Sitting of 13 February 2003

Preamble
The House met at eleven of the clock: The CHAIRMAN OF COMMITTEES on the Woolsack.
Prayers—Read by the Lord Bishop of Lichfield.

Sexual Offences Bill [H.L.]
The Minister of State, Home Office (Lord Falconer of Thoroton): My Lords, I beg to move that this Bill be now read a second time.
Sexual crime, and the fear of sexual crime, has a profound and damaging effect on the lives of individuals and communities. A responsibility rests on the Government adequately to protect everyone in society from such crimes, especially those who are most vulnerable to abuse: children and persons with a mental disorder or learning disability. We believe that the new framework of sexual offences, notification requirements and orders provided for in this Bill will give just such protection.
A responsibility also rests on the Government to ensure that the criminal justice system delivers justice. At the moment, only a fraction of sex offences recorded by the police end with a guilty conviction. Too often when the offence has been committed, the victim does not get justice. We are addressing this by improving the investigation of rape cases, enhancing the quality of case preparation and presentation at court and improving the treatment of victims and witnesses in cases involving allegations of rape and other sexual assault.
However the criminal law also plays a vital part. Our proposals in this Bill will provide a clearer legal framework for juries as they decide on the facts in each case.
The law on sexual offences, as it stands, is archaic, incoherent and discriminatory. Much of it is contained in an Act dating from 1956, and most of that was simply a consolidation of 19th century law. It reflects neither the changes in society and social attitudes which have occurred since then, nor our increased knowledge of the profound and long-lasting effects of sexual abuse. The Bill provides for new offences that set out clearly what is unacceptable sexual behaviour, together with appropriate penalties. Our proposals are the product of two major reviews, which both received extensive consultation.
Part 1 sets out a new framework of sexual offences. Part 2 deals with notification requirements and orders designed to prevent sex offending and other sexually harmful behaviour. Part 3 contains general provisions.
Clauses 1, 3, 5 and 7 provide for the non-consensual sex offences of rape, assault by penetration, sexual assault and causing a person to engage in sexual activity without consent. They should be read together with Clauses 77 to 81.
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Issues surrounding consent are central to establishing whether a sexual offence has taken place. It is therefore vital that the law is crystal clear about what consent means and what steps need to be taken to establish that it has been given in any particular case.
Under existing law, where a defendant is found to have an honest belief in the consent of the complainant, then even if such a belief is unreasonable, he must be found not guilty. We believe that that is wrong and must be corrected.
We will introduce into the law on consent a test of reasonableness. Where the prosecution can establish that sexual activity has taken place, that the other person did not consent to it and that a reasonable person would, in all the circumstances, have doubted whether the complainant consented, if the defendant did not act in a way that a reasonable person would consider sufficient to resolve that doubt, the offence will be made out. All this will be for the prosecution to prove. The defendant remains innocent until proved guilty beyond reasonable doubt.
We also believe that the law should set out a list of circumstances in which various presumptions will be made as to the complainant's consent and the defendant's belief in consent. This is done in Clause 78. These are circumstances in which it is most unlikely that consent was freely given, such as where the complainant was unconscious or asleep. Should the prosecution prove that sexual activity took place in one of these circumstances and that the defendant knew that the circumstances existed, there will be a presumption that the complainant did not consent, and that the defendant did not believe that the other party consented to the sexual activity. Both of these presumptions may be rebutted by the defendant.
We have had several useful discussions about this proposal with the noble Lord, Lord Thomas of Gresford, and others. They have raised particular points about the workability of the clause. I do not in any way suggest that that is the only point that the noble Lord, Lord Thomas of Gresford, has raised, but we have had particularly useful discussions with him on that. I assure your Lordships that we will very carefully consider all the points that have been made about the workability of that clause. That does not mean that we will not think about other issues as well, but it is worth referring particularly to that point.
We propose a package of measures to give children the greatest possible protection under the law from sexual abuse. We believe there is an age below which there should be no question as to whether a child consented to sexual activity. We want to stop the traumatic practice of young children being cross-examined about whether they consented to sexual activity before a conviction can be secured. Clauses 2, 4, 6 and 8 provide for a number of offences specifically designed to protect children under 13. In these offences, proving that the act took place will be enough to convict the defendant. Clause 76 provides that if the elements of one of these offences are proved, the defendant can be convicted only of that offence. No alternative verdict

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will be possible. Questions have been raised about whether our drafting has achieved that. We shall of course consider that issue.
Clauses 9 to 16 deal with the child sex offences that involve ostensibly consensual sexual activity with children aged 13 to 15. We have been very careful to ensure that the law covers all the sexual activity we want criminalised. We have, for example, plugged the loophole discovered last year where a man persuaded two children to strip naked in front of him without committing an offence. These offences will criminalise both direct physical sexual activity and activity where no contact is made, such as forcing a child to watch a sexual act. Where no physical contact takes place, the maximum penalty available will be 10 years' imprisonment. The most serious behaviour involving direct physical contact will carry a maximum penalty of 14 years' imprisonment.
The Internet has opened up new possibilities for children both for learning and leisure. However, we need to ensure that we tackle those who want to use it to take advantage of the innocence of children. Following the recommendations of the Task Force on Child Protection on the Internet, we are creating a new offence to tackle the grooming of children both on-and off-line. The offence of meeting a child following sexual grooming and so on in Clause 17 will catch adults who undertake a course of conduct with a child leading to a meeting where the adult intends to sexually abuse that child either at that meeting or on a subsequent occasion.
This offence is complemented by a new risk of sexual harm order, provided for in Clauses 110 to 115, which will be used to prevent harm to children from sexually explicit communication or conduct where the adult has already engaged in such behaviour towards a child. This order could be used, for example, to stop an adult sending a child adult pornography or indecent text messages by mobile phone.
Clauses 18 to 27 re-enact, amend and extend the offence of abuse of a position of trust. The clauses make it an offence for a person aged over 18 to involve a child under that age in sexual activity where he is in a specified position of trust in relation to that child, for example where an adult looks after a child in a children's home.
Most child abuse takes place in the home. The balance of power within the family, and the close and trusting relationships that exist, make children particularly vulnerable within its environment. We must do all we can to prevent children being abused by those who are supposed to love and care for them. The offence of sexual activity with a child family member dealt with in Clauses 28 to 32 recognises that the modern family unit is often complex. We have therefore defined family relationships to take into account situations where someone is living within the same household as a child and assuming a position of trust or authority over that child, as well as relationships defined by blood ties, adoption, fostering, marriage or "common law" partnerships.
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Children are not the only members of our society who are particularly vulnerable to sexual abuse. The sex offences review heard very disturbing evidence about the extent and nature of the sexual abuse of people with a mental disorder or learning disability. Existing legislation has offered inadequate redress when such people are sexually abused. It is essential the Bill remedies this, while recognising the rights of people with disabilities to a full life, including a sexual life. To this end we are creating three new categories of offences to protect people with a mental disorder or learning disability.
Clauses 33 to 51 create three new categories of offences to protect persons with a mental disorder or learning disability. The first prohibits involving a person in sexual activity where that person, by reason of mental disorder or learning disability, is unable to refuse. Someone is unable to refuse if he or she,
"lacks the capacity to choose whether to agree to the touching (whether because he lacks sufficient understanding of the nature or possible consequences of what is being done, or for any other reason), or he is unable to communicate such a choice to A".
The second category of offences criminalises involving a person with a mental disorder or learning disability in sexual activity by inducement, threat or deception. These offences recognise the fact that although such a person may be quite capable of giving his or her consent to sexual activity, he or she may none the less be vulnerable to relatively low levels of inducement, threat or deception.
The third category of offences of breach of a relationship of care criminalises those providing certain kinds of care who engage in ostensibly consensual sexual activity with those receiving it. This is necessary to protect a person with a mental disorder or learning disability who has the capacity to consent but may be particularly vulnerable to exploitative behaviour and thus may agree to sexual activity solely because they are influenced by their dependency on their carer.
I take this opportunity to acknowledge all the work that the noble Lord, Lord Rix, has done on behalf of people with a mental disorder or learning disability. The noble Lord, Lord Rix, put before this House last year a Bill to extend the protection offered by the law to vulnerable people. At the time I indicated that the Government intended to bring forward similar proposals as part of a wider package of reforms. I hope that the noble Lord, Lord Rix, feels that we have done his proposals justice. The House pays tribute to the extent to which the noble Lord has campaigned on these issues over the years.
The sexual exploitation of individuals is often organised for financial gain. Sexual exploitation in all its forms is despicable, but the commercial sexual exploitation of children is particularly abhorrent. This Bill brings more coherence and higher penalties to the criminal law surrounding prostitution, child pornography and trafficking. This is covered in Clauses 52 to 64. Paying for sexual intercourse with a child under 13 will carry a maximum penalty of life imprisonment; trafficking within the United Kingdom

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will, for the first time, be made a specific offence; and offences relating to child pornography will be extended to protect children up to the age of 18.
Clauses 70 to 74 provide for a number of offences: indecent exposure, voyeurism, intercourse with an animal, sexual penetration of a corpse and sexual activity in public. When the Bill was published, there was some confusion about the last of these; namely, sexual activity in public. We shall therefore look at the drafting of this offence again during the Committee stage of the Bill to make sure we get it completely right. 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, while recognising that what consenting adults do away from the eyes of others is not a matter for the criminal law.
The sexual offences that I have outlined today are sensible, consistent and balanced. We have dragged the law on sexual offences into the 21st century, in a way which will treat everyone in society equally. The discriminatory offences of buggery and gross indecency, which criminalise consensual sexual activity in private between men that would not be illegal between heterosexuals or between women, will be repealed at last.
Having in place a framework of offences that protects the public and enables abusers to be properly punished is only half the story. Equally important is the management of sex offenders in the community. That is dealt with in Part 2 of the Bill. Clauses 82 to 94 re-enact with amendments Part I of the Sex Offenders Act 1997, which established the obligation on a sex offender to notify their name and address and any changes to those details with the police. That process is commonly known as registration. Having the information is invaluable to the police in two ways. First, it helps the police monitor sex offenders living in the community. Secondly, it helps in the detection of sexual crime, as the police will immediately know of the whereabouts of any number of potential suspects.
The most important changes to the notification requirements are: reducing the period within which a sex offender must notify the police of a change of details from 14 to three days; reducing the amount of time that a sex offender can spend at an address other than his home address before having to notify that address from 14 to seven days; making all those on the register confirm their details on an annual basis, as at present there is no requirement for them to do so; giving the police the power to check the fingerprints and take a photograph of a sex offender each time a notification is made, not just on his initial notification; and requiring sex offenders to provide their national insurance number when making a notification.
However, the current requirements apply only to those convicted of offences in the United Kingdom. It is important that we can keep track of all known sex offenders who are in this country, whether they have been convicted of an offence here or abroad. We are therefore introducing a new notification order to
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make those convicted of sex offences abroad, whether they are British citizens or foreign nationals, subject to the same notification requirements if they come to the United Kingdom.
Additional protection will be offered by sexual offences prevention orders in Clauses 103 to 109, which combine existing sex offender orders and restraining orders, and will allow for whatever prohibitions on an offender are necessary to protect the public. For example, an offender could be prohibited from entering children's playgrounds or visiting swimming baths. Those orders will be available in respect of persons convicted of violent offences and who present a sexual risk, as well as those convicted of sexual offences. Breach of one of those orders will be punishable by a maximum penalty of five years imprisonment.
Protecting the public from sexual crime is a priority for the Government. We hope that the Bill demonstrates how committed we are to it. I commend the Bill to the House.
Moved, That the Bill be now read a second time.—(Lord Falconer of Thoroton.)
11.23 a.m.
Baroness Noakes: My Lords, first, I should like to thank the Minister for the comprehensive way in which he has introduced the Bill. I am sure that I speak for all noble Lords when say that updating the law on sexual offences is a matter of the highest priority.
We on these Benches gave our broad support for the thrust of the Bill last November, when the Minister repeated a Statement made in another place. My noble friend Lady Anelay of St Johns said then,
"in general … it appears to have struck a sensible balance in dealing with questions that arc, by any standards, difficult".—[Official Report, 19/11/02; col. 288.]
I reiterate that support, including support for the use of gender neutrality in the Bill, and pledge that the Opposition will work constructively to ensure that the Bill leaves this House for another place in the best possible shape.
Our only real regret is the length of time that it has taken for the Bill to reach this point. It was in January 1999, more than four years ago, that the then Home Secretary announced a wide-ranging review of the law relating to sex offences. The result of that review was Setting the Boundaries, issued in April 2000. So frustrated were the mental disability charities at the lack of action that the noble Lord, Lord Rix, was moved to introduce his own Sexual Offences (Amendment) Bill last autumn. I look forward to his speech later today. In the event, the Government finally produced their own proposals and, two weeks ago, published their Bill.
We must put that history behind us, because the important task before us is to debate the Bill and then to move efficiently through the important Committee and other stages in its passage. The Bill, while thoroughly laudable in its aims, raises important issues

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of both principle and detail, which I know that noble Lords will want to address before we can pronounce ourselves content to send the Bill to another place.
The Bill is large, and covers so many aspects of sexual offending that I cannot possibly deal with them all. My noble friend Lord Astor of Hever will cover in particular the clauses that deal with mental disorder and learning disability. I simply say at this stage that I am glad that we are to drop the offensive and inaccurate term "defective" from our statutes. My noble friend Lady Blatch will be speaking about children and the abuse of trust provisions. Those are both areas in which many noble Lords have a deep and genuine interest.
I would like to cover four themes today: the effectiveness of the Bill, its internal consistency, whether too much is criminalised by the Bill and, last but not least, whether the Bill is validated by the views of the public. We will want to examine very carefully whether the changes to the law made by the Bill will be effective in two ways: first, whether it achieves desired outcomes and, secondly, whether it avoids undesirable outcomes.
Let me start with the definition of rape and the other major offences of assault by penetration and sexual assault. There are generally agreed to be problems with the law of rape given the conviction rates, which have been falling to levels that many believe are unacceptable. The finger has been pointed at the law in relation to consent and the Bill seeks to address that inter alia by the rebuttable presumptions in Clause 78.
The Government clearly hope that that will lead to greater conviction rates but, as the Minister intimated, doubts have been raised as to whether it will do that. Clause 78 not only states the blindingly obvious—for example, that a person who is asleep cannot consent—but perhaps more importantly treats the evidence of the complainant in a complex way that may be difficult for jurors to understand. There is a big question mark over how effective the Bill will be in that area. I was glad to hear the Minister say that he will look again at workability. Of course, we shall look at those areas in detail in Committee.
I hope that the Government will also be prepared to monitor closely the effect of the Bill on conviction rates in particular. Will the Minister say something today about how the Government intend to monitor the Bill after it becomes law, with particular reference to its effect on remedying what many see as the big problem of the low levels of conviction'?
There are also concerns about the other aspect of effectiveness, which is avoiding unintended consequences. Let me take the so-called sexual grooming offence in Clause 17; I say so-called because the offence as described in Clause 17 does not include any sexual grooming as such. The offence starts with a person meeting, or travelling with the intention of meeting, a child under 16, having communicated with the child at least twice. Meeting and communicating with a child are not criminal acts. Almost all meetings and communications with children are wholly innocent. There is no requirement in the Bill for the communications to be sexual in nature or
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otherwise to prepare the child for a sexual encounter. The offence will hinge on whether the person's intent towards the child includes a sexual offence and will therefore create—to use Liberty's expression—what is effectively a "thought crime".
We support the creation of a sexual grooming offence provided that it is just that and not a legal abyss into which innocent fools are sucked. I hope that the Minister will say how and when the Government will monitor the effectiveness of the clause in catching those with paedophile intentions. I am sure that I do not need to remind the Minister that the merest hint of a paedophile can unleash the most frightening mob violence. In whatever form the clause becomes law, it is important to ensure that it is properly monitored.
I shall deal briefly with my second theme of consistency. The Bill contains a range of offences relating to adults, to children of various ages and to those suffering from a mental disorder or a learning difficulty. It is not self-evident to me that the penalties prescribed by the Bill are internally consistent; for example, under Clause 11 there is an offence of inciting a child to engage in sexual activity which carries a possible term of up to 14 years' imprisonment whereas the corresponding offence in relation to a person with a mental disorder or a learning difficulty carries a life sentence. I shall take a lot of persuading of the logic of that and that is not the only example. We shall look carefully at how consistently the Bill approaches the same offence involving different victims.
My third theme is over-criminalisation. That is a very real issue because several of the offences as drafted will potentially criminalise activity that many people believe should not be so treated. One example is sex between young people. Whether we like it or not, teenagers experiment with sex on an entirely consensual basis. It will be an offence, subject to up to 14 years in prison, for an 18 year-old to have consensual sex—or even consensual heavy petting—with a 15 year-old; and if two 15 year-olds are involved there could be a sentence of up to five years. Another example involves sex between two individuals with a mental disorder or a learning disability. I am sure that we all believe that such individuals have as much right to a private sexual life as anyone else. Clause 33 could well criminalise that activity and punish it with a life sentence.
The Government recognise, I believe, that in the circumstances that I have described it would not be in the public interest to prosecute unless there were some other aspect of exploitation or abuse. But, if the Bill as drafted becomes law, its effect on the lives of individuals will be in the hands of the Crown Prosecution Service and the police. I am sure that we shall want to reflect on that during our consideration of the Bill, but for today I hope that the Minister will say something about how in practice the law will be applied and why narrower drafting is not appropriate.
My last theme is whether the Bill passes the acid test of meeting the legitimate concerns of the public about the protection that the law should provide. I refer to the new offence of sexual activity in public as set out in

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Clause 74. It legitimises what is known as "cottaging"; that is sex between homosexuals in a public lavatory provided that it is in a cubicle and hence not seen. Mr Hilary Benn, a Minister in the Home Office, has been widely reported as confirming that.
I believe that ordinary people are as outraged by hearing such sexual activity in public lavatories as they are by seeing it. In particular parents do not believe that their children should be exposed to such behaviour. For the record, I believe that exactly the same principles apply to heterosexual sex or to sex between two women.
The Minister may well say that the existing offence of outraging public decency remains. But the plain fact is that the Government's drafting of Clause 74 will be regarded as giving the definition, by exception, of acceptable behaviour. I was glad to hear the Minister say that he is prepared to reconsider that. Also Clause 74 allows sexual activity in a dwelling house with the windows wide open, lights on and so on, but prohibits the same activity in a private garden. I can see a whole new dimension to disputes between neighbours opening up. The balance in Clause 74 is not right and we shall have to return to the matter in Committee.
I conclude by repeating that on these Benches we pledge to work constructively during the Bill's passage to achieve the right balance between safeguarding the public and protecting the rights of individuals. We rightly pride ourselves on being a revising Chamber. So many important Bills receive little scrutiny nowadays in another place that the responsibilities on your Lordship's House are great and even more so when a Bill starts here. On these Benches we look forward to the task.
11.35 a.m.
Lord Thomas of Gresford: My Lords, it is important to set out a principle at the beginning: that sex between two consenting adults and, in our culture, in private is a healthy, life-enhancing, pleasurable activity. That should be recognised as in my view a great amount of deviant behaviour takes place because it is not recognised due to guilt, inadequacy and immaturity.
What is the role of the Government in approaching sex offences? It certainly is not to try to uphold an outdated view of morality. The criminal law should not be used to perpetuate values that no longer accord with contemporary standards. The argument about same-sex relationships is dead. I am pleased that that is made clear in the Bill.
The criminal law is a tool to protect the weak and to punish the wicked. The Bill is about defining precisely the circumstances in which it should be used. I also commend and congratulate the Minister on his introduction. There is no ideological difference between the government Benches and these Benches on the thought that has gone into the Bill. However, I am concerned about the new offence of rape as defined in the Bill. I am not happy that the term "rape" is maintained. Other rather antiquated words such as "bestiality", "incest", and "buggery" have all disappeared and modern language has been used. "Rape" is an emotive word but it has been retained.
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There is proper concern that only seven per cent of complaints made to the police about rape result in convictions. To some degree governments are fuelled by a belief that that is due to the defence of honest but unreasonable belief that was permitted in the case of Morgan some years ago. I disagree that that defence is why the acquittal rate is so low. In my view, peculiarly in rape cases, there are false accusations. Few people go to a police station to complain about a burglary to their homes that has not happened or a punch in the face that has not happened. But the experience of the courts is that false accusations are frequently made for various reasons that I need not go into.
I also believe that many perfectly proper accusations are withdrawn. Supposing two people who have lived together for some time, either married or as partners, fall out; the wife decides to sleep in a separate bedroom; she falls asleep and the husband gets into bed with her and attempts to have a reconciliation by trying to have sex with her or has sex with her when she is asleep. Under the terms of the Bill, that would be rape.
The woman, feeling very wronged, goes to the police station and makes a complaint. These days, she is treated very sympathetically. She is shown the rape suite, where she has to undergo various unpleasant experiences of medical examination and close questioning as to her allegations. She will then be visited by the rape support or victim support people, who will be very sympathetic and tell her that her partner or husband will get five years' imprisonment. That is the starting point for sentencing in a rape case. When she knows that and realises that the person with whom she has been living for a considerable period of time will lose his home, his job, his career and his name, that his home will be broken up and he will spend many years in prison, the rape allegation is swiftly withdrawn. That is because of the way in which we use the emotive word "rape" and attach to it a high level of sentencing.
A further reason for the low rate of convictions is that it is often one person's word against another. The burden is on the prosecution to prove that the defendant has no honest belief in consent. The prosecution has to satisfy that to the highest degree, and it may well be that a jury cannot be sure in the circumstances that are placed before them.
How should we approach the matter—and how does the Bill approach it? There are two ways in which to approach criminal liability. First, there is the subjective approach, which punishes the evil intent of a person—what he had in mind when he did the act that is punishable by law. The subjective approach is the one adopted in more serious cases. Secondly, there is the objective approach. The law can draw a line in the sand and say that it does not matter what the defendant was thinking and that if he crosses that line he has committed an offence.
The best example of the objective approach is speeding, which is very much in the news at the moment. The law says that one must not drive at more than 30 miles per hour, and if one goes faster than that

