sexual touching of children must he considered separately, as a different offence, from the sexual touching of adults. In the case of adults the victim can consent, but with the sexual touching of children there is no question of consent.

The Minister emphasised repeatedly during earlier stages of the Bill the importance of getting the correct balance between the need to convict the guilty and the need to protect the innocent. I am a member of the advisory boards of Toynbee Hall and the Caldecott Community, both of which care for damaged children. I have a real concern for the welfare of children and I have no doubt, from my own experience of children who have been damaged, about how much harm can he done by sexual abuse. It is against that background that I make hold to say that in Clause 80, the Government are in danger of getting the balance wrong.

There is a substantial and increasing body of evidence that shows that children—especially boys—have a better life chance if they grow up with suitable male role models in their lives. In our society today, about 25 per cent of boys are growing up in a family without a resident father. Many have lost all contact with their father. In those circumstances, male teachers, youth workers and mentors have an important role to play in our society. They can help a boy to learn how to grow up into a decent man. Today, more and more good and decent men in the professions that care for children are becoming concerned about the risk of false accusations of sexual abuse, which can, at a blow, ruin their career, their families and their lives even if, in the end, the courts acquit them.

I hope that noble Lords accept that I do not for a moment suggest that we should relax our efforts to catch and punish paedophiles; I am saying that with a little more thought and care, we could do more to make it clear that we are concerned to protect the innocent. If we do not do that, we shall see an accelerating drain of men from the caring professions working with children.

Already, there is a chronic shortage of male teachers. I have with me a fax from the general-secretary of the NAHT confirming that statement. I also draw the House's attention to a Written Question that I recently tabled about the joint inspectorate review published by Ofsted in October 2002. It states, that staff shortages in key social services, including schools and social services departments, are, in some local authorities, a problem seriously affecting the quality of the services they offer".—[Official Report, 28/11/02; col. WA62.] The amendments that the noble Lord, Lord Lucas, and I have tabled are probing amendments. They are intended to show that there are ways in which some comfort and reassurance could be given to ordinary, good, decent men and women who want to devote their lives—wholly or partly, and as professionals or volunteers—to helping children. People working with children need to know what they can and cannot do. Relevant situations arise when one is working with a child: restraining a child, helping a child, comforting a child and providing medical attention for a child. Those situations may arise on a mountainside or in a boat—wherever—and need an instant decision from the person who must make the choice.

In today's atmosphere of suspicion and doubt, parents and grandparents need reassurance. At any one time in England there are about 2 million parents of children under the age of 16. Children, depending on their age, as they make the journey from the protective environment of the womb through to adulthood and independence, need varying degrees of unselfish physical love and affection from their parents, or of course from surrogate parents.

Today, parents are increasingly uncertain what they should and should not do—what is and what is not permissible. In the United States, false accusations of sexual abuse in the family are becoming common. They are often associated with the ending of a relationship and an attempt to gain care of the children.

For all those reasons it is highly desirable that the new crime—and it is new—of sexual touching of children should be defined as clearly as possible by Parliament, so that people can know in advance and understand as far as possible what we mean when we make this law.

In order to suggest how this might be achieved I want to unwrap the parcel of ideas containing the phrase "sexual touching" in relation to children. In my view there is a spectrum of kinds of touching which, depending on the circumstances in which they occur, may range from the highly desirable to the criminally damaging. I am trying to suss out what the Government intend to criminalise and what they do not.

The Government's intention is that the crime of sexual touching should include two elements. I should he grateful if the Minister will tell me if I am wrong. The first element is touching from which the adult obtains or intends to obtain sexual gratification either for himself or for another. The second element is that it causes physical or emotional harm to the child, or creates a significant risk of such harm. Taken together, those two characteristics of an act of touching fully justify criminalisation.

I want to try to identify what other kinds of touching the Government think should be criminalised. Is it, for example, the Government's intention that even if there is no harm or potential harm to the child, the sexual arousal of the adult will in itself make the act of touching a criminal offence? Is it the Government's intention that even if there is no sexual arousal and no harm to the child there are some other kinds of touching which are none the less criminal? If so, what are they?

Many of us fear that this Bill will criminalise a whole variety of touching behaviours, simply because they give rise in some people's minds to the fear that they indicate the kind of person who might commit an act of sexual abuse at some time in the future. A great deal of thought needs to be given as to whether one can criminalise being a particular kind of person.

If the Government's intention is not clearly expressed in the Bill, the danger is that the damage will have been done. Parents will lose confidence in giving children the physical reassurance and love they need. Good men will no longer want to work in the professions. It is simply not good enough for the Government to say that the courts will decide. By the time the matter even gets to a police inquiry, the adult's career and reputation would have been destroyed. In addition, it will take the courts years to build up a body of case law on the subject. I believe that we in Parliament have the obligation to decide what we mean and to say it clearly.

Amendments Nos. 403B and 403AA seek to make clear that Parliament is primarily concerned for the safety and welfare of the child. The concepts of "harm" and "significant harm" that I have used are embedded in the Children Act and are clearly understood in law. Amendment No. 403B, includes touching which, although it does not actually cause harm, is "liable to cause" harm. Amendment No. 399 is a paving amendment. Amendments Nos. 400, 400A and 403C seek to define the parameters of sexual intent and sexual touching for the purposes of the Bill.

Amendment No. 403, interestingly, follows the formula used in Papua New Guinea. It has some merit because it is extremely clear. Amendments Nos. 400B, 400C, 401, 401A and 403 seek to reassure ordinary decent adults working with children that if they are accused of sexual touching, the reasonable person—if we must have the reasonable person test—who decides their fate will at least, as far as possible, not be biased or prejudiced.

I must say in parenthesis that I am profoundly unhappy about the concept of a reasonable person. People with so many different views can all be reasonable. I wonder what Sigmund Freud would have thought about various forms of touching.

Depending on the Government's response, I hope to withdraw the amendments and to bring forward something more carefully crafted at the next stage of the Bill. I beg to move.

Lord Thomas of Gresford

I speak to Amendments Nos. 401 and 403. I have great sympathy with everything said by the noble Lord, Lord Northbourne, but I remind him that many of his points were discussed at length in the leading case on indecent assault. The issue in the case of Court that came before the Judicial Committee of your Lordships' House was whether and in what circumstances a particular assault was indecent—as opposed to being a simple assault.

I appeared for the appellant. My noble friend Lord Carlile of Berriew appeared for the respondent—so one had two liberals disagreeing on the definition. The noble and learned Lord, Lord Ackner, who gave the leading judgment, disagreed with the two of us. Your Lordships will appreciate that this area is one that causes a great deal of difficulty.

The formulation that the noble and learned Lord, Lord Ackner, and the other members of the Judicial Committee produced was to refer to the views of a right-minded person as opposed to a reasonable person. I have included those words in Amendments Nos. 401 and 403 to find out whether any specific or particular reason has caused the Government to move from the formulation that their Lordships, after three days of submissions, produced 10 or 12 years ago.

It seems to me that right minded is a concept that encompasses many of the noble Lord's points. For example, right-minded people will not think that the caressing of a child is an indecency or sexual act in any way unless there is something rather more. The Judicial Committee decided that the expression "right minded" was one that juries trying such cases—or magistrates in the case of indecent assault—would readily understand, which would allow them to determine the correct decision in light of the particular facts and circumstances.

I have great sympathy with the noble Lord. This is a fairly well-trodden path. I just happen to think that the more one tries closely to define things and box in the decisions that magistrates and juries have to make, the more likely one is to leave other things out. The use of "right-minded" was the considered view of the Judicial Committee. I want to know the reason for moving away from that expression.

Lord Lucas

I am happy to support a number of the amendments in the name of the noble Lord, Lord Northbourne—though not Amendment No. 403C, which would land me in considerable trouble every time I changed my daughter's nappy.

Touching is a very important part of bringing up a child for parents, more distant members of the family and—at times of stress or when particular instruction is required—others into whose charge the child is given. It is an important way of communicating comfort, affection and solidarity. A child who is deprived of touching grows up a much lesser person as a result—and will find his or her journey through life much harder.

I am keen that we should do nothing in the Bill to discourage people who should be touching children from touching them when the time is right. I find the word "sexual" in that context difficult to interpret unambiguously to mean what I would like it to mean. In olden days, as the song goes, a glimpse of stocking was looked on as something shocking. Many people now have trouble even seeing a woman's eyes and not thinking of that as something shocking. It goes with the fashion, the person and the beliefs a person has as to what is sexual.

Many people are uncertain as to whether any touching of a child has a sexual element; whether any relationship between a man and a woman necessarily has of it something sexual or may be thought to have of it something sexual. I find that using a word that is so broad in this context to deal with something relatively narrow leads us into the areas that the noble Lord, Lord Northbourne, finds difficult. It is making life difficult, particularly for teachers and others who are not part of the family but who none the less have charge of a child and will from time to time need to give comfort and guidance to that child. It puts them in a position where they feel in danger and at risk from the interpretation of a phrase.

If they imagine how it could be used they can see it being used against their perfectly innocent—and indeed, entirely desirable—acts of touching a child in order to comfort them. I do not want that to be the position. I would therefore like to see something stronger and clearer in the clause. There are various ways of achieving that. I am attracted by what the noble Lord, Lord Thomas of Gresford, said. That leads us to some extent in the right direction.

I am even more attracted by the direction indicated by Amendment No. 400 in the name of the noble Lord, Lord Northbourne, which makes it clear that sexual touching is intended to lead to the sexual arousal of one party or another and is not just sexual because touching a child or a member of the opposite sex always has a sexual element or because they are touching a part of the body that is considered sexual.

I understand that it is a difficult area, but as a man of plain English as opposed to a lawyer I find Clause 80 frightening. I can see it putting me off becoming involved in any profession where I might have to touch children to do the best by them. I can see why the noble Lord, Lord Northbourne, feels the same. We should be careful of going down that road. There is an evil further down it. We should not cut off children from the love and support of which touching can be an essential part merely because we are frightened of what happens if one goes too far down that road.

Lord Monson

I had not intended to take part in the debate on this group of amendments, but my noble friend Lord Northbourne made such a good argument that I felt I must rise to support him. I would go even further than the noble Lord, Lord Lucas. The late Auberon Waugh wrote a great deal of good sense on this sort of thing. He must have been 10 or 11 years younger than me, but like me he was at school before the 1960s. Before the 1960s it was quite common in boys' prep schools and public schools to find masters who patted boys on the knee.

In retrospect they were obviously repressed homosexuals, but they were often extremely good masters and they did not do any harm. That is the point. That is why I believe that Amendment No. 403B is the crucial amendment in the group. If it does not cause harm to the child, it should not be an offence. It did not harm any of us; they would not have dreamt of going any further than patting boys on the knee. We laughed about it between ourselves, but that was all. I make no comment on the other amendments in the group, but I think that Amendment No. 403B is vital.

The Earl of Listowel

I rise to comment on what my noble friend Lord Monson just said. I recognise that that may well have been his experience, but I have spoken to other young people who have had someone, perhaps a rowing coach, pat them on the knee, and that can shatter their confidence in someone whom they really admired, if they can work out what the touching was about. I am sure that my noble friend's experience is true; but there is another experience, which is also true. When a young person has trust in an adult and that adult uses that trust to abuse them, even in what would seem an insignificant way, that can be harmful.

Baroness Howarth of Breckland

I support the clause as drafted, but I rise to support the noble Lord, Lord Thomas of Gresford, in his phrase "right-minded". As a professional who has touched a lot of children in my time to give them comfort, professionals know clearly where the boundaries are and how important it is to ensure that one uses those boundaries—by ensuring that other people are around and ensuring that one does not leave the child in a position in which it may feel uncertain. The most important saying is that young people themselves should feel comfortable with what is happening. The problem with the kind of experiences described is that most young people will giggle about it but do not know how to stop it happening. I am therefore uneasy about changing the basic phrases.

I am also concerned that there is discussion about false allegations. At present, research is available on both sides, showing that some such allegations are made but that on the whole, young people are confirming that they have actually been abused. Freud has been mentioned. Freud was seeing a lot of incest cases, from which he obtained his material. We must therefore recognise that we did not see much of what was happening in the past; much of it was accepted. It is up to our generation to stop that, while not preventing good, warm. physical contact.

I am a physical person; my father was a physical person; we had a close physical relationship, but nothing sexual. I do not accept that there is necessarily sexuality in every relationship. I therefore hope that we will be absolutely clear and recognise that professionals know how to draw the boundaries. A great deal is now written about all of that to add protection. We should retain those phrases to protect young people, but I like the amendment tabled by the noble Lord, Lord Thomas.

Lord Cameron of Lochbroom

I hesitate to rise, but perhaps the Minister will confirm that the definition of "sexual" extends beyond children to the provisions in Clause 33 and onwards. I understand that in Clause 33(1)(b), for example, a jury will be invited to determine whether touching is sexual. I should he interested to know how a judge is supposed to charge a jury. The first of the two tests relates to the nature of the activity and asks the question whether a reasonable person would consider that it may be sexual. Having overcome the first hurdle, it goes on to ask a different question of the jury; that a reasonable person would consider that the activity is sexual, and cites its nature, circumstances or purpose, or all or some of those considerations". I defer to the noble Lord, Lord Thomas of Gresford, who has the task of addressing juries in this jurisdiction, but if I were north of the Border. I would find it difficult to tell the members of a jury exactly how they should go about the task of determining for the purposes, for example, of an offence brought under Clause 33(1), whether the touching was sexual. The matter might be made much worse if the word "reasonable" were to be deleted and substituted by the word "right-minded".

These are questions which the Committee ought to address in some detail, given that the word "sexual" appears in quite a number of clauses in the Bill, and it may have different consequences and questions that need to be asked in relation to the offence contemplated in a particular clause.

Speaking personally, from what I have heard in the debate so far, I understand the concerns which gave rise to the amendments which have obviously been narrowly drawn in relation to the concerns of my noble friend Lord Northbourne in regard to children, although the matter extends further. Along with my noble friend, I am concerned about the use of the phrase, "may (at least) be sexual" in the first part of this clause. Surely it is unnecessary to have the words "at least", because while the touching may be mainly sexual, it may be other things as well.

Those are merely comments on the drafting of the clause which, I suspect, along with some of the early clauses of the Bill, may give rise to difficult questions when charging a jury. Indeed, at one stage I believe that the Minister offered to produce a specimen charge in relation to the problems which arose under Clause 1.

Baroness Walmsley

I do not intend to treat the Committee to the spectacle of two Liberals again disagreeing with each other. Therefore, although I strongly support the spirit of the concerns expressed by the noble Lord, Lord Northbourne, I shall support the amendments tabled by my noble friend Lord Thomas of Gresford because I feel that they could provide the solution.

I know that this issue is very important for men who work with children either in social services or in education. I visit many primary and nursery schools and, in particular in nursery schools, it is already rare to find a man working in those settings. That is very unfortunate. As the noble Lord, Lord Northbourne, has already remarked, many children do not have a close male relative or male role model at home. It is therefore important that we do not do anything to discourage the right kind of men from working with children and from showing them some form of affection within the bounds of the responsible professional, as outlined by the noble Baroness, Lady Howarth.

Touching is important. Often what a deprived child most needs is a jolly good hug and so it is important to set the parameters within which that can be done by professionals—in a caring manner, with no danger to their own professional future and no danger to the child. I believe that the amendments spoken to by my noble friend Lord Thomas of Gresford may well move us in the right direction in that respect.

10.45 p.m.

Baroness Blatch

No one who has spoken in the debate, and no one I know, wants to see entirely innocent people criminalised by the offences in the Bill. I do not know what the Minister intends to do about the amendments, but I am certain that he would agree with what I say.

Sadly, as was mentioned by the noble Earl, Lord Listowel, all too many children experience inappropriate touching and approaches. It is those who have an evil intent towards children whom we must keep in mind. I know from my time as Minister of State at the Home Office—from visits to prisons, young offender centres—just how many people were there because they were abused as children. Their lives had been completely blighted. That is no excuse for criminal behaviour, but their lives had been utterly thwarted in terms of being able to grow up naturally. The effect of inappropriate sexual behaviour towards them had a very real impact.

I have some concern therefore about tampering with Clause 80. I am particularly concerned and particularly sensitive to the issues raised by the noble Lord, Lord Northbourne and by my noble friend Lord Lucas. But the definition of what is sexual goes to the heart of the Bill. That needs to be born in mind.

I am not a lawyer and I do not envy those who have to address their minds to this issue. Even those who sit in judgment in the courts sometimes need the wisdom of Solomon in order to arrive at a fair judgment. I am talking particularly about young people—on whom most of our discussion has been concentrated.

It seems to me that Clause 80 represents a fair attempt to ensure that the word "sexual" for the purposes of the Bill will be interpreted in a way that ordinary people would expect. For that reason, we should be reluctant to interfere with the wording.

It seems that the first amendments in the group, tabled by the noble Lord, Lord Northbourne, and my noble friend Lord Lucas, are concerned that activity that is not sexual should not be in danger of falling within the scope of the Bill. They have a point. It would be dreadful if entirely innocent actions were deemed to be a sexual offence. However, I think that we can have confidence that under the existing requirement in Clause 80 a "reasonable person" must consider the action to be sexual, and the professionals are probably the best people to make that judgment.

My concern is that Amendments Nos. 399A, 400, 400A to 400C, 401 A, 401 B and 403A to 403C would go much further. If, as proposed in Amendment No. 400, Clause 80 were replaced with a test that the touching or penetration must be, intended to give rise to the sexual arousal of either party", we should place on prosecutors an additional burden to prove that intention. A pecularity of the word "arousal" may be that the perpetrator could claim the defence that he was already aroused before the touching took place.

Amendment No. 403B would limit the definition of what constitutes the sexual touching of a child to circumstances where an offence would be committed only if there was proof of harm or likelihood of harm to the child. This could radically undermine child sex offences. It could allow a perpetrator to adduce evidence that the child consented willingly and was not harmed physically or psychologically. It could require prosecutors to prove by physical evidence or using expert witnesses that harm was caused or was likely to be caused.

Amendment No. 401A would allow a conviction for, say, the Clause 9 offence of sexual activity with a child only if a reasonable person, of the same gender, sexuality, age and ethnic, social and cultural background", as the defendant could be conjured up in the mind of the jury to say that the touching was sexual. That really is going too far.

Amendment No. 401 in the name of the noble Lord, Lord Thomas of Gresford, replaces the concept of a reasonable person with that of the right-minded person. I am not familiar with the phrase "right-minded person" but the courts are very familiar with the phrase "a reasonable person" and, in my book, that should stand.

I shall be interested to hear what the Minister has to say about Amendment No. 402. I do not want to see the words "at least" removed from the clause, as the amendment suggests, but it will be interesting to hear what the noble and learned Lord says will be the effect. I suspect that the words help to ensure that activity which has an additional purpose or a pretext is not excused. For example, if a gym coach holds an athlete in a particular posture and uses the occasion to touch the person improperly, I trust the wording makes it more difficult for the coach to argue that the sexual touching was merely incidental and therefore not criminal.

I shall be interested in the Minister's reply. Just as judges in court need the wisdom of Solomon, I suspect that the noble and learned Lord will need it in responding to this debate.

Lord Thomas of Gresford

Notwithstanding the fact that the noble Baroness, Lady Blatch, does not support my Amendments Nos. 401 and 403, there is a great deal of force in what she says in the broader context. There is a great danger in refining and defining the various offences before the Committee in that all one is doing is adding extra things to prove, as the noble Baroness said, and as she and I agreed in relation to an amendment at the Committee's previous sitting.

Lord Northbourne

I am most grateful to the noble Lord for giving way. Several noble Lords, being lawyers—the noble Lord in particular—think of this issue in terms only of what the courts will do. The burden of my introductory speech and my amendments is about the people out there who have to make a decision long before the matter goes to court and, I hope, in such a mode that it will never go to court.

Lord Thomas of Gresford

Again, there is a great deal of force in what the noble Lord, Lord Northbourne, says. He is right that those who are working with children require some rules by which they order their conduct. I can appreciate the point that he makes. I suppose that lawyers tend to look at what has to be proved when a case is actually brought to court. I come back to something that I have said so often that I expect your Lordships are fed up with hearing it—we should trust juries and magistrates to come to commonsense decisions on the particular facts and circumstances of a case.