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what one has in one's mind—one's intent—is neither here nor there, because one has broken the norm that the law draws. However, there are problems when a tribunal of fact—magistrates or a jury—is asked to draw an objective line in a particular case. It may have to ask what a reasonable man would have done in the circumstances in which the defendant finds himself. Applying that to the offence of rape, the Bill raises a question: what belief would the reasonable man have had in all the circumstances as to the consent of the complainant? As soon as the objective test is introduced into a serious crime, difficulties begin to arise.
The review, Setting the Boundaries, which the Home Secretary set up in 1999 and which reported in April 2000, was divided as to which approach should be adopted in considering rape. It asked whether a subjective approach should be adopted—whether we should take into account what the defendant had in mind—or an objective approach, which would say that, whatever the defendant had in mind, a woman had been raped and had suffered. She had the hurt, and he would be punished for it, even if he did not realise what he was doing.
The review pointed out that the United States takes one view—the objective approach—and that Australia takes a subjective approach. New Zealand has found a way in between; it is what is called the subjective and objective test, which means that a defendant may hold a subjective, honest belief in the complainant's consent, but that belief is subject to a test of reasonableness.
The Bill introduces an objective test into rape. There is only one other serious criminal offence for which there is such an objective approach. It arises from a case called Caldwell, in 1982, in which I regret to say that I failed to persuade their Lordships that a subjective approach should be maintained in a charge of criminal damage. The prosecution has to show merely that a defendant failed to put his mind to a risk that would have been obvious to the reasonable man. That is highly controversial. My son telephoned me from Cambridge, where he was reading law in the late 1980s, and said, "Dad, what on earth did they discuss in lectures in criminal law before you lost that Caldwell case?" That is the only serious offence in which an objective approach is followed in British law.
On the other hand, reasonableness is a concept used in connection with common law and statutory defences. However, there is a subjective element. For example, there is a defence of reasonable self-defence, reasonable defence of property, reasonable defence of other people, and the statutory defence under the Criminal Law Act 1967 of using reasonable force to prevent a criminal offence from taking place.
The subjective element involved arises from the well-known dictum of Lord Morris of Borth-y-Gest in a case called Palmer. He said that,
"it will be recognised that a person defending himself cannot weigh to a nicety the exact measure of his necessary defensive action".
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He went on to explain that a jury's ability to take into account what the person in that particular situation thought was reasonable was an important element in reasonable self-defence. That approach was described by Lord Justice Ormrod, in a case called Shannon, as,
"a bridge between what is sometimes referred to as 'the objective test', that is what is reasonable judged from the viewpoint of an outsider looking at a situation quite dispassionately, and 'the subjective test', that is the viewpoint of the accused himself with the intellectual capabilities of which he may in fact be possessed and with all the emotional strains and stresses to which at the moment he may be subjected".
In those offences, what is reasonable is considered in the context of a defence and not as proof of an essential or core element of the offence. I apologise if the argument is getting a little technical, but I am trying to convey to your Lordships that the new definition of rape introduces an objective element that is almost unknown in criminal law.
Provocation is another instance where, in defence to a murder charge, the reaction of the defendant is compared to the reaction of reasonable man. That has given rise to all sorts of problems of definition. The Privy Council held one way, four to one, as to what "a reasonable man" meant. The House of Lords held three to two in the other direction—and the three who agreed did so for different reasons.
Under the Bill, criminal responsibility for rape attaches to the defendant if he intentionally has sexual intercourse with the complainant without her consent and either, subjectively, does not believe that she consents or, objectively, in circumstances in which a reasonable man would have doubted whether the complainant was consenting, does not act in a way a reasonable man,
"would consider sufficient … to resolve such doubt".
As to subjective lack of belief, it suffices that the defendant has given no thought as to whether the complainant consents. As to the objective belief, once one introduces the concept that it is sufficient, not that the defendant thought that she was consenting but that a reasonable man would have had a doubt about it, the defendant is liable to be convicted and sentenced to life imprisonment on the jury's assessment, not of his actual state of mind and actions, but of the hypothetical state of mind and actions of a hypothetical person.
No doubt the courts can, as they have with provocation, redefine what is a reasonable man; whether that reasonable person should have the same age, sex and characteristics of the defendant in the specific instance. But it is unfortunate that this new concept should be brought in, and brought in by rebuttable and irrebuttable presumptions.
I shall not weary noble Lords by talking about presumptions. Suffice it to say that the review which published the report Setting the Boundaries considered whether there should be presumptions in a rape trial and decided that there should not. Yet, the Government have brought in presumptions.
I have attempted to draw up a specimen direction in order to illustrate my points. I shared it with the noble and learned Lord and then redrafted it in the light of

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our conversation the other day. If one tried to sum up the law to a jury on the basis of this complex Bill it could not possibly understand it and inevitably injustice would follow. The Government should be examining—I hope we can explore this area during the progress of the Bill through the House—a simple solution, following the New Zealand approach, so that rape is the act of intercourse with lack of consent by the complainant. The persuasive burden of proof should then pass to the defendant who must prove that he had an honest and reasonable belief that she was consenting. That is simple and understandable. It does not involve bringing in presumptions or other difficult legal concepts which, from my experience, a jury has no chance of understanding.
I apologise for speaking for so long about the matter, but I think that a great deal of work must be done on the concept.
There are many other issues in the Bill. I could be here for well over an hour in discussing them. I am concerned about the learning disability or mental disorder provisions, which increase from two years to life the sentence for intercourse with someone suffering from those disabilities. That effectively means that a person suffering from those disorders is denied the pleasurable activity of sex for the whole of his or her life.
I am also very concerned about sexual activity in public. It strikes me as being ridiculous that intercourse in a public toilet with the door shut is okay, but in the open air on a mountainside apparently it is not. Having regard to the right to roam, which the Government have introduced, there are few of us who could examine our consciences and say that we have not committed that offence at some time in our lives.
My noble friends who are to speak after me will cover other aspects of the Bill. We give it a qualified welcome. We shall work very hard to try to make it practical and workable with a view to ensuring that deviant sex is properly punished and that those who inflict it on others are taken out of public circulation.
11.54 a.m.
Baroness Gould of Potternewton: My Lords, it is encouraging that the Bill has been widely welcomed by the organisations that work with children and deal with matters of rape and sex offences. Sex offences are dreadful crimes that deeply affect the lives not just of the victims and their families. They can create fear in whole communities. While these are difficult and sensitive issues on which to legislate, society has to be clear about what is acceptable behaviour. There must be a clear understanding of the penalties that will be imposed if the standards are breached. Only then will the public feel confident that they are adequately protected.
All too often we hear asked: cannot more be done? The Bill attempts to answer that question. I am sure the Minister will agree that it is not perfect in all its detail, but it is a serious and significant Bill and should be treated as such. That is why I have been amazed and angered by the trivial way it has been treated by some
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sections of the media. An article in the Observer on 2nd February said the Bill read like a charter for people who like to lock up other people and that the hard core of the Bill itself comes from a noisy lobby alarmed by the current rate of rape convictions.
The Daily Telegraph on 31st January referred to the Bill in its entirety as a fantastically silly measure. The following day it referred to it as not righting any obvious injustices. It is a pity that those who write such comments, seemingly with authority, do not believe that it is right to provide protection for the vulnerable, both adults and children, and to protect children from sexual exploitation, from prostitution, and from rape, a quarter of all rape victims being children.
The Bill is large, as the noble Baroness, Lady Noakes, said. It covers many areas, on which I am sure we should all like to talk. I wish to concentrate my remarks on two key issues; namely, a number of the provisions which seek to protect children and the question of rape. Rape is a crime,
"physically performed by a man".
It is an offence carried out by men, mainly against women and girls and to a lesser extent by men against other men and boys.
One of the Bill's most controversial issues, as the noble Lord, Lord Thomas of Gresford, said, is the proposal to introduce a two-stage objective test of reasonableness. If that shifts the focus of rape trials back to the legality of the defendant's conduct, it must be right. The existing law, where a defendant must be acquitted if he honestly believes the complainant consented even if that belief is unreasonable, cannot be right and must be a deterrent to victims taking the perpetrator to court.
The noble Lord, Lord Thomas of Gresford, is right: we must protect those who are wrongly accused. We must get the balance right. No-one should be convicted who genuinely and reasonably believes that consent was given. However, I found some of his remarks more than a little disconcerting. As someone who has spent many years fighting for the introduction of the offence of rape within marriage and for better treatment of women in rape cases, I was a little disturbed by some of his comments. I am sure that we shall have further discussions in Committee.
I firmly believe that the introduction of reasonableness will add greater clarity to the law on consent and will send out a strong signal that sexual intercourse and sexual activity must be consensual; that assumptions will not do. At last it will be possible to challenge myths such as,
"women say no but they really mean yes",
and,
"men have a point of no return".
Those beliefs currently underpin the law.
The evidence shows that many women who have been raped have little confidence in the present system of justice. That is hardly surprising when, as we have heard, the attrition rate continues to fall and convictions are now at an all-time low of 7 per cent. It is true that there has been a change in the nature of reported rape cases. That has encouraged some to

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argue that a lower sentence for date rape would increase the number of convictions because juries might be more inclined to convict. But I believe the Government are right not to make that distinction.
Men must not be able to rape with impunity women and men with whom they have previously had sexual relations. Accepting a lift home believing it to be the safest way to get home, or being invited in for coffee, is not consent or an invitation to sexual activity. The focus in a rape trial must be the legality of the conduct of the defendant, not the propriety of the complainant's actions.
Rape is rape. In some ways it is worse when it is committed by a man one knows and trusts. There are no logical grounds for creating a lesser offence for date rape. The use of drugs in order to commit rape can only be described as despicable. The Bill is right to increase the penalty for drug-related rape to 10 years. While the list of presumptive circumstances is welcome, can my noble and learned friend the Minister clarify why that is a definitive, not a non-exhaustive, list allowing the courts to develop common law when different circumstances apply?
All sex crimes are abhorrent, none more so than when committed against children. Clauses 2, 4, 6 and 8 send a clear message that men who willingly engage in sexual activity with a child under 13 are committing a serious criminal offence attracting a life sentence. No longer will men be able to claim that sex with children under 13 was consensual, such children being deemed incapable of giving legally significant consent.
Concerns have been raised and further clarification is sought about clauses that make it an offence for children to have consensual sex between the ages of 13 and 15. While we might feel anxious about teenagers' sexual development, it is a fact of life that young adolescents will engage in sexual behaviour. From a study published in The Lancet in 2001, of more than 11,000 men and women interviewed 30 per cent of men and 26 per cent of women reported having had heterosexual intercourse before the age of 16. While it may not be desirable for young people to engage in sexual activity until after 16, the reality is that the average age of first sexual experience is 14 for girls and 13 for boys. Although in those circumstances prosecution is unlikely, is it right to criminalise what are innocent consensual relationships rather than addressing the issues through the child protection system?
An NSPCC report in 2000 identified that between 25 and 40 per cent of all sexual assaults on children are perpetrated by juveniles. Clause 14 introduces a new offence designed to protect children from abusive behaviour by other young people as well as adults. While I appreciate that there has to be a criminal offence to deal with young people who commit serious sexual offences, will my noble and learned friend the Minister consider that the Bill provides the opportunity to introduce a strategic approach to children and young people who display signs of sexually harmful behaviour by ensuring the co-ordination of assessment, referral and treatment
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services and the provision of counselling services? It is important that children who sexually abuse must be treated as children first and foremost.
Clause 15, which creates the offence of arranging or facilitating the commission of a sex offence, is causing concern among those who give contraceptives and sexual health advice to young teens. I declare an interest as president of the FPA, which provides such help and advice. The UK already has an unacceptably high level of teenage pregnancy among girls under 16. There is an urgent need for realistic education to avoid the spread of AIDS and sexually transmitted diseases. We must not deter young people from seeking help or professionals from providing it.
I understand that the Gillick principle of being able to give advice in the best interests of the child will apply but the organisations concerned need further reassurance. It must be recognised that organisations that give help, advice, treatment and support to children and young people in matters of sexual health should not be regarded as aiding and abetting a criminal offence.
Sex offenders have always found ways of gaining the trust and confidence of children, all too often to sexually abuse them at a later date. Deceit is their stock in trade. New technology provides greater scope for grooming and befriending children for their own sexual purposes, whether it be through an Internet chat room, text messaging or the webcam. We must ensure that all the relevant sexual offences within the Bill are considered in relation to new technologies. What is illegal offline must be illegal online. That raises the issue of the role that will be imposed on the Internet industry in gathering information or investigating.
Liberty has raised the concern that restrictions will be placed on people displaying inappropriate sexual behaviour before an offence is committed—prosecuting people for what they might do, not for something that they have actually done. I understand the concern—as does the noble Baroness, Lady Noakes—that problems could be created by over-zealous neighbours or the police and the view that the offence will criminalise perfectly innocent behaviour towards children. But 16 cases have been reported in recent years of children being sexually abused by adults where the initial contact was through the Internet. Of course there must be proof of intent before action is taken but that has to be balanced by protecting the child before actual sexual activity takes place.
Another aspect of abuse of children is that of trafficking, which is a serious abuse of human rights. Trafficked victims are predominately 13 to 17 year-olds. On top of the sexual exploitation that a child suffers as a result of being trafficked, the experience itself often involves rape, and sexual and physical violence. The noble Lord, Lord Thomas, referred to the word "rape". I have great difficulty with the word "trafficking", which is very emotive. I wonder whether some other form of wording might be used.

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Clauses 61 to 63 respond to that serious and terrible crime and are welcomed, but there is concern that the Bill does not effectively protect all children up to the age of 18. Can my noble and learned friend give further consideration to how that might be achieved?
Many matters of detail will be considered in Committee. I hope that during the course of the Bill's passage through your Lordships' House, it will retain the basic principles that run throughout of providing protection for those most at risk from sexual abuse, be they vulnerable adults or children.
12.6 p.m.
Baroness Blatch: My Lords, as my noble friend Lady Noakes said in her excellent opening speech, I will concentrate predominantly on the protection of young people. As we come to debate the Bill, I must say how much we miss the presence of my friend, the late Lady Young. I shared with her a long-standing concern about the protection of children. In November 2000, Lady Young and I moved amendments to the Sexual Offences (Amendment) Bill that would have closed many loopholes that existed in the abuse of trust sections in that measure. At the time, the Government rejected all those amendments, casting them aside variously as unworkable or unnecessary. All the Hansard references that I shall make today as regards this House relate to 13th November 2000.
After the passing of the Sexual Offences (Amendment) Act 2000, Lady Young and I went to see the Home Secretary, then Mr Jack Straw, to urge him to use his powers in the Act to extend the abuse of trust offence by regulation. He promised to consider our concerns but soon afterwards was moved to the Foreign and Commonwealth Office. Mysteriously, all the papers from our meeting were lost. Some months later, the Private Secretary admitted that it was his fault.
The new Home Secretary Mr David Blunkett, in an extraordinary change of heart at the Home Office, took the view that the abuse of trust provisions were sufficient. In a letter dated 12th July 2001 to Lady Young, he wrote:
"I have done everything I can to ensure that there are safeguards in place on a whole range of issues of concern to you".
That was not the case. The Home Secretary could have done more and could have done it sooner. However, persistence pays. Having argued the case for the extension of the abuse of trust provisions for two years, I am delighted that some of the very amendments to the 2000 Bill that I moved are included in this measure. On behalf of thousands of vulnerable young people, I am delighted that the Government changed their mind.
My original amendments to extend the abuse of trust provisions to adults acting as learning mentors who provide one-to-one help to young people in schools and to personal advisers who work closely with young people leaving care are now included in Clause 23(6) and (7). The current Lord Privy Seal, the noble and learned Lord, Lord Williams of Mostyn—then Attorney-General rejected—my amendments on mentors, saying that the powers of the Secretary of State to define additional abuse of trust relationships by order were sufficient. I refer your Lordships to
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cols. 75 and 117. In the event, the Home Secretary chose not to exercise his order-making powers in that respect. In fact, the power has not been exercised at all.
I moved amendments to extend the scope of the existing law covering abuse within the family. Although it is regrettable that the word "incest"—a word universally understood—will not be used in the new offences in Clauses 28 to 32, I am nevertheless pleased that the scope of the protection to cover abuse within the family has been significantly widened. For example, step-parents are now included, and so is abuse by a family member of the same sex.
On another area of concern, adults in a position of trust can retain their influence over a young person long after that young person has left their care. I therefore moved an amendment to cover grooming, or the preparation for later abuse, by a person in a position of trust. We all remember the Waterhouse report, produced three years ago, that concluded that children are especially at risk from abuse when they leave care. Some of the most grievous abuse took place because adults in a position of trust groomed children for later abuse, after the children had left care homes. Clause 17 seems to focus on grooming through such things as Internet chat rooms. It does not go as far as my previous amendment.
The Waterhouse report was published on 15th February 2000—almost exactly three years ago. Children should not have had to wait until now to obtain the protection that they need. There are many other areas where the Government have failed to act that are not addressed in the Bill. For example, I moved amendments covering ancillary staff such as caretakers, supply teachers, childminders and social service inspectors. Sadly, the Bill does not appear to cover abuse of trust in any of those cases.
I am disappointed that provision has not been made in the Bill to increase protection for young people in youth groups such as scouts and youth centres. That was raised in 2001 with the previous Home Secretary, who expressed his sympathy for the points that we made. Even the noble and learned Lord the Lord Privy Seal, when Attorney-General, was sympathetic to extending abuse of trust to youth group leaders. But the Home Secretary did not follow that through by using his order-making powers. I hope that the Minister will state that that is an oversight that will be addressed by amendment during the Bill's passage.
I strongly welcome the provisions that in many cases greatly strengthen the existing law on sexual activity in public. Clause 74 makes it an offence to commit sexual activity in a public place. That is much stronger than the existing law based on "outraging public decency". Outraging public decency has proved to be a weak law in such cases—a point made by my noble friend Lady Noakes. When it comes to public lavatories, that is the only law that will be now left to protect the public. The Government are repealing the existing law of gross indecency and putting nothing in its place. As the Minister in another place made clear, that means that homosexuals who commit sexual activity in a public toilet will not be breaking the new offence of sexual activity in public, provided that the cubicle door is closed.

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Public lavatories are no places for sexual activity—be it homosexual or heterosexual; whether the cubicle door is shut or open. What mother would want to send her young child into a public lavatory if she believed that homosexual activity might take place there? How would the Minister feel if a son of his was using the cubicle next to one in which homosexual activity was taking place? The Bill will make public lavatories no-go areas for families in Britain. The Bill will do nothing to prevent the offensive public nuisance of homosexuals regarding public lavatories as regular meeting places where, once inside a cubicle, they can legally engage in sex.
Quickly changing tack, I am pleased that the Government now accept that it should be an offence to groom children for sexual abuse, as Clause 17 provides. The scenario envisaged seems to be that of e-mails exchanged in an Internet chat room. As I understand Clause 17(1)(c), the child must be under the age of 16 when the two people meet. However, there are other cases of grooming that the Bill does not seem to cover. For example, that offence would not cover those 16 and 17 year-olds who had been prepared for abuse by an adult in a relationship of trust over them before the age of 16—for example, a social worker.
Some of the harrowing real-life examples of this were documented in the Waterhouse report on child abuse cases in North Wales. I outlined several examples in our debates on abuse of trust at cols. 67 and 68. Of particular concern are cases such as one involving the notorious Reginald Cooke. One of his victims was an 18 year-old who was not in care at the time of the offence, but had met Mr Cooke previously when he had been in the care home.
In Committee during the passage of the Sexual Offences (Amendment) Act 2000, I moved an amendment to criminalise the grooming of under-18s by those in a position of trust. The House accepted the amendment at col. 79. It would have created an offence of an adult over 18 preparing someone under 18 to engage in sexual activity with them later. That would have been a broader offence than the new offence proposed in the Bill. However, the Commons was not even allowed to consider the amendment because, before any discussion could take place, the Government wielded the Parliament Act to force the Bill through and the amendments fell.
I should be interested to hear why the Government have not included a provision on grooming that would provide protection for 16 and 17 year-olds in such cases of abuse of trust. When it comes to caretakers, I should have thought that after the Soham case involving the two young girls, Jessica and Holly, even the Government might see that caretakers need to be classified as being in a position of trust over young people. Parents should certainly expect to be able to trust the caretaker of their child's school.
Sadly, such people do abuse their position. A school caretaker, Eric Drummond, was found guilty of repeatedly sexually abusing children in Scotland in
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October 2001. In that case, the caretaker went to jail for only three months. If the Government had accepted my amendment to extend abuse of trust to caretakers, a convicted abuser could have been sent to jail for five years.
The noble and learned Lord, Lord Williams of Mostyn, the then Attorney-General, ruled out my amendment on caretakers saying that such people were not in a caring relationship of trust. Surely the Government must think again on that point.
Another gap in the abuse of trust provisions is that they do not apply to part-time pupils or supply teachers. Clause 23(5) limits the provision to full-time pupils, which I of course agree that most pupils are. However, older children in particular—the very people whom the abuse of trust offence was created to cover—may attend school or college part time. In fact, the education Green Paper on 14 to 19 year-olds advocates very flexible provision that may include part-time attendance by teenagers at school, college or workplace.
Also, Clause 24(3) stipulates that the offender must be,
"regularly involved in caring for, training or supervising",
the victim. Does that requirement rule out a supply teacher? Some supply teachers are employed on a regular basis, but others can be employed much more sporadically. What constitutes regularly? I suspect that some noble Lords will remember the supply teacher, Amy Gehring, who was in the headlines a year ago. In an interview on the "Today" programme, Miss Gehring admitted openly to having had a sexual encounter with a school pupil. Similar relationships between supply teachers and pupils should certainly be covered by abuse of trust legislation.
Can the Minister explain, if a pupil is abused by a teacher who is in a position of trust, why it should matter whether that teacher is part-time or full-time? If the Minister agrees with me on that point, will be state that the Government would agree to an amendment to include part-time staff?
In November 2000, along with the noble Lords, Lord Northbourne and Lord Carlisle of Bucklow, I moved an amendment that would have extended the definition of incest to cover adoptive parents, adoptive siblings and step-parents—at cols. 106, 110 and 115–6. The amendment would for the first time have also classed homosexual activity between close family members of the same sex as incest.
This House was denied a proper debate on this amendment (and several others) as no Report stage was allowed on the Sexual Offences (Amendment) Bill because the Parliament Act was enforced. However, the arguments to support the amendments in November 2000 were clearly convincing because Clauses 28 to 32 set out proposals to deal with incestuous relationships. I am only sorry that so much precious time has been lost by the delay.
Finally, much of the Bill is welcome, if somewhat overdue. It certainly concentrates the mind to know that too many children live in fear of, and are trapped by, the very people who are in a position of trust over

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them. Any reading of the Waterhouse report is chilling, graphically recording, as it does, the experiences of young children who were abused, intimidated and groomed to be passed as sex objects around a circle of abusers by so-called carers.
I know that noble Lords on all Benches in this House will support the additional protection offered by the Bill. I hope, too, that they will look kindly upon any amendments that are intended to make the Bill even more effective. I have every confidence that the House will, as is customary, carry out its revising role with diligence and, as my noble friend Lady Noakes said, constructively.
I regard my personal contribution to the Bill as unfinished business and, in her absence, as a tribute to the work of my noble friend Lady Young who fought relentlessly to improve protection for vulnerable people, but especially children.
12.21 p.m.
Lord Rix: My Lords, it seems that the noble Earl, Lord Russell, is unable to be in his place today. I trust that he is not unwell. I send him, as I am sure does the whole House, my kind regards. We shall sadly miss his contribution.
As president of the Royal Mencap Society, I am reminded that shortly after he had retired as Mencap's chairman, way back in the early 1960s, the late lamented Lord Longford coined the phrase, "No sex without responsibility". This Bill seeks to reinforce the dictum of the noble Earl which was perhaps not much heeded in that hedonistic era. The Bill attempts to rid us of predatory, exploitative, abusive sex. In particular, from my perspective, it seeks to tackle the predatory exploitative treatment of people with learning disabilities by people without learning disabilities. I heartily welcome, therefore, the Government's initiative to put matters to rights and the apparent support of many noble Lords in the House, voiced by the noble Baroness, Lady Noakes.
As the Minister stated—I thank him for his generous reference to me—in October last year, I introduced my own amateurish Bill to amend the laws on sex offences. That Bill was meant to encourage government to introduce their more comprehensive legislation in the wake of the comprehensive review of sex offences. I shall not claim credit for the outcome on two counts: first, because I am not yet quite happy with the outcome; and, secondly, because mine was only one of many voices asking for action following many words.
Sexual abuse of children is now widely recognised. All of us who are parents or who have had responsibility for children will have some concept of what child abuse means to children and their families. I am pleased, therefore, that the Bill offers further measures to protect our children. Much less is known about the vulnerability to sexual abuse of people with a learning disability. The extent and nature of that abuse is deeply disturbing. Behind Closed Doors, published in 2001 by Mencap, Respond, and Voice UK. highlights the experience of adults with a learning
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disability and how poorly the current law serves them, for it offers only limited protection and is not an effective deterrent to abusers.
The incidence of sexual abuse may be as much as four times higher for people with a learning disability than for the rest of the population. There are an estimated 1,400 cases of abuse each year yet only 1 per cent of those reach conviction. Many cases go unreported. I applaud the Government's attempts to bring about much-needed reform to sex offences in that regard. However, I have a number of concerns—some already known, I believe to the Minister—and shall seek certain assurances during the course of our debates.
Offences relating to sexual activity with a person with a mental disorder or learning disability carry a maximum sentence of life imprisonment and are dealt with under Clauses 33 to 37. The underlying intention is to give powerful protection to those who cannot consent to sexual relations. This is not about denying to people who can make choices the right to make choices about sex. It is about defending the interests of those who are denied that choice and are the victims of others who see them as an easy target. However, as the draft stands, it is a defence for the perpetrator to argue that he could not have been reasonably expected to know that the victim had a mental disorder or learning disability.
As the noble Lord, Lord Thomas of Gresford, indicated—I think that I understood the point correctly—reasonableness is a slippery concept. I am anxious that hot blood, drink, darkness and the silence of the victim could too easily provide a let out and take the case back into the uncertain area of possible consent. I do not know about love being blind. I am sure that lust is blind and I am nervous about the courts accepting temporary blindness to the glaringly obvious as an excuse which undermines the new absolute protection.
People with severe communication difficulties are in no position to point out to an assailant that they have a severe learning disability. Currently the law does not classify who can and cannot consent to sexual relations and the Bill does not appear to recommend a clear statutory definition of capacity to consent as recommended by the Government's review, Setting the Boundaries. A functional test of capacity should draw on the Law Commission's statutory definition of capacity to consent and the proposed definitions also set out in the joint British Medical Association and Law Society proposals. Those proposals, hacked by Mencap, are based on the principles that an individual would need to understand the basic elements of sexual behaviour and be able to distinguish that sex is different from non-sexual or medical contact. They should also understand that sex can have foreseeable consequences such as pregnancy or a sexually transmitted disease. If they cannot meet those criteria, then they are unlikely to be able to consent to sexual relationships.

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I fear that without a clear test of capacity courts would find it hard to prosecute on these offences. I seek assurances at this stage of the debate that we shall have a statutory test of capacity in time for the implementation of the Bill.
Clauses 38 to 42, dealing with offences of inducement, threat or deception, are also welcome. The existence of these offences should provide wider protection to people with a learning disability. There is a danger in these discussions that we shall present "the community" as an environment from which people with learning disabilities should be withdrawn because it is too dangerous. Frankly, living in the community is a right not an option; and the institutional alternatives we have offered have been no safer. But vulnerability is an issue. While the average person may dismiss such threats as, "I will tell your parents if you do not do as I say", some people with a learning disability may feel genuinely threatened by such an approach. The specific offence to cover this deliberate targeting and pressure into having sex is much needed and I hope that it offers the necessary safeguards.
I turn to the third and last section on vulnerable adults. Clauses 43 to 51 are designed to discourage abuse of trust and to penalise it effectively where it occurs. The message is quite simple: a person employed to look after a vulnerable adult should provide support and care, not exploit his or her position and betray trust by sexual activity. Care workers are entrusted with work of an intimate nature. They do not have an easy job and they certainly do not have a well paid job. The overwhelming majority are deeply committed to their work. However, there are cases of abuse committed by care workers and abusers do seek employment in intimate caring roles, for they then have legitimate access to vulnerable people and are in a position of power and influence, including one-to-one access without supervision.
This imbalance of power undermines the ability of the person who is cared for to give free consent and may inhibit their ability to seek help in an abusive situation. A sexual relationship between a staff member and a person with a learning disability is intrinsically unequal and should be considered unacceptable. Compliance is not to be confused with consent—hence the coverage in these clauses both of those who can and those who cannot consent. If a couple want to have consenting sex, the care worker member of the couple needs to leave the role of carer. That is a proper approach to sexual rights—not allowing a carer to exploit the cared-for person's dependency.
During my discussions with the Minister, who kindly gave time to me and to Mencap colleagues, I sensed that the abuse of trust provisions are seen in the noble and learned Lord's department as being residual provisions to deal with the minority of cases which cannot be dealt with by other provisions in the Bill which allow for more severe penalties. That is not how I see things.
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Only the abuse of trust provisions give real protection to the vulnerable person in a particularly vulnerable situation who is able to consent in theory but has little choice in practice. The provisions relating to threat or deception to procure sexual activity with a person with a mental disorder or a learning disability also fail to provide adequate safeguards because they will be so damnably difficult to prove.
In those circumstances where, not to mince words, we are talking in some cases about rape, the penalties proposed in the abuse of trust provisions stop far short of those appropriate for such a heinous offence. The provisions are crucial and will, sadly, loom much larger than the department seems to expect.
If I correctly understand Clause 51, the other weakness of the abuse of trust clauses is that they allow a care worker who is abusing someone before the Act came into force to carry on abusing them. The original sexual activity had to be lawful at the time. But it is a very odd approach in creating a new offence to decree that if the offence was committed before the new provision takes effect, it will not be an offence subsequently.
Lastly, I repeat that none of these measures is an attempt to stop genuinely consenting adults from having a sexual relationship. Many people with a learning disability have successful marriages, successful partnerships and, indeed, many are parents. I know that the Bill will receive its customary diligent scrutiny by your Lordships' House. Its overriding principles are ones that we shall probably all support. There may be others of your Lordships who share my rather large scintilla of doubt as to whether we are going far enough and being firm enough. If the Government are convinced, I hope that they may feel moved to table their own amendments to resolve these doubts. I shall welcome reassurances or, indeed. change.
Having taken so long to come so far, we need to finish the job and show that we are a society concerned to ensure that justice is done. At least some of your Lordships will have noticed that the scales of justice are missing from the statue in the Prince's Chamber. I am told that they went absent without leave during the Second World War. The scales of justice for people with a learning disability have been missing for much longer than 60 years. The Bill before us gives a chance to restore them to their rightful place. This time we must not fail to get the balance right.
12.34 p.m.
Lord Alli: My Lords, I welcome the Bill. As your Lordships might expect, I want to concentrate on the important sections relating to the repeal of gay offences. As vice-president of UNICEF in the UK, I shall touch also on the protection of children from sexual exploitation and child trafficking, as well as the significance of the Bill as a whole.
Without wishing to sound too flippant, the Bill perhaps fits the adage that one waits for important reforms for years; then, like buses, three come along at

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once. Like someone waiting at the bus stop in the rain, I may have wanted many of the reforms sooner, but I am nevertheless grateful for them now.
I thank the Government for the rigorous policy-making that lies behind the Bill. It is especially needed because much of the law that it replaces has been on the statute book since the 19th century. However, it would be wrong to think that this reform of Victorian law is an uncontrolled triumph of permissiveness over morality. The law, which in some cases is over 100 years-old in its origin, fails to offer the protection that society needs from today's modern crime and abuse, as well as reinforcing the rights that modern society demands.
The Bill addresses some of those problems and provides a framework of protection against 21st century threats. It aims to protect children from the abuse of trust, to ensure that sex abuse in the family is treated as the serious and terrible crime that it is and to stop the Internet from being used by paedophiles to prey on their targets. These are all crimes that our predecessors in both Houses perhaps did not need to consider.
I wonder whether my noble and learned friend would also give further consideration to three specific proposals relating to paedophiles and convicted sex offenders. First, will he look at giving judges the option to confiscate the passports of convicted sex offenders if they are considered a danger to children when travelling overseas? Secondly, will he consider ensuring that the British police contact police overseas if convicted paedophiles are travelling abroad in order that they may be tracked? That was made possible in the Criminal Justice and Court Services Act 2000, but it is not automatically done. Thirdly, will the Minister look at closing the eight-day loophole whereby sex offenders on the sex offenders' register must notify the police when leaving the UK if they are to be away for eight days or more. Three days is a much more realistic time period.
I give notice to my noble and learned friend that at Committee stage I should like far more detail on the provisions relating to child trafficking, and on the sex offenders' register in relation to those people placed on it but whose offences are now deemed to be legal.
I should also like to highlight other important reforms contained in the Bill. The key elements introduce fairness into the law for men and women, both gay and straight. Current law only allows certain aspects of sexual activity between consenting gay men. Some offences relating to gay sex still remain on the statute book. Incredibly, these include the laws under which Oscar Wilde was prosecuted.
Although very welcome, the piecemeal reforms to the prohibitions on gay sex that have taken place during the past 30 years have left the law in somewhat of a confused state. I hesitate to say a "bugger's muddle"!
The repeals contained in the Bill, and the new offence of sex in a public place introduced in Clause 74, will ensure that the law reflects the fairness expected in today's society. However, I caution my noble and learned friend on the Front Bench and the political masters in the Home Office. As well as welcoming the
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joys of sex in many more interesting private places—at least I think I welcome it—I cannot help wondering whether the Bill over-extends itself by making it an offence to forget to close the curtains while having sex or having sex in the garden.
I am sure that many recognise the great tradition expressed by the phrase "an Englishman's home is his castle". To me, as well as meaning that we are a nation of gardeners and DIY enthusiasts, it also means that we believe that what we do in our own house and in our own private space is our own business.
The state has no right to involve itself in our actions. I welcome the chance to ensure that finally we have sex laws that respect everyone's right to privacy and understands that neither this House nor another place are in any position to judge what consenting adults—no matter how many of them—choose to do in the privacy of their own home.
The repeal of the laws of buggery and gross indecency—which only apply to male homosexual acts—and their replacement with laws which are sexually neutral, is hugely welcome as a final recognition that all people have equal rights to privacy and control over their sexual activity. To anyone who fears that the repeal of those gay sex offences will weaken the protection offered to the public from exposure to acts that they do not wish to see, I point out that Clause 74 should, although it may not at present, allay such fears. I highly recommend that noble Lords who have not had a chance to read the Explanatory Notes do so, if not for information, certainly for education. I think that they can still be found on the top shelf in the Printed Paper Office.
Noble Lords may remember the case several years ago where a heterosexual couple had sex in a packed train carriage. It was a surprise that they did not break any laws, despite the fact that most passengers would not wish to be exposed to their actions, no matter how long or delayed their train journey. Clause 74 will ensure that the public are protected from witnessing sex in a public place or anywhere where the participants might reasonably be seen by someone unintentionally.
I was amazed at much of the recent press coverage expressing outrage that the Bill would prohibit people from having sex in their gardens or in cornfields if their neighbour could see them. I must admit that I did not realise that so many people had sex in their gardens in view of their neighbours. Nor was I aware of a great rush of complaints about people having sex in their garden. The great British weather may offer greater protection than this Bill. But, in any case, I am glad that the Minister has said that he will look at the clause again to see whether the right balance has been struck between the rights of the individual and those of the public. That is hugely welcome.
It is 108 years since Oscar Wilde was tried and sent to gaol. It is finally time to see the back of laws that discriminated against him and so many other men in this country over the past century. So let us take this chance to ensure that, in the 21st century, people can

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expect Parliament and the state to keep well clear of their private lives and to offer protection against some truly horrific sex crimes.
12.41 p.m.
Lord Skelmersdale: My Lords, the noble Lord, Lord Alli, referred in his introduction to buses. In that case, the Home Office must be a veritable bus station. The phrase "legislative diarrhoea" springs to mind. But I must be serious. I first came into contact with sexual offences many years ago on a visit to Broadmoor. There I found a late-middle-aged man whom, for brevity, I shall describe as a serial indecent exposer—a subject that I cannot find in the Bill. He had been allowed to leave the hospital on several occasions but had always re-offended. He was not mentally ill but was kept in for his own good and that of society.
It is for the good of society that I welcome this Bill. It makes the law on sexual offences more explicit. However, like my noble friend Lady Noakes, I would be acting out of character if I did not have queries about it. As the noble and learned Lord, Lord Falconer, nearly said, the Bill is an amalgam of a restatement of existing law on sexual offences and a creation of new offences. My chief interest is the new offences; the mischief that they seek to control or, I hope, prevent; and whether there is consistency of purpose in the Bill. For example, there are to be new offences of sex with animals and corpses, which no civilised society could contemplate. At the same time, there is a thread running through the Bill of consensual sex. I ask the noble and learned Lord whether it is necessary to have two clauses relating to those practices when a simple amendment to the clauses on consent would serve equally well and reduce an already overburdened statute book containing more words than arc strictly needed. Are those abhorrent practices sufficiently common as to require legislation? I simply do not know the answer, but I am sure that the noble and learned Lord does.
I was surprised to read in the notes on the clauses of a new offence of bestiality. I am advised that a similar offence was on the statute book as long ago as 1900, when the judge at the York assizes pondered aloud in open court as to what sentence to give after the jury had pronounced a verdict of guilty of sex with a dog. He made the mistake of pausing, at which point a wit in the public gallery took the opportunity to shout "give him the cat".
The clauses on rape are odd, to say the least. The White Paper that proceeded it states in paragraph 42:
"One of the principles underlying our new offences is that they should not be gender specific. However, the offence of rape is clearly understood to be non-consensual penile penetration perpetrated by a man, on a woman or a man".
It must be possible for one woman to rape another. I agree that rape is rape and cannot be subdivided. However, rape—or whatever word the noble Lord, Lord Thomas of Gresford, would like to use—carries a maximum sentence of life imprisonment. Yet the Bill appears to provide that the heinous crime of drug-assisted rape carries a maximum sentence of 10 years.
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The two crimes are equally bad, so they should have the same sentence. That would send a signal that "date rape" is regarded by society as beyond the pale.
I am at one with the Government's proposals on child-trafficking and prostitution. I am particularly glad that they are creating new offences of sexual grooming and travelling in order to procure a minor for sexual purposes, whether in this country or abroad. I agree with the noble Baroness, Lady Gould, that sex between minors is a difficult area. It is inevitable that many children aged 13 and over will experiment with sex. Given the extraordinary amount of sex lessons in schools these days, children are almost given a licence to experiment. I have often wondered whether the incidence of teenage pregnancies has increased since sex education in schools became commonplace. Now is my opportunity to ask the Minister, who either ought to know or at least have the facility to find out.
Be that as it may, by reducing the age of consent for homosexual men from 18 to 16, the Government have, at a stroke, increased the amount of homosexuality in this country. Nevertheless, it must be right that consensual sex between a young adult—who, one must remember, may be as young as 16—and a child aged 13 to 15, should carry a lesser penalty than that of nonconsensual sex, or sex between an older person and a child of that age. But I agree with my noble friend Lady Noakes that we should look carefully at whether it is right to criminalise activity involving 13 to 15 year-olds.
My second girlfriend suffered an acute mental illness and was hospitalised for a long time. During that period, she met a young man in the same hospital. I am glad to say that they eventually got married. However, that period of my life made me very conscious of the problems of people with a mental illness. Much later, as some noble Lords will remember, I became ministerially responsible for people with a mental illness and those with a mental handicap. There are occasions when the former can either give consent or deemed consent to sexual relations. The latter, I suggest, never can. It is important that the courts can distinguish between the two. I will look carefully between now and Committee stage to see what guidance the Bill gives.
I particularly welcome Clauses 43 to 48 on the duty of care workers in this area. My noble friend Lady Blatch might consider an amendment to widen the definition of care workers to include teachers, whether part time or full time, and teachers' assistants, a group that she did not mention.
Like the Law Society, I am very conscious of the long list of reasons for sexual care orders in Schedule 3. I am slightly surprised that they are within the scope of the Bill.
Like other noble Lords, I have difficulty with voyeuristic sex—I hope that that sentence will not be misinterpreted. I refer to sexual activity in public as defined in Clause 74. We are told that subsection (2) is designed to cover cases where a person engages in sexual activity in a place which, in itself, may not be public, but where the activity can be seen from a public place. I can envisage two crimes being committed: one

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by the person having sex, and the other by the person observing it. An example might be sitting at one's window or walking down the street and seeing a couple having sex. That is even more nonsensical when we look at the Explanatory Notes and discover that it is not intended to cover a situation in someone's bedroom with the window curtains open. I was rather surprised that I find myself sharing with the noble Lord, Lord Alli, the thought that we may be old-fashioned, but that we have both always believed that an Englishman's home is his castle, which includes his garden.
There is another inconsistency here. I note that the offence is of specified activities in a public place that can be seen by another person. We discovered that that means that an offence will not be committed in a public lavatory if the act in question takes place in a cubicle with the door shut. That is very strange: surely, a cubicle is part of the public place, which itself is the public lavatory. Like my noble friend Lady Noakes, I find that totally unacceptable. I imagine that very few of your Lordships have not taken a child into a public lavatory. It would be a very incurious child indeed who did not ask why two persons of the same sex were going into the same cubicle. I cannot imagine that many of us would answer with the truth. Why should the law put us in the invidious position of lying to a child? That is what this proposal amounts to.
This Bill is very comprehensive. There is no point in my going through it clause by clause at Second Reading: indeed, your Lordships would hardly welcome it. The House would not appreciate it at all. But it should be clear from what I have said that I find it, in part at least, like the curate's egg.
12.52 p.m.
Lord Carlile of Berriew: My Lords, like other noble Lords, I welcome the opportunity given by the Government for comprehensive legislation on such serious business as the reform of sexual offences. It is a confident Government and a brave Parliament that seek to define so fundamental a word as "sexual", as we seek to do in Clause 80 of the Bill. I hope that in so doing, and in the other provisions of this Bill, we send out a message to society rather than a hostage to fortune and a huge raft of defining cases in the courts.
I do hope, too, that what emerges as a result of this process can be seen as part of the codification of the criminal law. I hope that the Government have not lost sight of the work that the Law Commission has done in an effort to codify the criminal law so that it can be seen in a single corpus, readily accessible to all.
Some parts of this Bill are especially welcome to me. I join the noble Lord, Lord Alli, in the welcome that UNICEF UK has given to Clauses 61 to 64 of the Bill. They introduce the international obligations which this country has to deal with trafficking into, within and out of the UK for sexual exploitation of people. I join UNICEF in inviting the Minister and the Government to consider introducing more severe maximum penalties where the victim of trafficking is a child and therefore protected by the United Nations Convention on the Rights of the Child.
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In that context I hope, too, that non-statutory measures can be announced by the Government in due course to improve care facilities for those who are found to have arrived in this country as victims of sexual trafficking. I hope, too—and this is extremely important—that very detailed and careful training will be given to port officers wherever they may be, so that they are better able at ports of entry to identify potential victims.
I turn next to another matter to which I give great welcome. It relates to transsexual people; that is to say, those who have undergone gender reassignment treatment and are living in their post-treatment gender and those who are undergoing that very difficult process. I have campaigned with that group for almost 20 years. On one occasion I introduced a Private Member's Bill into another place on the rights of transsexuals. At that time the issue was regarded as risible. I am very glad to see that it is now recognised as a serious medical, biological and legal issue.
Clause 81(3) is a very short, but important change. It recognises that the bodies and the sexual rights of transsexuals deserve the same protection as the rest of the population. I express the hope that Clause 81(3) is merely part of the momentum towards full rights enfranchisement of transsexuals.
I particularly welcome Clause 80, to which I referred earlier. It seeks to define the word "sexual". Many years ago, my noble friend Lord Thomas of Gresford and I appeared on opposite sides in your Lordships' House in a case which turned on whether it was indecent assault for a shop assistant to smack the bottom of a young girl whom he thought had been shoplifting. It turned on the use by the defendant, when arrested, of the phrase, "Buttock fetish, officer, I think". How was a jury to approach an equivocal act which could be shown as sexual only by evidence extraneous to the act itself? I believe that Clause 80 clarifies that. I should be grateful, however, if somebody could write to me to explain a small puzzle in the use of the words "at least" in brackets in Clause 80(a).
I turn now to a matter of very real concern, which has been referred to by a number of noble Lords; namely, the issue of rape and consent. I very much respect the views of the noble Baroness, Lady Gould, as I hope she will respect mine. This is a very difficult issue indeed to address. It will be one of the most important matters to emerge from the debates in this House. I suspect that, ultimately, we may, by amendment, reach a consensus.
One starts with diffidence as a man by saying that there can be no greater violation of a person, female or male, than the non-consensual penetration of their body for sexual purposes. However, I would respectfully caution this House against an effort to increase the rate of conviction of the guilty if a consequence is an increase in the rate of conviction of the innocent.
Those who lie in wait and then rape deserve the most severe penalties. Those who win trust, whether by authority or by friendship, and then abuse it, deserve strong deterrent penalties. However, in our criminal