Perhaps I may answer the criticism of the noble and learned Lord, Lord Cameron of Lochbroom. "Right-minded" was a decision of the Judicial Committee of this House. I remind him, since he sought to draw a distinction with what happens north of the Border, that party to that decision were Lord Keith of Avonholm and Lord Fraser of Tullybelton. I think that they were speaking for Scotland as sometimes my noble friend Lord Carlile and I speak for Wales. We were speaking for Wales in this particular case because it was a Welsh case and it was the sort of unusual circumstance in which this issue is raised.

Most cases of indecent assault never have a discussion about whether what has taken place is indecent—it is obvious. Touching a particular part of the anatomy is almost, by itself, indecent. In the case of Court, the debate was about a young man, a shop assistant, who had said to a young girl of 12 who had come into the shop "Do you like being smacked?" and had put her over his knee and smacked her. The issue was whether that was an assault or an indecent assault. When asked by the police why he did it, he said "It was a bottom fetish, I suppose". Consequently, he was convicted of an indecent assault because there were indications of what was in his mind; what was behind his act. It is very unusual for such an issue to arise, because it is obvious that what has happened is indecent or sexual.

We do not need to define things too closely; we need to leave it to the common sense of the judges of the facts. Subject to what the Minister has to say, there is no great reason for differing from the views of the Judicial Committee, which spent three days on this matter as opposed to the 40 minutes that we have spent so far.

Lord Hylton

I had not intended to take part in the debate. However, my noble friend Lord Northbourne explained that most of his amendments are intended to be in some sense exploratory. Therefore, he should not be accused of trying to over-define things.

Will the Minister give particular consideration to Amendment No. 403AA? That gives a negative definition, not in the best interests of the child". The best interests of the child are well known and understood in almost all children's legislation.

Lord Falconer of Thoroton

It has been acknowledged that the definition of the word "sexual" is fundamental to many of the offences created by this part of the Bill. We have thought hard and long about that definition, and I agree with what the noble and learned Lord, Lord Cameron of Lochbroom said. The definition does not apply to offences involving children alone; it applies to all—or very many—of the offences in Part 1.

As is clear from the debate, in coming up with the definition we have basically been guided by the case law on the definition of the word "indecent" in the context of an indecent assault. As the noble Lord, Lord Thomas, said, that comes from the case of Court. We are privileged in this House to have three of the participants in that case. Subject to one point, which is the use of the word "reasonable" rather than "right-minded", we follow the definition in that case. I make it absolutely clear that we regard there as being no significant difference between the words "reasonable" and "right-minded". I hope that I am able to defend the position.

We agree with the approach taken by the noble Lord, Lord Thomas, when he said that we should not over-define or create extra hurdles because that would make matters difficult, have unintended consequences and exclude matters that any reasonable person would want to include. Equally, we agree with him when he says that he is sympathetic to the comments of the noble Lord, Lord Northbourne, that entirely innocent touching should not become illegal. However, we believe that our approach achieves that. We follow the approach of the noble Lord, Lord Thomas, but we say that the right word for drafting is "reasonable", rather than any other.

I shall go through each amendment to show how our proposition works in practice. Amendment No. 400 would introduce a requirement for there to be an intention that the activity should result in the sexual arousal of either party. That would fall to the prosecution to prove. I am unsure from the way in which the amendment is drafted whether the noble Lord, Lord Northbourne, intends that the requirement should be met if either party has the intention of causing sexual arousal. In any event the term "either party" assumes that only two people are involved in the activity, which will not always be the case. Many offences cover situations in which a defendant perpetrates an act for the sexual gratification of someone else. For example, he forces the victim to engage in sexual activity with his friend. That approach both imposes a new hurdle and misses quite a lot of activity that we all agree should be covered.

The noble Lord, Lord Lucas, in Amendment No. 400A, introduces a requirement for there to be an intention that the activity should result in sexual gratification. Again, that would fall to the prosecution to prove. It is not clear which party is to be proved to have the intention and which is to be proved to have obtained or to have intended to obtain sexual gratification. That would have the effect that the activity could be considered sexual if any party involved in the activity intended that any other party involved in it should obtain sexual gratification, although the wording would need to be improved to make that clear. Again, that would exclude certain things that we would want to be included and impose another hurdle.

Amendment No. 403C tabled by the noble Lord, Lord Northbourne, seeks to introduce a different definition of sexual touching, but this appears limited to an adult touching the sexual parts of a child's body or compelling a child to touch the sexual parts of his body, not to behaviour, including that towards other adults, which does not involve compulsion. Moreover, it would not cover some behaviour which I am sure most people would consider sexual; for example, an adult putting their tongue into a child's ear or mouth. Although I am sure that the noble Lord's intention is to produce a tighter definition of sexual than is in the Bill, it is again a good example of an amendment that does not include all of the behaviour that we would want to see covered. Maybe some of that could be dealt with by drafting, but again, for the reasons that I have indicated, I oppose that sort of amendment in principle.

Our definition requires the jury to use three criteria in its assessment of whether an activity was sexual—the nature of the act itself, the circumstances in which it took place and the purpose of the person in relation to the act. In some cases, the purpose of the defendant will be pivotal to the decision, as came out from the Court case, but in many other cases—for example, as the noble Lord, Lord Thomas has indicated, where one person masturbates the other—a reasonable person would be in no doubt, simply because of the nature of the act, or because of the nature of the act and the circumstances in which it took place, that the act was sexual.

The result of the amendments would be to require the prosecution to prove the purpose of the defendant or another party involved in the sexual activity in every single case. That would add significantly and unnecessarily to the evidential burden. More importantly, the result of Amendments Nos. 400 and 400A would be that they could omit some really serious sexual behaviour or at least give rise to endless arguments about it. For example, if someone penetrates a woman's vagina with a bottle without her consent the reasonable person would consider that to be a sexual act, taking into account the nature of the activity and the circumstances. The result of the amendments would be that the prosecution would have to prove that the act was carried out for the purposes of sexual arousal or sexual gratification. I am quite sure that that is not what the noble Lord, Lord Northbourne intends. It might be very difficult to prove that the defendant intended to get sexual arousal or sexual gratification from such an act. For example, he might have carried out the act only with the intention of injuring or humiliating the woman, in which case the offence would not be made out.

Both the amendments would also have the inherent danger that once the reasonable person knows that A has a sexual purpose, he might consider any activity to be sexual, even if, without knowing A's sexual purpose he might never have considered the activity to be sexual. In line with the current law, we only want to cover acts which the reasonable person, without reference to A's purpose, would consider potentially sexual and where the reasonable person concludes that those acts were, indeed, sexual. The amendments would bring within the criminal law those rare situations where someone derives sexual gratification from an obscure fetish—for example, removing a person's—shoes that no reasonable person would consider to be even remotely sexual by nature. As no one else involved in the activity would have any idea about the person's sexual purpose and would not be harmed or affected by it in any way, there is no reason for the criminal law to interfere in those circumstances.

Amendment No. 402 that has been tabled by the noble Baroness, Lady Noakes, and the noble Lord, Lord Astor would replace the term "may (at least) be sexual" in subsection (a) with "may be sexual", and Amendment No. 403A would replace "may (at least) be sexual" with "was sexual". I will deal with the words "at least", which the noble Baroness, Lady Blatch, has raised and the amendments raise. The words "at least" have an important purpose in Clause 80 because of the way in which the definition has been drawn together. Clause 80(a) sets out the first limb of the definition of sexual activity. As well as covering acts that may or may not be sexual depending on the circumstances—for example digital penetration of a woman's vagina by a GP in his surgery could be absolutely fundamental to his diagnosis or treatment—they could also be wholly irrelevant. It would depend on the reason for the consultation. Clause 80(a) is designed to cover acts that may or may not be sexual, it is also intended to cover acts that are always sexual, for example sexual intercourse.

The effect of deleting the words "at least" and retaining the word "may" would be that it might be thought that Clause 80(a) only covered acts that may be sexual and not acts that are always sexual. On the other hand, replacing "may (at least)" with "was sexual" would suggest that Clause 80(a) applies only where an act was always sexual and not where it may have been sexual and is proved to have been sexual in fact, either because of the circumstances or the purpose of' any person in relation to the act. We have used those words because we think that they cover both "acts that may or may not be" and "those that always are". Examples such as the doctor going beyond what is medically necessary during a medical examination solely for his own sexual gratification is the sort of offending behaviour that we believe should rightly fall within the scope of our offences.

I turn to the various other amendments relating to the qualities that should be attributed to the "reasonable person" who is required to judge whether any alleged activity was "sexual". I shall deal first with the change from "a reasonable person" to a "right-minded person". "Right-minded" was the term used in the case to which noble Lords referred. I do not think there is any real difference between a right-minded person and a reasonable person, but the word "reasonable" is consistent with the rest of the Bill. I hope that the noble Lord will be reassured that we are following the approach he would like to follow. We are simply doing so in what we consider are more appropriate drafting terms.

Amendments Nos. 400B, 400C and 401A would have the effect of retaining the concept of the "reasonable person" but would expand the definition so as to require the reasonable person also to be "objective and unprejudiced" and, of the same gender, sexuality, age and ethnic, social and cultural background", as the defendant. I find that requiring a person to be objective as well as requiring him to assume the personal attributes of the defendant is a contradiction and very difficult to apply in practice. In addition, I think that requiring him to assume this range of personal attributes of the defendant is going too far in that it requires the "reasonable person" to take account of almost every attribute of the defendant.

We had a similar discussion about the attributes of the reasonable man in relation to the non-consensual offences at the beginning of the Bill. Whereas I can see that the defendant's attributes may be relevant in determining whether he acted reasonably to ascertain consent, I cannot see that the defendant's attributes are really relevant in determining whether an activity is sexual. As far as I am aware, the defendant's attributes have not been raised as an issue in applying the " right-minded person" test in the current law. As I said, I do not think there is any difference between "right-minded- and "reasonable".

Amendment No. 403A amends the definition in paragraph (b) so that no account would he taken of the purpose that any person may have had in relation to the activity and thus restricts the definition so that an activity will only be considered sexual either because of its nature or because of its circumstances. That would rule out activity that may be sexual because of its nature and is established as sexual because of the purpose of one of the parties involved; for example, where a teacher unnecessarily asks a child to undress so that he can check for signs of infection but his true purpose is to obtain sexual gratification. It may be evident from the circumstances that what is going on is sexual, but if there is evidence of purpose—for example, the teacher has kept a diary of his activities—I see no reason why that critical evidence should be ruled out in determining whether the activity is sexual.

Amendment No. 403B would insert a new subsection into Clause 80, setting out the circumstances in which touching a child should be considered to be sexual and specifically requiring that any such touching must have caused harm, or to have been likely to have caused harm, to the child. That amendment is supported by the noble Lord, Lord Monson. It also requires that the assessment as to whether the touching was sexual or not should be made by an objective and reasonable person. I have already dealt with that point. As I said, I think that such provision would be much too limiting and would not allow the judge and jury to apply their good sense to the question.

I understand that Amendment No. 399A is a purely technical amendment to cross-reference what would be the new subsections (1) and (2). Amendment No. 403B would place an additional and unnecessary burden on the prosecution, because it is already quite clear from the range of child sex offences that we have introduced that any sexual activity with a child is, of its very nature, considered to be harmful.

Amendment No. 403AA—another amendment tabled by the noble Lord, Lord Northbourne, to which the noble Lord, Lord Hylton, asked me to have especial regard—would add another paragraph to the existing Clause 80. It would have the effect of excluding from the definition of "sexual" any touching of a child that is in "the best interests of that child". The noble Lord, Lord Hylton, says that there is no problem about that because that phrase is used commonly in the law and would be easy to define.

The amendment that relates only to sexual acts with children appears to me to sit rather oddly with the generic definition at Clause 80. I wonder whether the real intention was that it should form paragraph (c) of the noble Lord's proposed new subsection. Either way, I consider that the reference to "the best interests of the child" is too broad and could potentially enable someone to use this as an excuse to justify the sexual abuse and exploitation of children.

I sympathise with the concerns expressed on behalf of adults who care for children and who fear being falsely accused of child abuse as a result of innocent actions. These could be actions such as restraining a child for his own safety, cuddling a child in distress in order to provide comfort or reassurance or touching a child's body to administer first aid. However, we believe that the way in which the word "sexual" is drafted in the Bill already excludes such circumstances.

The noble Lord, Lord Northbourne, says his main point has not been dealt with—that is, it is not a question of whether it gets to court but of how people will read this Bill. It is how the courts react to this sort of provision that will determine what the prevailing mood is. We have done our best to try to reassure him but it has got to be done in such a way that the definition is effective.

In addition, government Amendments Nos. 66 and 98 create an exemption that is more carefully drawn—that is the one about the professional helping a child in specified circumstances. Those amendments strike the right balance by protecting those who genuinely act in a child's best interests when their purpose is protecting a child from sexually transmitted infection, protecting the physical safety of a child or preventing a child from becoming pregnant. A person who touches a child in such circumstances will not be liable to prosecution so long as he does not act to cause or encourage any sexual activity to take place.

In the light of what I have said, I hope noble Lords will feel reassured by the drafting of Clause 80 and will not press their amendments.

Lord Lucas

I should be grateful to know whether use of the word "sexual" is new in this aspect of legislation or whether we have heretofore used the word "indecent". In other words, are we introducing the use of the word "sexual" in a way which, over time, will have to be defined by the courts before we really know what we are talking about. Should we not look at keeping the concept of "indecent"? If you substitute the word "indecent" for the word "sexual" in this Bill, I think you will get something that is clearer to the layman.

Secondly, my mind goes back to the Pensions Bill 1995, which I helped through this House. We were able to justify in minute detail every provision in that Bill, often with the agreement of the then Opposition.

Look at what has happened to pensions and how much that Bill and what went before it were the reasons we are in a mess now. We had justified things in detail but we had not stepped back to look at the big picture. The big picture we are looking at is a solid trend to decrease the number of men in teaching and in other aspects of similar professions. That is the longterm accumulation of the suspicion that goes with it. One can always see, when you look at the minutiae, the justification for it.

Sometimes we need to step back and look at the big picture and recognise that we have had blinkers on. Looking at things in the round, it is clear we have been getting things wrong for quite a long time.

Lord Falconer of Thoroton

The definition of "sexual" is as I have indicated. The definition of "indecent" is taken from the Court case that has been followed by the courts subsequently. It is not a new concept we are dealing with.

Lord Northbourne

I expected to get a drubbing on the detail of these amendments. I set them down because it is the basis of business in this House that you have to set down amendments in order to get a debate on a specific aspect of the Bill. They were not intended to be the sort of amendments that would be made to the Bill. It would have been welcome if the noble and learned Lord had thought creatively about how the fundamental objectives would be achieved, rather than simply tearing to bits the drafting work done by the noble Lord, Lord Lucas, and me. We are amateurs.

It is all too easy for the lawyers to say, "This won't work" or "This will be like this in court" or "That will be like that in court". I am addressing a sociological problem of great magnitude in our country. If the Government are not prepared to address it, I shall have to shut up. However, if the noble and learned Lord would, at least, be prepared to see some of us who believe strongly that it is an important issue, I should be extremely grateful.

I shall say one or two words more. My fundamental argument is that it does not matter terribly—to me, anyway—at what level we set the crime or what we criminalise. However, it must be clear what we are criminalising. The noble Lord, Lord Thomas of Gresford, says, "Leave it to the courts. They are very sensible. They will work it all out". They will—in two, three, five or 10 years' time, we will have a body of common law that will give us a basis for writing some guidelines for men whose work is looking after children. There will not be any men looking after children then, so we will not need to worry.

It is frightfully important that we should have guidelines or, in some way, get a little nearer to defining something in the Bill that ordinary people at the coalface can understand. I shall say no more now, and I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn

[Amendments Nos. 400 to 403C not moved.]

Clause 80 agreed to.

11.15 p.m.

Clause 81 [Part 1: general interpretation]:

[Amendment No. 404 not moved.]

Lord Cope of Berkeley

Before we start the next amendment, I ask the Government to make clear their intentions with regard to tonight. We all know that they started today hoping to finish the Committee stage of the Bill, but here we are, well after eleven o'clock, and we have nearly finished Part 1, with Parts 2 and 3 to come. Put another way, we have nearly got halfway through the number of pages in the Bill. We are well after our normal time of rising.

I need not remind the Committee that the Leader's Group on working practices, the Procedure Committee and the House itself agreed to an experiment that, as a package—those words were emphasised at the time by the noble and learned Lord the Leader of the House—would involve more sittings in Grand Committee in the Moses Room and, as the other half of the package, would mean that the House would normally rise at 10 p.m. on Mondays to Wednesdays and the equivalent on Thursdays. We had misgivings about those arrangements, but, since there were agreed, we have, nevertheless, done our best to enter into them in good faith. We have kept our side of the bargain. More Bills have gone to Grand Committee, not without some criticism of ourselves. That is what we have done.

There has also been a pattern of creep on Thursday lunchtimes—particularly bad last Thursday, when it was nearly two o'clock again—and in the evenings. On 24th March, we sat until 20 minutes past two in the morning on the Regional Assemblies Bill. We have already sat until after midnight on this Bill in Committee. We now hear rumours of late sittings on the Communications Bill. We have agreed to none of this as regards the usual channels. I am very concerned both about the position of this Bill and the overall agreement. As regards the Bill, I remind the Committee that it began in this House. It was not presented to the House for months after the Session started. There was then a very long delay before Committee stage began, and it has not been pursued very frequently in the past few weeks. We are now told that we shall sit far into the night. Those who have been responsible for the preparation and presentation of the Bill have to answer to the House for the fact that we now have to carry the burden of the Bill having been so delayed.

This is a long, complicated and sensitive Bill. Over the past seven weeks it has been considered for just under 24 hours of debate until today. In the days when we regularly sat until 11 o'clock or midnight, that would have meant three days or more. Even under the present regime it is four days for a very big and complicated Bill. We are entitled to an explanation of why we need to sit so late with it.

I believe that the Government are testing the patience of the House. I am very concerned that it should not become a habit. It is supposed to be the norm now that we rise at 10 o'clock. We are frequently breaking that ruling when we should not.

Lord Roper

Before the Captain of the Gentlemen-at- Arms responds to that remark, I emphasise that I do not want to delay the Committee at this late hour when we still have 30 groups of amendments to consider which, on the assumption that we take, not the hour we spent on the last group of amendments, but only 10 minutes, would take us to about 4.20 in the morning. We are in a very serious situation.

As regards this Bill, a number of the days have been interrupted so that it has not been the first business. That has had a very serious and deleterious effect on its progress, not to mention the fact that there seems to have been a proliferation of Statements which have affected this Bill and others rather badly. Therefore, when the Captain of the Gentlemen-at-Arms is considering our progress for the rest of the day and the Government's programme over the next few weeks, I hope that he will have these points in mind because I believe that the tolerance of the House is being very seriously tested.

Lord Grocott

I have listened very carefully to comments made by fellow members of the usual channels with whom we normally manage to reach agreement on large numbers of issues. As regards this Bill, the statistics are worth putting on the record which I shall do very briefly. The last thing I want to do at this time of the night is to have a long discussion about procedures.

The facts are as follows. It was thought that four days of Committee might be a reasonable time. It is always a "guesstimate" because no one can judge these matters accurately. Until the start of play today we had spent 23 hours 18 minutes in Committee on this Bill which in round figures is four days at six hours a day. So far today we have had a further four and a half hours. If we continue for another one and a half hours that will be five days in Committee. That is certainly not an unreasonable amount of time. Some would argue that it is quite a good amount of time to allocate to a Bill of this length with a large number of clauses.

Perhaps I may address the specific point about the programme as a whole. I am a passionate supporter of the changes which I believe were inevitable. I do my utmost to make sure they operate although it is very difficult at times. Perhaps I may offer one statistic for the record. The Bill on which the longest time was spent in Committee, per group of amendments, in the last Session was the NHS reform Bill. It took 21 minutes per group. That is the kind of calculation we have to make.—The shortest of the Committees in this Session in terms of minutes per group was that for the Licensing Bill, which took 21 minutes per group. So the amount of time spent per group is dramatically longer in this Session than it was during the last Session. For this Bill, the average time spent per group has been 27 minutes, which is why I am anxious not to prolong my remarks any further. Any reasonable Member of this House, of whom there are many, would acknowledge that no programme could be delivered on the basis of around half an hour per group of amendments in Committee. No Government, of any persuasion, could operate on that basis.

Lest it be suggested that this Session is particularly onerous, I shall give one further statistic. So far this Session there have been 33 government Bills. In the early 1980s—1980–81—there were 57 Bills, in the Session 1981–82 there were 46 Bills. Most recently, before the change in Government, in the Session 1995–96, there were 43 Bills.