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law in normal circumstances, and most especially where the sentence could be imprisonment for life, in my view there should be two elements prior to conviction. The first is an act properly characterised as criminal. The second is a state of mind of such a quality that, taken with the act, the sum of both can properly be regarded as a crime.
I am a simpler and coarser fellow than my noble friend Lord Thomas of Gresford so I hope that I will be forgiven for my more simplistic approach to this issue by the use of an illustration or example. My concern is best illustrated by reference to mental illness. I declare an interest here as vice-chairman of a small Welsh charity called Rekindle and also as a patron of No Panic, both mental health charities. I have also had the misfortune to observe mental illness at extremely close quarters.
As a result of care in the community there are many people living far better and happier lives now than they did in the institutions in which formerly they lived. They work, vote, clothe, shop and feed themselves and they live within our society. They are exposed, of course, to everyday sexual attraction. Occasionally, some find a dislocation between their sense of reason and their sense to reason. Some occasionally rationalise what they perceive to be relationships in inappropriate ways. There have been cases before the courts where in particular men in that situation forced themselves on women when they honestly if irrationally, believed that there was consent, but there was not.
Under the new provisions concerning rape and related offences, such a person would probably be guilty of rape. I am not certain that they would be because of the use of the concept of reasonableness. My noble friend Lord Thomas of Gresford referred earlier to reasonableness in provocation in murder cases. Your Lordships' House has in that context introduced additions to that word reasonableness by importing characteristics to the reasonable person who is being considered by the jury. Will we be talking about the objective, reasonable man or woman standing at Lord Alli's bus stop, if he will forgive me for referring to that again, or will we, for example, be referring to the reasonable paranoid schizophrenic living in society or suffering from a very severe depressive illness?
What is a reasonable person? This is a genuinely difficult question. The fundamental issue is whether it is appropriate to convict of rape a person who believed with complete honesty, though mistakenly, that there was consent. My answer is "no"; the answer of the noble Baroness, Lady Gould, is "yes". I look forward to the important debate on that issue.
Of course, as the noble Baroness said, the act remains just as terrible for the victim, but it may be that the criminal law is not appropriate to every single perpetrator of such an act. It seems to me, for the time being at least, that Section 1(2) of the Sexual Offences (Amendment) Act 1976 strikes a fairer balance.
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I, too, am concerned, as is my noble friend Lord Thomas, about the directions which will be given to a jury. Those of us who occasionally still give directions to juries in the Crown Court have enough difficulty with specimen directions such as those on self-defence in cases of violence or adverse inferences to be drawn from silence in a police station. As did my noble friend Lord Thomas, though separately, I considered the kind of specimen direction I would give in a rape case if this Bill becomes law in its present form. It is difficult and confusing.
I hope that before the Bill reaches its final stages the Government will consult carefully with the Judicial Studies Board, and particularly with the two circuit judges who prepare the specimen directions and are involved in everyday court work.
I turn now to one final matter—that is, Clause 74, which relates to sexual activity in public. For me—and this has absolutely nothing to do with prejudice against gay people, straight people or any other people—public lavatories should be sex-free zones. I do not want to hear people moaning and groaning in a cubicle when I take my grandson into a public lavatory to use it for the purpose for which it was designed. I am glad to hear that the Minister and the Government are open to discussion and persuasion on this matter and I look forward to a change in the Bill in due course. I invite the Government to reconsider very carefully that narrow issue.
There are no less comfortable bed fellows than sexual morality and the criminal courts. I hope that Parliament will be given the time to produce a statute that will endure and achieve the almost impossible balance between morality and utility.
1.2 p.m.
Baroness Thornton: My Lords, I declare an interest through my long association with NCH, the children's charity. I thank that body, other major children's charities, ISPA, and other organisations for their helpful briefings prior to the debate.
I am pleased to be able to speak in the debate and to welcome the Bill, both because of the way in which it will modernise the law relating to sexual offences in general and, in particular, because of the way in which it will modernise the laws relating to sexual offences against or involving children.
The use of the word "modernise" is singularly apt in this context, not least in relation to the various clauses which seek to deal with some of the consequences of the development of the Internet as a mass consumer product in our society. In the remainder of my speech I intend to focus on two of those consequences, expanding in many ways on the remarks of my noble friend Lady Gould.
The issue I wish to speak to first is dealt with in Clause 17, which, as many noble Lords said, creates the new offence of "grooming". It is unfortunate that we have not been able to find a better word to describe the kind of conduct that the clause addresses. But anyone who saw James Westhead's excellent piece on "BBC News" last week will have been left in no doubt

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about the very real dangers that children can face through their use of Internet chat rooms and the existence of a class of adults, a kind of person, who has a sexual interest in children and who, knowing how popular Internet chat rooms are with children, entirely cynically, goes to them expressly to find perhaps the vulnerable, the naïve, the unwordly child, the innocent child.
Typically the adult will present himself as being only a year or two older than the child he is targeting. These people can be very adept at communicating with children. They will know all about the latest bands and groups, films and fashions, who is in, who is out, what is cool and what is yesterday. They are willing to spend weeks, months, even longer, developing a relationship with the child through a chat room. Again, typically, they will try to persuade the child to keep their communications a secret, not to tell parents or to keep any records of their e-mails to each other. In the end, their aim is to engineer a real-world meeting with the child where the child will then be at great risk.
As my noble friend Lady Gould said, we know of at least 16 or so instances in the UK where children have gone to such meetings and have been raped. We know about them because in each case the men responsible were caught, convicted and sent to prison. We do not, of course, know about those cases that went unreported, or where the police were unable to bring a prosecution for want of evidence, but we can be fairly certain that they significantly exceed 16.
In Mr Westhead's's piece we were told that over a period of two weeks his investigator, who posed as a 14 year-old girl—this one child in a single local chat room—was approached by no fewer than 30 different people. In that instance, the person who finally turned up to meet the 14 year-old girl, and who had to be released without charge, was indeed an older man. He admitted to the BBC reporter, on television, that he had been seeking improper relations with the child.
This brings us to why the new clause is so important. Because of case law, at the moment the only power the police have to make an arrest in such circumstances is under the existing laws of attempt. If the police are to intervene and make an arrest for an attempt to have unlawful sex with a minor, the would-be perpetrator more or less has to have his hand on the child and very obviously be about to commit an illegal sexual act. I say that is wrong. Surely we must be able to intervene much earlier in the process and prevent the child and the adult having to get into such close physical proximity.
It is very likely also that, within the so-called grooming process, the child will already have been damaged and psychologically abused by the adult. It is absolutely wrong to have to insist that the child is once again put in harm's way, to risk the child being further traumatised, by having to go to meet the potential rapist in real life and allowing him to get close enough to the point where a sexual offence is about to be committed. At present those are the only circumstances in which an offence is committed.
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The question we must ask—a question I would address to Liberty—is why would an adult go into an Internet chat room, strike up or engineer a relationship with a legal minor, someone he knows to be a child, and then arrange to meet that child alone and in secret without the child's parents knowing or giving permission? Let us be clear: these are exactly the kind of situations that the clause is intended to address. Any child who went to such a meeting would be putting himself or herself in great danger. While I am aware that many meetings have been arranged via Internet chat rooms that have not resulted in catastrophe, here we are talking about a very specific type of meeting: we are not talking about children arranging to meet other children but about adults arranging to meet children.
If an adult had a good reason for wanting to meet a child in real life, a child whom he had first met on line, there is a perfectly straightforward way of doing so. He should ask the child to get his or her parent or carer to talk to him and then insist that the parent or carer comes along, at least to the initial meeting. If any adult does not do that or, on the contrary, suggests that the discussion between them be kept secret and that the child should come alone to the meeting or accompanied only by another child, then we are entitled to be gravely anxious.
That is exactly the kind of evidence that will be required to justify an arrest and a charge under this clause. The necessary evidence could be obtained in a variety of ways but, typically, I imagine that it will be obtained by the child's parents, who have perhaps noticed that their child is starting to behave in an uncharacteristic way. The child is perhaps spending a more than usual amount of time online and so parents start to take a closer interest in whom their child is communicating with. Adults who use the Internet must know that, once this clause becomes law, they will have to be careful about how they deal with children online. They must know that society is no longer willing to tolerate the risks inherent in such meetings.
Many parents have successfully been able to get the message across to their children about real world "stranger danger". They probably learnt it from their parents, as I did from mine. But there is not the same collective knowledge or experience of these matters in relation to the Internet because it is new and because it is often overlaid with a technological language and culture that may have escaped many parents. However, a number of technical tools are available, as well as educational programmes produced by organisations such as NCH Action for Children and other children's charities, which are distributed through schools and through good and responsible computer suppliers. They can alert people to these new kinds of virtual stranger danger and help to keep children safe online.
I have one more small query about the proposed offence. I note that the police will have the power of arrest only if the meeting—and hence the offence—is scheduled to take place in England, Wales or Northern Ireland. That begs the question: what about the rest of the world? In two identical cases with exactly the same

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evidence, the police will be able to step in and stop a meeting in England, Wales or Northern Ireland, but elsewhere they would not. As the whole point of the new offence is to empower the police to stop such meetings taking place, why should it matter where they are ultimately destined to take place? If the police have the evidence in England relating to an offence that is arrestable in England, the English police should step in and save the child in whatever jurisdiction he or she may reside, be it Scotland, France or Thailand.
Child pornography and the matter of consent is principally dealt with in Clauses 52 and 55. These and related clauses make it illegal for anyone under 18 to give their consent to take part in commercial pornography. However, they also make it possible for a child of 16 or 17 to give their consent to taking part in pornographic pictures that are presumably for noncommercial purposes. Another clause says that pornographic images of 16 or 17 year-olds that were made before the commencement of the Act will remain legal.
Unless I have misread the provisions, they are beginning to look like a bit of a muddle. How are the police—or anyone else—to know when an image was made? Surely we should have one rule that says it is illegal for anyone to be involved in making, distributing or possessing any indecent image of anyone who appears to be a legal minor, which covers anyone who appears to be under 18. That would bring us fully into line with the United Nations Convention on the Rights of the Child and make everyone's life a great deal easier. It would not involve any retrospection. We would simply be saying that from a forward date such images will be illegal and therefore anyone who might possess them should now get rid of them.
The distinction between commercial and noncommercial pornography is essentially a fiction these days. To put it another way, it is largely theoretical and in no way relates to the new realities of the digital age. Once an image has been made it is a matter of moments for it to be scanned or digitized. Once it is digitised, the chances that it will find its way on to the Internet must be very high, as one or two famous Hollywood actresses can testify. Once an image is on the Internet it becomes, in effect, a permanent record—in this case of the abuse of that child. That image could haunt them for rest of their life and could keep intruding into their life or be used against them by people who wish to harm them. Moreover, once on the Internet, such an image would very quickly find its way into the hands of those who trade in such images commercially. Even if it was not commercial at the beginning, it would quickly become so. Does that then make it an illegal image? If so, who has committed the crime and when?
At the least, a decision about whether a person can legally take part in the production of pornography should in all circumstances be limited to a person who is a legal adult. This also recognises that some young people at the age of 16 or 17 can be involved in essentially abusive, if legal, relationships with much older people
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who, in effect, can coerce them into things that, at a slightly older age with more mature judgment, they would not agree to.
I have a number of other minor points on which I would like further clarification, but these can wait until Committee. In the meantime, I must say how welcome the measure is. I pay tribute to the many people and organisations involved in the Setting the Boundaries review and in the Home Office Internet taskforce. Between them, they have produced an excellent and much needed Bill.
1.14 p.m.
Baroness Finlay of Llandaff: My Lords, I welcome many parts of the Bill. As someone who has been involved in trying to obtain prosecution of professionals who were abusing vulnerable mentally incapacitated adults and the elderly, I fear that the police may still have an uphill struggle to prove in court when an offence has occurred, despite the clarification of this Bill.
The devil is in the detail. I shall focus briefly on sexual addiction, non-consensual sex and sexual offending and the links between them. It is alarming that just under 3 per cent of men in the population report nonconsensual sexual experience as adults and more than 5 per cent of men report non-consensual sexual experiences having occurred when they were children. In a survey from the United States, between 3 and 6 per cent of adults were deemed to have had sexual addiction, which is specifically defined. Like any other addiction, there is euphoria associated with arousal and the chemical endorphin in the brain which is linked with that. What is sex addiction? It involves compulsivity, continuation despite adverse consequences with risks escalating with time, preoccupation and obsession with obtaining a sexual experience and the person initially denying or minimising the problem. Unfortunately, there is a progression from addiction through increased risk to a range of increasingly dangerous behaviour to maintain the euphoric effect. Sexual addiction is often initially exhibited as multiple extra-marital affairs. Those in a position of power may also abuse that power to gain sexual access. There is the use of prostitutes, sexual massage, indecent phone calls, cyber sex and so on. There are also multiple anonymous sexual encounters, such as in toilets. That explains the inherent abhorrence of the permission in the Bill for sexual activity behind locked doors in public toilets.
The majority of sex addicts come from dysfunctional families. Over 80 per cent of them reported having a rigid or disengaged family and lacking emotional support. There was a family history of addiction to alcohol and drugs in about 80 per cent. The same percentage had been sexually abused; of the males, 3 per cent by their fathers and 11 per cent by their mothers. Some 70 per cent had been physically abused and over 95 per cent reported emotional abuse. Fewer than a fifth of sex addicts have no other addictive behaviours. Those behaviours include chemical dependency, alcohol, workaholism, eating disorders and gambling.

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Society must give a different message. Currently men and women are objectified. Society provides services to sex addicts. Women are used as sex objects in pornography, but they also feature on page 3 of newspapers and in advertising for products such as alcohol. All this gives the message that sex is the answer to many problems. That can be the beginning of a slippery slope. The noble Baroness, Lady Gould of Potternewton, hit the nail on the head when she said that we must educate in sexual health, healthy relationships and the spirituality of self.
Rigidity in attitude will worsen the addiction as it replicates the dysfunctional family from which the sex addict has come. It will not decrease the amount of deviant sexual behaviour.
About 55 per cent of sex offenders are diagnosable as sex addicts. Child molesters are the largest group here—71 per cent of them are diagnosable as sex addicts.
Some sex offenders cannot be rehabilitated. They must be incarcerated to protect society. However, similar to the concerns raised by the noble Lord, Lord Carlile of Berriew, I fear that failure to respond to the addictive features of offenders may worsen the situation. Addictive sexual disorders play a role in over half of all sex offences.
The intent of sexually addicted and non-sexually addicted sex offenders differs. Non-addicted sex offenders consciously attempt to inflict pain, do harm, deceive and attack and they are often driven by hatred, rage, anger and distorted emotions.
Sex addicts who are also sex offenders are motivated by an attempt to use others for self-gratification and escape loneliness, shame and low self-esteem, denying the exploitative features and the harm or pain that they inflict. A failure to respond to the addictive features of sex offenders may add unnecessary risk of recidivism and reoffending. Punishment alone may increase shame and self-hatred and the prisoner's assault potential. The offender treated abusively will only be taught further abuse. Sex offenders are responsible and accountable for their acts, but rehabilitation must be considered, particularly in the early stages.
Sex addicts are around us in society. Public lavatories should not be safe havens for unsafe and dangerous behaviour. Many aspects of society must alter to decrease sex abuse, if the ongoing stream of new sexual offenders is to be dealt with. The Bill rightly addresses the extreme vulnerability of those in positions of care for whatever reason. Those in positions of trust are just as likely to be potential offenders, whether in full-time or temporary positions. The noble Baroness, Lady Blatch, highlighted such a loophole.
The law must encourage healthy sexuality and decrease harmful sexual behaviour overall, and not simply focus on the worst end of the spectrum when the offence occurs.
1.21 p.m.
Baroness Gibson of Market Rasen: My Lords, this is an extremely important Bill, and overall I greatly
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welcome it. It tackles some issues that have been ignored or avoided for too long. None of the issues in the Bill is particularly pleasant to debate, but there is an increasing need to discuss them in a reasonable and rational way, so that victims of such offences can be protected and the law clarified and strengthened.
I want to concentrate on three parts of the Bill, before asking my noble and learned friend a few questions. First, while recognising the complexities involved, I welcome the tightening up of the law surrounding rape. As the noble Lord, Lord Carlile, recognised, rape is among the worst nightmares that women, young or old, can face. It is the ultimate expression of power of one person over another, and invariably destroys the confidence and distorts the lifestyle of the victim—at the least for a matter of months and, at most, for much of their lives. One has only to talk to rape victims and to work with rape crisis centres to know that that is so.
I am pleased to say that most police forces have changed dramatically in their attitude to rape victims in recent years. Women now report that their claims of rape are taken seriously and acted on. However, as we have seen today, there remain questions about the word "consent", which is something that the Bill tackles. There will be much debate on the matter, and rightly so, but I would say that the old adage, that when a woman says "No" she really means "Yes", can no longer be tolerated, whether it comes in the form of a sad comedian's list of "jokes" or as evidence in a court case. The defence of, "I thought she had consented, I made a mistake", is thrown out by the Bill, and not before time. Such a "mistake" has created a living hell for too many women over the years. I entirely support my noble friend Lady Gould on that matter.
Secondly, I turn to the clauses dealing with sex offences in relation to people with learning difficulties, who are often extremely vulnerable but have the same rights to protection against sexual abuse as everyone else. I became aware of that matter in stark detail when I began work on the Dignity at Work Bill that I introduced into this House last year. It actually covered bullying, but many other issues were raised, including abuse at work. Several of the accounts that I received covered people with disabilities, including learning difficulties. Those were among the most horrible to read about. Abuse by co-workers, by those in more senior positions and by those who care for people with disabilities were all cited in the submissions.
According to Turning Point, a large social care charity that provides services for those with disabilities, including learning disabilities, people with such disabilities are twice as likely to be victims of crime as other people. The incidence of abuse surrounding sex offences is four times higher than in the non-disabled population. The Bill aims to give an unequivocal message: the most vulnerable have the same rights in law as everyone else. I am sure that my noble and learned friend will take into account the points raised so ably and movingly by the noble Lord, Lord Rix, earlier in the debate.

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The third area of the Bill that I greatly welcome can be found in Clauses 61 to 64, which cover trafficking for sexual exploitation. It is a topical issue, about which the police are greatly concerned. In my work on Sub-Committee F, considering issues surrounding illegal immigration, that matter has loomed large.
In countries where there is little chance for children or young people to gain educational qualifications, meaningful employment or even to have enough to live on, the opportunity to travel to a new future is obviously an enticement. However, it all too often turns out to be an enticement to working illegally in a brothel in the back streets of one of our largest cities or towns with no hope for the victim of anything but a life of degradation and despair. That may start at a very young age indeed. Fathers, brothers, boyfriends and neighbours may be involved in the trafficking, as, sadly, may women acquaintances and relations. Those involved in trying to stop such obnoxious trading acknowledge that they are touching only the tip of the iceberg. The Bill should assist their efforts.
Having so far praised the Bill, I turn to questioning parts of it. Clause 14 addresses sex offences carried out by children or young people and recognises that children need protection from other children and young people as well as from adults. However, there is no reference to any assessment or treatment services in relation to those offences. Without them, the needs of those who display signs that they could be harmful to other children are not being addressed. Surely, such assessment and treatment should be considered.
I welcome the parts of the Bill relating to trafficking, but will there be resources to help the victims of trafficking? That seems vital when they are finally able to escape from the sordid activities for which they were brought to this country.
Lastly, I turn to our old friend, Clause 74. Many comments have already been made on the clause, and I am pleased that my noble and learned friend will reconsider it. However, I find the clause and Explanatory Notes muddled as written and in intent. I raise two of the difficulties that I have with the clause and the Explanatory Notes.
Presumably, the clause is in the Bill because some sexual activities in public places may upset members of the public. If that is so, those who would be upset by witnessing the touching of the genital parts of a naked body would also be upset by the touching of genitals through clothing, yet the Bill allows the latter. The Explanatory Notes state that the clause makes illegal sex in a garden into which people can see but not sex in a bedroom that has the curtains open, into which people can also see. Like other noble Lords, I cannot understand the logic of that, and I am pleased to hear that the clause will be amended.
Lord Bassam of Brighton: My Lords, I beg to move that the debate be now adjourned.
Moved accordingly and, on Question, Motion agreed to.
Lord Bassam of Brighton: My Lords, I beg to move that the House do now adjourn during pleasure.
Moved accordingly and, on Question, Motion agreed to.
[The Sitting was suspended from 1.29 to 2 p.m. for Judicial Business and to 3 p.m. for Public Business.]

Government Disputes: Resolution Procedures
Lord Hurd of Westwellasked Her Majesty's Government:
What progress has been made on the referral of government disputes to mediation or arbitration since the report of the Lord Chancellor's Department in July 2002.
The Parliamentary Secretary, Lord Chancellor's Department (Baroness Scotland of Asthal): My Lords, our department issued a report on the effectiveness of the pledge in July 2002 which said that, in the financial year April 2001 to March 2002, alternative dispute resolution methods had been used or attempted in 49 cases. I am pleased to report that, on the material collected by my department, so far in this financial year that figure has increased to 255. Progress on this scale clearly demonstrates that the pledge marks a major step on the road away from a culture of litigation towards a culture of settlement. The next full report is due to be issued in May 2003.
Lord Hurd of Westwell: My Lords, I thank the noble Baroness for that rather encouraging reply and declare an interest as chairman of CEDR which is a charity active in encouraging mediation. Has she seen the professional actuary's report, which had a good deal of publicity just before Christmas, which suggested that the compensation culture in this country is now costing the country £10 billion a year with a particular burden on the National Health Service and 35 per cent of that—more than a third—goes not in compensation at all but in lawyers' fees and administrative expenses? Given that rather frightening prospect, can the noble Baroness and her noble and learned friend the Lord Chancellor bring their strong persuasive pressures even more to bear in the public sector, particularly on the Ministry of Defence and the National Health Service, to find ingenious ways of settling disputes before they get bogged down in long, expensive and bad-tempered litigation?
Baroness Scotland of Asthal: My Lords, I entirely take on board what the noble Lord said. I reassure him that we are doing everything within our power to make sure that the benefits of mediation are properly highlighted. I have some success stories which I hope will salve the noble Lord's troubled spirit. For example, last year the Home Office resolved a complex

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and long running dispute involving a non-departmental government body with a two-day mediation, with a saving to the Home Office of about half a million pounds. The Ministry of Defence reached an agreement over the claims for the Kenyan tribes people bereaved or injured by British Army explosives left on their land. That issue had been in dispute for two years but, following a two-day mediation in London, the Ministry of Defence agreed to pay a £4.5 million settlement. The benefits are very clear and are well understood. The Government are doing everything they can to make sure that all departments take good advantage of this opportunity.
Lord Henley: My Lords, like my noble friend Lord Hurd I also declare an interest as regards CEDR, the body of which he is chairman, although my relationship with that body is not quite so eminent as his. Although I welcome what the noble Baroness said about the growth in government sponsored mediation, does she not agree that further growth in that regard would result in considerable savings to the Exchequer in terms of the costs of litigation? I refer to government departments in general but in particular to the Lord Chancellor's Department, which I imagine is very cash-strapped at the moment.
Baroness Scotland of Asthal: My Lords, I thank the noble Lord for his final comment and his concern in regard to our resources. I accept absolutely that there are benefits to be gained from mediation. The Treasury Solicitor's Department estimated that overall savings of £½ million were gained through the use of alternative dispute resolution in the very first year of operation in relation to the 49 cases that were attempted or undertaken. There are real benefits to be gained as a result of this initiative; we certainly seek to reap those benefits.
Lord Goodhart: My Lords, the report to which the Question refers mentions also the use of mediation by the National Health Service litigation authority. It mentions that as at the end of April 2002, 77 offers for mediation had been accepted. Does the noble Baroness agree that that is a particularly important field for mediation and can she report any further progress in that regard?
Baroness Scotland of Asthal: My Lords, I am happy to say that the noble Lord is quite right in terms of the take-up by the Department of Health. I understand that work is progressing well and that there is a full understanding of the benefits of using mediation wherever possible where the parties will engage in it. I understand that there is an ongoing review on how mediation can better be used.
Baroness Buscombe: My Lords, the Government will be aware that in November 2002 Nabarron Nathanson published ADR and Local Government, the findings of a research study into the use of alternative resolution and mediation within local government. The implication of the report is that there is a clear lack
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of mediation training and a pressing need for accredited mediators within local government. Can the Minister tell us what the Government can do to encourage local government to address and rectify that problem?
Baroness Scotland of Asthal: My Lords, one of the things that we can do is to raise the issue, as we have done, right across the sector. Noble Lords will know that we have said that we shall attempt to make sure that there is such a provision in all our contracts. Good practice is being shared. Obviously we hope that local authorities will seek to take advantage of alternative dispute mechanisms in order to reduce the cost to themselves.

Digital Hearing Aids
3.6 p.m.
Baroness Howe of Idlicoteasked Her Majesty's Government:
What arrangements there are, and what finance will be made available, for the roll-out across the country of the programme to introduce digital hearing aids for National Health Service patients.
The Parliamentary Under-Secretary of State, Department of Health (Lord Hunt of Kings Heath): My Lords, £94 million has now been made available to ensure that a modernised service providing digital hearing aids will be available from all NHS hearing aids services in England by 2005. All services not yet involved in the project are now being invited to apply for modernisation in 2003–04 or 2004–05.
Baroness Howe of Idlicote: My Lords, I declare an interest as a digital hearing aid user. I thank the Minister for that reply which will greatly encourage the largest, and, until now, among the most neglected and excluded, groups of disabled people in the country. Will the Minister tell us what plans the Government have to ensure that the roll-out of the programme will be sustained well beyond the three-year period? Will he assure the House that after that period eligibility will not, as so often, depend on one's postcode? Will the pilots conducted in Shrewsbury and Leeds, whereby private hearing aid dispensers worked in partnership with NHS audiology departments, be part of the three-year roll-out programme across England?
Lord Hunt of Kings Heath: My Lords, the pilots are not yet completed although preliminary results suggest that involving the private sector can be worth while. We shall need to evaluate the pilots before deciding how to take forward the policy. At the end of the rollout period we expect those services to be appropriately funded by primary care trusts. I fully expect the services to be continued. I certainly accept that. traditionally, this has not been a good area of NHS provision in terms of service and quality. However, I

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believe that the advances made in the past two years, and those which will be made over the next three years, are significant.
Lord Clement-Jones: My Lords, the Minister's announcement is welcome news. However, we should be clear that congratulations are due to the RNID which has fought a sustained campaign over a number of years to persuade the Government of the benefits of digital hearing aids. It took a long time to persuade the Government of the merits of the case. Has the Minister taken into account the need to apply the lessons that have been learnt in this area over the past few years to other areas of the NHS as regards introducing modern equipment?
Lord Hunt of Kings Heath: My Lords, the noble Lord is as churlish as ever with regard to what I consider has been an extremely positive announcement and development. I certainly pay tribute to the RNID. Not only has it been a very effective campaigning organisation, but it has also teamed up with the National Health Service procurement agency to negotiate much lower cost digital hearing aids. I give all credit to the RNID for that. More generally, I believe that this service signals a really significant improvement in provision for those with hearing loss. We have received tremendous support for that.
Lord Ashley of Stoke: My Lords, does my noble friend agree that this is an occasion for genuine congratulations? The fact that every deaf and hard-of-hearing person in Britain will have a digital hearing aid within two years—aids that cost £2,000 before—is a phenomenal achievement. The Government deserve warm congratulations. Does he further agree that the people who deserve most credit are James Strachan and David Livermore, the former chief executive and chairman of RNID, and Alan Milburn, my noble friend's own Secretary of State'? This action will do more for deaf people than any single thing in the past 50 years. It is a great achievement.
Lord Hunt of Kings Heath: My Lords, I always find it useful to pay tribute to my own boss. I am happy to endorse everything that my noble friend said, save only that he was very modest about his own achievement, which was absolutely pivotal.
Lord Bruce of Donington: My Lords, will the Minister give due acknowledgement to the Post Office engineering department which, in my early days at the Ministry of Health, was responsible for the initial development of the first proper hearing aid?
Lord Hunt of Kings Heath: My Lords, I do not quite go back as far as that, but I am happy to add my congratulations to those mentioned by my noble friend.
Earl Howe: My Lords, the programme is indeed very welcome, but can the Minister reassure me that enough technicians will be available to implement it over the next couple of years?
Lord Hunt of Kings Heath: My Lords, there is no doubt that that is a real challenge. That is partly why
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we have rolled out the programme over a number of years. We are taking action to deal with the issue of shortages. We have supported the introduction of a new degree course, and that will raise the number of qualified audiologists in the longer term. In the shorter term, we are looking at skill-mix issues to see whether technicians can take on more responsibility. As suggested by the noble Baroness, Lady Howe, we are also looking at ways in which we can co-operate with the private sector.
Baroness Finlay of Llandaff: My Lords, given the importance of hearing to speech development, will the Minister reassure us that paediatric services currently have the new technology available? A two-year wait in a child's development might mean that he or she misses out on crucial aspects of speech development.
Lord Hunt of Kings Heath: My Lords, I certainly understand the need for speed in the area, and that it is particularly important for children. The roll-out is deliberately timed to make sure that the NHS is able to cope with the extra demands placed on it. I will look into the matter that the noble Baroness has raised, but I think it important that there is a phased introduction.

House of Lords Voting Procedure
3.13 p.m.
Lord Archer of Sandwellasked the Leader of the House:
Whether he will consider new procedures for voting in Divisions in the House.
The Lord Privy Seal (Lord Williams of Mostyn): My Lords, replacing the present voting system, by which Members' names are recorded manually by Division Clerks and Members are counted by Tellers as they leave the Lobbies, is a matter for the Procedure Committee. I understand that it has not looked into the matter before, but it is open to any Member of the House to ask the Chairman of Committees to put the item on the agenda. Perhaps my noble and learned friend would like to do so.
Lord Archer of Sandwell: My Lords, while I thank my noble and learned friend for that encouraging invitation, would he agree with my arithmetic that on 4th February we conducted seven successive Divisions at an average of 19 minutes per Division? That is a total of two and a quarter hours for something that could have been achieved by other means in 15 minutes. Does he agree that if our predecessors long ago had conducted Divisions by requiring Contents to stand on their heads and Not-Contents to crawl on their hands and knees, we would now hear voices extolling the manifold blessings of that system?
Lord Williams of Mostyn: Well, my Lords—come to think of it! My Lords, we have to bear in mind that 4th February was a very distinguished occasion. We could have avoided the two and a half hours if only

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noble Lords had voted for a wholly elected House. Also, the topic was of consuming interest. After all, it was that of our own future.
Lord Addington: My Lords, when the noble and learned Lord looks at the problem, will he try to bear in mind how infrequently we get anything like that number of Members into this House? In my nearly 17 years here, there cannot have been more than half a dozen votes in this place arousing that amount of interest.
Lord Williams of Mostyn: My Lords, there were about 450 noble Lords here, some of whom I did recognise. My noble and learned friend has a point, and one perhaps not limited simply to voting in the Lobbies. A number of noble Lords have pointed out to me that sometimes a Select Committee has to be adjourned quite inconveniently. Sometimes, recently, we have adjourned in Grand Committees. It may be possible to look at alternative schemes of voting, perhaps through voting in the Select Committee or the Grand Committee. Those issues might well be looked at.
Lord Campbell of Croy: My Lords, any new procedures are likely to include reducing the time taken by a Division. Will the noble and learned Lord ensure that there are arrangements for disabled Peers, who are unable to reach the Chamber before the doors are locked, to vote? I declare a long-term personal interest, having been partially disabled since 1945.
Lord Williams of Mostyn: My Lords, that is a very sound point as well, if I may say so. That sort of problem is exacerbated if one is sitting in a Grand Committee or Select Committee quite a way from the Chamber. All such matters need to be borne in mind. The noble Lord's specific point will not be overlooked, but this is essentially a subject for the Procedure Committee.
Lord McNally: My Lords, I want to put in context the comments of the noble and learned Lord, Lord Archer of Sandwell. Was it not already true that on 4th February there were noble Lords voting on their heads and on their knees?
Lord Williams of Mostyn: My Lords, I was voting on my knees, and the prayer did not work.
Lord Cope of Berkeley: My Lords, 4th February was of course quite exceptional. As the noble and learned Lord will recall, we suspended our normal rule of not voting twice on the same issue once it had been carried. To some of us, at any rate, that reinforced the value of the normal rule. In considering changes, has the noble and learned Lord observed that in parliaments that have electronic voting, such as the European Parliament, there is great inflation in the number of votes and a consequent
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devaluation of their significance? That is even worse when the votes, as in that assembly and other places, are separated from the debates with which they are concerned.
Lord Williams of Mostyn: My Lords, I do not think that we want to have any truck with electronic devices. We have got a perfectly good egg-timer here.
Noble Lords: Oh!
Lord Williams of Mostyn: I know noble Lords will listen to the radio tomorrow morning.
Electronic voting works only if people have specific seats, and there are too many of us at present to have designated seats.
Lord Hughes of Woodside: My Lords, will my noble and learned friend accept that electronic voting by itself is not infallible? Frequently in the Scottish Parliament, Members including Ministers have to explain after a vote that they voted the wrong way.
Lord Williams of Mostyn: My Lords, I think that that is right. One cannot cater for all varieties of human infirmity, even in the Scottish Parliament.
Lord Phillips of Sudbury: My Lords, is it not the case that voting provides an involuntary opportunity for mixing with Peers from both sides of the House? Might not the noble and learned Lord agree that last Tuesday was a unique opportunity for catching up with one's cross-party intelligence? For my own part, so intense was the experience that on one occasion I voted in the wrong Lobby.
Lord Williams of Mostyn: My Lords, I did find myself mixing with Liberal Democrats on that occasion—and it is an argument for not having our present system.

Sentencing Guidelines
3.19 p.m.
Baroness Buscombeasked Her Majesty's Government:
Whether the new sentencing guidelines are a response to the growing problem of overcrowding in prisons.
Lord Falconer of Thoroton: My Lords, the proposed sentencing guidelines council is not a response to prison population pressures; it is a response to the Halliday report on the sentencing framework that emphasised the importance of clear and accessible sentencing guidelines. In the Criminal Justice Bill we have introduced provisions for a new sentencing guidelines council that will create guidelines across a wide range of issues that are relevant to sentencing. The council will aim to produce a more robust and comprehensive set of guidelines for all courts, enabling them to approach cases from a common starting point.

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Courts will be obliged to take the guidelines into account when deciding a sentence and to give reasons for departing from them.
Baroness Buscombe: My Lords, I thank the Minister for his Answer. In truth, are the new sentencing guidelines in the interests of protecting the public and rehabilitating criminals? Surely they are more a repercussion of failing prison facilities, a lack of prison resources and the financial costs of custodial sentences. What evidence is there that imposing community-based sentences will decrease the number of ex-prisoners who reoffend? What extra resources are being made available to those prisons that suffer from unbearable overcrowding and where conditions of imprisonment are degenerating?
Lord Falconer of Thoroton: My Lords, the noble Baroness has misunderstood the purposes of a sentencing guidelines council. It was proposed by Mr Halliday in his report, which was a detailed consideration of sentencing across the board. He said that it was an appropriate step to take to ensure consistency in relation to sentencing. The noble Baroness is also wrong to view the matter on the basis of a community sentence versus a custodial sentence. We require the right sentence for an offence and if there is a serious case that demands custody, custody will be imposed. We should focus on the measures that reduce re-offending.
Lord Thomas of Gresford: My Lords, will the Minister give an undertaking that the new sentencing council will be as far removed from political influence as possible? As the Minister knows, the Conservative Party called for its make-up to be parliamentarian. Can the Minister assure the House that that will not be the case?
Lord Falconer of Thoroton: My Lords, we have made it clear that when the sentencing guidelines council produces draft guidelines there should be a formal process of consultation with Parliament. We believe that that is right because we believe that there should be parliamentary input into the production of guidelines. We have made it absolutely clear that the sentencing guidelines council will produce the guidelines and we believe that that is the appropriate way to deal with the matter.
Lord Dubs: My Lords, will my noble and learned friend give an indication of the Government's thinking on the future size of the prison population? I was tempted to ask whether the Government have a target, but I have made the question easier by asking for the Government's thinking.
Lord Falconer of Thoroton: My Lords, we have made it clear that the courts must decide the appropriate sentence by reference to the facts of the case and the facts of the offender. They must not determine what sentence to give by reference to resource issues. As to the size of the prison population in the future, it is neither wise nor
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right to say what we expect it to be, particularly because we intend to bring more cases to justice and that inevitably will have an effect on increasing the prison population.
Lord Maclennan of Bogart: My Lords, to keep fine defaulters out of prison, will the Government consider re-introducing unit fines related to ability to pay? They were abolished by Mr Kenneth Clarke when he was Home Secretary. That would have the happy consequence of avoiding some of the risible fines such as that imposed upon the Solicitor-General recently for a serious speeding offence.
Lord Falconer of Thoroton: My Lords, it would be wrong of me to comment on an individual case. As regards unit fines, the noble Lord will remember that there were some difficulties in relation to them that led to a large fine being imposed for a minor offence. Ability to pay already plays a part in determining what a fine should be. Currently there may be cases in which fines are not awarded but perhaps should be awarded instead of a low-level community penalty. We have no plans to re-introduce unit fines.
The Lord Bishop of Worcester: My Lords, while I agree with the Minister that sentencing guidelines cannot be instantaneous responses to every movement in prison numbers, does he agree that there is pressure upon him and the Government to appear to be tough with offenders, which could lead the public to believe that only by increasing prison numbers can one show that such toughness is being pursued? Therefore, is it important that there should be a sustained programme of public education to demonstrate that within a community sentence the Probation Service can do excellent work in confronting offenders with the meaning of their crimes and in causing them to reflect imaginatively on what they have done, which can be not only as rehabilitative as prison but also as punishing?
Lord Falconer of Thoroton: My Lords, the Probation Service carries out excellent work and many community sentences are extremely helpful in seeking to reduce re-offending. However, I return to the starting point that the penalty to be imposed by the courts must be the most appropriate for the crime and the offender. We should not view the matter on the basis of community sentences versus custody, but on the basis of the appropriate sentence for the crime.
Lord Ackner: My Lords, will the sentencing guidelines council consult the judiciary before it produces the guidelines? How will the council fit in with the existing statutory organisation on the same subject?
Lord Falconer of Thoroton: My Lords, under the current Bill the sentencing guidelines council will be made up exclusively of sentencers, which means the senior judiciary, Crown Court judges and magistrates; it will be chaired by the Lord Chief Justice; and it will obtain advice from the sentencing advisory panel

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which is the body referred to by the noble and learned Lord. In the course of the Second Reading of the Criminal Justice Bill in another place we indicated that we shall consider whether the sentencing guidelines council should have other members in addition to sentencers. The answer is that at the moment it will be made up exclusively of sentencers, but it will certainly have many sentencers on it.
Baroness Thomas of Walliswood: My Lords, is the Minister satisfied that the current sentencing policy is equitable in respect of women? Recently there has been an extraordinary rise in the number of women in prison. Many people suggest that they are sent to prison for crimes which, if committed by men, would not result in a prison sentence.
Lord Falconer of Thoroton: My Lords, the number of women in custody has certainly risen, but the proportion of women in prison is much smaller than the proportion of men in prison. I do not believe that there is necessarily much evidence to suggest that they are being sent to prison because they are women, which is the implication of the question. As the right reverend Prelate said, the number of people in prison generally has risen over the past two years and that relates to women as well.
Lord Phillips of Sudbury: My Lords, does the noble and learned Lord agree that currently we are in the worst of all worlds with the highest per capita level of imprisonment in Europe, apart from Turkey? Does he also agree—this is my point—that in prisons such a grossly inadequate amount of time and resources are devoted, particularly in the case of young prisoners, to education and training? Typically there are only two or three hours of education a day.
Lord Falconer of Thoroton: My Lords, on the first point, we are in the middle range of countries in Europe as regards the number of people who go to prison in relation to the number of cases brought to justice. The differing rates between countries have as much to do with the number of cases brought to justice as they do to the size of the population generally. On the second point, the strides made by the Prison Service over the past few years, under the leadership of Martin Narey, have been considerable. The number of prisoners who receive educational programmes has increased significantly. We need to do much more, but noble Lords should not underestimate the extent of the progress that has been made.

Airport Security
3.28 p.m.
The Parliamentary Under-Secretary of State, Home Office (Lord Filkin): My Lords, with the leave of the House, I shall now repeat a Statement made in another place by my right honourable friend the Home Secretary. The Statement is as follows:
"Mr Speaker, since Tuesday there has been an enhanced level of security throughout the capital. As the Metropolitan Police said in their statement
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made on behalf of all those engaged in this operation, this was likely to be most visible at Heathrow Airport.
"At the request of the operational services, it was agreed that, as in the past, the armed services could be called upon for preventive and protective measures.
"It may help the House if I set the events of this week in the context of what was said in my Statement on 7th November. It may be helpful to the House if I recall key points.
"As I made clear, we face a real and serious threat. We know that Al'Qaeda will try to inflict loss of human life and damage upon us.
"That is why we have explicitly pointed to some of the most obvious risks such as transport infrastructure. And why the Government have taken a range of measures to improve public protection.
"The House will forgive me if I quote the most relevant passages of that statement:
'Aviation security measures remain at an enhanced level following the attacks on September 11th and the government keeps these measures under constant review. From time to time additional protective steps are being taken, and will continue to be taken as the situation demands'.
"And it continued:
'where threats are specific, we seek to thwart them. Where they are general, we seek to analyse them, and take whatever response we believe to be necessary to ensure the protection of the public'.
"This is precisely what we have done this week and will need to do from time to time. If the situation were to change I would inform the House. If there are specific incidents, as tragically in January with the death of DC Oake, I would come hack to the house.
"But I do not believe that it is responsible to provide a running public commentary from the Dispatch Box on every end and turn—any more than previous governments did over 30 years when facing the threat from the IRA.
"As with those governments, our view is that we must do nothing to undermine the work of the police and security services. We have to make fine judgments which must ensure the safety of sources of information. The terrorists must not be able to assess what we know and how we know it.
"We must give the public the information they need to protect themselves and others. That is what we have done. But we must also avoid frightening people unnecessarily or causing the kind of economic and social damage that does the work of the terrorists for them. The public must be alert but not alarmed.
"That is why I have consistently—and again this week—facilitated confidential briefings for the Shadow Home Secretary and the Liberal Democrat spokesman.
"Finally, let me again pay tribute to the work of our police, security and armed services. We owe them our deep gratitude for their continued vigilance, courage and professionalism".
My Lords, that concludes the Statement.
3.31 p.m.
Baroness Blatch: My Lords, I thank the Minister for repeating the Statement, which is a little short on information and a touch dismissive of genuine concerns. We fully support the action taken by the Government this week and we wish to praise the work of the members of the emergency services and other agencies who risk their lives in order to keep us all safe. That includes the intelligence gatherers and their organisations, whose job it is to keep one step ahead of the terrorist.
People are understandably concerned at the images they have witnessed on television and in the newspapers. That is why it is essential that the Government keep people as fully informed as possible about the current situation, consistent always with the sensitivity of the information.
I agree with the Home Secretary that information to the public should be designed to alert awareness but not to alarm. It is entirely understandable that detailed security sensitive information that would either play into the hands of the terrorist or put lives at risk should not be made available. However, it is possible for governments to make public statements, especially to Parliament. that fall short of these concerns and set the context for the level of threat which will enable as near everyday life to continue without undue alarm.
The words of the right honourable John Reid were extremely unhelpful and alarming in three respects. Here was a highly respected member of the Government and a Privy Counsellor speaking to the world media, which tended to give the message perceived authority. Secondly, Parliament was denied an opportunity to hear a formal statement on the recent security threat until a PNQ was tabled in another place. Thirdly, to what extent was Dr Reid accurate? That question certainly resides in the minds of those who saw and heard it.
I am aware that Privy Counsellor briefings are given to key members of the Opposition parties. That must of course continue, but loose talk from Cabinet Ministers in public is extremely unwise.
My other concern, which is highlighted by the Statement and by the current security alert, is the state of emergency planning. We are expecting a draft emergency planning Bill. Where is it? Ministers promised that a leaflet was being prepared for delivery to every home in the country, offering advice on what to do in the event of a terrorist attack. Where is it?
There is no coherent central control. The National Audit Office report, Facing the challenge—NHS Emergency Planning in England, published in November, revealed that the NHS is ill prepared to cope with terror attacks or disasters. Dr James Robertson, who drew up the report, warned that an incident with 500 or more casualties would "seriously challenge" the NHS. One in four major hospitals and one in three ambulance services are "not well prepared". What is being done in response to that NAO report?
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Furthermore, a new report, Risk: Improving government's capability to handle risk and uncertainty, published by the Prime Minister's own Strategy Unit on 20th November, found that the Government have a "fragmented approach" to dealing with emergency situations. It said that Ministers need to be,
"more open, more transparent and more participative".
in communicating risks to the public.
In July 2002, the Defence Select Committee published a report which found there to be "real deficiencies" in the Government's preparations for a possible terrorist attack at home. Even the chairman, Bruce George MP, said:
"We do believe that there has been a lack of grip and direction on the part of central government. We are concerned that central government has not responded to the scale of the complexity of the challenge posed by international terrorism".
Who is responsible for domestic security in government? There is a vast array of individuals, bodies and committees in Whitehall involved in protecting our country. John Prescott was recently made the leading spokesman for homeland security. I believe that position now rests with the Home Secretary.
The Prime Minister is in overall charge of intelligence and security matters. The Home Secretary is responsible for the Security Service. The Foreign Secretary is responsible for the Secret Intelligence Service and the Defence Secretary is responsible for the Defence Intelligence Service. There is also a ministerial committee on the security services.
David Omand was appointed to the post of security intelligence co-ordinator and permanent secretary.
Noble Lords: Oh!
Baroness Blatch: My Lords, will someone tell me why I am out of order? I am referring to the heightened state of security against a possible disaster from a terrorist attack. The preparation and readiness of this country to respond is very much a part of this Statement and why the PNQ was asked in the first place.
The post was designed to,
"enhance the capacity at the centre of government to co-ordinate security, intelligence and consequent management matters and to deal with risks and major emergencies should they arise".
The public are concerned. This is our only way to let them know whether the Government are ready.
Finally, would it not be better to have a dedicated homeland security chief, with support and powers to address a situation that is clearly urgent as a result of recent events and this week's security alert—not to replace the bodies to which I have referred but to co-ordinate and focus attention on protection of the home front in the face of a serious attack.
I implore the Minister not to interpret what I and my colleagues have said. This is not a call for security sensitive detail, nor is it, as the Statement says, calling on the Government,
"to provide a running public commentary from the Dispatch Box on every end and turn".