I want to put some simple propositions to the Committee. First, the Bill has had a reasonable amount of time in Committee. Secondly, the overriding statistic that needs to be borne in mind is that of the amount of time spent per group of amendments, which under the new sitting arrangements is much greater, on any basis of calculation, than in the previous Session. Thirdly, this is not a particularly onerous Session. I suggest, if the Committee is agreeable, that the best thing would be if I sat down and we got on to see how far we can progress with the Bill.

Baroness Blatch

I ask the noble Lord the Chief Whip whether that means that we go to the end, even if that is four, five or six o'clock tomorrow morning?

Lord Grocott

At the end of the day, I am in the hands of the usual channels. The most recent group of amendments took an hour. This is an art, not a science and I am just as anxious to finish as anyone in this building. I am sure that the staff who serve us so well are even more anxious than many of us here, but it depends on the progress that we make.

The Bill is a Lords starter, as has been rightly pointed out. We need to deliver it to the Commons. As we all know, there is a balance between the two Houses, with a changeover about half way through the Session when we get their Bills and they get ours. I repeat, and I make no apology for doing so, that four days in Committee was not a ridiculous, Scrooge-like assumption. In fact, if we were to keep going for another couple of hours we would have had five days in Committee. No one could plan a legislative programme on the basis of 27 minutes per group of amendments—I make no criticism of any individual Member of the Committee in saying that, I am simply reporting to the Committee the arithmetic. I am merely plying my humble trade of trying to fit a quart into a pint pot as far as the balance between the 10 o'clock finish and Grand Committee is concerned.

[Amendment No. 405 not moved.]

Baroness Thornton

moved Amendment No. 406: Page 37, line 31, at end insert— ( ) For the avoidance of doubt, in relation to offences specified in sections 10 to 13, it is not necessary for A to be in any kind of physical proximity to B and the offences can be committed by or through any kind of real or virtual communications device. The noble Baroness said: The amendment is an additional interpretation clause. It seeks merely to make plain that offences against children specified in Clauses 10 to 13 can be committed virtually—over the Internet. In other words, the person does not have to be in the same room as the child or in any way physically proximate. To those with an understanding of the Internet and how sex offenders use it, this may seem obvious, but for those who may have to interpret the Bill, it may be worth spelling out.

Clause 10 concerns causing a child to engage in sexual activity. Clause 11 concerns inciting a child to engage in sexual activity. Clause 12 is about actually engaging in sexual activity and Clause 13 is about causing a child to watch sexual acts. I beg to move.

11.30 p.m.

Baroness Blatch

I thank the noble Baroness for bringing yet another issue to the attention of the House. This is an absolutely marvellous amendment and it is workable. Facilities such as the Internet have marvellous applications but, sadly, there are those who misuse them. That is what the amendment is about. A person who causes a child to engage in sexual activity by giving instructions via some kind of Internet chat-room should be held to he committing an offence under Clause 10. A person who corresponds with a child by e-mail and gains a sexual thrill out of inciting them to engage in sexual activity should be capable of being convicted under Clause 11. We must also ensure that Clause 12 would catch those who use web cameras to broadcast footage of themselves engaging in sexual activity. I could say more on the amendment. In light of what has just been said, I merely say that it is important that the noble Baroness is supported.

Lord Falconer of Thoroton

The amendment commences with the words, "for the avoidance of doubt" and it is obvious from that that the noble Baroness recognises that the offences in Clauses 10, 11 and 13 in practice cover the areas that are causing her concern.

Clause 10 covers any situation in which an adult intentionally causes a child to engage in any form of sexual activity. Clause 11 makes it an offence for an adult to incite a child to engage in sexual activity and Clause 13 makes it an offence to cause a child to watch a third person engage in a sexual act. In none of those offences is there a requirement that the adult and child must be in the physical presence of each other. The offence in Clause 13 specifically covers live or recorded material and both real and virtual images.

Clause 12 is somewhat different because it requires that the adult intentionally engages in sexual activity in the presence of a child. The offence will cover only the situation in which the defendant and the child are physically together in the same place. It follows that where an adult engages in a sexual act during a web-cam exchange, for example, such behaviour would not be caught by the offences in Clauses 12 and 13. For that reason, we must give the matter further thought. I am grateful to my noble friend for bringing it to my attention. The scope of the amendment means that I cannot accept it as it is, but it merits further consideration and I shall return to it, if I may, on Report.

Baroness Thornton

I thank the Minister and the noble Baroness for their support. We look forward to seeing a much better drafted amendment in due course. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Lucas

moved Amendment No. 406A: Page 37, line 31, at end insert— ( ) References to the male gender incorporate (where humanly possible) the female gender, and vice versa, and no inference is to be drawn from the language used in this Act that a person of a particular gender is unable or unlikely to do a particular act. The noble Lord said: We are all used to the idea that within legislation the male gender embraces the female. However, in this regard we are dealing with many words and phrases that have a gender-specific meaning. In these days, that gender specificity may be difficult to determine because women may have penises and men may have vaginas as a result of surgical intervention. We are dealing with a complicated area. I want to restate this well known principle, because I feel that there is an implication in the way in which some of the offences, particularly the child offences, are written that the relevant offence is committed by men. I am sure that the noble and learned Lord knows that a substantial proportion of the female prison population is in prison because of child abuse. We should be careful of the wider effects of legislation and make it absolutely clear that there is nothing in the Bill that presupposes that a person of one sex or the other is more likely to commit a particular offence. Nor should we phrase the offences in any way that suggests that men, not women, commit those offences. I beg to move.

Lord Falconer of Thoroton

I agree entirely with the sentiment behind the amendment but do not believe that it is necessary to agree to it because Section 6 of the Interpretation Act 1978, which applies to this Bill, has the same effect as the amendment. I agree with what the noble Lord says but the amendment is unnecessary.

Lord Lucas

I am grateful for that confirmation. It took one minute. Let us keep that up. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 81 agreed to.

Clause 82 [Persons becoming subject to notification requirements]:

Lord Astor of Hever

moved Amendment No. 407: Page 37, line 36, at beginning insert "Subject to subsection (1A), The noble Lord said: In moving Amendment No. 407, I shall speak also to Amendments Nos. 408 and 431. I support Amendment No. 430 tabled by the noble Baroness, Lady Walmsley. It embodies the same underlying principle as ours.

The amendments tackle the contentious area of whether those aged under 18 who are found guilty of a sexual offence should be put on the sex offenders register; and if so, for how long. Should all children be automatically subject to the notification requirements of the register irrespective of age and the circumstances of their offence? On what basis have the Government decided that it would be appropriate for children, who are registered, to be required to do so for half the period of an adult offender?

In some cases, say where a 16-year old is charged with having sex with his 14-year old consenting girlfriend, it is highly questionable whether he should be put on the register. The register is intended to protect the public from those sexual offenders who present a threat and who must be kept track of. That does not apply to all children who commit a sexual offence, particularly where it was ostensibly consensual.

In many cases those children will not be a potential threat if left at large and without requirement to register. The sex offenders register carries the stigma of paedophilia. It would be highly traumatic for every child who committed a sexual offence to be obliged to register.

We are not saying that all children should be free from the requirement to register. There may be persistent sexual abusers in the 16 to 18 age group who will be a threat to the public and who should be required to register. Guidance is needed to ensure that prosecutions take place only where appropriate.

The same rationale lies behind Amendments Nos. 408 and 431 which make sure that the police and courts have discretion as to whether sexual offenders under 18 should register and, if so, for what length of time. On the latter issue, a boy of seventeen-and-a-half might be guilty of raping a number of women. Why should he automatically get only half the length of time on the register as someone aged eighteen-and-a-half who commits the same crime?

I would welcome some clarity from the Minister on the basis of the decision to require all child sex offenders to register. I believe on balance that it is not proportionate. The detrimental effect on a 15-year old sexual offender required to register might, in many cases, outweigh the protection to society which any notification requirement would be designed to provide. I beg to move.

Baroness Walmsley

I rise to speak to Amendment No. 430. I acknowledge that Amendment No. 431 would have a similar effect to mine, except that it leaves the matter either to the court or to the police to define what the period of notification should be. In my amendment the court would make such decisions, although I did not think it necessary to say so in the actual amendment. I do not believe that it would be right to ask the police to make such decisions. The courts have all the information about the defendant and are in a better position to decide.

My amendment includes the words, "on an individual basis" because I believe that when we are dealing with young offenders we must treat them as individuals. There are many factors that need to be taken into consideration when deciding on a penalty. Inclusion on the register of sexual offenders is primarily for the purposes of protecting the public, but it should also take into account the effect on the offender himself. If he is very young, that effect may be considerable and may even get in the way of his education or effective treatment by consolidating unhelpful attitudes. That is why a "one size fits all" approach is inappropriate when dealing with young people. I hope the Minister will look favourably on this group of amendments.

The Earl of Listowel

I rise to support Amendments Nos. 407, 408 and 431 which stand in my name and that of the noble Lord, Lord Astor. He has clearly put the case for them. I shall not distract the Committee at this late hour by repeating that. I draw the Committee's attention to one group of children who, increasingly, are caught at the young age of 10 or 11. Treatment is available for them—though we wish for much more of it—and they can make rapid progress in a year or two. Some will still be left with the stigma of being a sex offender. They may be required to report to a police station each year, give their name and address, and have their photograph and fingerprints taken—even when the professionals caring for those children are fully confident that they are no longer a risk.

Although such children are not caught by the amendments, they may require further thought at the next stage of the Bill to ensure that when they have been rehabilitated, the stigma can be lifted. We recognise the importance of the potentiality of registration to protect others but where offending children are clearly no longer a risk, there should be some means of removing the stigma of being placed on the sex offenders register.

Lord Falconer of Thoroton

The purpose of the amendments is to give discretion either to the police or the courts on whether it is appropriate for a young sex offender to go on the register—and if so, for how long. The proposed amendments are not necessary because the procedures that lead to a young offender being placed on the register and the length of time that he or she is required to register already takes into account age, maturity and the individual circumstances of the case.

Before any charge is brought, the matter is looked at by the youth offending team. It will consider all the circumstances and usually decides to prosecute in the most serious cases. If the team considers that prosecution is appropriate, it will refer the case to the Crown Prosecution Service—which in turn will consider whether it is in the public interest to proceed. If there is a conviction, the court will take into account the child's age when considering the most appropriate disposal. Unless the offence is serious, such as rape, the notification requirement is triggered for offenders under 18 only where the offender is sentenced to a period of detention of at least 12 months. In many cases, the sentencing process determines whether or not a young person is required to register. A wide range of disposals short of a 12-month prison sentence is available.

The offences that trigger notification are set out in Schedule 2, from which it will be seen that the 12-month sentence threshold applies to offences that cover a range of behaviour, such as sexual assault and child sex offences committed by young people. Where a person under 18 is convicted of such an offence, their age will be taken into when they are sentenced.

The sentences passed will therefore affect whether or not an offender is subject to the notification requirement. Where the offence is by definition always serious—such as rape no sentence thresholds apply. In such cases, the offending behaviour by the child, whether 10 or 18, is considered sufficiently serious to justify making him subject to the notification requirement. That view takes into account that the CPS will have decided to proceed with a prosecution in the public interest and will have already considered the age of the offender.

In such cases, the requirement to notify will bring with it access to treatment programmes and management of the offending behaviour by the relevant agencies. The sentencing process also determines the length of time that a young offender will be required to register. When sentencing the offender, the court will take age into consideration unless the sentence is for an indefinite period. For example, where the offender has been sentenced to a period of detention for more than 30 months, the young person will remain on the register for half the period that would apply to an adult offender. A young person given a community sentence for an offence would be required to notify for only two and one half years.

It is worth remembering that notification is an administrative requirement, not a penalty. Its purpose is to ensure that the police know the whereabouts of persons convicted of more serious sexual offences. The system works. I have seen no evidence that a young a person has suffered any serious detriment arising from the requirement to register—as opposed to their conviction for an offence. For those reasons we consider that the notification requirements are a proportionate means of dealing with young offenders who have committed serious sexual offences and that the current procedures adequately take into account the circumstances. I hope that in those circumstances the noble Lords will feel able to withdraw their amendment.

11.45 p.m.

Lord Astor of Hever

I am grateful to the noble Earl, Lord Listowel, and the noble Baroness, Lady Walmsley, for their support. I take the noble Baroness's point about the courts and the police. We mentioned the police because they have to decide whether to caution.

I am also grateful to the Minister for his response. We will read Hansard carefully. In the mean time, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 408 not moved.]

Clause 82 agreed to.

Schedule 2 [Sexual offences for purposes of Part 2]:

Lord Thomas of Gresford

moved Amendment No. 408A: Page 68, line 24, leave out "18" and insert "16 The noble Lord said: In moving the amendment I shall speak also to Amendments Nos. 408B, 408C, 408D 412A, 413A, 414A, 416A, 421A, 421B and 424A. The purpose of the amendments is to equalise the age of consent which, as your Lordships are aware, is 16. We feel that 18, which is set out at various points in Schedule 2, is the wrong age. For example, paragraph 5(b) states: the victim or (as the case may be) other party was under 18". Paragraphs 6 and 7 contain similar provisions. I beg to move.

Lord Alli

I rise to support this group of amendments in the names of the noble Baroness, Lady Walmsley, and the noble Lord, Lord Thomas of Gresford. The amendments have a simple important purpose: to remove anomalies in the current operation of the sex offenders' register. I want to make it clear from the beginning that the amendments would in no way weaken the operation of the register. I believe that they would strengthen it.

The age of consent was equalised at 16 for heterosexual and homosexual acts in 2000. Your Lordships may recall those debates. However, the law governing the sex offenders' register was not equalised at the same time, which has been the cause of a range of anomalies affecting people who are very distressed. I hope that the Minister will be able to give us some comfort that changes are on their way.

Lord Falconer of Thoroton

I make the same assumptions as my noble friend Lord Alli: that the intention behind the amendments is to release those involved in purely consensual activity from the notification requirements of this part of the Bill. If it is the case that it is not to do with the equalisation of the age of consent but to deal with the registration point, I broadly support the amendments' aims. I am grateful that they have been tabled and that we have an opportunity to discuss this important issue.

The issue is slightly more complex than it first appears. Some of the convictions for indecency and buggery before the age of consent was lowered in 2000 will have involved non-consensual activity with 16 and 17 year-olds. There may be a small number of cases from before 1994 that involve anal rape of a 16 or 17 year-old. The amendments also propose reducing the age threshold that applies to the offence of indecent assault on a man. That offence involves nonconsensual activity and is equivalent to the offence of indecent assault on a woman. For both those offences the current age threshold for registration is 18. That is not based not on the age of consent—it applies to both male and female victims over 16—but on the need to provide extra protection to the public from offenders who commit offences against young people.

Noble Lords will note that there are other offences; for example, exposure and sexual assault, that use the same age threshold. The reason is that we want registration to apply automatically where young people are the victims of such non-consensual sexual offences. The amendments cut across the recommendations of the Cosgrove report on sex offending in relation to Scotland. We have already proposed to table suitable amendments to give effect to those proposals. I cannot accept the amendments as they stand, but I am willing to consider the issue further and to try to find a solution that would remove from the register those involved in purely consensual activity between men aged 16 or over while at the same time ensuring that potentially dangerous offenders continue to register.

I should stress that it is important that we do not act in a way that causes a possible risk to the public. Any changes must be limited to those in which the activity that formed the original offence was consensual and involved only those over the present age of consent. How we do that may cause real problems and difficulties, not least because the issue of consent would not have been addressed in some cases prior to 2000. However, we shall continue to consider whether there is a satisfactory way to resolve those problems and return to your Lordships on the issue. I hope that, in the light of what I have said, the noble Lord will feel able to withdraw his amendment.

Lord Thomas of Gresford

I am grateful to the Minister for his consideration of the amendments. I look forward to the further work on the topic that he has undertaken to carry out, but, for the moment, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 408B to 408D not moved.]

Lord Falconer of Thoroton

moved Amendment No. 409: Page 70, line 32, leave out "victim of the sex offence was" and insert "offence was an offence against a person The noble and learned Lord said: The purpose of the amendments in this group is to improve the accuracy, clarity and consistency of the wording in the Bill. They are minor changes, mainly technical or drafting; only Amendments Nos. 458 and 462 relate to a minor change in policy since the Bill was printed.

Amendments Nos. 440 to 442 would simplify and improve the accuracy of the wording used in Clause 96, which sets out the conditions that must apply before a notification order can be made. The amendments would remove the superfluous reference to offences listed in Schedule 2 and make clear that a finding or disposal made by an overseas court must be equivalent to one made by a court in the United Kingdom.

Amendments Nos. 456 and 461 relate to the sexual offences prevention orders and the risk of sexual harm orders and make clear what is already implicit in the text of the Bill: that any individual prohibitions added to an existing order when it is varied or renewed must be necessary for the protection of the public from serious sexual harm. Amendment No. 458 introduces a minor policy change, in that it alters the identity of the chief officer of police who can consent to the discharge of a sexual offences prevention order before the minimum five-year term of such an order has expired. Amendment No. 462 applies that revised formula to the early discharge of a risk of sexual harm order.

Under the amendments, where a chief officer of police applies for a discharge of an order within five years of it being made, it is that officer who must, along with the defendant, give his consent. Where the defendant himself makes the application, which is probably the more likely scenario, the chief officer for the area in which the defendant resides, who therefore has the primary responsibility for managing that defendant's risk, is the one who must consent to the discharge before it can be made.

All the other amendments either rectify minor errors in drafting or, we hope, improve the clarity of the wording of the clauses. I beg to move.

Lord Skelmersdale

I should like to ask a quick question about Amendment No. 409, which I find strange. The wording of the Bill states: the intended victim of the sex offence was under 18". That is perfectly clear. But the amendment states: leave out 'victim of the sex offence'. In other words, the clause will now read: the intended offence was an offence against a person". It is surely not an intended offence; it is either an offence or it is not.

Baroness Blatch

I want to raise exactly the same point. The noble and learned Lord started by saying that these were just technical amendments and we need not worry our pretty or not so pretty little heads about them. But, the intended victim of the sexual offence was under 18", is absolutely clear cut. I cannot for the life of me think of a reason for the wording, the intended offence was an offence against a person". Can the Minister explain the reason for that change?

Similar points could be made about other amendments. They seem to be pretty self-indulgent on someone's part.

Lord Bassam of Brighton

My understanding is that Amendment No. 409, which is the amendment causing concern, deals with offences of committing an offence or trespassing with the intention of committing a sexual offence in relation to Schedule 2, covering offences that trigger the notification requirements. The amendment aims to bring the wording in Schedule 2 into line with that used for the same offences in Schedule 1, covering offences to which Section 75 applies. From that, Amendments Nos. 428, 432, 450 and 451 simply rectify minor errors in drafting. That is the reason for bringing forward the amendments.

I hope that I have been able to satisfy the noble Lord and the noble Baroness. If not, I shall be happy further to clarify the points by way of correspondence.

Lord Skelmersdale

To save time I think that that would be helpful. I still do not understand what is meant by an "intended offence" in this context.

Baroness Blatch

I hope that the noble Lord will write because his explanation made no sense at all.

On Question, amendment agreed to.

Lord Astor of Hever

moved Amendment No. 410: Page 71, line 29, leave out from "rape" to end of line 34. The noble Lord said: I rise to move Amendment No. 410 and to speak to Amendments Nos. 411 to 417. Amendments Nos. 410 to 413, along with Amendments Nos. 415 and 416, extend the notification requirements under the Bill to all offenders convicted of abduction with intent to rape or ravish, indecent assault or shameless indecency, or contraventions of Section 1, covering incest, or Section 2, covering intercourse with a stepchild, of the Criminal Law (Consolidation)(Scotland) Act 1995.

As currently drafted, the notification requirements under the Bill apply only where a person other than the offender involved in the offence is under 18 years old or, in the case of offenders convicted of abduction with intent to rape or ravish, or indecent assault where an offender has been sentenced to a term of imprisonment of 30 months, or admitted to hospital subject to a restriction order. These are serious offences and the amendments probe the need to have regard to factors other than the conviction itself before the notification requirements will apply.