823
It is a call for Parliament to be given appropriate and timely information and for public assurance that as much forward planning and preparation for terrorist attacks as is needed is in fact either complete or in hand.
3.37 p.m.
Lord Redesdale: My Lords, I thank the Minister for repeating the Statement. I echo the support for the police, the Army and the intelligence services for their work over the past few days.
In the Statement the Minister said that we should not be given a running commentary on every aspect. However, there has been a great deal of concern at seeing Schimitar tanks based at Heathrow without a great deal of information being presented at the time. After the missile attack on the aircraft leaving Kenya there will obviously be speculation about the vulnerability of civil aircraft. Furthermore, although we are not asking for a great deal more detail, information should be given to Parliament because there will be a vast amount of speculation in the press.
I have one or two questions. First, will the Home Secretary have urgent discussions with the Office of the Deputy Prime Minister about how best the public can be kept informed and how they should respond to those seeking further information?
My second question is equally important considering the parlous state of many local authority's finances. Will the Minister make sure that local government has the necessary resources for a civil response to the situation? I hope that the Minister can say whether he is satisfied with preparations made by local authorities, especially those on the flight path around Heathrow. Can he also say when the Government will bring forward the long promised civil contingency Bill?
3.39 p.m.
Lord Filkin: My Lords, I am happy to answer many if not all the questions that have been raised, starting with the criticism of my right honourable friend John Reid. Anyone who read the newspapers with care would be perfectly aware that John Reid was responding to an allegation from a journalist that the deployment of several hundred police and Army personnel to Heathrow had been done as a PR stunt by the Government. That seems to me such an outrageous question from a journalist that I am not in the slightest bit surprised that John Reid used clear and strong language to affirm that this was a real issue, that these were real threats and concerns, and that these were real troops. He did that in a shorthand and graphic way. It would have been irresponsible not to have made clear that this was a real issue. It was regrettable and lamentable that that question was asked and even had to be responded to.
Noble Lords: Hear, hear.
Lord Filkin: In terms of the previous discussion in the House, we do not intend to appoint a chief of homeland security because we already have one—the Home
824
Secretary. He chairs the relevant Cabinet committees, which have met on numerous occasions since 11th September; and he is responsible directly for the main elements of the work to counter terrorism, the Security Service and building resilience against terrorist threats. The Home Secretary chairs the Civil Contingency Committee and its two main sub-committees. He is supported in that structure by Sir David Omand, who has the role of security and intelligence co-ordinator across government.
When the head of US homeland security, Governor Tom Ridge, came to discuss with the Home Secretary in November our preparedness and theirs, he said in short that in a vastly different constitutional situation—a federal United States with a population of 280 million—they were seeking to put in place arrangements that were as robust and strong as the British situation.
Given that we have covered those issues before, it is surprising that the question is yet again being raised. I shall reflect, perhaps in quietness, on why it was raised when we have given clear and strong answers.
In light of 11th September, any government would have been grossly irresponsible if they had not sought to review every issue of structure and operational practice in government and all their other agencies because all our understanding of the scale and potential of threats was transformed by that event. I will not go into full details for reasons that the House will understand, but part of that review was carried out by Sir David Omand last summer. It looked in part at the structure of Cabinet committees, to ensure the clearest operational command within government and police forces—which have immediate, direct and clear responsibility for these measures.
In broad terms, I am happy to give the House the assurance that while we are not the slightest bit complacent and are aware of the unpredictability of attacks that may affect us, we have looked thoroughly at the structures of government and operational matters and they are strong and in good order. But one must never be complacent. That does not mean that we can have total security, when it is so easy for something to be done in an open society of our size and vulnerability. But we have looked at the issues responsibly.
We will bring forward an emergency civil contingencies Bill in good time. If the matter were of extreme urgency, we would have brought a Bill forward urgently. At this point in time, it would make some necessary improvements but they do not go to the heart of preparedness to be able to rebut a terrorist threat.
There is not a fragmented approach within government. It is clear and strong and the leadership of the Prime Minister and Home Secretary seems to me and to the public to be clear and strong.
The first priority, as I hope we have made clear, will always be the security of the public. Those measures will drive us. But the state has to strike a balance between giving information to the public so that they can make their own mature judgments about how they respond—particularly if there were to be a specific and direct threat—and not giving succour and help to

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those who wish to damage this state by helping our opponents to be better placed to mount a terrorist attack on us. I do not say that in any cheap way to hide behind a smokescreen in responding to appropriate questions in the House.
There will always be, as there should be, questions about how detailed operational matters could be further improved. Mention was made of the National Audit Office. Some of those measures are under active consideration but if we thought that they were in any way weakening significantly our ability to rebut a terrorist attack, we would act immediately and expeditiously to deal with them.
I agree with the noble Lord, Lord Redesdale, that the public are not foolish. The public are intelligent. They are aware of what happened on 11th September. They know that the state must do all it can. They know that none of us can provide a guarantee of 100 per cent protection. Therefore, we have made it absolutely plain that when there is a clear, specific and direct threat, the public will be told and we will act. When intelligence sources reveal the possibility of a threat, we must act with measure by putting in place arrangements to increase our resilience and protection against any possibility of attack while not closing down the economy and the society that we hold dear and must sustain in the face of threats.
I remind the House that such threats are not new. The scale may be new but we have been seeking out and countering the threat of terrorism to our society for 30 years. Under the previous government, the threat of the Provisional IRA was real and ever present. There has been pressure on government to refine their mechanisms and to do their utmost to defend society against those attacks and others.
We increased resources for local government this year. Local authorities have adequate resources to do their job and a responsibility to protect the citizens in their areas. Most local authorities already do that well. I would be foolish to think that every local authority in the country has perfect contingency plans. Further work will be done by the Government in partnership with local authorities to ensure that they are as robust as they should be in the interests of their citizens.
3.48 p.m.
Lord Carlile of Berriew: My Lords, to reassure the public that there is a continuing, proportional and informed reaction to information about the possible threat of international terrorism, will the Minister tell the House what progress is being made to reform Special Branch in response to the recent report by Her Majesty's Inspector of Constabulary, Mr. Blakey, which set out important proposals for the security of the public?
Lord Filkin: My Lords, I do not know the answer to that question but I shall respond to the noble Lord in writing in 24 hours.
Lord Burnham: My Lords, reservists are being sent to the Gulf and regulars are being retained at home because reservists are not allowed to partake in measures designed to alleviate the effects of the firemen's strike. Can the Minister give an assurance that the same does not apply with regard to security measures and that reservists can be used in full, where required, for the purposes of security? Secondly, what was the security state on Monday?
Lord Filkin: My Lords, as the noble Lord implies, we are facing a number of potential threats and problems at present. Without going into detail, I have discussed the issues with relevant officials and I am confident that the police and the Armed Forces are capable of coping with all the emergencies currently facing us. Therefore, I can give the assurance that the noble Lord sought.
As to the security state on Monday, I think that we have gone to sleep. Again, I will respond later to the noble Lord.
Baroness Thomas of Walliswood: My Lords, every Member of the House is aware that the state of security fluctuates from time to time. We can all observe when there has been such a fluctuation on entering the House. We may not like what we see, but we accept it because it protects us. Did the Minister see the early television newscasts last night when reporters were with members of the public in the approaches to Heathrow? Every person who was asked said, "I do not like this much, but I am glad that they are looking after me". That was their basic response—before the newspapers got to put a spin on the whole matter.
Lord Filkin: My Lords, I regret that other duties meant that I did not see the early evening news, but the noble Baroness has put her finger on the issue. Members of the public are not foolish; they know the risks they face. They have the greatest respect for our security services and our police in making operational judgments in such respects. They know that there is not total security; but they know that those responsible are striving their utmost to provide protection. Individual members of the public then make their judgments on how to behave in those circumstances. I am sure that the security services, police and the armed services appreciate the support given for their efforts and would compliment the public for their common sense.
Baroness Sharp of Guildford: My Lords, does the Minister agree that it is important that there is sufficient information so that the general public are not unduly worried by the whole situation?
Lord Filkin: My Lords, one must treat the public as mature, intelligent and adult. We have a highly educated, literate and commonsense public, who, especially in London, have experienced living with those threats for 30 years. They do not like it but they know the reality and recognise that if they gave in to every possible anxiety, they would cease to live their

827
ordinary lives and our society would collapse. That does not mean that we give them every element of possible security information that raises or lowers the security threat assessment. We cannot do so for operational reasons. Two reasons apply: first, we would divulge our sources, which would weaken our protection; and, secondly, we would generate a constant neurosis that would be out of proportion to events.
It will have been absolutely apparent to the public that a heightened state of alertness has existed as a consequence of a heightened security risk assessment by the Metropolitan Police during recent days. I cannot believe that anyone in the country who watches the media or talks to any other person would not be aware of that. On Monday, we remained at a heightened state of alert. It has been a long-standing policy not to give details of alert states, which is no doubt why I could not remember the answer to the question posed by the noble Lord.
The Earl of Sandwich: My Lords, does the Minister agree that one of the most important sources of intelligence is the Israeli intelligence service, Mossad? Does he further accept that in the Middle East context it would be a grave error to place too much reliance at this time on those sources?
Lord Filkin: My Lords, I shall not comment on security sources.

Iraq
3.53 p.m.
The Minister for Trade (Baroness Symons of Vernham Dean): My Lords, with the leave of the House, I shall now repeat a Statement made in another place by my right honourable friend the Foreign Secretary on Iraq. The Statement is as follows:
"The Security Council will meet in New York tomorrow to hear the latest reports from the executive chairman of the United Nations Monitoring, Verification and Inspections Commission, Dr Hans Blix, and the director-general of the International Atomic Energy Agency, Dr Mohammed El Baradei. I will be joining my fellow Foreign Ministers for that meeting.
"Security Council Resolution 1441, agreed three months ago, placed the onus squarely on Iraq to co-operate fully and actively with UN inspectors in the disarmament of its weapons of mass destruction. It gave Iraq a final warning: comply with the UN's terms immediately or face 'serious consequences'. European Union Foreign Ministers expressed clear support for that goal last month, when they declared unanimously that,
'the Resolution gives an unambiguous message that the Iraqi Government has a final opportunity to resolve the crisis peacefully'.
828
"Tomorrow's briefing will be the fourth update delivered by Dr Blix and Dr El Baradei. The comprehensive reports that they delivered on 27th January painted a disturbing picture. Most damning of all was Dr Blix's observation that Iraq:
'appears not to have come to a genuine acceptance—not even today—of the disarmament which was demanded of it and which it needs to carry out to win the confidence of the world'.
Dr Blix concluded that the Iraqi declaration submitted on 7th December was,
'mostly a reprint of earlier documents',
and did not,
'contain any new evidence that would eliminate'
unresolved
'questions or reduce their number.'
"The central premise of Iraq's so-called disclosure—that Iraq possesses no weapons of mass destruction—was a lie. Nor was there any admission of Iraq's extensive efforts to develop WMD since the final UNSCOM inspections in December 1998.
"Dr Blix and Dr El Baradei said that Iraq had failed to account for 6,500 bombs that could carry up to 1,000 tonnes of chemical agent, or for 8,500 litres of biological warfare agent and a large amount of growth media that could be used to produce about 5,000 litres of concentrated anthrax.
"Twelve chemical rocket warheads unearthed by UNMOVIC inspectors were potentially, in Dr Blix's words,
'the tip of a submerged iceberg'.
"Iraq had failed to disclose 3,000 pages of documents relating to a nuclear weapons programme recently discovered in the grounds of the home of an Iraqi scientist. Despite repeated requests from UNMOVIC and the IAEA, all interviews with key Iraqi personnel were being conducted in the intimidating presence of official 'minders'. In contravention of UN resolutions, Iraq had developed missiles tested at ranges in excess of the 150 kilometre limit specified in UN resolutions. I remind the House that the Government drew attention to Iraqi work on such missiles in the dossier that we published last September. We need to hear what Dr Blix has to say on the subject tomorrow, but if media reports are correct, the Al Samoud missile programme is clearly a serious breach of Iraq's obligations. We should expect rapid action to eliminate any such illegal programme.
"In drafting Resolution 1441, Security Council members took pains to set two clear tests for a further material breach by Iraq: first, if Iraq made 'false statements' or 'omissions' in the declaration that it submitted on 7th December; secondly, if Iraq failed
'at any time to comply with, and co-operate fully in the implementation',
of UNSCR 1441.
"The briefings by Dr Blix and Dr El Baradei—as well as that of Secretary Powell to the Security Council last week—leave no doubt that Iraq has failed to meet both tests. The conclusion is inescapable: Iraq is in

829
further material breach of Resolution 1441. We shall take full account of the reports of the chief inspectors tomorrow.
"The prospect of military action causes obvious anxiety—as it should—here in the United Kingdom, among our allies and in the region. I still hope and pray for a peaceful outcome to the crisis. This will only be possible if we maintain unrelenting pressure on Saddam, including the threat of force, rather than casting around for excuses to delay.
"We have only got this far in exposing the lies, deception and above all the danger from the Saddam regime by that pressure. For the international community now to lose its nerve would significantly undermine the authority of the United Nations and make the world a much more dangerous place as dictators got the message that international law was mere words.
"The Franco-German proposals announced this week to bolster the inspection regime will not deliver the assurance the world needs about Iraq's weapons. They are unrealistic and impractical. They shift the burden of proof from Iraq to the inspectors. And they send Saddam Hussein the signal that defiance pays. What is the point of sending three times as many inspectors for Saddam to deceive? As Dr Blix himself said on Monday,
"the principal problem is not the number of inspectors but rather the active co-operation of the Iraqi side, as we have said many times".
"Iraq was found guilty in possession of WMD 12 years ago. The role of inspectors has always been to verify Iraqi compliance, not to engage in a 'game of catch as catch can', to use Dr Blix's terms.
"I am glad to see that other proposals attributed to the French and German Governments—such as the establishment of a No Fly Zone over the whole of Iraq, and the insertion of armed UN troops—have now been officially denied.
"Let me now turn to the position within NATO. Discussion began in the Alliance in mid-January of the need for contingency planning to cope with potential threats to the security of a NATO ally, Turkey, in the case of military action over Iraq. Sixteen NATO allies—including 14 European nations—all supported this entirely reasonable and responsible proposal simply to set in hand some military planning for very limited defensive mutual assistance. France, Belgium and Germany have resisted, on the grounds that a NATO decision on this very limited mutual assistance would somehow pre-empt any Security Council consideration of Iraq's further material breach. Faced with this deadlock, Turkey on 10th February requested consultations under Article 4 of the Washington Treaty. These discussions are continuing, with the United Kingdom fully supporting Lord Robertson's efforts to achieve consensus.
"But it is worth reminding the House that at the Prague Summit less than three months ago, NATO leaders pledged their full support for the
830
implementation of UNSCR 1441 and their commitment to ensure full and immediate compliance by Iraq, without conditions or restrictions.
"Given the obvious risks, and the possibility that military action may prove necessary, we are keeping under very close review the safety and security of both visiting and resident British nationals in the Middle East. We make assessments on a case-by-case basis for each country in the region and will make announcements as necessary.
"Even at this late stage, armed intervention is not inevitable. A peaceful resolution of this crisis remains in Saddam Hussein's hands. Full Iraqi compliance with the terms of UNSCR 1441 will deliver the outcome the UK and the entire international community wish to see: an Iraq no longer posing a threat to its neighbours and the region.
"But in the absence of full compliance by Saddam Hussein, UN inspectors will not be able to fulfil their mandate to verify Iraqi disarmament. In this event, UNSCR 1441 warns Iraq to expect 'serious consequences'. By now even Saddam Hussein can be under no illusions that this means disarmament by force".
My Lords, that concludes the Statement.
4.4 p.m.
Lord King of Bridgwater: My Lords, in the absence in Japan of my noble friend Lord Howell, and of my noble friend Lady Rawlings, I thank the Minister for the Statement. No noble Lord is in any doubt about the gravity of the Statement. It has been made in advance of a very important report to the UN by Dr Blix, but it already contains a judgment and conclusion by Her Majesty's Government that there has been a further serious material breach; and the implications of that will be well recognised in your Lordships' House.
On a separate point, we on this side of the House strongly support the Government's position and that of the majority of countries in NATO. It is extremely important, at all times but at this time above all, for the unity which NATO has preserved over so many years to be sustained. We support the application of Turkey.
We would say this to our friends in the United States. While there is understandable anger and criticism—at this time of some difficulty for the United States the activities of France, Germany and Belgium may be singularly unwelcome—some of the language used and threats of retribution are not wise when there is a need for some calmness, rebuilding of bridges and unity. The current situation requires unity as we move forward. The Blix report will be made to the United Nations tomorrow. The spotlight will shift to the United Nations.
We endorse strongly the comments made about Resolution 1441. We recognise that Resolution 1441 is not a new invention of the United Nations. It is an extremely belated attempt at last to gain compliance with the undertaking that Saddam Hussein himself gave to achieve a ceasefire in what otherwise may have been a further crushing defeat. He gave solemn

831
undertakings which he has singularly failed to observe. The reason that he was able not to observe them is that over that period the threat of a credible military force to make him appreciate that there was no alternative but to comply was unable to be sustained. If Resolution 1441 for the disarming of weapons of mass destruction and the observance of United Nations resolutions are to be successfully achieved, that threat of credible military force has to be sustained. While I hope that every noble Lord respects genuine, deeply-held moral convictions on these issues, the reality is that unless the threat of credible military force is sustained there will be a continuance and probably an acceleration of the programme for weapons of mass destruction and an even greater threat to that region.
It is said that the spotlight now moves to the United Nations. The Statement made no mention of any second resolution. Can the Minister say anything about the Government's position on that? Does the tone of the Statement imply that, as there has been further material breach and even Saddam Hussein could be in no doubt as to what Resolution 1441 meant, the Government believe that no further resolution is required?
Can the Minister comment on the somewhat strange statement which appears to have been made by the Secretary of State for International Development—and reported in another place—when asked about humanitarian aid in Iraq, that there will be no aid unless there is a second UN resolution? Is that the Government's position? I welcome anything that the noble Baroness can say about humanitarian aid. It is an important issue. Were the situation to move forward to military force—we would all regret that and hope it can be avoided—it is important to have confidence that the UN would be able to support a programme of humanitarian aid for those who might suffer, with an active programme of preparation for alternative arrangements in Iraq.
At present, there is welcome news that Mr Ariel Sharon has had talks with Mr Abu Ala from the Palestinian Authority. Will the Minister confirm our view that any action in and around the Middle East needs to go hand-in-hand with a revival of the peace process between Israelis and Palestinians, without which there will never be stability in the wider Arab world?
At this time, when the chances of avoiding conflict are critically dependent on the absolute conviction by Saddam Hussein that he faces military force unless he complies, it is vital that the United Nations speaks with a united voice and that there is seen to be clear will in this country by the Government, Parliament and the people in support of UNSCR 1441 and any action that may flow from it. We repeat the plea from this side of the House in respect of our concern to improve the presentation of the Government's policies. They are perfectly respectable policies but have not been adequately explained and have been tragically undermined by such issues as the issue of the dossier—which invited nothing but criticism at the time. Furthermore, we are concerned at the less than adequate and clear demonstration of some of the
832
issues—for example, the link between Al'Qaeda and Iraq—to which obviously the Government have attached importance, but have lacked the ability to convey that conviction to the public. It is critically important that if our forces are asked to go forward—we hope that that will not happen, but if it does—they will go knowing that they have the support of their fellow countrymen.
We strongly support the Minister's final conclusion. The matter is now in the hands of Saddam. He lied before. He said that he did not have weapons of mass destruction. He had them and they were found. There are not many people who believe that there are not significant quantities of weapons of mass destruction still present in Iraq. It is not a question of hide-and-seek or 'catch as catch can', it is a question of total compliance with United Nations resolutions to make available, to indicate and to guide inspectors to the materials and to organise their destruction.
If that is done, war can be avoided. The only way in which that is likely to be achieved is if we show resolution and firmness at this time.
4.13 p.m.
Lord Wallace of Saltaire: My Lords, we also thank the Minister for repeating the Statement. However, we reiterate that while Statements—including regular Statements on what the Leader of the House described to the leader of my group as a very fast-moving situation—are welcome, your Lordships' House and another place need a full debate on the situation in order to give people from all sides the opportunity to state their views. We need a good, long debate.
It is most important that we wait for tomorrow's report. I heard very little that is new in the Statement. At present, inspections appear to be making rather good progress—that is what they are supposed to do. Can the Minister give us any information on how much extra range the Al Samoud missile has? My information is that it has now added a further 30 kilometres to its 150 kilometres. Whether that is a massive increase is something that one may want to question.
The pressure must be maintained. I agree with what the noble Lord, Lord King of Bridgwater, said. However, we must also be concerned with the maintenance of the rules of international order. I reiterate what is said in the Statement regarding the concern that the authority of the United Nations must not be undermined because that would make the world a more dangerous place. The authority of the UN is already at risk in this situation from a number of possible sides.
On these Benches, our assessment as to what needs to be done is in line with a number of principles. We are concerned to disarm the regime—not to change the regime, unless that is a necessary consequence. Therefore, we support very much the implications of the final paragraphs. We are also concerned, unavoidably, that any intervention in Iraq—if it proved necessary—should not make the struggle with the threat of terrorism worse. It must be managed so as to alleviate the terrorist threat and not to provoke a further surge of terrorism.