Amendments Nos. 414 and 417 ensure that paragraphs 40(a) and (b) and 51(a) and (b) are read cumulatively rather than alternatively. As currently drafted, a person will be subject to the notification requirements under the Bill if convicted of sodomy or an offence under Section 13(5) of the Criminal Law (Consolidation)(Scotland) Act 1995 unless specified conditions are met. If the paragraphs are read alternatively, a person convicted of sodomy on a person aged under 16 or a contravention under Section 13(5) of the 1995 Act will not be subject to the notification requirements if the person aged under 16 was a willing participant.

However, if the conditions are read cumulatively, the only circumstances under which a conviction for sodomy and contravention of Section 13(5) would not trigger notification would be where the offender is aged under 20, or those involved in the offence are aged over 18 and are willing participants.

These amendments probe the extent of the exception to the notification requirements under paragraphs 40 and 51. I beg to move.

Midnight

Lord Bassam of Brighton

These amendments are both interesting and helpful, but they contain a number of minor errors. However, in many respects they go part of the way towards implementing policy changes being sought by the Scottish Executive in order to remove particular age and sentence exceptions that currently apply to the notification requirements of the sex offenders register. The rationale behind the current age and sentencing exceptions was that the provisions of the Sex Offenders Act 1997 were intended primarily to apply to the most serious offences and to those committed against children.

It was the express view of the Scottish Expert Panel on Sex Offending, chaired by Lady Cosgrove, that these exceptions should be reconsidered so that the notification provisions are effective in respect of offenders who commit a sexual offence against a victim of any age. That view was supported by Scottish Ministers and, accordingly, government amendments have been brought forward that will seek to implement the expert panel's wishes in this area; and indeed they will go some way to achieving the aim of many of the amendments in the group. I give notice that these will be introduced all together on Report, so that all of the Scottish amendments implementing Cosgrove can be considered together in one grouping. While some of these amendments appear to support the recommendations of Cosgrove, the Government would wish to take those that appear acceptable away and represent them in the context of all the other matters that will see the Cosgrove recommendations in this area implemented.

We are enormously grateful to noble Lords opposite for the work that they have done and for bringing forward the amendments. Our intention is to take them away and consider them, together with those amendments that have been drafted in response to Cosgrove, so that we can introduce a provision that works and satisfies the overall policy intent. I hope that, with that explanation, the noble Lord will feel able to withdraw his amendment.

Baroness Blatch

I take it as read that this is a reserved matter. Secondly, the Bill is still progressing through this place; it has not yet been before another place. Given that there has been an election in Scotland and there is a very different political configuration in the Scottish Parliament, can we have it confirmed not only that the outgoing Scottish Parliament has approved the amendments, but that the incoming one has done so too?

Lord Bassam of Brighton

My advice is that this is a devolved matter, and that Scottish Ministers have approved this approach. I hope that that answers the noble Baroness's point.

Baroness Blatch

If it is a devolved matter, why are we doing it? It seems extraordinary, if it is devolved. My understanding was that the noble Lord said it was devolved; but before that he said that the Scottish Parliament had approved amendments that we were now going to enact. He did not refer to the issue of a Scottish election taking place while the Bill is in its very early stages. Do both the outgoing and the incoming Scottish Parliament approve of the amendments?

Lord Skelmersdale

Before the noble Lord answers that point, how can he say that this is a devolved matter when Clause 127(5) on page 66 of the Bill states: For the purposes of the Scotland Act 1998 … this Act is to he taken to be a pre-commencement enactment"? In other words, it takes it out of the Scotland Act.

Lord Bassam of Brighton

This is a matter which we are working through with the consent of the Scottish Parliament. There has been a Sewel Motion in Scotland. To pick up the point made by the noble Baroness, Lady Blatch, new Scottish Ministers have yet to be appointed, so they cannot, de facto. have approved this approach. However, it did receive the approval of Scottish Ministers before the most recent set of elections.

Baroness Blatch

I am sorry to come hack once more on this point, but if there has been a Sewel Motion my understanding is that this must be a matter reserved to the UK Parliament, and that the UK Parliament will pass the primary legislation, with the approval, by means of a Sewel Motion, of the Scottish Parliament. It cannot be a devolved matter.

Lord Bassam of Brighton

I think, considering the hour, we do not really need to go into great detail. We are happy to come back to the issue, but I have given an explanation which I believe satisfies the points that have been asked. The noble Baroness is sometimes difficult to satisfy but I have explained the process, and I think I have explained it with some clarity.

Lord Astor of Hever

I am partly grateful to the Minister for his response. I was concerned when he said that the amendments had minor errors. We were asked to table them by the Law Society of Scotland and I would be surprised if they contained errors. I understand from the noble Lord that the Government will consider those amendments they believe acceptable and come back with their own. On that basis, I very much hope that the amendments are acceptable and, in the meantime, I shall go back to the Law Society of Scotland. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 411 to 417 not moved.]

Lord Bassam of Brighton

moved Amendment No. 418: Page 73, line 4, at end insert— Indecent assault against a female. The noble Lord said: Government Amendments Nos. 418 to 427 and 429 update the lists of Northern Ireland offences in Schedule 2. Schedule 2 provides all the offences in Northern Ireland for which offenders will be required to register under Part 2 of the Bill. The amendments ensure that all appropriate offences are now included on that list. I beg to move.

On Question, amendment agreed to.

Lord Bassam of Brighton

moved Amendments Nos. 419 to 421: Page 73, line 7, leave out sub-paragraphs (a) and (b) and insert— (a) where the offender was under 18, he is or has been sentenced, in respect of the offence, to imprisonment for a term of at least 12 months; (b) in any other case—

1. (i) the victim was under 18, or
2. (ii) the offender, in respect of the offence or finding, is or has been—

(a) sentenced to a term of imprisonment, (b) detained in a hospital, or (c) made the subject of a community sentence of at least 18 months. Page 73, line 10, at end insert— An offence under section 53 or 54 of that Act (abduction of woman by force for unlawful sexual intercourse). Page 73, line 11, at end insert "consent was not present or

On Question, amendments agreed to.

[Amendments Nos. 421A and 421B not moved.]

Lord Bassam of Brighton

moved Amendment No. 422: Page 73, line 20, at end insert— An offence under section 2 of the Criminal Law Amendment Act 1885 (c. 69) (procuration). An offence under section 3 of that Act (procuring defilement of woman by threats or fraud, etc.).

On Question, amendment agreed to.

Lord Bassam of Brighton

moved Amendments Nos. 423 and 424: Page 73, line 21, leave out "the Criminal Law Amendment Act 1885 (c. 69)" and insert "that Act Page 73, line 24, at end insert— An offence under section 7 of that Act (abduction of girl under 18).

On Question, amendments agreed to.

[Amendment No. 424A not moved.]

Lord Bassam of Brighton

moved Amendment No. 425: Page 73, line 30, at end insert— An offence under section 2 of that Act (incest by females), if the victim or (as the case may be) other party was under 18.

On Question, amendment agreed to.

Lord Bassam of Brighton

moved Amendments Nos. 426 to 429: Page 74, line 3, at end insert— An offence under Article 122 of the Mental Health (Northern Ireland) Order 1986 (S.I. 1986/595 (N.I. 4)) (offences against women suffering from severe mental handicap). An offence under Article 123 of that Order (offences against patients). Page 74, line 8, at end insert— 67A An offence under section 17 of this Act (meeting a child following sexual grooming etc.). 67B An offence under any of sections 18 to 22 of this Act (abuse of trust) if the offender, in respect of the offence or finding, is or has been—

1. (a) sentenced to a term of imprisonment,
2. (b) detained in a hospital, or
3. (c) made the subject of a community sentence of at least 12 months.

67C An offence under section 54 of this Act (paying for sex with a child) if the victim or (as the case may be) other party was under 17. 67D An offence under section 70 of this Act (exposure) if—

1. (a) where the offender was under 18, he is or has been sentenced to imprisonment for a term of at least 12 months;
2. (b) in any other case—

(i) the victim was under 18, or (ii) the offender, in respect of the offence or finding, is or has been—

1. a) sentenced to a term of imprisonment,
2. (b) detained in a hospital, or
3. (c) made the subject of a community sentence of at least 18 months.

67E An offence under section 71 of this Act (voyeurism) if—

1. (a) where the offender was under 18, he is or has been sentenced to imprisonment for a term of at least 12 months;
2. (b) in any other case—

(i) the victim was under 18, or (ii) the offender, in respect of the offence or finding, is or has been—

1. (a) sentenced to a term of imprisonment, or
2. (b) detained in a hospital.

67F An offence under section 72 or 73 of this Act (intercourse with an animal, sexual penetration of a corpse) if the offender, in respect of the offence or finding, is or has been—

1. (a) sentenced to a term of imprisonment, or
2. (b) detained in a hospital."

Page 74, line 21, after "counselling" insert "or Page 74, line 32, at end insert— In paragraphs 53 to 67F, "community sentence" has the same meaning as in the Criminal Justice (Northern Ireland) Order 1996 (S.I. 1996/3160 (N.I. 24)).

On Question, amendments agreed to.

Schedule 2, as amended, agreed to.

Clause 83 agreed to.

Clause 84 [The notification period]:

[Amendments Nos. 430 and 431 not moved.]

Clause 84 agreed to.

Clause 85 [Notification requirements: initial notification]:

Lord Falconer of Thoroton

moved Amendment No. 432: Page 41, line 10, leave out "a" and insert "the

On Question, amendment agreed to.

Clause 85, as amended, agreed to.

Clauses 86 and 87 agreed to.

Clause 88 [Notification requirements: travel outside the United Kingdom]:

Lord Astor of Hever

moved Amendment No. 433: Page 43, line 5, after "State" insert "after consultation with Scottish Ministers The noble Lord said: In moving Amendment No. 433, I shall speak also to Amendments Nos. 436 and 439.

The amendments would require the Secretary of State to consult Scottish Ministers prior to making regulations, specifying notification requirements for offenders who leave the UK and the police stations at which offenders may notify the police of relevant information. It would require those responsible for the offender while he or she is in detention to notify others of his or her release to transfer to another institution and prior to amending the list of offences contained in Schedules 2 or 3 to the Bill. The amendments would ensure that Scottish Ministers would have some input in relation to regulations that will apply in Scotland, and that account is taken of the devolution settlement.

Lord Cameron of Lochbroom

It seems to me from discussions that have taken place today and on previous occasions that the need for harmony between the relevant offences that will constitute requirement for notification is very important. One point that the noble and learned Lord the Minister made when I last spoke to an amendment was that the Scottish Parliament had, as recently as 23rd March this year, introduced a section that dealt with the trafficking offences that are now being considered in Clauses 61 to 63. I pause to point out that those offences fall within Schedule 3, as far as England, Wales and Northern Ireland are concerned, but form no part of the offences that would apply in Scotland's case. No doubt, that is a different area, but it shows the importance of the three jurisdictions marching together, especially in an issue such as this, which is of notification and involves there being clear understanding within the public of what offences are covered by the requirements for notification.

These amendments are an important part of the requirement that the jurisdictions march together in these matters. Therefore, I support them.

Baroness Blatch

I support my noble friend Lord Astor as well as the remarks made by the noble and learned Lord, Lord Cameron of Lochbroom. I notice that a message has come down from the box. Can I assume that this is a reserved rather than a devolved matter? If that is the case, it is even more important, given that the issue is UK-wide and that harmony between the various jurisdictions is essential. We need to have that confirmed. It would be interesting to go back historically—that is something I shall have to do myself—to find out why this should be a reserved matter.

Lord Falconer of Thoroton

This is an important matter. The noble Baroness, Lady Blatch, is absolutely right in thinking that a message arrived from the box and absolutely wrong in saying that it is a reserved matter. It is a devolved matter. She was absolutely wrong, too, when she said that Sewel Motions were used to send matters to the Scottish Parliament; they are used only to pass back devolved matters.

The Bill is deemed, by virtue of Clause 127(5), to be a pre-commencement enactment. That means that any reference to the Secretary of State is translated to mean "Scottish Ministers" by Section 53 of the Scotland Act 1998. Where the subject matter relates to a devolved area of law—which this is, as my noble friend Lord Bassam told the Committee a few moments ago—this Parliament legislates in an area with the agreement of the Scottish Parliament. That agreement is formally given by a Sewel Motion.

For Scotland, that means that the regulations and amending orders to which the amendment tabled by the noble Lord, Lord Astor, refers, will be made not by the Secretary of State but by Scottish Ministers and laid by the Scottish Parliament. That being the position, an amendment that proposes consulting with the Scottish Ministers falls away, as it will be those very Ministers who will make the relevant regulations under the Bill. I hope that, in the light of that explanation, the noble Lord will feel able to withdraw his amendment.

12.15 a.m.

Lord Cameron of Lochbroom

Before the Minister sits down, perhaps I should intimate in the light of what he has just said, that he makes it unnecessary for me to move the last amendment on the list, because that fully answers the point that I was seeking to draw from him.

Lord Falconer of Thoroton

I look forward to an early bath for most of us this afternoon.

Lord Astor of Hever

I am grateful for the support from my noble friend Lady Blatch and from the noble and learned Lord, Lord Cameron. I agree with him about the importance of the harmony of the various offences and that the three jurisdictions should march together. I was grateful for the response from the Minister which answered the points which we were trying to make. In the light of that, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Astor of Hever

moved Amendment No. 434: Page 43, line 6, after "Kingdom" insert "for more than 72 hours The noble Lord said: There is a loophole in our legal system whereby sexual offenders on the sex offenders register do not have to notify the police if they travel abroad for less than eight days. That is quite long enough for offenders to abuse children overseas. UNICEF has proposed that the length of time that sex offenders can travel abroad so that they have to notify the police when leaving the UK should be reduced to 72 hours. We do not believe that that would be too severe or restrictive, but hopefully it will prevent those who travel abroad extensively for sex tourism from doing so as often, or in the best instances, at all. Travel abroad is expensive. Sex offenders would be deterred from paying for a flight to, say, Thailand if they had only a 72-hour window in which to complete their trip. Eight days is certainly too long a period. We must think about children abroad as well as those in our own country. I hope that the Government will think seriously about adopting the amendment. I beg to move.

Lord Alli

I rise to support the amendment, but given the lateness of the hour I shall not give the reasons why.

Baroness Whitaker

I agree with the amendment. Will the Minister amplify the undertaking that we are consulting on shortening the period from eight days to three days."?—[Official Report, 1/4/03; col. 1234]

Baroness Walmsley

I rise briefly to support the amendment. I rather understood from proceedings in another place that the Government were supportive of the idea and were going to do something. I hope that we are going to hear that.

Lord Monson

The noble Lord, Lord Astor, says that travelling abroad from the United Kingdom is expensive. There are a number of people, possibly sex offenders among them, who live in County Fermanagh, South Down or Armagh who cross the border every day to work—possibly on foot. He ought to bear that in mind when speaking to the amendment.

Lord Falconer of Thoroton

I am grateful for the amendment because it is an opportunity to say that we are consulting on this. The consultation ended on 21st March. It looked at all of the aspects of the requirements, not just the number of days an offender can intend to travel abroad before being required to notify. The consultation was very useful and we are grateful to everybody who replied, including all the major charities working in the field—ECPAT, WorldVision and others. We are also grateful to the travel industry, the police and probation services and representatives from other government departments.

We have considered carefully the range of views expressed during the consultation, taking into account the need to balance the risks to children overseas against the additional burdens on the police and offenders that would arise from any change to the requirements. As a result of that consideration we intend to amend the regulations on foreign travel notifications as follows: to reduce the period sex offenders can intend to spend abroad before they need to notify the police from the current eight days to three days and to require offenders to notify the police seven days in advance of their intended travel (as opposed to the maximum of 48 hours in advance at present). Where an offender needs to travel at short notice, or where his travel plans change after notification, he will be required to notify the police at least 24 hours before he travels.

This change is particularly important because it will give the police more time to notify other jurisdictions or to apply for a foreign travel order if required. I am sure that our intentions will be broadly welcomed and that with the other measures proposed in the Bill they will help us to stop sex offenders from this country preying on children overseas.

I cannot accept the amendments as proposed. We would like to make the changes I have outlined by amending the current regulations covering foreign travel notification rather than specifying the three-day period on the face of the Bill. We would hope to do that as soon as the Bill comes into force so that we can introduce the new requirements as soon as possible.

There are two reasons why we want regulations rather than to use the Bill. First, it will enable us to amend the requirements in future without the need for primary legislation. That would not be an underhand way of changing the period back to eight days—I have already made clear the Government's intention in that regard—but it would enable us to fine-tune the requirements in future if required. For example, there was some discussion during the consultation on whether the new requirements should apply to children. That may be something that we would wish to consider further with interested parties. Having the requirements in regulations would enable us to make such a change in future if that was appropriate.

The second reason why we would prefer to bring the changes into effect through the regulations is that it will enable us to co-ordinate their introduction with Scotland—co-ordination is vital, as the previous group of amendments revealed—where the requirements are covered by separate regulations. I would therefore ask noble Lords not to press the amendment. However, as I made absolutely clear, we support the purpose behind it and intend to give effect to it by other means.

Lord Astor of Hever

I am grateful for the support that the amendment has received from all corners of the Committee. However, I am particularly grateful to the noble and learned Lord for his very positive response, which we very much welcome. We look forward to the amendment that he said he would bring forward, we hope on Report. In the light of that, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 88 agreed to.

Lord Astor of Hever

moved Amendment No. 435: After Clause 88, insert the following new clause— RISK ASSESSMENT OF RELEVANT OFFENDERS (1) A relevant offender may be required by the police to attend a police station in his local police area as specified by the police and to answer questions for the purposes of a risk assessment of the relevant offender. (2) A risk assessment for the purposes of subsection (1) shall include an assessment for the purposes of determining whether a chief officer of police will apply for an order under section 103(5) or 110(1). The noble Lord said: In moving Amendment No. 435 I shall also speak to Amendment No. 438. My noble friend Lady Noakes and I have tabled these amendments in response to representations from the Metropolitan Police. It is important when scrutinising this legislation not just to focus on the nature of the offence and the penalty; we must strive to draft the law in terms of facilitating convictions, allowing straightforward practical enforcement and enabling the police and the Crown Prosecution Service to do their jobs efficiently. My noble friend Lady Noakes mentioned that point on the first day of Committee when she talked about workability. My sympathy in tabling these amendments lies with the police, who have the task of monitoring those on the sex offenders register, overseeing and enforcing notification procedures and specifically assessing risk.

Amendment No. 435 proposes a new clause stating that any person subject to notification requirements should make himself or herself available to the police at a reasonable time to assess the risk posed. At present the police are expected to manage the risk by subjects on the sex offenders register together with partner agencies. Part of that risk assessment and management involves the police visiting and speaking to the individual. If he or she refuses to speak to the police, currently they have no power to proceed any further, thus making management difficult. The inclusion of this requirement as proposed in the new clause would allow the police to make an informed assessment. Breach of this clause will be treated as a breach of the notification requirement. I look forward to hearing the Minister's views on this matter. I beg to move.

Lord Falconer of Thoroton

We do not think that this is an appropriate amendment for the following reasons. First, we have already put in place through the Criminal Justice and Court Services Act 2000 a duty on chief officers of police and probation to make arrangements to assess and manage the risks posed by registered sex offenders. That is done through the multi-agency public protection arrangements. All registered sex offenders are subject to those arrangements, and the higher-risk offenders will be subject to consideration by a multi-agency panel, which will look in detail at the risks they pose. The arrangements also mean, for example, that those sex offenders who are leaving prison or beginning a community sentence are already required to attend appointments with a probation officer where a wide-ranging risk assessment is carried out covering all aspects of their offending behaviour and lifestyle.

Secondly, it is not always necessary for the offender to be present for a risk assessment to be completed. This is mainly done using actuarial tools. I would also be concerned if the risk assessment were undertaken by any police officer, as many are not trained to undertake or interpret the results of such an assessment.

Thirdly, we are already introducing as part of the Bill a new requirement for offenders to go to their police station annually to confirm their notified details. This should provide the police with an opportunity to discuss any issues about the offender's behaviour if they have not already done so as part of a home visit.

Finally, the amendment proposes that the risk assessment the new clause provides for could he used to inform a decision about whether a chief officer of police will apply for a sexual offences prevention order or a risk of sexual harm order. In either case a risk assessment alone would he insufficient to apply for an order, let alone to obtain one.

In the case of a sexual offences prevention order, an application must be based primarily on evidence that the offender has behaved in a way which indicates that an order is necessary to prevent the public from serious sexual harm. In the case of a risk of sexual harm order, the offender must have communicated with or acted towards a child in a sexual way on at least two occasions.