833
We are also concerned that any intervention in Iraq or any attempt to disarm Iraq is about Iraq itself and should not be seen as part of a larger plan—as too many people in Washington are already saying to—remodel the whole of the Middle East. So far as possible, Britain should maintain co-operation with its European partners. I agree strongly with the comments made by the noble Lord, Lord King, concerning the unhelpfulness of the current very aggressive anti-French rhetoric being heard from the United States. The fact that we are also hearing it on British radio and television does not help to swing the British public in support of American motives.
On the question of Turkey, I should like to ask the Minister specifically whether she is confident that the Turkish Government put in their own request. My understanding is that this was an American request to provide forces to support Turkey. It was only on 10th February, under American pressure, that the Turkish Government formally asked for support. I note that on 11th February, the Turkish Prime Minister said that Turkey does not need these extra forces. He said:
"Turkish Armed Forces is already very strong. There is not a need for this".
On Turkish television yesterday, Mr Erdogan, the leader of the AK Party said:
"Turkey is beside neither U.S. President Bush nor Saddam in case of a war. We are only beside interests of Turkey. We support peace. We defend Turkey's interests in political means".
I have some sympathy with the actions that the French, the Germans and the Belgians have taken—though not the way in which they have done it—in that their argument is that the United States was using this to try to bounce NATO into accepting the logic of preparations for war. We do not yet accept that there is an unavoidable logic for war. I welcome the restatement in the Statement that the Government still believe war may be avoided.
I urge the Government to provide accurate information for a mature democracy. Misleading representations do not help. The phrase in the Statement about the Iraqi report including a reprint of earlier documents could also be applied to some of the things which the British Government have provided, but which have not helped to sway public opinion.
We need a debate in both Houses before a second UN resolution is agreed. If the Russian Duma can be allowed that, perhaps the British Parliament might be considered sufficiently part of a mature democracy to be allowed that too. The British people, as we all know from public opinion polls as well as from conversations, are not yet persuaded of the case for military intervention in Iraq. At present, a great many people in all parties and both Houses are not persuaded of the case for war.
It is a matter for concern that there are many within the Bush Administration who appear determined to go to war to remove the current Iraqi regime whether—the UN permits it or not—and to move on from there to reshape the Middle East as a whole. I ask for
834
reassurance that Her Majesty's Government do not share that objective and will not follow the US Administration in such an enterprise without clear and decisive support, through the UN, through a second resolution.
I have one final question. We hear in the Washington debate various comments about planning for after the war. It is suggested that British troops will be used mainly to mop up and occupy afterwards. I trust that this will not mean—as has often been stated in Washington op-ed columns—that the Americans do the fighting and the Europeans do the washing-up. Is it intended that the British will be washing up?
4.20 p.m.
Baroness Symons of Vernham Dean: My Lords, I thank both noble Lords for their broad welcome for my right honourable friend's Statement. In particular, I welcome the noble Lord, Lord King, to his job of substituting, which he did so ably today.
The noble Lord, Lord Wallace of Saltaire, asked about a debate on Iraq. I understand that conversations are taking place in the usual channels at present. I hope that we will manage to resolve them successfully and reach a mutually agreed understanding on when a debate will take place.
The noble Lord, Lord King, said that the tone of the Statement suggested that we had already made up our minds that there was a further breach. That is true. The Statement says it quite clearly; but it is based on what Dr Blix and Dr El Baradei were able to report in January on the questions that had remained unanswered by the Iraqi regime in the document that they submitted to the United Nations in December, and on what was described as Iraq's lack of active co-operation in their dealings with the United Nations inspectors. There are around 20,000 security and intelligence personnel in Iraq, and only just over 100 United Nations inspectors to cover a country the size of France. It is not the inspectors' job to run around to try to find the evidence that Iraq has no weapons of mass destruction. It is the job of the Iraqi regime to show the inspectors that that is the case. Sometimes the failure of some of our international partners to grasp that essential point about what the United Nations Security Council Resolution 1441 says has led to some of the misunderstandings in recent days.
On what is happening in NATO, it is bound by solemn undertakings of the partners. We believe that the request made by Turkey is in its interests and those of NATO. The noble Lord, Lord Wallace of Saltaire, suggested that possibly it was not a request by Turkey, and that some of the recent statements from Turkey indicate that it can manage nicely on its own. I suggest to the noble Lord that one should be careful about some public statements. Many of our friends near the region have difficultly nuanced positions. From my own recent trip to Saudi Arabia and Egypt, I know that there is sometimes much difficulty in people explaining in public what they can say to us in private. I had understood that the position of the noble Lord's

835
right honourable friends in another place placed a rather different emphasis on what has happened regarding NATO.
Meetings are continuing in NATO to try to resolve the issue. Our permanent representative, Sir Emyr Jones Parry, will be representing the United Kingdom. The work will continue throughout the weekend. The permanent representatives are meeting both in the morning and the afternoon. Sixteen countries agree on the position; three do not. As the noble Lord, Lord King, said, and the noble Lord, Lord Wallace of Saltaire, agreed, it is very important that we lower the temperature of the rhetoric on both sides of the Atlantic. It is not just those on one side of the Atlantic who have made statements that have made others concerned. The rhetoric in both directions should now be one of much more studied discussion about how the issue can successfully be resolved.
I agree with what the noble Lord, Lord King, says about the importance of credible military force to back up the position on UNSCR 1441. If credible military force is not maintained, it will undermine the authority of the United Nations, and. as the noble Lord, Lord King, rightly said, it will increase the threat from the proliferation of weapons of mass destruction.
Since we passed Resolution 1441, it has always been our view that a second resolution is desirable. That is the position of our allies throughout. We will examine whether, and in what light, we can take forward our desire for a second resolution in the light of the statements tomorrow. My right honourable friend's Statement did not dwell on the matter, because we thought that it was right to listen to what Dr Blix and Dr El Baradei say to the United Nations tomorrow on whether they have further information to help resolve how the second resolution might be taken forward.
We hope to hear more about the Al-Samoud missile in tomorrow's statements in the United Nations. But, as my right honourable friend's Statement made clear, we raised questions about the al-Samoud missile in our dossier put forward in September. The noble Lord is right that the range then was said to be around 180 kilometres, 30 over the United Nations specification. But we will want to look carefully at the outcome of the inspectors' own view on that missile. I understand that a team of international experts is also looking at the point.
We have been discussing aid. We are in regular contact not only with our allies in the United States but with a range of UN humanitarian agencies. Everybody is making detailed contingency plans. We are confident that UN preparations are as good as they can be, given the risks and the uncertainties. We support a leading UN role in the response to any humanitarian crisis and thereafter. In response to the noble Lord's point on what he claimed my right honourable friend the Secretary of State for International Development said, I have not seen those words. I wish to study them carefully before responding to the noble Lord, but I will do so in due course.
I agree with the noble Lord that any attempt to lower the temperature of the difficulties that prevail in the Middle East is to be much welcomed. We join the
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noble Lord in wishing that an outcome of any dialogue established will be an improvement of the security situation in that part of the world.
We shall discuss the links between Al'Qaeda and Iraq in more detail in the Question raised by the noble friend of the noble Lord, Lord King, to be discussed next week. The Government have said on several occasions that it is perfectly clear that Iraq has had considerable—I hesitate over the word "linkages" because it means different things to different people. It is clear that Iraq has given succour to different terrorist organisations, including Abu Nidal and others who have been espousing the cause of terrorism in the Middle East.
I do not think that anyone is in any doubt that it is up to Saddam Hussein now to prove to the world that he does not have those dreadful weapons; it is not up to the rest of the world to prove that he has.
4.28 p.m.
Lord Wright of Richmond: My Lords, perhaps I may press the Minister further on two points mentioned by the noble Lord, Lord King. The first, on which she touched at the end of her reply, is the alleged link between Saddam Hussein and Al'Qaeda. Does she agree that the broadcast on Al-Jazeera earlier this week tends to undermine claims that there are links between Saddam Hussein and Al'Qaeda, far from supporting them as alleged in Washington? Secondly, the noble Lord, Lord King, also referred to the importance of parallel progress on the Arab-Israel situation, which I endorse. What is the present state of play on the activities of the Quartet and the roadmap? What is Washington doing, if anything, to try to bring about further progress on the Palestinian problem?
Baroness Symons of Vernham Dean: My Lords, the question of the noble Lord, Lord Wright of Richmond, brings me back to my hesitation a moment ago about using the word "linkages". The word has different meanings in different mouths. If one is implying that there was any linkage between Al'Qaeda and Iraq before the dreadful events of 11th September, I have not seen anything that would substantiate such a claim. However, I believe that there is some evidence that Iraq has given safe haven to a number of Al'Qaeda operatives. The noble Lord raised the question of the Al-Jazeera broadcast which we believe was made by Osama bin Laden. Colleagues have been studying the tapes and we believe that they are authentic. They appear to show that Osama bin Laden is trying to make common cause with Iraq very much along the lines of claiming that my enemy's enemy is my friend.
The noble Lord is also right in suggesting that mitigating against that are the descriptions about Iraq being, as Osama bin Laden described, "socialist" and "infidels" thereby making Iraq an apostate regime in the eyes of Al'Qaeda. We can analyse the tapes and what was said. That work is still being undertaken. I hope we will be able to discuss this more fully next week. I hope to give your Lordships a fuller analysis of what we believe the tapes to show.

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As regards the issue of the Quartet and the road map, it is a matter we are discussing with our allies in the United States. My right honourable friend Secretary of State Hoon has had conversations on his most recent visit to Washington about this issue. I do not believe that there is any doubt on either side of the Atlantic about the importance in its own right of taking forward the Middle East peace process, through the road map, and that it should have full prominence in our international discussions.
Lord Campbell-Savours: My Lords, I join the noble Lord, Lord Wallace of Saltaire, in expressing the view that we should not go over the top about a 20 per cent increase in the range of the Iraqi missile system. We should not allow that to be spun out of control. In my view it is not credible to describe it as a major breach.
Would my noble friend recognise that if we are to keep up the pressure on the Iraqi regime and maintain the policy of brinkmanship so as to avoid a war and yet secure our objectives, we may have to proceed without the support of the Security Council? I perfectly understand if my noble friend wishes not to reply to that final question.
Baroness Symons of Vernham Dean: My Lords, I agree that in all these matters it is extremely important not to go over the top. This issue is as deadly serious as it could possibly be. A decision to engage in military conflict is one of the worst that any government have to take. It is enormously important that if such a decision is taken it is done so on justifiable and proportionate grounds. Proportionality is enormously important in any such decision.
In responding to what the noble Lord, Lord Wallace of Saltaire, said about the alleged increased range of about 20 per cent and about 30 kilometres, I recognise those figures from the previous dossier. I also said to the noble Lord that we would have to look at this very carefully in the light of what is said tomorrow, which is an enormously important day. We shall have two reports presented to the United Nations Security Council. All the foreign Ministers will be present. There will be a brief opening debate and then a fuller debate among the Ministers present.
As regards what my noble friend said about proceeding without the support of the United Nations Security Council, the fact is that my right honourable friends the Prime Minister and the Foreign Secretary—indeed, all my right honourable friends—have stressed over and over again the importance of proceeding with such support if it is humanly possible. But we have also said that were it the case that a veto was used which stopped our having that support, and we felt that it was being exercised for unreasonable cause, as would have been the case, for example, over Kosovo, that might be grounds to proceed.
The fact that I say that in no way implies that we do not want a Security Council resolution. I do not believe that I can be clearer than that. I am making no more than the point made by the leader of the Liberal
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Democrats when he spoke on the Frost programme a week or so ago. It is exactly the same point. I do not believe that there is a material difference between us on this point.
The Earl of Onslow: My Lords, perhaps the noble Baroness can help me. I am just old enough to remember Suez, unlike the noble Baroness; I am old enough to remember the Falklands, the Gulf War, Borneo and, possibly, Vietnam. In those cases there were at all times people who were very anti-war, but equally there were people who were very pro-war. At the moment I find it extremely difficult to find anyone outside who is in any way happy for the government line on this war.
Could it be that the Government have failed to show that there is a real threat? If there were, then what the French or the Chinese say does not matter to me because it is the duty of Her Majesty's Government to defend her subjects. It does not matter then about the French who sometimes remind me of what David Niven said of Errol Flynn, "You can always rely on Errol, he will always let you down". The case for showing a real threat exists has not been made by the Government.
Furthermore, the Al'Qaeda tape of the day before yesterday shows an unholy alliance. It is the fact that Osama bin Laden has come to the aid of Saddam Hussein—I know the morality of it is different—in the way in which Churchill came to the aid of Stalin. Churchill did not like Stalin and Al'Qaeda does not like Saddam Hussein. But they are put into the same basket by the outside pressure applied to Baghdad.
I really want to support the Government on this matter. I want to believe them to be right. But as yet they have not made the case that the threat is real and dangerous to Her Majesty's subjects.
Baroness Symons of Vernham Dean: My Lords, I do remember Suez so I imagine that the noble Earl remembers it quite well! When the noble Earl says that many people are anti-war, my answer is that that is good. I am glad that the people of this country are antiwar, and it is right that people should be so. It would be a dreadful thing if we lived in a country which was pro-war. But I do not believe that there are many people in this country who do not believe that Saddam Hussein is an evil man, that he runs an evil and pernicious regime or that there is not a threat. The United Nations Security Council resolution has made that absolutely clear. Do not let us forget that the resolution was passed unanimously.
There is an alternative to war and that is what the British people are telling us. It is not we who need convincing on that point. There is an alternative to war, which is full co-operation from Iraq with the terms of Resolution 1441. The noble Earl talks of a failure to show that there is a real threat and then urges

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me to say that there is an unholy alliance between Al'Qaeda and Iraq, which comes back to the point raised by the noble Lord, Lord Wright of Richmond.
I am not going to try to persuade your Lordships that we should forge ahead with military action on the basis of an alleged link between Al'Qaeda and Iraq unless I am sure that that is true. It would be entirely wrong if I were to do that: it would be outrageous for a Minister to do that. I believe that there is sufficient cause in the weapons of mass destruction; sufficient cause in what has been going on in the United Nations; sufficient cause in the material breaches that have been demonstrated already; sufficient cause in the lack of information coming out of Iraq; and sufficient cause in Iraq's lack of co-operation.
I agree that for many people it would bring the cause home even more if there were a demonstrable link between Al' Qaeda and Iraq—that is what were are examining at the moment—but if the noble Earl were to examine the text of Osama bin Laden's broadcast of 11th February he would notice that the position is not straightforward. He gave a confused exposition about relationships with the United States, with the apostate states, with the infidels, with the socialists. But I agree that he is talking about a common cause—and that is a very dangerous position for us to be in.
I was urged yesterday in your Lordships' House that the case was good enough without dollying it up with all kinds of extras. I put the point back to the noble Earl. The case is good enough as it stands. We have to proceed on the basis of what we know to be true, not on what might be convenient if it were to be true.
Lord Thomson of Monifieth: My Lords, is the Minister aware that everything she says underlines the fact that over the next few days and into next week the decisions taken at the United Nations will be critical as to whether the Iraq problem can be dealt with by peaceful means or by means of military action? Is she aware that the nation will not understand if both Houses of Parliament cannot make themselves available over the next week to deal with whatever decisions are taken at the United Nations before British troops may be sent into action in connection with those decisions?
Baroness Symons of Vernham Dean: My Lords, I am absolutely aware that the next few days may well be critical. They may not be, but that depends on what comes out of the United Nations tomorrow and how it is judged by Ministers on the United Nations Security Council. I remind the noble Lord that it is not only a question of what goes on in the United Nations; it is a question of what goes on in the EU next Monday when the heads of government meet, and a question of what happens over the course of the week-end in relation to NATO.
But, in all honesty, the Government's record on this issue has been very good over the past few weeks. My right honourable friend the Foreign Secretary has been over to the United States, back to report to another place, back to the United States. He came in today to make a report to another place and goes back to the
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United Nations tomorrow. He has been assiduous in keeping everyone up to date. We should remember the Government's previous record on urgent international matters. Whenever such matters have demanded the attention of both Houses of Parliament, the Government have never failed to do their duty of ensuring that opportunities are properly offered to discuss them.
Lord Maginnis of Drumglass: My Lords, is it not unwise for Parliament to be preoccupied, almost as a matter of self-indulgence, with the technical issues while, outside Parliament, well-intentioned people are so ill-informed that they will be enticed onto the streets over the coming days and weeks to protest?
Is it not time that we spelt out the issues simply? Iraq was the country that attacked Iran; the country that invaded Kuwait; the country that killed off its own people, the Marsh Arabs and the Kurds. Those are the issues that preoccupied the United Nations when it brought forward Resolution 1441. It is important that our people recognise that the United Nations is the corporate voice of those nations which seek to safeguard world peace. That must not be reduced—as it appears France and Germany would have it reduced—to a role in which the United Nations becomes a dog with a loud bark and no bite.
Should not people be reminded that to abandon what the United Nations has already decided would be to abandon the world stage to despots, dictators and terrorists? Our country, along with America and other honourable countries, should lead the way towards ensuring that those evil influences do not dominate.
Baroness Symons of Vernham Dean: My Lords, I hope that the Government do spell out the issues simply. Saddam Hussein does have forbidden weapons of mass destruction. He has lied about those weapons. He went on lying about them until his own son-in-law revealed to the world that weapons of mass destruction were being made in Iraq—and, as we all know, Saddam murdered his own son-in-law as a result. He then went on to use those weapons of mass destruction to murder his own people.
Saddam Hussein has a uniquely terrible record. He presides over a cruel and dreadful regime. Although I hesitate to go back to the document which was published on the security apparatus, I should point out that it lays out the most extraordinary series of organisations which protect each other in Iraq, with Saddam Hussein and his sons at the middle, looking out to the next grouping, which looks out to the next grouping, each one spying on the other. It is an extraordinary and pernicious regime.
It is not wrong to look at what the noble Lord describes as the "technical issues". When we talk about weapons of mass destruction, it is important that we understand what Saddam Hussein is doing; how much anthrax we believe he has got; how many chemical agents we believe he has got; what kinds of missiles could be used. These are absolutely vital issues.

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The noble Lord referred to people being enticed on to the streets. Of course I regret that people are not persuaded, as yet, by the Government's arguments on these points, but I thank everything I believe in that I live in a country where people can go out on the streets and demonstrate against their government.
Lord Hardy of Wath: My Lords, does my noble friend accept that, although many people are opposed to the prospect of military action, many seem opposed to sanctions as well? Does my noble friend consider that those who are opposed to sanctions fully understand that, even with sanctions, large resources are available to feed and cure people in Iraq? Instead, Hussein has used his resources to maintain an army three or four times larger than he needs for defence purposes and to develop weaponry of the kind already referred to—that is, missiles with much larger measurements, and much longer and developing ranges, than the ones to which Iraq agreed eight years ago.
Does my noble friend consider that France, Germany and Belgium should ask themselves what kind of warhead could be put into these missiles of extending range? If they do not reconsider their position, they could well see the world enter a cycle of history which would take us back towards Abyssinia in 1936.
Baroness Symons of Vernham Dean: My Lords, I agree with much of what my noble friend says about the way in which sanctions operate. Billions of dollars are available for the purchase of civilian goods and there is no reason for the Iraqi people to want, except for the Iraqi regime's callous decision to deny them relief for its own propaganda purposes.
Briefings by the World Health Organisation's sanctions committee only last year suggested that there had been an improvement in the quality of healthcare available to the Iraqi regime. Meanwhile the regime spends money, which should be for the health and welfare of people, on items such as chewing-gum machines, television sets, sunglasses, cigarettes and whisky. We have heard the list many times before in your Lordships' House.
Of course if people oppose sanctions on the one hand and military action on the other, they have to answer the question of what should be done about this regime. What should be done about a regime which has openly flouted—not only over the past few months, not only over recent years, but for 12 long years—the international community on matters where, through its resolutions under Chapter 7, the mandatory chapter in the United Nations, the international community has made it very clear that Iraq must divest itself of weapons of mass destruction or else face the consequences?

Sexual Offences Bill [H.L.]
Second Reading debate resumed.
4.50 p.m.
Lord Hylton: My Lords, I shall confine myself to two technical issues arising from the Bill. Like the Minister, I am concerned about increasing the protection for the most vulnerable people. My first concern is with the so-called eight-day loophole, which allows convicted British sex offenders to travel abroad for less than eight days without notifying the United Kingdom authorities or the foreign authorities. It therefore allows registered offenders to travel to the Continent and even as far as south-east Asia to commit further offences and return here with impunity. It encourages sex tourism at its worst, because the offences often involve children. I am glad that the Home Secretary has reportedly undertaken to reduce that loophole. Will the Government cut it back to 72 hours, as recommended in the Home Office consultation in 2000? That would require offenders to give notice of their travel plans before leaving the United Kingdom. That measure would be strengthened if, at the same time, the courts in countries where sex tourism takes place were asked to inform the nearest British embassy or consulate of all convictions for sex offences by British residents.
To illustrate the scale of the problem, in the capital of Cambodia there are reckoned to be at least 10,000 child prostitutes, mostly girls aged between 12 and 17. Will the Government deal with this travel issue by an amendment to the Bill, perhaps to Clauses 75 or 88? That would be clearer and more straightforward than tackling it only by means of little-known guidance.
The noble Baroness, Lady Gibson of Market Rasen, referred to trafficking in persons, which is covered in Clauses 61 to 64. I welcome the Government's good intention, but, as usual, there are problems. I regret that the trafficking clauses do not differentiate between adults and children or adequately define a child. As a result, some children may escape protection. The onus is therefore on the Government to explain why they have not defined a child as anyone under 18, as was done in two UN conventions, on trafficking and on the rights of the child. We have ratified both conventions. ECPAT UK produced evidence in 2001 showing that trafficked children were mainly aged 13 to 17.
Another problem here concerns the inclusion of,
"for or in expectation of gain".
The need to prove gain has reduced the number of prosecutions in the past and lessened their chances of success. I am bound to ask why these words have been kept in the Bill. There is evidence from the Gardai in Ireland, from high ranking officers in the Metropolitan Police and from Mr Allan Levy QC that the inclusion of gain or good will reduces the chances of achieving convictions for trafficking. Mr Levy also points out that the defence of reasonable belief that the trafficked person was over 18 is unhelpful. That defence was used recently by Mr Kadiu—a trafficker into this country—although I am glad to say that in the end he got a sentence of 10 years for rape and other offences.