A risk assessment may inform a court's consideration in this respect, but an application could not rest on that information alone. It would he of concern if the police knew so little about the offenders in their area that they needed to call them in for questioning before deciding to apply for an order. I am sure it is not the case, as the many successful applications for sex offender orders already show.

We discussed the proposed power with the police and probation service and neither believes it is needed, although I note that the noble Lord, Lord Astor of Hever, said the proposal was motivated by the Metropolitan Police. There are already measures in place to help assess and manage the risks posed by sex offenders and 97 per cent of registered sex offenders already comply with the requirements placed upon them. This new power would be a step too far. It would provide no additional benefits for public protection and it risks making the requirements placed on offenders so onerous that some of them would no longer bother to comply. Though I recognise the legitimate purpose for which it is moved, I hope the noble Lord will feel able to withdraw his amendment.

Lord Astor of Hever

I am grateful to the Minister for his very full explanation of why the Government cannot accept these amendments on risk assessment. We will read Hansard very carefully and discuss it with the Metropolitan Police. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 89 [Method of notification and related matters]:

[Amendment No. 436 not moved.]

Lord Lucas

moved Amendment No. 436A: Page 43, line 43, at end insert "retinal prints, palm prints, voice print or a sample of cellular material for the purpose of DNA profiling, or a record of any other feature useful in identification The noble Lord said: Under Clause 89(4) the police are allowed to take fingerprints and/or photograph any part of an offender. That strikes me as a limited collection of data in this day and age. There are many other ways in which it may be useful to have a record of someone who is subject to notification. For the sake of illustration, I have stuck some in the amendments. However, this seems far too limited to me. I beg to move.

Baroness Walmsley

I put my name to this amendment because I think it brings the Bill into the 21st century. We have had a lot of technological advances since the unique nature of fingerprints was discovered. If the purpose of this is to identify somebody unequivocally on the register, we should use whatever technological advances we have at our disposal.

Baroness Blatch

There must an all-embracing term, such as "latest available technology" that would do this. Otherwise, if identification is garnered by some other means, it would fall outside of the Bill because it is not included.

12.30 a.m.

Lord Falconer of Thoroton

The amendment is not necessary. Clause 89 provides the police with a power to fingerprint and photograph the offender when he makes various notifications. Palm-prints are already covered by the definition of fingerprints and are taken by the police as a matter of routine. The phrase "photograph any part of him" used here is wide enough to allow the use of iris scans. We have already signalled our intention to consider how that technology might be used in relation to sex offenders in the future. It will also allow for photographs to be taken of any distinguishing marks that the offender may have, such as tattoos.

Although it is not part of the notification requirements, the police already have the power to take non-intimate DNA samples from all those charged with, informed that they will be reported for or convicted of a recordable offence. Recordable offences include all those punishable by imprisonment, including all the sexual offences for which a person may be made subject to the notification requirements. The police may also take samples from those in police detention suspected of a recordable offence, if there are grounds to believe that a sample will confirm or disprove the suspect's involvement. DNA can, of course, be taken with consent, in any case. The Criminal Evidence (Amendment) Act 1997 also enables non-intimate samples to be taken from sex offenders convicted before 10th April, 1995, or imprisoned or detained under the Mental Health Act 1983. Under proposed new powers to be introduced in the Criminal Justice Bill, the police have the power to take a DNA sample from any person arrested for a recordable offence—that is, pre-charge.

That provides sufficient power for the police, and there is no need for the additional provisions in the amendment that would enable DNA samples to be taken from all offenders, subject to the notification requirements. It would be unjustified to do so in the case of offenders who are not serving their sentence for a sex offence and have not been arrested for or are not under suspicion of having committed a sex offence.

I turn to the issue of retinal prints and voice prints. It is not clear to me what the purpose of a retinal print is or how it would be used to establish the identity of an offender. As I mentioned, the current provisions covering photographs include iris scans, which are likely to be the main way of establishing identity in the future. I understand that voice prints are more an investigative tool than a general means of establishing identity. It would be inappropriate to include them as part of the notification requirement. We have already put in place sufficient means to confirm the identity of registered sex offenders, and the current provisions are flexible enough to encompass new biometric technologies, such as iris scanning, where they are appropriate.

Finally, there is the suggestion made by the noble Baroness, Lady Blatch, that we should put in something that would allow the police to identify a person by any means that new technology allowed. That is going too far. The provisions that we have give sufficient protection, and we must justify each move forward. We should remember that, primarily, the matter is identification.

Baroness Blatch

There is no question about the purpose; it is set out in law. The purpose is to identify a person. As the noble Baroness, Lady Walmsley, said, if a person can be identified in a more technologically advanced way, that way should be included. I would have thought that there was a collective generic term that would allow for the flexibility of new technology to he used for the purposes of identification only.

Lord Falconer of Thoroton

The appropriate course is to make sure that we can identify someone properly and reliably. That is what we have done in the Bill.

Lord Lucas

I shall give further thought to what the noble and learned Lord said. I am surprised that the Government wish to restrict themselves in that way, but so be it. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 89 agreed to.

Clause 90 [Section 89: interpretation]:

Lord Falconer of Thoroton

moved Amendment No. 437: Page 44, line 22, at the end, insert— (d) making, in respect of a person, an order under section 2, 2A or 20 of the Crime and Disorder Act 1998 (c. 37) (sex offender orders and interim orders made in England and Wales or Scotland) or Article 6 or 6A of the Criminal Justice (Northern Ireland) Order 1998 (S.I. 1998/2839 (N.I. 20)) (sex offender orders and interim orders made in Northern Ireland). The noble and learned Lord said: Amendment No. 437 will extend the ways in which a court may deal with a person for the purposes of deciding where they are required to notify. The amendment applies to offenders who are subject to the notification requirements but do not have a home address and have not previously notified a home address. That may be because they are homeless or because they spend most of their time abroad. In such cases, the offender is required to make the notification at a police station in the area in which they were last dealt with by a court in a certain way.

The amendment will extend those ways to include a sex offender order or interim sex offender order. It is a transitional provision to cover those who are subject to the notification requirements by virtue of a sex offender order made before the commencement of this part of the Bill. Although the amendment extends the provisions of Clause 90, it is not the result of a policy change. It is clear from subsections (7) and (8) of Clause 83 that the offenders concerned were always intended to fall within the provision. I beg to move.

On Question, amendment agreed to.

Clause 90, as amended, agreed to.

Clause 91 agreed to.

Clause 92 [Parental directions: variations, renewals and discharges]:

Lord Bassam of Brighton

moved Amendment No. 437A: Page 45, line 29, at end insert— ( ) the chief officer of police for the area in which the young offender resides: The noble Lord said: The purpose of the amendments in this grouping is to ensure consistency across various clauses in Part 2 of the Bill. Amendments Nos. 437A, 439A, 446A and 458ZH ensure consistency across parental directions, notification orders, sexual offences prevention orders and risk of sexual harm orders by allowing the same class of police officer to apply for a direction or order and for an order to be varied, renewed and discharged.

Amendment No. 454A brings sexual offences prevention orders into line with notification orders in terms of defining who is a qualifying offender when the offence is committed outside the United Kingdom.

The main effect of these amendments is to add the words whether or not he has been punished for it in the context of a conviction for a relevant offence. Under the present wording the police can only apply for a SOPO, which is a sexual offences prevention order, if a person who has committed a sexual offence overseas has been punished for that offence. Under the amendment such an application may be made in respect of a person with a conviction, an equivalent finding to those under the UK mental health legislation or a caution for a relevant offence. That will enable a SOPO to be made against an offender who has been convicted of a relevant offence overseas, but who absconded before serving his sentence or for an order to be made against an offender who has been convicted for a relevant offence but who received an absolute discharge.

The other amendments in this grouping are all minor drafting changes mainly needed to give effect to the amendments described above. I beg to move.

Lord Astor of Hever

We support these government amendments which tidy up sloppy drafting and remove ambiguity. We particularly welcome Amendment No. 454A, which allows those convicted in another country other than the United Kingdom of relevant offences to be liable to a sexual offences prevention order. A relevant offence is defined in Amendment No. 454D as an act which constitutes an offence under the law in force in the country concerned and would have constituted an offence listed in Schedule 2 or 3 if it had been done in any part of the UK. This is vital to make sure that those sexual offenders who come to this country from abroad will still fall within the category of those who can have such orders enforced on them to protect the public from any potential threat that they might pose.

On Question, amendment agreed to.

Clause 92, as amended, agreed to.

Clause 93 [Offences relating to notification]:

[Amendment No. 438 not moved.]

Clauses 93 and 94 agreed to.

Clause 95 [Information about release or transfer]:

[Amendment No. 439 not moved.]

Clause 95 agreed to.

Clause 96 [Notification orders: applications and grounds]:

Lord Falconer of Thoroton

moved Amendment Nos. 439A, 440, 441, 441A and 442: Page 47, line 39, leave out "he" and insert "the defendant resides in his police area or the chief officer". Page 48, line 4, leave out from "finding" to "that" in line 5 and insert "equivalent to a finding Page 48, line 7, leave out from beginning to "that" and insert "equivalent to a finding Page 48, line 10, leave out ''for" and insert "in respect of". Page 48, line 22, leave out "corresponding" and insert "equivalent

On Question, amendments agreed to.

Clause 96, as amended, agreed to.

Clause 97 agreed to.

Clause 98 [Sections 96 and 97: relevant offences]:

Lord Falconer of Thoroton

moved Amendment No. 443: Page 49, line 21, leave out "taken as having been" and insert "to be taken as

On Question, amendment agreed to.

Clause 98, as amended, agreed to.

Clauses 99 to 101 agreed to.

Clause 102 [Sections 96 to 99: Scotland]:

Lord Bassam of Brighton

moved Amendment No. 444: Page 50, line 38, leave out "Person" and insert "Post The noble Lord said: This is the shortest amendment I have ever moved. I beg to move.

Lord Lucas

I would like to know why the Government, two years before the time when we are supposed to have electronic government and about two years after we passed a Bill enabling such things to be done by electronic communications, are giving us a Bill that does not include such communications. Are the Government serious? I do not think they are, given my various troubles with them in the past. The Government protest their seriousness on many occasions, but how can such Bills come before us in which notices are served by post but no provision is made for them to be served electronically? Are the Government not up to speed with their own legislation and intentions, or do they just not really care?

Lord Bassam of Brighton

I am not going to get into a great debate about the e-serving of such notices at this late stage. My understanding is that we can do these things, but of course the noble Lord, Lord Lucas, is very wise in these matters.

On Question, amendment agreed to.

Clause 102, as amended, agreed to.

Clause 103 [Sexual offences prevention orders: applications and grounds]:

Lord Astor of Hever

moved Amendment No. 445: Page 51, line 14, leave out "or 3 The noble Lord said: In moving this amendment, I shall speak also to Amendments Nos. 446, 453 and 454. These are probing amendments designed to find out how many people would qualify for a sexual offences prevention order. We are concerned that the remit of Schedule 3 is broad and untargeted. There seems to be no rationale for the assumption that violent offenders should qualify for SOPOs when they have no previous history of sexual offences or any sexual element attaching to the offences of which they have been convicted.

We recognise that there are those whose behaviour escalates and who may present a danger of sexual violence to the public, despite not having been convicted of violent offences. However, the schedule is so widely drawn that an application can be made in respect of those convicted of offences such as arson or those against aircraft security, or assault occasioning actual bodily harm. The danger with such broad-brush provisions is that resources become so thinly spread that those who present the real danger slip through the net while the effects are overly punitive on those who present no real risk.

We also have concerns about how the application will be made in practice. How will a risk of sexual harm be evidenced? Will there be reporting restrictions on those applications to prevent a repeat of the public disorder that followed the printing by the News of the World of personal details? Will there be a presumption that a conviction for a violent offence is evidence of a proclivity to commit a sexual offence? Those questions are important. We need to get the details right before the new prevention orders come into force. I beg to move.

Lord Falconer of Thoroton

This probing amendment would remove the possibility of the courts making a SOPO against an offender convicted of an offence in Schedule 3 who also presents a risk of causing serious sexual harm. The offences in Schedule 3 are ones against which a court may make a SOPO either when it deals with the defendant following a conviction for one of the offences or following an application from a chief officer of police. In both cases, the court will need to be convinced that an order is necessary to protect the public from serious sexual harm by the defendant. A conviction for the offence will not of itself be sufficient justification for making the order.

The offences listed in Schedule 3 are mainly violent offences, including murder and the offences listed in Schedule 11 to the Criminal Justice Bill, which relates to the provisions in that Bill dealing with dangerous offenders. However, also included are offences related to child prostitution, pornography and trafficking. We included those offences as offences against which a prevention order may be made because there are offenders who present a risk of causing serious sexual harm but do not have a conviction for a sexual offence. There could be a number of reasons for that; for example, an offender could rape and murder his victim. In such a case, it is possible that only the more serious offence of murder is charged. Alternatively, the offender could commit an offence—for example, kidnapping a child with the intention of sexually assaulting them—but be charged only for kidnapping. Or there might be a trafficker who sexually abuses the woman he is trafficking.

We believe that it is important that the public are protected from such people, and Schedule 3 enables the courts to make a sexual offences prevention order against them where it is appropriate to do so. Such an order will not only place prohibitions on the offenders' behaviour to stop them sexually offending in the future; it will also make them subject to the notification requirements for the duration of the order, thereby enabling the police to know where they are and to manage them in the community.

I acknowledge that there may be concerns about applying a measure that is designed to manage sex offenders to other offenders, who have not been convicted of a sex offence. However, if one considers that, for example, Roy Whiting, who murdered Sarah Payne, would not have been registered as a sex offender by virtue of that offence, nor made the subject of a sex offender order, it should be clear, I believe, that the provision is justified.

It will of course remain necessary for a court to be persuaded that it is proven beyond reasonable doubt that a person with a conviction for a violent offence or one of the other offences in Schedule 3 has demonstrated a risk of serious sexual harm. Our experience is, in any event, that the police do not apply for orders unless they are necessary—they are demanding both in terms of application and monitoring of prohibitions. I do not therefore believe that there will be many sexual offences prevention orders made against offenders with a conviction for violence or for the other offences in Schedule 3 but, where such orders are made, I believe that they will add greatly to the protection of the public.

I was asked about the evidence that would be required. That depends on the facts in each case. Each case will depend on the evidence. The amendments, which I accept are probing, would take away the possibility that I have described. On this basis, the Government resist the amendment.

Lord Astor of Hever

I am grateful to the noble and learned Lord for his very full response, which clarifies the matter. This was a probing amendment. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 446 not moved.]

Lord Falconer of Thoroton

moved Amendment No. 446A: Page 51, line 26, leave out "he" and insert "resides in his police area or who the chief officer".

On Question, amendment agreed to.

Clause 103, as amended, agreed to.

Schedule 3 [Other offences for purposes of Part 2]:

Lord Falconer of Thoroton

moved Amendments Nos. 447 and 448: Page 77, line 25, leave out "racially-" and insert "racially or religiously Page 77, line 26, leave out "racially-" and insert "racially or religiously

On Question, amendments agreed to.

Lord Astor of Hever

moved Amendment No. 449: Page 77, line 39, at end insert—

• "Murder.
• Culpable homicide.
• Assault.
• Assault and robbery.
• Plagium.
• Wrongful imprisonment.
• Threats of personal violence.
• Breach of the peace involving personal violence.
• Wilful fireraising.
• Culpable and reckless fireraising.
• Mobbing and rioting.

An offence under section 16 of the Firearms Act 1968 (c. 27) (possession of firearm with intent to endanger life). An offence under section 16A of that Act (possession of firearm with intent to cause fear of violence). An offence under section 17(l) of that Act (use of firearm to resist arrest). An offence under section 17(2) of that Act (possession of firearm at time of committing or being arrested for offence specified in Schedule 1 to that Act). An offence under section 18 of that Act (carrying a firearm with criminal intent). An offence under section 1 of the Taking Hostages Act 1982 (c. 28) (hostage-taking). An offence under section 1 of the Aviation Security Act 1982 (c. 36) (hijacking). An offence under section 2 of that Act (destroying, damaging or endangering safety of aircraft). An offence under section 3 of that Act (other acts endangering or likely to endanger safety of aircraft). An offence under section 4 of that Act (offences in relation to certain dangerous articles). An offence under section 1 of the Prohibition of Female Circumcision Act 1985 (c. 38) (prohibition of female circumcision). An offence under section 134 of the Criminal Justice Act 1988 (c. 33) (torture). An offence under section 1 of the Road Traffic Act 1988 (c. 52) (causing death by dangerous driving). An offence under section 3A of that Act (causing death by careless driving when under influence of drink or drugs). An offence under section 1 of the Aviation and Maritime Security Act 1990 (c. 31) (endangering safety at aerodromes). An offence under section 9 of that Act (hijacking of ships). An offence under section 10 of that Act (seizing or exercising control of fixed platforms). An offence under section 11 of that Act (destroying fixed platforms or endangering their safety). An offence under section 12 of that Act (other acts endangering or likely to endanger safe navigation). An offence under section 13 of that Act (offences involving threats). An offence under section 51 or 52 of the International Criminal Court Act 2001 (c. 17) (genocide, crimes against humanity, war crimes and related offences), other than one involving murder. An offence under section 1 of the International Criminal Court (Scotland) Act 2001 (ASP 13) (genocide, crimes against humanity, war crimes and related offences as specified in Schedule 1 to that Act), The noble Lord said: The amendment seeks to clarify the relevant offences if they are committed in Scotland, which will enable the specified courts to make "sexual offences prevention orders". The amendment seeks to ensure consistency of approach in the drafting of the Bill for Scotland as well as England, Wales and Northern Ireland; to provide certainty as to the offences covered by the schedule, thereby complying with Article 5 of the European Convention on Human Rights; and to point out that, as currently drafted, there may be discrepancies between the offences covered by Schedule 3 in England, Wales and Northern Ireland and those in Scotland.

The offences in Schedule 3 are relevant to the powers conferred on the court to make sexual offences prevention orders. Under Clause 103, the court may make such an order where any of the provisions in Clause 103(2) to (4) apply and the court is satisfied that certain other conditions are present. Clause 103(2) to (4) refer to a range of offences that are listed in Schedules 2 and 3. Schedule 2 sets out a list of identified offences for Scotland and other parts of the United Kingdom. Schedule 3 departs from that model. It lists by name the relevant offences for England, Wales and Northern Ireland. In the case of Scotland it simply refers to: An offence inferring personal violence, other than an offence listed in Schedule 2". It is unclear why it has been thought appropriate to list the offences which will trigger such orders if committed in England, Wales and Northern Ireland but not in Scotland.

It could be argued that reference to the phrase, an offence inferring personal violence", may not offer the necessary clarity and certainty to ensure that these provisions are compliant with Article 5 of the ECHR. That article provides that the deprivation of liberty is permissible only when it is done, in accordance with a procedure prescribed by law". That has been taken to mean that the procedure should be foreseeable and predictable so that a person will know in advance whether conduct is likely to be caught by the provision in question. There is an argument that current drafting does not offer that clarity.

To ensure certainty as to the type of offence which might be caught by these provisions, it may be better to list the offences specifically rather than referring to offences "inferring personal violence".

The Scottish courts have construed, an offence inferring personal violence", by reference to the circumstances of the offence and not the name given to the offence. In the case of Hemphill v Donnelly (1992) SCCR 770, it was held that to threaten violence is not in itself an offence inferring personal violence. Accordingly, offences such as that under Section 16 of the Offences Against the Person Act 1861—threats to kill, paragraph 6—which would be relevant in England and Wales may not be covered under an offence inferring personal violence in Scotland. That could mean that there would be a discrepancy between the offences covered by Schedule 3 in England, Wales and Northern Ireland and those in Scotland.

The amendment would rectify that and ensure a greater clarity in relation to which offences are relevant in Scotland. I beg to move.

Lord Cameron of Lochbroom

I support the thrust of the amendment, but for a different reason to that put forward by the noble Lord, Lord Astor. I understand from Clause 127(3) that Sections 103 and 104 do not apply to Scotland. However, it is plain from Clause 104(4) that a "qualifying offender" is a person who, has been punished under the law in force in a country outside the United Kingdom for an act which … constituted an offence under that law, and … would have constituted an offence listed in Schedule 2 or 3 if it had been done in any part of the United Kingdom". For other reasons it is appropriate that the offences, which are to be thought to be equivalent to those for England, Wales and Northern Ireland, if committed in Scotland should be set out in full. It may well be that the individual has no knowledge whatever of Scottish criminal law.

However, some of the offences set out in the schedule may go beyond what is intended in the remaining parts of Schedule 3. For instance, "wilful fireraising" and "culpable and reckless fireraising" may involve offences against property only and not against the person. Likewise, I suggest: Breach of the peace involving personal violence", might be better phrased by using the terms of the Scottish criminal procedure, "inferring personal violence". As the noble Lord correctly said, in a Scottish case that involved a 1975 Act but which has continued under subsequent legislation, the phrase "inferring personal violence" was defined as meaning actual violence.

In general, I support the nature of the amendment—that the Bill should contain a clear list of offences that would be the subject of the schedule. It would be appropriate—having regard to Schedule 3(63)—that any schedule for Scotland should incorporate a reference to the Protection of Children Act (Scotland) Act 2003 passed by the Scottish Parliament.

Lord Falconer of Thoroton

Amendment No. 449 seeks to modify Schedule 3 by setting out a defined list of offences committed in Scotland that allow a court in England or Wales to grant a sex offender protection order in the terms of Clause 103(1). The noble Lord, Lord Astor, pointed out that the list of Schedule 3 offences in relation to England and Wales contains many violent offences, which is mirrored by the ability of the English or Welsh courts to impose a sex offender protection order on any person who committed an offence of a violent nature in Scotland and subsequently relocated to England or Wales. Those offences are in addition to the list in Schedule 2.

The current position offers significant protection to the public. Most offences involving personal violence in Scotland are common law offences. For that reason, we believe that it is preferable not to put on the face of the Bill what purports to be a definitive list of Scottish offences. The criteria are equivalent to those used under the Criminal Procedure (Scotland) Act 1995 to determine whether a person can be made subject to an extended sentence. The criteria in the amendments to the 1995 Act made by Part 1 of the Criminal Justice (Scotland) Act 2003 define whether someone can potentially be subject to an order for lifelong restriction.

Clause 117 allows the Secretary the State to amend the description of offences in Schedule 3 if necessary. We do not think that the point raised in relation to the European Convention on Human Rights applies because restrictions imposed under a sex offender protection order do not restrict liberty within the meaning of Article 5. We believe that the balance is about right. I hope that deals with the point raised by the noble and learned Lord, Lord Cameron. I will read his remarks carefully, to see whether I need to write to him.

Lord Cameron of Lochbroom

Before the Minister sits down, it occurred to me that it would be important—since this will not affect persons coming before Scottish courts—that English or Northern Ireland courts should be fully apprised of offences in Scotland that would constitute the offences with which Clause 103 deals. Perhaps the noble and learned Lord will take account of my remarks in relation to paragraphs 63 and 124 of Schedule 3, relative to Northern Ireland. Trafficking offences that in England, Wales and Northern Ireland infer personal offences would not, as I understand it, infer personal violence in Scotland. Therefore, it would be appropriate for the Government to re-examine that point in conjunction with the Scottish Executive.

1 a.m.

Lord Falconer of Thoroton

I will certainly consider that request.

Lord Astor of Hever

I am grateful to the Minister for that reply. This is an important amendment. There is a great deal to digest. Like the Minister, I shall read the debate carefully in Hansard. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Falconer of Thoroton

moved Amendment Nos. 450 and 451: Page 80, line 40, leave out "above Page 81, line 5, after "counselling" insert "or

On Question, amendments agreed to.

Schedule 3, as amended, agreed to.

Clause 104 [Section 103: supplemental]:

[Amendment No. 452 not moved.]

Lord Alli

moved Amendment No. 452A: Page 51, line 41, after "Kingdom" insert "and outside the United Kingdom The noble Lord said: This is a simple amendment. Its purpose is to protect children outside the UK at serious risk of harm from sex offenders within the UK. The child sex industry is booming in many countries such as Cambodia, Sri Lanka, the Dominican Republic and Thailand. Children enter the industry for different reasons. Many children who are trafficked are destined for sex work; economic necessity can force other children to enter the sex industry.

The supply side of the industry is horrific. The latest estimate concluded that 1 million children enter the sex industry every year. I saw that at first hand when I visited a UNICEF project in Thailand recently that was seeking to reintegrate predominantly young women, who had been exploited by the sex industry, into society. Surely we must accept some responsibility, not just for our own actions. If the side effect of toughening UK law is to export the problem, we should take measures to combat that now. The amendment does so. I hope the Minister will ensure that it is included in the Bill. I beg to move.

Baroness Whitaker

We have just passed an amendment enabling us to control the risks from people who have been convicted of sex offences in other countries. Surely it would be hypocritical not to control our sex offenders who may go somewhere where enforcement is more lax and abuse another country's children. It would hardly be good ratification of the UN Convention on the Rights of the Child.

Lord Falconer of Thoroton

My noble friend Lord Alli rightly wishes to address the issue of sex tourism where offenders travel abroad with the intention of committing sexual offences, particularly against children.

We take the issue of sex tourism very seriously. A number of measures are already in place to deal with the issue and we are proposing further measures as part of the Bill. They include Part 2 of the Sex Offenders Act 1997, re-enacted as Clause 75 in the Bill, which enables courts in the United Kingdom to deal with UK citizens who commit sex offences against children abroad. Since June 2001 all registered sex offenders have been required to tell the police if they intend to travel abroad for eight days or more. As Members of the Committee are aware, because I said so earlier, we intend to reduce that period to three days.

The proposed new notification order at Clauses 96 to 102 will require those who have committed sex offences overseas to register if they come to the United Kingdom. I fully support the intentions behind the amendments, but their purpose and effect are similar to those behind the proposed foreign travel order, which we will introduce, subject to your Lordships' agreement, under government Amendments Nos. 458ZA to 458ZG. Foreign travel orders will in certain circumstances enable those convicted of sexual offences against children to be prohibited from travelling to named countries. They have been developed specifically to deal with the issue of sex tourism, and their purpose is to prevent serious sexual harm to children overseas by UK offenders. The orders would operate in a similar way to sexual offences protection orders—indeed, they could be applied for at the same time as a sexual offences protection order—placing prohibitions on the offender in the United Kingdom.

We believe that foreign travel orders will meet the concerns that have given rise to the amendments and that they will provide a workable and proportionate response to the problem of offenders who go overseas to abuse children. The effect of foreign travel orders will be similar to that under the amendments. Indeed, in developing the orders we considered amending sexual offences prevention orders in exactly the way proposed by the amendments.

However, we decided that there were a number of difficulties with such an approach. First, amending the sexual offences prevention orders in that way would extend any prohibitions included in an order to cover the public overseas unless it was made explicit that the prohibition applied only in the UK. Such prohibitions would be impossible to police. For example, if a sexual offences prevention order contained a prohibition that the offender was not to hang around schools or to be alone in a property with children of a certain age, how could that be policed if the offender was in Thailand?

Our other concern was that any prohibition on travel must be proportionate to the risks posed by the offender. Sexual offences prevention orders last for a minimum of five years. They can be made against a wide range of offenders and carry with them a requirement to register. By contrast, foreign travel orders are more focused on the problem of offenders who go overseas to abuse children and therefore more targeted and proportionate. They last for a maximum of six months but can be renewed. The offender, when not already on the register, needs to notify the police only of his foreign travel plans. The order can be made only where the person already has a conviction—either in this country or overseas—for a sexual offence against a child under 16.

I hope that what I have said will reassure my noble friend that the Government take the issue of sex tourism very seriously and that we are determined to do whatever is necessary to tackle the problem. We believe that it can be most effectively addressed by the proposed foreign travel order in connection with the other measures that have already or are being introduced. In the light of what I have said, I hope that my noble friend will feel that our approach deals with the very relevant points he made.

Lord Alli

I thank my noble and learned friend for that detailed reply. I commend him and his team for the work that they have done on sex tourism. The foreign travel orders will indeed satisfy me, so I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Falconer of Thoroton

moved Amendments No. 452B to 452D: Page 52, line 2, at end insert— ( ) "Qualifying offender" means a person within subsection (4) or (4A). Page 52, line 3, leave out ""Qualifying offender" means a person who" and insert "A person is within this subsection if Page 52, line 4, at end insert "he

On Question, amendments agreed to.

[Amendment No. 453 not moved.]

Lord Falconer of Thoroton

moved Amendments Nos. 453A and 453B: Page 52, line 8, at end insert "or Page 52, line 10, leave out from "offence" to end of line 15.

On Question, amendments agreed to.

[Amendment No. 454 not moved.]

Lord Falconer of Thoroton

moved Amendments Nos. 454A to 454F: Page 52, line 15, at end insert— (4A) A person is within this subsection if, under the law in force in a country outside the United Kingdom and whether before or after the commencement of this Part—

1. (a) he has been convicted of a relevant offence (whether or not he has been punished for it),
2. (b) a court exercising jurisdiction under that law has made in respect of a relevant offence a finding equivalent to a finding that he is not guilty by reason of insanity,

1. (c) such a court has made in respect of a relevant offence a finding equivalent to a finding that he is under a disability and did the act charged against him in respect of the offence, or
2. (d) he has been cautioned in respect of a relevant offence."

Page 52, line 17, leave out ",cautioned or punished" and insert "or cautioned Page 52, line 18, at end insert "or (4A) Page 52, line 18, at end insert— (5A) In subsection (4A), "relevant offence" means an act which—

1. (a) constituted an offence under the law in force in the country concerned, and
2. (b) would have constituted an offence listed in Schedule 2 or 3 if it had been done in any part of the United Kingdom."

Page 52, line 21, leave out "(4)" and insert "(5A) Page 52, line 23, leave out "(4)(e)(ii)" and insert "(5A)(b)

On Question, amendments agreed to.

Lord Falconer of Thoroton

moved Amendment No. 455: Page 52, line 23, leave out "taken as having been" and insert "to be taken as

On Question, amendment agreed to.

Clause 104, as amended, agreed to.

Clause 105 agreed to.

Clause 106 [Sexual offences prevention orders: variations, renewals and discharges]:

Lord Falconer of Thoroton

moved Amendments Nos. 456 to 458: Page 53, line 36, at end insert "(and any renewed or varied order may contain only such prohibitions as are necessary for this purpose) Page 53, line 38, leave out "date" and insert "day Page 53, line 40, leave out paragraphs (a) and (b) and insert—

1. "(a) where the application is made by a chief officer of police, that chief officer, or
2. (b) in any other case, the chief officer of police for the area in which the defendant resides."

On Question, amendments agreed to.

Clause 106, as amended, agreed to.

Clauses 107 to 109 agreed to.

Lord Falconer of Thoroton

moved Amendment No. 458ZA: After Clause 109, insert the following new clause— FOREIGN TRAVEL ORDERS: APPLICATIONS AND GROUNDS (1) A chief officer of police may by complaint to the magistrates' court apply for an order under this section ("a foreign travel order") in respect of a person ("the defendant") who resides in his police area or who the chief officer believes is in or is intending to come to his police area if it appears to the chief officer that—

1. (a) the defendant is a qualifying offender, and
2. (b) the defendant has since the appropriate date acted in such a way as to give reasonable cause to believe that it is necessary for such an order to be made.

(2) An application under subsection (1) may be made to any magistrates' court whose commission area includes any part of the applicant's police area. (3) On the application, the court may make a foreign travel order if it is satisfied that—

1. (a) the defendant is a qualifying offender, and
2. (b) the defendant's behaviour since the appropriate date makes it necessary to make such an order, for the purpose of protecting children generally or any child from serious sexual harm from the defendant outside the United Kingdom."

The noble and learned Lord said: I have referred already to foreign travel orders. Perhaps I may describe their effect and how they are to be applied for. A chief officer of police will be able to apply for a foreign travel order at any magistrates' court in his area in respect of a qualifying offender who resides in, or who the police believe is visiting or is intending to come to, his police area. The courts would then have the power to make a foreign travel order provided that two conditions are met.

The first condition is that the person has a conviction, finding or caution either in the UK or overseas for a sexual offence against a child under the age of 16, or 17 in Northern Ireland. The detail of these offences is set out in subsection (2) of Amendment No. 458ZC. Whether the offence took place in the UK or overseas, the conviction, finding or caution can have occurred at any time, whether before or after commencement of the Sexual Offences Bill.

The order has been limited to offenders who have a history of sexual offending against children because we believe that they present the greatest risk of future offending overseas. This is because the existence of brothels where child prostitutes are available or the absence of effective policing of child sexual abuse make some countries attractive destinations for paedophiles. It is this specific problem that the foreign travel orders are targeted against.

The second condition that must be met is that the offender has behaved in such a way that the court is satisfied that a foreign travel order is necessary to protect children or a particular child in any country outside the United Kingdom from serious sexual harm from the offender. By serious sexual harm we mean serious physical or psychological harm caused by the offender committing a relevant sexual offence against them.

This behaviour must have taken place since the date of the defendant's first conviction for a relevant sexual offence. We envisage that the evidence might be, for example, an offender having used the Internet to make contact with organisations arranging "sex tourism" type holidays or sending sexually explicit e-mails to a child abroad and arranging a visit. It may also be evidence of the offender networking with other sex offenders to plan trips abroad or a confession made by the offender as part of a sex offender treatment programme or evidence given by fellow prisoners. It is envisaged that such evidence will be presented as part of a detailed risk assessment prepared by the police. Such assessment might take into account previous offending behaviour, previous allegations of sex offending in the country the offender intends to visit, the circumstances of the proposed travel and likely contact with other offenders and potential victims in the destination country.

In order to decide whether a foreign travel order is necessary in any particular case, the court will want to consider what alternative measures are potentially available to prevent the defendant causing serious sexual harm to children abroad and it will be for the police to provide the court with this information. Such alternative measures could include notifying relevant authorities abroad of the offender's intended travel plans so that monitoring, reporting or surveillance arrangements could be put in place in the destination country.

Such methods may not be available in relation to the country or countries "at risk" from the offender, or the police may have tried such methods with a particular country in the recent past and found that the information was not acted on by the local authorities. If that is the case, the court may be satisfied that in this case a foreign travel order is the only effective means available to prevent serious sexual harm against children in that country.

The prohibitions on travel imposed by an order must be only those necessary to protect children in general or any particular child from serious sexual harm from the offender. The order must specify the country or countries to which the offender is prohibited from travelling; or, where the risk warrants it, it may specify that all travel outside the United Kingdom is prohibited. An order may also prohibit travel to anywhere in the world other than to a named country. Such a provision might be needed where, for example, an offender needed to travel to a particular country to attend a funeral or for any other family reasons.

The way in which the prohibitions would work may be as follows. Where the evidence shows that an offender is presenting a risk to children only in one particular country, the travel restriction will be limited to that country. However, where the offender presents a risk more generally to children in a region where child sex is readily available, a wider travel ban will be necessary. In those cases the order may name each of the countries in the region or, where the court considers that the offender would otherwise access one of the target countries through a neighbouring country, the order could name all the countries in that region. There may also be cases where the offender presents such a high risk of offending against children that he is likely to offend wherever he goes and a complete ban on overseas travel is necessary.

The order is to last for the length of time that the court considers necessary in relation to the risk posed by the offender. There is, however, a maximum term of six months, renewable on further application from the police. We believe that in most cases the period of six months will be enough to prevent the offender from making a particular trip overseas without putting an unfair restriction on the person's longer term right to travel.

Persons subject to a foreign travel order are likely to be subject to the notification requirements by virtue of their conviction of a sexual offence against a child. However, for those offenders who are not—perhaps because their conviction pre-dates the 1997 Act—while the foreign travel order is in force the offender will be subject to the foreign travel notification requirements, which will require him to notify the police if he intends to travel abroad for three days or more.

Provision has also been included for the foreign travel order to be varied, renewed or discharged, and the defendant will have a right of appeal to the Crown Court against the making of an order. These provisions replicate those used for the sexual offences prevention order.

Finally, a failure to comply with any prohibition contained within a foreign travel order will be a criminal offence, punishable with up to five years' imprisonment.

I know that the issue of United Kingdom citizens who go abroad with the intention of sexually abusing children is one that has been raised by a number of noble Lords, on the introduction of this Bill, at Second Reading and again today. The Bill provides us with an opportunity to ensure that we are doing everything that we can to deal with this issue, and I believe that the foreign travel order proposed in these amendments will prove a vital and useful tool in helping the police to combat the problem. I beg to move.

1.15 a.m.

Lord Astor of Hever

We on these Benches very much welcome these amendments introducing foreign travel orders into the Bill. We have had a considerable amount of lobbying from organisations such as UNICEF. A recent UN report concluded that nearly 1 million children enter the sex industry each year. Paedophiles often choose to take holidays in places where police corruption and a lack of legislative safeguards allow them to abuse young children easily without much fear of prosecution.

This new set of orders to regulate the travel of sex offenders is a significant step forward. It shows that the Government appreciate the need to widen the Bill to have regard to the welfare of children in other countries rather than only in the UK.

The proposed foreign travel orders show a welcome degree of flexibility and have clearly been formulated on the principle of treating each offender on an individual basis when considering whether travel should be restricted.

Lord Lucas

Perhaps I may ask a couple of questions. I am puzzled by what the noble and learned Lord said in terms of the offences to which this part of the Bill is restricted. There are a large number of child sex offences in Schedule 2 which are not covered by Amendment No. 458ZC(2)(a). This may be where the Government want to start, but would it not be wise to have a power in the Bill to add to that list of paragraphs by order? It seems to me that a large chunk of offending behaviour is being missed out.

Secondly, I am not at all up to speed with what is meant by subsection (2)(c)in Amendment No. 458ZC where it says that, the corresponding civil offence is an offence within any of the paragraphs 13 to 15 of that Schedule". How can a civil offence be an offence within a criminal statute? I do not understand why that formulation is used. I would be grateful for enlightenment on both matters.

Lord Falconer of Thoroton

On the first point, we think we have the balance broadly right. We do not think we require a further power. All sexual offences in Schedule 2 where the victim is under 16 are covered, and we think that is sufficient. On the second point, will the noble Lord forgive me for saying that I shall write to him about it? It is an issue that I should write about rather than give an answer at this stage in the proceedings.

Lord Lucas

I should like to pick the noble and learned Lord up on what he said to begin with. Paragraph 10 of Schedule 2 refers to: An offence under section 28 of that Act (causing or encouraging the prostitution of, intercourse with or indecent assault on girl under sixteen)". That would appear to be a child sex offence but it is not included in subsection (2)(a) of the amendment and similar paragraphs. I do not understand why the section—

Lord Falconer of Thoroton

Perhaps I can write to the noble Lord.

On Question, amendment agreed to.

Lord Falconer of Thoroton

moved Amendments Nos. 458ZB to 458ZG: After Clause 109, insert the following new clause— Section (Foreign travel orders: applications and grounds): interpretation (1) Subsections (2) to (5) apply for the purposes of section (Foreign travel orders: applications and grounds). (2) "Protecting children generally or any child from serious sexual harm from the defendant outside the United Kingdom" means protecting persons under 16 generally or any particular person under 16 from serious physical or psychological harm caused by the defendant doing, outside the United Kingdom, anything which would constitute an offence listed in Schedule 2 if done in England and Wales or Northern Ireland. (3) Acts and behaviour include those occurring before the commencement of this Part. (4) "Qualifying offender" has the meaning given by section (Section (Foreign travel orders: applications and grounds): qualifying offenders). (5) "Appropriate date", in relation to a qualifying offender, means the date or (as the case may be) the first date on which he was convicted, found or cautioned as mentioned in subsection (1) or (3) of section (Section (Foreign travel orders: applications and grounds): qualifying offenders). (6) In this section and section (Section (Foreign travel orders: applications and grounds): qualifying offenders) as they apply to Northern Ireland, references to persons, or to a person, under 16 are to be read as references to persons, or to a person, under 17. After Clause 109, insert the following new clause— SECTION (FOREIGN TRAVEL ORDERS: APPLICATIONS AND GROUNDS): QUALIFYING OFFENDERS (1) A person is a qualifying offender for the purposes of section (Foreign travel orders: applications and grounds) if, whether before or after the commencement of this Part, he—

1. (a) has been convicted of an offence within subsection (2),
2. (b) has been found not guilty of such an offence by reason of insanity,
3. (c) has been found to be under a disability and to have done the act charged against him in respect of such an offence, or
4. (d) in England and Wales or Northern Ireland, has been cautioned in respect of such an offence.

(2) The offences are—

1. (a) an offence within any of paragraphs 13 to 15, 41 to 43, 63, 64 and 66 of Schedule 2;
2. (b) an offence within paragraph 28 of that Schedule, if the intended offence was an offence against a person under 16;
3. (c) an offence within paragraph 68 of that Schedule, if—
1. (i) the corresponding civil offence is an offence within any of paragraphs 13 to 15 of that Schedule;
2. (ii) the corresponding civil offence is an offence within paragraph 28 of that Schedule, and the intended offence was an offence against a person under 16; or
3. (iii) the corresponding civil offence is an offence within any of paragraphs 1 to 12, 16 to 27 and 29 to 32 of that Schedule, and the victim of the offence was under 16 at the time of the offence.
4. (d) an offence within any other paragraph of that Schedule, if the victim of the offence was under 16 at the time of the offence.

(3) A person is also a qualifying offender for the purposes of section (Foreign travel orders: applications and grounds) if, under the law in force in a country outside the United Kingdom and whether before or after the commencement of this Part—

1. (a) he has been convicted of a relevant offence (whether or not he has been punished for it),
2. (b) a court exercising jurisdiction under that law has made in respect of a relevant offence a finding equivalent to a finding that he is not guilty by reason of insanity,
3. (c) such a court has made in respect of a relevant offence a finding equivalent to a finding that he is under a disability and did the act charged against him in respect of the offence, or
4. (d) he has been cautioned in respect of a relevant offence.

(4) In subsection (3), "relevant offence" means an act which—

1. (a) constituted an offence under the law in force in the country concerned, and
2. (b) would have constituted an offence within subsection (2) if it had been done in England and Wales or Northern Ireland.

(5) An act punishable under the law in force in a country outside the United Kingdom constitutes an offence under that law for the purposes of subsection (4), however it is described in that law. (6) Subject to subsection (7), on an application under section (Foreign travel orders: applications and grounds) the condition in subsection (4)(b) above (where relevant) is to be taken as met unless, not later than rules of court may provide, the defendant serves on the applicant a notice—

1. (a) stating that, on the facts as alleged with respect to the act concerned, the condition is not in his opinion met,
2. (b) showing his grounds for that opinion, and
3. (c) requiring the applicant to prove that the condition is met.

(7) The court, if it thinks fit, may permit the defendant to require the applicant to prove that the condition is met without service of a notice under subsection (6). After Clause 109, insert the following new clause— FOREIGN TRAVEL ORDERS: EFFECT (1) A foreign travel order has effect for a fixed period of not more than 6 months, specified in the order. (2) The order prohibits the defendant from doing whichever of the following is specified in the order—

1. (a) travelling to any country outside the United Kingdom named or described in the order,
2. (b) travelling to any country outside the United Kingdom other than a country named or described in the order, or
3. (c) travelling to any country outside the United Kingdom.

(3) The only prohibitions that may be included in the order are those necessary for the purpose of protecting children generally or any child from serious sexual harm from the defendant outside the United Kingdom. (4) If at any time while an order (as renewed from time to time) has effect a defendant is not a relevant offender, the order causes him to be subject to the requirements imposed by regulations made under section 88(1) (and for these purposes the defendant is to be treated as if he were a relevant offender). (5) Where a court makes a foreign travel order in relation to a person already subject to such an order (whether made by that court or another), the earlier order ceases to have effect. (6) Section (Section (Foreign travel orders: applications and grounds): interpretation) (2) applies for the purposes of this section and section (Foreign travel orders: variations, renewals and discharges). After Clause 109, insert the following new clause— FOREIGN TRAVEL ORDERS: VARIATIONS, RENEWALS AND DISCHARGES (1) A person within subsection (2) may by complaint to the appropriate court apply for an order varying, renewing or discharging a foreign travel order. (2) The persons are—

1. (a) the defendant;
2. (b) the chief officer of police on whose application the foreign travel order was made;
3. (c) the chief officer of police for the area in which the defendant resides;
4. (d) a chief officer of police who believes that the defendant is in, or is intending to come to, his police area.

(3) Subject to subsection (4), on the application the court, after hearing the person making the application and (if they wish to be heard) the other persons mentioned in subsection (2), may make any order, varying, renewing or discharging the foreign travel order, that the court considers appropriate. (4) An order may be renewed, or varied so as to impose additional prohibitions on the defendant, only if it is necessary to do so for the purpose of protecting children generally or any child from serious sexual harm from the defendant outside the United Kingdom (and any renewed or varied order may contain only such prohibitions as are necessary for this purpose). (5) In this section "the appropriate court" means—

1. (a) the court which made the foreign travel order;
2. (b) a magistrates' court for the area in which the defendant resides; or
3. (c) where the application is made by a chief officer of police, any magistrates' court whose commission area includes any part of his police area."

After Clause 109, insert the following new clause— FOREIGN TRAVEL ORDERS: APPEALS (1) A defendant may appeal to the Crown Court—

1. (a) against the making of a foreign travel order;
2. (b) against the making of an order under section (Foreign travel orders: variations, renewals and discharges), or the refusal to make such an order.

(2) On any such appeal, the Crown Court may make such orders as may be necessary to give effect to its determination of the appeal, and may also make such incidental or consequential orders as appear to it to be just. (3) Any order made by the Crown Court on an appeal under subsection (1)(a) (other than an order directing that an application be re-heard by a magistrates' court) is for the purposes of section (Foreign travel orders: variations, renewals and discharges) (5) to be treated as if it were an order of the court from which the appeal was brought (and not an order of the Crown Court). After Clause 109, insert the following new clause— OFFENCE: BREACH OF FOREIGN TRAVEL ORDER (1) A person commits an offence if, without reasonable excuse, he does anything which he is prohibited from doing by a foreign travel order. (2) A person guilty of an offence under this section is liable—

1. (a) on summary conviction, to imprisonment for a term not exceeding 6 months or a fine not exceeding the statutory maximum or both;
2. (b) on conviction on indictment, to imprisonment for a term not exceeding 5 years.

(3) Where a person is convicted of an offence under this section, it is not open to the court by or before which he is convicted to make, in respect of the offence, an order for conditional discharge.

On Question, amendments agreed to.

Clause 110 [Risk of sexual harm orders: applications, grounds and effect]:

Lord Falconer of Thoroton

moved Amendment No. 458ZH: Page 56, line 12, leave out "he" and insert "resides in his police area or who the chief officer

On Question, amendment agreed to.

Lord Lucas

moved Amendment No. 458A: Page 56, line 15, after "(3)" insert "with the intention of obtaining sexual gratification (whether immediately or at some future time) The noble Lord said: We have discussed this formulation several times, so I regard this as a probing amendment. I am concerned that Clause 110(3)(b) or (c) seems to cover an activity carried out fairly frequently by newsagents. There is a great deal available in newsagents which might be said to relate to sexual activity, especially if one were to pass a child a magazine from the top shelf. Even the magazines ostensibly aimed at children proper often have a great deal in them of a sexual nature. Indeed, there have been some well publicised children's books which are quite heavily sexual in nature. A newsagent will frequently be giving children things of this nature. I would like to understand where, if that is the coverage of the offence, the defence arises. I beg to move.

Baroness Walmsley

My concern relates to something that we have already discussed—the position of people giving sex education, sex advice, or even condoms to young people. The acts described in Clause 110(3) include, giving a child anything that relates to sexual activity or contains a reference to such activity". That could be a textbook or an informative film. Paragraph (d) refers to, communicating with a child, where any part of the communication is sexual". Putting the caveat in the amendment that the intention must be obtaining sexual gratification whether immediately or at some future time makes the intention of the person doing this extremely clear and would, I hope, protect people giving legitimate and valuable advice and help to young people. I hope the Minister will be able to accept the amendment or at least clarify that such people are not in danger of being caught by this part of the Bill.

Baroness Blatch

I believe that the noble and learned Lord will be able to satisfy the latter point made by the noble Baroness, Lady Walmsley.

I wish to speak on the theme that I have kept to throughout the Bill, that by amendment we keep putting in the way a higher barrier that must be jumped before someone can be caught. It seems absolutely inconceivable that a chief officer of police would go to court with a case against a person who has on two occasions been guilty of, or has given concern about, the acts set out in subsection (3)(a), (b), (c) or (d), if they were indulging in the sorts of activities that have been mentioned by the noble Baroness. I cannot believe that a court would even entertain the case of a chief constable who said that a teacher had been teaching sex education and was therefore a danger to a child.

My concern is always in these matters that we should not put barriers in the way of catching someone who actually is inciting children to watch a person engaging in sexual activity, or is giving a child anything that relates to sexual activity or contains reference to such activity, or is simply talking dirty to a child and who has no authority for doing such a thing.

I would put my trust in chief police officers going to court, as there are two locks on the matter. The chief of police has to have a concern and must produce evidence. He must make a case, and then the courts will hear the case and test the evidence and either agree or disagree that the order should be made.

I do not agree with the amendments, as they make it more difficult to catch the very people whom we are discussing. Protection of children against such activities is paramount.

Baroness Walmsley

Before the Minister replies, I ask the Committee to cast its mind back to an earlier stage in the Bill when we were discussing agencies other than teachers—voluntary agencies—with legitimate workers who work in a much less formal environment than that of a school. They are legitimate all the same; they are fully trained and they are effective because they go out into the environments in which young people "hang out", as they put it, such as nightclubs. They provide condoms, for example, which helps with the sexual health of young people. I remain concerned that those people might fall foul of an over-zealous chief police officer, and would be grateful for some words of comfort for such agencies.

Baroness Blatch

I am going to stand by what I said. It is really inconceivable that a chief police officer could go with such a case, but even so there would have to be a great deal of collusion between a chief of police and all those testing the evidence and listening to the case for there to be such concern against someone. Frankly, if someone—a third party, for example—is up to no good, I believe that the chief of police should he free to make a judgment about that and to take his case to the courts to be heard.

Baroness Noakes

We discussed Amendment No. 459 in connection with the amendments relating to sexual education generally, so we are not debating that matter at this point. However, I was unconvinced at the time by the response of the noble and learned Lord the Minister, which was broadly along the lines of what my noble friend Lady Blatch said, that a case would simply not be pursued if it involved genuine sex education.

There will he genuine concern out there that people may feel that they fall technically within the provisions of the clause, and feel at risk from an over-zealous police officer seeking to obtain an order. I support the noble Baroness, Lady Walmsley.

1.30 a.m.

Lord Falconer of Thoroton

I hope that I can satisfy the noble Baroness, Lady Walmsley, but I think broadly that what the noble Baroness, Lady Blatch, is saying is correct, although the matter goes slightly further. The noble Baroness, Lady Walmsley, tabled the amendment to ensure that orders are not granted where the person against whom the order is sought had a perfectly legitimate reason for engaging in sexually explicit conduct or communication with a child. That is a worry that we have specifically identified in other parts of the Bill, as the noble Baronesses, Lady Noakes and Lady Walmsley have mentioned.

It is not just a question, as the noble Baroness, LadyBlatch, said, of trusting the police, because the orders can he made against someone with no prior conviction for a sexual offence, but only if two key tests are met. The first, and perhaps the one that gives rise to the understandable problem, is that the court must he satisfied that on at least two occasions the defendant has carried out an act as specified at subsection (3) involving sexually explicit conduct or communication. The noble Baroness, Lady Walmsley, is right—the requirement could in theory catch the sex education teacher or biology teacher at a school showing children diagrams or models of reproduction. However, I wish to make clear that that requirement being satisfied does not legally allow the court to make the order, because a second requirement is explicitly required by the Bill. The second test provides the safeguard that ensures that such people will not be caught. That is that the court must be satisfied that such an order is necessary to protect a child or children from harm from the defendant. So it is not just a question of trusting the chief police officer, although I agree with the noble Baroness, Lady Blatch, that it is extraordinarily unlikely that that police officer is going to apply for an order, not just because it is a mistaken judgment, but because he will not obtain an order as there is the second requirement as well.

When a court decides that an adult does not pose a risk to a child or children, even where they might have engaged in sexually explicit conduct or communication, a risk of sexual harm order cannot be made. Moreover, the purpose of the provisions is to provide better protection for children from sexually explicit conduct or communication which poses them a risk of harm. We are far less concerned with the motivation of the defendant than with the effect of his behaviour on the child concerned. If someone acts in one of the ways specified because they are being paid by a third party to familiarise the children with sexual matters so that they may think sexual abuse is normal, we want that behaviour still to be caught, although the defendant's motives are financial. They would not be caught as a result of the amendment. The effect on the children is the same, regardless of the motive.

Even where the defendant in such a case may not ultimately pose a risk of himself causing the child physical harm, such behaviour may well be causing the child psychological harm. When somebody distortedly believes that young people should know about sexuality in all its forms and shows them a variety of material displaying, for example, sado-masochistic activity, we would want children to be protected from a repetition of that behaviour regardless of whether the defendant can be proven to derive sexual gratification from it. So one would end up with the wrong conclusion. I hope that I have reassured the noble Baroness, Lady Walmsley, that the legitimate examples that she and I have given are not intended to, nor could they be, caught.

The noble Lord, Lord Lucas, referred to the newsagent selling pornography to children. Could it fall within, communicating with a child, where any part of the communication is sexual", or, giving a child anything that relates to sexual activity or contains a reference to such activity."? It possibly could in relation to paragraph (c), but very rarely, I would have thought. There might he circumstances in which providing pornography to a child for the purpose of familiarising him with sexual activity with a view to making him vulnerable to sexual abuse could form the basis of such an order—but only if the court took the view that there was a risk of harm in accordance with the Bill. I do not think remotely that it would catch the newsagent. I hope that I have put at rest the minds of both noble Lords who have raised concerns on the matter.

Lord Lucas

I understand what the noble and learned Lord is saying, but I am not yet convinced. I think that my problems arise from Clause 111(2) where, 'Protecting children generally or any child from harm from the defendant"', is defined by the defendant doing the acts in Clause 110(3). In other words, the harm from which protection is sought is the harm of being given material relating to sexual activity or communications relating to sexual activity. My noble friend Lady Blatch and I will doubtless be sitting on these Benches when we again discuss Clause 28. The Minister will doubtless remember some of the material that was displayed in the House when we last considered it. Many parents might feel that some of the material distributed by official bodies could cause psychological harm if inflicted on young people. Those of a religious persuasion might feel that many of the currently available teenage magazines are likely to do such harm.

The harm to which a child is likely to be exposed is not defined anywhere else in the Bill. It is simply defined as psychological harm. I am not at all clear that that test is set high enough to avoid either the type of troubles which the noble Baroness, Lady Walmsley, described or the more run-of-the-mill activities, in our rather permissive world, in which people are dealing with children who are brought up in a much stricter way and might have considerable difficulty in dealing with some of the materials that are commonly available.

Baroness Blatch

Does my noble friend agree that it is possible for seriously pornographic material, whether videotapes or written material, to be distributed not only for sexual gratification but because of wilfulness or for money? Once the provision is restricted to having to prove obtaining sexual gratification, the scope of the courts will be limited.

Lord Lucas

Yes, I do. I was not trying to amend the wording of the amendment. I agree that we have discussed this before. I think that I have rather given in to the persuasive powers of the noble and learned Lord and accepted that this is probably the wrong way of tackling the issue. What worries me is that we are potentially criminalising a fairly wide range of activities which, if not usual activities, are accepted by some parts of society. I do not see where we will find protection for those whom we may wish to protect except, as my noble friend says, in the good sense of the chief officer of police. The provision seems to have been drawn very wide. We do not seem to be allowing ourselves the opportunity to catch those whom we wish to catch rather than a lot of innocent people. I shall read carefully in Hansard what the noble and learned Lord has said and return to the matter at Report if necessary. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 459 not moved.]

Baroness Noakes

moved Amendment No. 460: Page 56, line 31, at end insert— ( ) communicating with a child in such a way as to induce the child to believe that the person is himself a child or is significantly younger than the person's actual age. The noble Baroness said: I rise to move Amendment No. 460 which adds another act that could trigger an application for a risk of sexual harm order under subsection (3) of Clause 110. At present all of the acts under subsection (3) are sexual in nature. My Amendment No. 460 adds, communicating with a child in such a way as to induce the child to believe that the person is himself a child or is significantly younger than the person's actual age". My concern in moving the amendment is to ensure that we have maximum protection for children. We support the concept of risk of sexual harm orders. In the White Paper Protecting the Public the Government said that these new orders would, complement the new offence of grooming but will cover a much wider spectrum of behaviour". The new orders will apply in some respects to a narrower range of activities than the sexual grooming offence under Clause 17. The grooming of children by paedophiles is often very subtle and does not always include sexual content, as I pointed out in our debate on Clause 17. Groomers work hard to gain the trust of potential victims and some do this by pretending to be only a little older than the potential victim. That is what the Metropolitan Police told us.

The new risk of sexual harm orders apply only where there has been sexual communication with a child. That will account for only a proportion of those who are stalking the Internet chat rooms.

What of the ones who pretend to be of like age with the child and whose communications have not been sexually explicit? They are not caught by the risk of sexual harm orders and that is why I said the new orders would apply to a narrower range of activities than Clause 17.

The Public Bill Office had to be persuaded to take this amendment because it said that the amendment would catch baby talk. I do not think that is a problem because for an order to be made some reasonable cause for the order has to be proved. In many ways this is analogous to Clause 17, which relies in part on acts which, more often than not, are innocent. If there is a better way of expressing the dangers that arise for children from people who stalk them without using explicitly sexual language, particularly on the Internet, then I would welcome looking at any such drafting. I beg to move.

Baroness Blatch

My understanding is that this amendment is subsumed in paragraph (d) already. If we restrict the provision to include communicating with a child in such a way as to induce the child to believe the person himself is a child or is significantly younger than their actual age, people who are not pretending to be any age other than the age they actually are will not be caught. If it is simply left at communicating with a child where any part of the communication is sexual—whether that person is pretending to be younger or not—then they could be subject to an order. Once that becomes the criterion by which someone is judged, then it will allow to go free somebody who is not pretending to be significantly younger than the person they are talking to.

Baroness Noakes

I was not seeking to remove paragraph (d). I was adding an additional possibility for catching people who ought to be prevented from stalking children on the Internet.

Baroness Blatch

I think it is still subsumed in (d). I think it would be an aggravating factor, but it seems to me that it is subsumed in (d).

Lord Falconer of Thoroton

I think I take the view of the noble Baroness, Lady Noakes, if I have understood the amendment of the noble Baroness correctly. She is saying that even if a person says nothing remotely sexual but seeks to deceive the person with whom he or she is communicating that he or she is significantly younger than he or she is, that of itself should be a trigger fact. It could he an innocent conversation with no remote reference to sex, but it would be a trigger fact.

We oppose the amendment and think it is going too far, although we understand why the noble Baroness proposed it. As the noble Baroness pointed out, all of the acts in Clause 1 10(3) are explicitly sexual and could give cause for concern that the adult might pose harm to the child or children once the act is committed. The same could not be said for deception about age. There are circumstances in which one could envisage an adult lying about their age; for example, someone researching a book for children may go into a chat room pretending to be a child so as to discuss TV programmes and see what children like to watch. An adult with a mental impairment who has the mental age of a child may falsify his age online to be accepted by those he feels he wants to communicate with. Although the amendment would leave in place the requirement for the court to be satisfied that an order was necessary to protect children from harm by the defendant, deceit about age does not provide a sufficiently robust justification to qualify as behaviour triggering the RSHO.

Moreover, the amendment would not provide sufficient certainty about the behaviour that would render a person liable for an RSHO. If an 18 year-old communicated with a 15 year-old in an Internet chat room and induced the child to believe that he was 16, would that meet the requirement of pretending to be significantly younger than his actual age? If he were 19 and pretending to be 16, would that qualify?

Concern has been expressed that the RSHO is going too far in that it makes behaviour that is not itself criminal the subject of a civil preventive order. There are other precedents for that, including the anti-social behaviour order, and we think that we have got the trigger behaviour for the RSHO about right. Making deception about age a trigger for the RSHO would be a step too far and would create the risk of undermining the orders, which have an important role to play in protecting children.

I fully appreciate the reasons why the amendment was moved, but, broadly speaking, the line has been drawn in the right place, and, therefore, I resist the amendment.

1.45 a.m.

Baroness Blatch

Before my noble friend replies, I must ask her a question. As my noble friend suggested, the amendment would insert a new paragraph (e). Paragraphs (a), (b), (c) and (d) all have a sexual connotation in one way or another. Paragraph (a) refers to sexual activity, (b) refers to sexual images, (c) relates to sexual activity and (d) refers to sexual communication. However, the new paragraph (e) refers to, communicating … in such a way as to induce the child to believe that the person is younger than he actually is. Is that the offence? Ought there not to be some form of words, such as "with a view to discussing sex" or "with a view to inciting sex"?

Baroness Noakes

I thank my noble friend for that additional comment, and I thank the Minister for his response.

I shall explain to my noble friend why I tabled the amendment. Sexual predators in chat rooms do not always use sexual language or other communication. The aim of groomers in Internet chat rooms is to gain the trust of the child and to arrange a meeting. That is what they do. The advice we had from the Metropolitan Police was that one could not always detect from the nature of the communications prior to a meeting that there was any sexual content.

The communication in the chat rooms where the grooming takes place could appear to be innocent, but it is all about the groomer gaining the child's trust so that the child will then go ahead and arrange a meeting. The Minister understood where I was coming from. He said that the amendment goes too far but, to get a risk of sexual harm order, one must show that it is necessary for the purpose of protecting children, so it is not the only thing that must be shown.

I shall consider what the Minister said. I am keen that the risk of sexual harm orders should be capable of being used in circumstances in which, we know, harm can be done to children. We know that children can be exposed to harm in Internet chat rooms. That was my rationale for tabling the amendment. In the meantime, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 110, as amended, agreed to.

Clause 111 agreed to.

Clause 112 [Risk of sexual harm orders: variations, renewals and discharges]:

Lord Falconer of Thoroton

moved Amendment No. 461: Page 57, line 42, at end insert "(and any renewed or varied order may contain only such prohibitions as are necessary for this purpose)

On Question, amendment agreed to.

Lord Falconer of Thoroton

moved Amendment No. 462: Page 58, line 1, leave out subsection (5) and insert— (5) The court must not discharge an order before the end of 5 years beginning with the day on which the order was made, without the consent of the defendant and—

1. (a) where the application is made by a chief officer of police, that chief officer, or
2. (b) in any other case, the chief officer of police for the area in which the defendant resides."

The noble and learned Lord said: I spoke to this amendment in an earlier group.

On Question, amendment agreed to.

Clause 112, as amended, agreed to.

Clauses 113 to 116 agreed to.

Clause 117 [Power to amend Schedules 2 and 3]:

[Amendment No. 463 not moved.]

Lord Falconer of Thoroton

moved Amendment No. 463A: Page 60, line 6, leave out "103(4) to (6), 104 and 107" and insert "104 and (Section (Foreign travel orders: applications and grounds): qualifying offenders)

On Question, amendment agreed to.

Lord Falconer of Thoroton

moved Amendment No. 463B: Page 60, line 7, leave out ", cautions and punishments" and insert "and cautions

On Question, amendment agreed to.

Lord Falconer of Thoroton

moved Amendment No. 464: Page 60, line 14, leave out "punishment" and insert "disposal

On Question, amendment agreed to.

Clause 117, as amended, agreed to.

Clause 118 [Young offenders: application]

Lord Falconer of Thoroton

moved Amendment No. 465: Page 60, line 42, leave out from "or" to end of line 43 and insert "Article 45 of the Criminal Justice (Children) (Northern Ireland) Order 1998 (S.I. 1998/1504 (N.I. 9)), The noble and learned Lord said: Amendments Nos. 465, 466 and 467 are technical and make the necessary modifications to allow for the proper operation of Part 2 of the Bill in Northern Ireland. Amendments Nos. 492 to 494 and 496 amend Clause 127 which is concerned with the extent of the Bill. They have two consequences. First, they make the changes needed to reflect the extension of the defence under Clause 53 to Northern Ireland. Secondly, they provide that the offence of causing a child under the age of 13 to engage in sexual activity under Clause 8 of the Bill is no longer to extend to Northern Ireland. I beg to move.

On Question, amendment agreed to.

Clause 118, as amended, agreed to.

Lord Falconer of Thoroton

moved Amendment No. 465A: After Clause 118, insert the following new clause— OFFENCES WITH THRESHOLDS (1) This section applies to an offence which in Schedule 2 is listed subject to a condition relating to the way in which the defendant is dealt with in respect of the offence or (where a relevant finding has been made in respect of him) in respect of the finding. (2) For the purposes of this Part (including in particular section 84(6))—

1. (a) a person is to be regarded as convicted of such an offence, or
2. (b) (as the case may be) a relevant finding in relation to such an offence is to be regarded as made,

at the time when the condition is met. (3) In the following subsections, references to a foreign offence are references to an act which—

1. (a) constituted an offence under the law in force in a country outside the United Kingdom ("the relevant foreign law"), and
2. (b) would have constituted an offence to which this section applies (but not an offence, listed in Schedule 2, to which this section does not apply) if it had been done in any part of the United Kingdom.

(4) In relation to a foreign offence, references to the corresponding UK offence are references to the offence (or any offence) to which subsection (3)(b) applies in the case of that foreign offence. (5) For the purposes of this Part, a person is to be regarded as convicted under the relevant foreign law of a foreign offence at the time when he is, in respect of the offence, dealt with under that law in a way equivalent to that mentioned in Schedule 2 as it applies to the corresponding UK offence. (6) Where in the case of any person a court exercising jurisdiction under the relevant foreign law makes in respect of a foreign offence a finding equivalent to a relevant finding, the court's finding is, for the purposes of this Part, to be regarded as made at the time when the person is, in respect of the finding, dealt with under that law in a way equivalent to that mentioned in Schedule 2 as it applies to the corresponding UK offence. (7) Where (by virtue of an order under section 117 or otherwise) an offence is listed in Schedule 3 subject to a condition such as is mentioned in subsection (1), this section applies to that offence as if references to Schedule 2 were references to Schedule 3. (8) In this section, "relevant finding", in relation to an offence, means—

1. (a) a finding that a person is not guilty of the offence by reason of insanity, or
2. (b) a finding that a person is under a disability and did the act charged against him in respect of the offence."

The noble and learned Lord said: I can assure Members of the Committee that the purpose of this amendment is much more straightforward than it looks. Schedule 2 to the Bill lists the offences which trigger the notification requirements of Part 2 of the Bill. For the most serious offences such as rape a conviction or relevant finding under the mental health legislation automatically triggers the requirements. However, some of the offences will trigger registration only if the particular facts of the case are sufficiently serious to merit a specified penalty such as imprisonment. This amendment seeks to clarify that. Where an offence that triggers registration has such a threshold relating to sentence or other disposal, the offender is to be regarded as having been convicted for the offence only when that threshold has been met. The amendment applies only to Part 2 of the Bill. Establishing the date of conviction or finding is important because it triggers the date when the notification requirement of this part of the Bill will start to apply to the offender. For example, under Clause 85 an offender is required to make an initial notification at a police station within three days of the date of his conviction or finding for a relevant offence. In the case of offences with disposal thresholds the notification requirements will apply only where the thresholds are met. That will not be known until the offender is dealt with by the court. That could be some time after being convicted for the offence.

The proposed amendment clarifies that a person should only be treated as having been convicted for a relevant offence if any applicable sentence threshold is met. Similarly, a person is only to be treated as being made subject to a relevant finding under the mental health legislation once any applicable disposal threshold is met; for example, a hospital order is imposed. The notification requirements would therefore apply from the date of a disposal rather than from conviction.

Subsections (3) to (6) of the proposed new clause cover foreign convictions and findings. The effect of those subsections is the same as that on convictions or findings in the United Kingdom, in that the date of conviction or finding will be the date when the relevant disposal thresholds for the offence are met. The offences in Schedule 3 do not currently have sentence thresholds. However, subsection (7) of the new clause extends the provisions of the clause to cover Schedule 3, should thresholds he applied to those offences at some time in the future. The purpose of this amendment is to clarify when offenders become subject to the notification requirements of this part of the Bill. I beg to move.

Lord Skelmersdale

Why is it necessary to specify at the beginning of subsection (2) that the provision includes Section 84(6)? Either it is for the purposes of this part or it is not.

Lord Falconer of Thoroton

Because that provision is particularly relevant. That is a perfectly normal way of drafting.

On Question, amendment agreed to.

Clauses 119 to 121 agreed to.

Clause 122 [Part 2: Northern Ireland]:

Lord Falconer of Thoroton

moved Amendment No. 466: Page 64, line 43, at beginning insert "Subject to subsection (6),

On Question, amendment agreed to.

Lord Falconer of Thoroton

moved Amendment No. 466A: Page 65, line 4, after "(5)" insert ", (Foreign travel orders: appeals)

On Question, amendment agreed to.

Lord Falconer of Thoroton

moved Amendment No. 467: Page 65, line 17, leave out subsection (11).

On Question, amendment agreed to.

Clause 122, as amended, agreed to.

Clauses 123 and 124 agreed to.

Schedule 4 [Minor and consequential amendments]:

Lord Falconer of Thoroton

moved Amendment No. 468: Page 81, line 17, at end insert— "Offences against the Person Act 1861 (c. 100) In the Offences against the Person Act 1861—

1. (a) in section 61, omit the words "either", "or with any animal" and "or an animal";
2. (b) in section 62, omit the words "or an animal".

Criminal Law Amendment Act 1885 (c. 69) In the Criminal Law Amendment Act 1885, omit—

1. (a) in section 2, subsections (2) to (4), and
2. (b) section 11.

Vagrancy Act 1898 ( c. 39) In section 1 of the Vagrancy Act 1898, omit subsections (1)(a), (2) and (3). Criminal Law Amendment Act 1912 (c. 20) In section 7 of the Criminal Law Amendment Act 1912, omit subsections (4) and (5). The noble and learned Lord said: The government amendments in this group relate to several necessary consequential amendments to be included in Schedule 4 as a result of changes to the law on sexual offences in Northern Ireland brought about by this Bill and by the Criminal Justice (Northern Ireland) Order 2003. The amendments attempt to make the law in Northern Ireland more gender neutral.

I am happy to consider the changes sought in Amendment No. 469, along with those in Amendments Nos. 472 and 474. I will return to those issues on Report. I look around the Chamber and I do not see the noble Lord, Lord Beaumont of Whitley. I think that the noble Baroness, Lady Noakes, may be about to say that she will pick up the baton on his behalf. I shall treat her as if she is the noble Lord, Lord Beaumont, for the moment. Does the noble Baroness care to withdraw the amendments?

Amendment No. 470 seeks to remove from the offence of indecent behaviour in the Criminal Justice (Miscellaneous Provisions) Act 1968 any element of sexual activity, as this offence is already gender neutral and used for a wide variety of unacceptable behaviour in public, including homosexual activity in public places. I am not prepared to accept this proposal. I hope that that satisfies the noble Baroness, on behalf of the noble Lord, Lord Beaumont of Whitley.

Baroness Noakes

The noble Lord, Lord Beaumont of Whitley, does not have the staying power of the noble Lords still in the Chamber, and he asked me to speak briefly to the amendments to which my name is added. I am not sure that I quite understood what the Minister said, but he will return to it on Report.

The point that the noble Lord, Lord Beaumont of Whitley, was going to make was that the Bill is an opportunity to go beyond the tinkering in the government amendments. We should take this opportunity to remove some of the archaic elements of Northern Ireland law and introduce proper gender neutrality, especially as Northern Ireland does not have a legislature of its own at present, nor will it have in the foreseeable future. This Parliament must take responsibility for ensuring that it has a modern legal system as regards sexual offences. I look forward to reading what the noble and learned Lord said and to seeing what he will do on Report.

On Question, amendment agreed to.

2 a.m.

[Amendments Nos. 469 and 470 not moved]

Lord Falconer of Thoroton

moved Amendment No. 471: Page 82, line 3, at end insert— "Children and Young Persons Act ( Northern Ireland) 1968 (c. 34 ( N.I. )) In section 21 of the Children and Young Persons Act (Northern Ireland) 1968, omit—

1. (a) in subsection (1), "or the prostitution of.", and
2. (b) in subsection (2), "or the prostitution of," and "or who has become a prostitute,"."

On Question, amendment agreed to.

[Amendment No. 472 not moved.]

Lord Falconer of Thoroton

moved Amendment No. 473: Page 82, line 25, at end insert— "Homosexual Offences ( Northern Ireland) Order 1982 ( S.I. 1982/1536 (N.I. 19)) In the Homosexual Offences (Northern Ireland) Order 1982, omit—

1. (a) Articles 7(2), 8 and 10(2)(a), and
2. (b) paragraphs 3 and 4 of the Schedule."

On Question, amendment agreed to.

[Amendment No. 474 not moved.]

Lord Falconer of Thoroton

moved Amendments Nos. 475 to 477: Page 83, line 9, at end insert "except so far as extending to Northern Ireland Page 84, line 47, at end insert— "Criminal Justice (Children) ( Northern Ireland) Order 1998 (S.I. 1998/1504 ( N.I. 9)) In paragraph 1 of Schedule 1 to the Criminal Justice (Children) (Northern Ireland) Order 1998—

1. (a) omit sub-paragraph (e);
2. (b) in sub-paragraph (j) for "Articles 7 and 8" substitute "Article 7".

Criminal Justice (Northern Ireland) Order 1998 (S.I. 1998/2839 (N.I. 20)) In the Criminal Justice (Northern Ireland) Order 1998, omit Articles 6, 6A, 6B and 7. Page 85, line 17, at end insert "except so far as extending to Scotland

On Question, amendments agreed to.

Schedule 4, as amended, agreed to.

Clause 125 agreed to.

Schedule 5 [Repeals and revocation]:

Lord Falconer of Thoroton

moved Amendment No. 478: Page 86, line 7, at end insert—

"Offences Against the Person Act 1861 (c. 100)	In section 61, the words "either", "or with any animal" and "or an animal".
	In section 62, the words "or an animal".
Criminal Law Amendment Act 1885 (c. 69)	Section 2(2) to (4).
	Section 11.
Vagrancy Act 1898 (c. 39)	Section 1(1)(a), (2) and (3).
Criminal Law Amendment Act 1912 (c. 20)	Section 7(4) and (5)."

The noble and learned Lord said: The amendment and those grouped with it are a series of repeals. In the main, the repeal in the government amendments in this group are consequential on the application of some of the new offences in the Bill to Northern Ireland. I beg to move.

Baroness Noakes

The Minister will be aware that grouped with the amendment are amendments standing in the name of the noble Lord, Lord Beaumont of Whitley, and myself. They cover a slightly different set of repeals. Perhaps the noble and learned Lord will say whether he intends to return to those on Report.

Lord Falconer of Thoroton

This is all part of the same point that the noble Baroness raised earlier; she was saying, "Do not just tinker. Look at the picture more broadly". We accept that certain inequities exist in Northern Ireland, but a fundamental reform of the law on sex offences in Northern Ireland does not form part of the Bill. That will happen after review of the law in that jurisdiction has taken place, and that will be underpinned by an appropriate public consultation in Northern Ireland. That review has already begun and a consultation paper will be published in future.

In the mean time, the Government are anxious to do what they can prior to the review to remove some of the inequalities that currently exist. We are therefore repealing the offence of gross indecency between males under the Criminal Law Amendment Act 1885. That was proposed in an amendment tabled by the noble Lord, Lord Beaumont of Whitley. Further, the Government are willing to explore what can be achieved prior to the review to remove some of the inequalities that currently exist. I have given an undertaking to the noble Lord, Lord Beaumont of Whitley, that I will consider the other changes that he is seeking and return to the issue on Report. In the light of that I ask the noble Baroness not to move the amendments, which she has not yet moved.

On Question, amendment agreed to.

[Amendment No. 479 not moved.]

Lord Falconer of Thoroton

moved Amendment No. 480: Page 86, line 25, at end insert—

"Children and Young Persons Act (Northern Ireland) 1968 (c. 34 (N.I.))

In section 21, in subsection (1) the words "or the prostitution of," and in subsection (2) the words "or the prostitution of," and "or who has become a prostitute,"."

On Question, amendment agreed to.

[Amendment No. 481 not moved.]

Lord Falconer of Thoroton

moved Amendment No. 482: Page 86, line 37, at end insert—

"Homosexual Offences (Northern Ireland) Order 1982 (S.I. 1982/1536 (N.I. 19))	Article 7(2).
	Article 8.
	Article 10(2)(a). In the Schedule, paragraphs 3 and 4."

On Question, amendment agreed to.

[Amendment No. 483 not moved.]

Lord Falconer of Thoroton

moved Amendments Nos. 484 to 488: Page 86, line 39, column 2, at beginning insert— Section 4(2) and (3). Page 86, line 41, column 2, at end insert "except so far as extending to Northern Ireland Page 87, line 11, at end insert— Criminal Justice (Children) In Schedule 1, paragraph 1(e)." (Northern Ireland) Order 1998 (S.I. 1998/1504 (N.I. 9)) Page 87, line 12, column 1, leave out "The Page 87, line 23, column 2, at end insert "except so far as extending to Scotland

On Question, amendments agreed to.

Schedule 5, as amended, agreed to.

Clause 126 agreed to.

Baroness Noakes

moved Amendment No. 489: After Clause 126, 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 this Act. (2) The review shall cover the following matters—

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

1. (b) practical difficulties encountered in interpreting the offences contained in the Act and their related defences;
2. (c) sentencing experience in respect of the offences contained in the Act in comparison with the maximum sentences by the Act;
3. (d) any cases where prosecutions have proceeded in circumstances which were not envisaged when the Act was passed.

(3) A copy of the review shall be laid before both Houses of Parliament. The noble Baroness said: In view of the late hour, I shall give the short version of my instructions for the amendment. I shall save my speech for the Report stage. The amendment introduces an annual reporting requirement covering the matters laid out in subsection (2) of the new clause that I seek to add. I shall not go through those details. They pick up on many of the issues we have discussed during the passage of the Bill. They are matters of concern in the existing law and of the way in which the law is emerging in the Bill. The principles behind the amendment are soundly based. I hope that the Government will be prepared to look kindly on it. However, for the sake of brevity today I am prepared to leave my remarks at that. I beg to move.

Lord Skelmersdale

My noble friend Lady Noakes will know as well as I do that governments bitterly resist this kind of amendment. However, in this case—and she may like to consider this before Report—one of the reasons for the Bill is that under the current law conviction rates for various sexual offences are abysmal. We have been talking about that for days and days, if not weeks and weeks. That is a very good reason why Parliament should know whether the Act—as it will become—is or is not working.

Lord Falconer of Thoroton

This is a major piece of legislation. We are very keen to monitor its implementation in order to ensure that it achieves better protection for the general public, and particularly for children and the vulnerable. Apart from that monitoring, it is also important to monitor whether it has been implemented in a nondiscriminatory manner. That will require a proper evaluation of its impact and not just the monitoring of statistics. We will ensure that that takes place.

The amendment proposes a statutory obligation. We believe that the Act must be fully operational before its success can be tested in any meaningful way. The scale and focus of any research would then need to be determined by statistics that have been produced, any feedback that may have been received during the bedding-in period and the resources available at that point in time.

I draw attention to the sentencing guidelines council which is being set up under the Criminal Justice Bill. We hope that the council will be in place by the time the Bill is in force and providing relevant new sentencing guidelines. The council must keep those sentencing guidelines under review. We have every intention of ensuring that this new legislation works in practice. We will be anxious to address any shortcomings that might possibly be identified. However, how we carry out any future research monitoring will be a matter of procedure, on which at this stage I do not think it is appropriate for us to draw.

I question whether it is necessary for this Bill to be singled out for special mention in the way that the noble Baroness proposes. But, as is clear from what I have said, I entirely agree that monitoring the legislation's implementation, how it is working, whether it is working and the form in which it is working, is very important. That was the shortened version of the reply.

Baroness Noakes

I shall confine my remarks to saying that I was heartened by the noble and learned Lord's response. I did not expect him to accept the amendment lock, stock and barrel at this stage. I look forward to discussing it again with him on Report. Meanwhile, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 127 [Extent, saving etc.]:

[Amendments Nos. 490 and 491 not moved.]

Lord Falconer of Thoroton

moved Amendments Nos. 492 to 494: Page 66, line 10, leave out paragraph (a). Page 66, line 11, leave out "8, Page 66, line 11, leave out "54" and insert "53

On Question, amendments agreed to.

[Amendment No. 495 had been withdrawn from the Marshalled List.]

Lord Falconer of Thoroton

moved Amendment No. 496: Page 66, line 13, leave out paragraphs (d) to (f) and insert "and ( ) this Part.

On Question, amendment agreed to.

[Amendment No. 497 not moved.]

Clause 127, as amended, agreed to.

Clause 128 agreed to.

House resumed: Bill reported with amendments.

House adjourned at eleven minutes past two o'clock.