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The trafficking of persons in order to exploit their labour, which could affect children as well as adults, is another striking omission from the Bill. Why could not this and other categories of trafficking be included by amending the Long Title? Because of the EU framework decision on trafficking in 2000, the Government must legislate by July 2004 to penalise all forms of trafficking. How do they intend to cover economic exploitation in particular?
I conclude by raising the issue of adequate resources for victims of trafficking and victims of juvenile prostitution more generally. I understand that some progress is being made on providing safe housing for adult victims of trafficking. I have previously inquired about this with Home Office Ministers and the Housing Corporation. When will additional houses be functional? This will help to secure evidence against traffickers and controllers of prostitution. Social services, particularly in West Sussex, need adequate funds to provide care and adequate safety for child victims of trafficking. I am convinced that this is a national responsibility to protect trafficked children who reach this country. I agree very much with the noble Lord, Lord Carlile of Berriew, on that. The leakage of such children out of children's homes must be prevented. It will be expensive and the cost should not fall largely on council tax payers. What do the Government intend to do about that?
4.57 p.m.
Lord Campbell-Savours: My Lords, I congratulate my noble and learned friend on his decision to introduce this important Bill and on his statement that he will be flexible in his treatment of amendments. However, I must add the caveat that if ever a Bill cried out for prior scrutiny, it is this one. So many areas of it require examination by the legislature before drafting.
I want to deal with Clause 1 and the deplorable crime of rape. I congratulate the noble Lords, Lord Thomas of Gresford and Lord Carlile of Berriew, on their excellent speeches. I agreed 100 per cent with them. The Liberal lawyers have come to our rescue once again.
Clause 1 puts an even stronger burden of proof on the defendant with regard to consent. Once again, the weight is being shifted in favour of the accuser and against the accused. I object. It will serve only to aggravate a system under which Britain's gaols contain large numbers of men accused of rape, many of whom—I repeat, many of whom—are innocent. They are there because of the way the law works. Men are too easily accused of date rape. when the trial hinges entirely on the issue of consent. The Bill will lead to more innocent men going to gaol because they cannot convince a jury that a woman consented. That is an outrage.
I feel strongly because a friend of mine, Owen Oyston, went to prison for three and a half years for a date rape he did not commit. I visited him as a friend. In that case, which did not turn on the issue of consent, there was no forensic evidence. Neither the time of the offence nor the day were identified in the trial. There
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were no photographs of physical damage. There were no medical reports from the time of the incident. There was one witness—the accuser's friend—who told the court that she was present throughout the period in question and that no rape took place. The accuser first made the allegation four years after the so-called event. There were no reports of conversations with third parties or friends revealing trauma at the time of the alleged incident. So why did he go to prison and serve three and a half years? Because a jury decided, on a whim, unimpressed by his demeanour before the court, that something must have happened and it must have been rape. Put simply, on no evidence other than a statement by the accuser, they decided that they believed her and not him.
The Criminal Cases Review Commission has had possession of this case since 1998. New evidence was submitted this January, which it is now considering. Several members of the public, including a police detective, questioned the treatment of the accuser prior to her giving evidence against Oyston, which may have prejudiced the case. The accuser was placed, in my view, in an utterly impossible position.
Andrew Rosthorne, another friend of mine, has worked tirelessly on this case for years and has repeatedly complained about it, as have I. The case is replicated in many other similar cases nationally.
Meanwhile, there have been other cases in which rape was obvious and consent was clearly not given, in which there may be meaningful evidence but the men go free and are found not guilty. Why is that" Because juries are loath to deprive a man of his liberty for six years in conditions of probable date rape.
I was most impressed by the words of the noble and learned Lord, Lord Ackner, who will follow me in this debate, when he intervened in a Statement last November. I shall introduce the noble and learned Lord's contribution by quoting what he said at the time, which I have discussed with many of my friends. He said that the word,
"'rape' strikes horror in the mind of everyone, and in a jury in particular. It"—
that is, the jury—
"knows that the starting rate of imprisonment is probably six years or thereabouts. It looks at the weeping family of the prisoner and it comes to the conclusion that not all that much harm was done—they were on reasonable terms, they flirted, they drank together—and for the man to go to prison for six years or thereabouts offends its sense of proportion, and accordingly the jury acquits. A lesser offence with a lesser tariff would make a big difference".—[Official Report.,19/11/02; col. 297.]
That may be the area that we should consider, if we want to increase the number of successful prosecutions.
In my view, the law is nonsense. Prosecution without evidence, apart from a statement from the accuser, invites injustice. The treatment of date rape as being the same as "rape on the towpath" is a sop to political correctness. I hope that amendments that deal with deficiencies in the law are carried in Committee and on Report. I want more men in prison who are guilty and fewer men who are innocent.

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My noble and learned friend the Minister will notice that I have recently tabled several Questions on the issue of rape, following questions that I asked in another place when I was the Member of Parliament for Workington. My Questions relate to drawing the distinction between date rape and "rape on the towpath". For women to argue that they are the same thing is monstrous and unreasonable. Men's lives can also be destroyed by an allegation of a rape on a date, when the argument hinges on whether consent was given and there are no witnesses other than a statement from the accuser.
I cannot accept that we must tinker with our laws because only 7 per cent of the rape cases reported to the police lead to convictions in court. To compare the rate of convictions in 1985 with that of 2002 is futile and dangerous and takes no account of how much our legal and police processes have changed since 1985. The police and the Crown Prosecution Service are too easily persuaded to push forward in all but the most preposterous of rape allegations. As many as 20 men every week endure remand on the most heinous of all charges before undergoing the horrible process of being found not guilty of rape. And yet someone complains that too many of them are getting away with it.
I shall mention some of the men who have been put in that situation in the Manchester area alone. Mark Jackson hanged himself at his home in Wigan after a jury in Somerset found him not guilty of raping his girlfriend. Dennis Proudfoot was accused and arrested for gang raping an 18-year-old girl in Bury. Ten days after he killed himself, his alleged victim sent a letter to his father declaring that Dennis was innocent after all.
Claire Calvert's false evidence sent her uncle John Griffin to jail for eight years. The case was investigated by Greater Manchester Police, who failed to discover that the complainant had previously been treated by doctors for Baron Munchausen's syndrome. Mr Griffin served five and a half months in prison; the case fell apart after his niece sent him a birthday card apologising for causing him trouble and promising to try to put things right. Before he was set free, he was attacked in Strangeways and Wakefield prisons.
Dennis Power and Joseph Gallagher, two Manchester engineering workers, were arrested, DNA tested and shunned by their friends on the unsupported evidence of Maxine Malton, the 22-year-old wife of a special police constable. Mrs Malton feared that her husband might discover that she had had a drunken sexual encounter with her cousin in Manchester. She picked on two total strangers in a pub—Mr Power and Mr Gallagher. Without even speaking to them, she carefully memorised their appearances so that she could describe them to the police when she reported that they had raped her. Mrs Malton then admitted making up the story about being raped by Power and Gallagher, but falsely claimed that she was raped by her cousin. Judge Rhys Davies,
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jailing her for four months in Manchester Crown Court in 1996, said that her pregnancy could not save her from prison. He told her:
"These men had nothing whatsoever to do with you, and what they went through afterwards illustrates how a false complaint can affect the lives of others".
I would say that such false complaints ruin the lives of others because of the monstrous nature of the law as it stands today. Yet here again, the authorities are asking us to stack even higher the odds against those who find themselves accused of rape in years to come. The Government must listen to the faint voice of those whose lives have been wrecked and ruined by the law as it stands.
5.9 p.m.
Lord Ackner: My Lords, at the heart of the Bill is child protection. Strong new offences and deterrent sentences will be provided to deal with a situation that no one anticipated 10 or more years ago; that is, the vast number of paedophiles, sexual abusers, the breach of trust to be found among those in care, even in the Church. Clearly the Government are right to take the necessary steps to produce new law on that situation. As the noble Baroness, Lady Blatch, said, it may well be that they have not gone far enough, but those matters can be raised in Committee in due course.
I should like to draw attention to the fact that this Bill shows the folly of the noble Baroness, Lady Thatcher, terminating the Criminal Law Review's activities when she came to power. No longer do we have a highly impressive committee consisting of very senior High Court judges, Old Bailey judges, senior magistrates, senior members of the Bar, senior solicitors, police officers and the like, to produce recommendations and reports which the Home Office considers should be provided. Instead of that, the Home Office insists on doing the work itself. That has resulted in the administration of justice being politicised.
I refer in this regard to the government pamphlet—if that is the right phrase—which has been produced recently entitled, Protecting the Public. On page 9 there is—I speak with moderation as the noble Lord, Lord Mishcon, is looking at me—something which I think is quite monstrous. It is said by the Home Secretary:
"The law on sex offences, as it stands, is archaic, incoherent and discriminatory".
I do not know to what he directs those offensive observations but if it is to the law of consent in rape, the Home Office has either overlooked or has suppressed a great deal of material which shows how sensible the law is.
The case of Regina v Morgan in 1976 created a great deal of anxiety because the House of Lords ruled that if a person honestly believes that he has the consent of the complainant, reasonable grounds for that belief do not have to be established by him. In order to deal with the public outcry that occurred, a Labour Home Secretary—one of the most reforming and respected ones—Mr Roy Jenkins, asked Mrs Justice Heilbron to set up a small working party in order to look at the law

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of rape and to see to what extent it should be reconsidered. That is what she did with commendable speed. I should like to draw your Lordships' attention to certain observations which were made during the course of the report which she provided. It states:
"This enquiry originated as a result of the widespread concern expressed by the public, the media and in Parliament in regard to the decision of the House of Lords in Director of Public Prosecutions v Morgan & Others. The Home Secretary appointed us in July 1975 with the following terms of reference: 'To give urgent consideration to the law of rape in the light of recent public concern and to advise the Home Secretary whether early changes in the law are desirable"".
The next excerpt to which I should like to draw attention is on pages 6 and 7. Page 6 states that the point of law which was deemed to be of general public importance and which caused the case to go to the House of Lords,
"so certified was 'whether in rape the defendant can properly be convicted notwithstanding that he, in fact, believed that the woman consented if such belief was not based on reasonable grounds""
The next reference states:
"In short the House of Lords decided that the reasonableness or otherwise of the belief was one of the factors, but only one, which the jury should take into account in deciding whether the belief was real…The jury can, and indeed they should, be directed that in considering what the defendant did intend they should take into account and draw relevant inferences from the totality of the evidence".
I turn to page 8 which states.
"to convict a man who did not have a guilty mind of some kind would gravely offend this principle of law and of justice. This was strongly emphasised in the case of Sweet v Parsley when Lord Morris of Borth-y-Guest said
'My Lords, it has frequently been affirmed and should unhesitatingly be recognised that it is a cardinal principle of our law that mens rea, an evil intention or knowledge of the wrongfulness of the act, is in all ordinary cases an essential ingredient of guilt of a criminal offence".
Page 10 states, under the heading,
"Reasonable grounds as an additional requirement…
We have given this aspect of the controversy a very great deal of thought, but we have come to the conclusion that it is not a tenable suggestion. Apart from the basic principle to which we have already referred, namely, that a man should not be found guilty of a grave offence unless he has the requisite guilty mind, and that a genuine mistake negatives such mens rea, there are also matters of practical expediency.
If it were to be accepted that a man could be found guilty of rape when he did not mean to commit the offence, ie when there was no deliberate or reckless violation, then it seems very likely that juries who have a strong sense of fairness might be reluctant to convict".
The following page states,
"some critics seem to have thought, that an accused person was entitled to be acquitted, however ridiculous it might be nor did it decide that the reasonableness or unreasonableness…was irrelevant. Furthermore it is a mistaken assumption that one is entitled to be acquitted simply because he asserts this belief, without grounds. Such an assertion is a part only of the evidence. The jury will he told that they may or may not accept it, but that in deciding whether to do so or not they are entitled to take the view that the less reasonable they find it to be, the less likely is it to be true. A jury is unlikely to be misled by, or to accept, a bare assertion in the face of convincing evidence to the contrary".
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The following page—this is my penultimate reference to the document—states:
"That there are wrongful acquittals in rape as well as in other crimes is beyond question. Though, naturally, regretting this, we doubt that the causes can be eradicated by a departure from fundamental principles of fairness and justice".
My final quotation is from page 14, where the recommendation for declaratory legislation states:
"We think there would be advantage if this matter could also be dealt with by a statutory provision which would…declare that (in cases where the question of belief is raised) the issue which the jury have to consider is whether the accused at the time when sexual intercourse took place believed that she was consenting and…making it clear that, while there is no requirement of law that such a belief must be based on reasonable grounds, the presence or absence of such grounds is a relevant consideration, to which the jury should have regard, in conjunction with all other evidence, in considering whether the accused genuinely had such a belief".
Parliament accepted that advice and legislated so that the declaration was included. It legislated so that it was apparent that R v Morgan, as explained, was a sound and sensible decision. The Criminal Law Revision Committee, which had the inestimable advantage of having my noble and learned friend Lord Lloyd on it, took the same view. It said:
"If, however, the defendant was mistaken in his belief that the woman was consenting, he should not be liable to conviction for rape, even if he had no reasonable grounds…None of us would wish to extend the offence of rape to such a case. This would in effect turn rape into a crime of negligence, an approach which was rejected by the majority of their Lordships in Morgan. a decision endorsed by Parliament in 1976. Section 1(2) of the 1976 Act (jury to have regard to the presence or absence of reasonable grounds in assessing genuineness of the defendant's belief) makes it clear to the jury how they are to approach such a case…We see no reason why section 1(2) should not apply to all sexual offences in which a defendant's belief on a particular matter is relevant to his guilt or innocence, whether tried summarily or on indictment, and we so recommend".
The next small matter that the Home Office seemed to think should be suppressed was the report of the earlier committee's decision in the 10th report dealing with claims, limits of burden of proof, falling or the accused.
"When there is a burden on the accused, it is necessary to know whether the burden is a 'persuasive' or an 'evidential' burden. The difference between these burdens was explained by the Court of Criminal Appeal in Gill. A persuasive burden means that the matter in question must be taken as proved against the accused unless he satisfies the jury (or the magistrates' court), on a balance of probabilities, to the contrary. An evidential burden means that the matter must be taken as proved against the accused unless there is sufficient evidence to raise an issue on the matter but that, if there is sufficient evidence, then the prosecution have the burden of satisfying the jury (or magistrates' court)"
The committee goes on to say:
"We are strongly of the opinion that, both on principle and for the sake of clarity and convenience in practice, burdens on the defence should be evidential only".
It gives its reasons. One reason was:
"In the typical case where the essence of the offence is that the offender has acted with blameworthy intent, and the defence which the accused has the burden of proving implies that he has no such intent but acted wholly innocently, it seems to us repugnant to principle that the jury or magistrates' court should be under a legal duty if they are left in doubt whether or not the accused had the guilty intent, to convict him".

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That is what the Government want in this case—that the burdens of proof, which have been referred to, must not be evidential but persuasive.
The last reference that I wish to make is to a rather cheerful essay by Professor Hogan, written in 1978 and given in honour of Professor Glanville Williams, who was virtually a permanent member of the Criminal Law Revision Committee. He stated:
"The existing law relating to sexual offences is for the most part contained in the Sexual Offences Act 1956 with the additions and modifications of the Street Offences Act 1959, the Indecency with Children Act 1960, the Sexual Offences Act 1967 and the Sexual Offences (Amendment) Act 1976. The least that can be said in its favour is that it is accessible and, even with the accretions of case law, it may fairly be said that a layman possessing ordinary powers of comprehension is not at all hard put to make both head and tail of it. Since the layman, and sometimes the lawyer, is sometimes hard put to make either head or tail of much modern legislation these attributes should never be undervalued. Whether or not a man likes the law that he reads, it is a signal advantage to him to be able to understand it …Again, when in Morgan v. D. P. P. the House of Lords decided that an honest belief in consent was a defence to a charge of rape, the opposition was so considerable that it seemed only a matter of time before the decision was overturned. But in the end much of the opposition was brought round to accepting the essential good sense of that decision".
I stress that it is quite wrong of the Home Office to have suppressed those reports and observations. It means that unless one has gone to the extent of research, or one is a professor and the information is at one's fingertips, one can be easily moved by the political rhetoric that runs through the statement by the Government to which I drew reference.
5.29 p.m.
Baroness Mallalieu: My Lords, I declare an interest as a practising member of the criminal Bar. As a woman and as a Queen's Counsel I find that a large proportion of the cases in which I am engaged, either as prosecuting counsel but more often as defence counsel, involve sexual offences of one kind or another. My noble and learned friend Lord Falconer has a difficult and a sensitive task. He has the women on the one hand and the lawyers on the other. In my case he has both.
The Minister has to ensure that the Bill strikes a balance between allowing adults to conduct their lives as they choose while protecting others from the consequences of their behaviour. An even more difficult balance is to ensure that those who commit sexual offences are brought to justice, while those who are not guilty, but are falsely accused, are not convicted. The House owes a debt to my noble friend Lord Campbell-Savours who was right to remind us, as he did with great force, that victims of sexual offences do not include just those who are the subject of attacks, but also those who are wrongly convicted and imprisoned as a result.
Primarily I am concerned—although I recognise that there is a great deal of good in the Bill—with matters that appear to me likely not to improve the situation at all or likely to worsen it. In that respect my main concerns relate to the changes proposed in the definition of rape. My experience is that there is no difficulty in obtaining
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convictions in the kind of rape which has been referred to as a "towpath rape"—the burglar who enters through a window, the stranger in the street or the rape committed at knife-point or after a beating. In my experience in most cases juries convict and readily do so.
Where juries tend not to convict is in those cases that depend on a defence of consent. As already stated, the conviction rate in relation to rape complaints generally appears to be very low. I have no doubt that the Government's intention in relation to the proposed changes is to move the goal posts and to tilt the playing field to alter what they and others see as an imbalance in relation to the conviction rate.
However, as the noble Lord, Lord Thomas of Gresford, did, it is right to look first at why so many complaints do not result in conviction. He mentioned some of the reasons. Another reason is the nature of the evidence. Such allegations often, indeed usually, involve one person's word against another. When a jury, which has to be sure of guilt, is not sure, it rightly acquits. False allegations are made. There was a time when, in a politically correct discussion on the subject, some people would never accept that that happened, but it is now recognised.
False allegations are usually made in the context of a pre-existing relationship. Sometimes the reason is clear. Someone who returns dishevelled in the morning and has to give an explanation may make up one that involves a rape allegation. Someone who has to explain away a pregnancy or a sexually transmitted disease or acts to punish rejection may make a false allegation. Human sensitivities are acute and there is no doubt that the feeling of having been used and discarded often lies behind a false complaint of rape. Often such a complaint is made not to a police officer or anyone in authority, but informally to a friend or to a relative. Although the complainant may never have intended the police to be involved, they may be brought in by others and once such a complaint is made it is virtually impossible to retract.
It is the so-called consent cases that pose the greatest difficulty. Juries rightly see that such allegations are easy to make and difficult to disprove. Juries are correctly wary of convicting unless there is other evidence or evidence of violence as well. That does not mean that such events do not happen, as we heard sadly from my noble friend Lord Campbell-Savours. It does and can happen. Juries, which do their best looking at people giving evidence in a court room, may come to a wrong conclusion.
Moving the goal posts to try to correct what is seen as an imbalance does not work. The abolition of the requirement to give a warning in sexual cases to look for corroboration, so far as I can judge, made no difference whatever to the conviction rates. Rape is quite rightly regarded as a very serious offence and offenders are sentenced as such. Juries are reluctant to convict in cases where the circumstances in their judgment do not merit such long custodial sentences: the boy who pushes his luck after a dance, the couple having difficulties and the husband who persists when the wife says she does not want sex, the cases where

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there has been a previous sexual history or a close friendship. Those may be serious matters; they may have lasting effects on those concerned. But juries are not fools. They look at the people who give evidence in front of them; they know how people can behave in delicate and highly charged emotional situations; and they believe that the label of "rape" should be reserved for the most serious of sexual attacks.
I am concerned about a number of aspects of what is proposed. I shall mention one that has not been raised so far—the intention to extend the definition of rape to include oral sex. I believe that a clear distinction is drawn particularly by young people between sexual intercourse and oral sex. Non-consensual oral sex is a serious and an unpleasant offence and should perhaps be a separate offence, but I do not believe, in the eyes of the majority of members of the public and the majority of those who are likely to be concerned by this legislation, that it is rape. I do not believe that the majority of young people would equate the two even when they are in force because of all the additional implications concerned with pregnancy and disease that can result from anal or vaginal rape. To extend the definition in that way is to diminish the seriousness of the label attached to a serious offence.
I am even more concerned by the intention to revise the definition to bring in the "reasonable person". I say that because in my experience if a jury, whatever direction it is given, thinks that no reasonable person could have thought that the woman gave consent, they convict because they simply do not believe the man who claims he thought she did.
Therefore, I suspect that that change would in practice make no difference. However, it would bring in complications beyond belief. As we know, and as the noble Lord, Lord Carlile of Berriew, mentioned, in relation to other aspects of the law where the reasonable person test has been imported, the jury is told to look at the characteristics of the defendant when applying it. We have now reached the situation where one must look to see what the reasonable glue-sniffer would have done in those circumstances.
We could easily have a situation of a jury having to try to decide what the reasonable person recently arrived in this country from a country with a totally different culture towards women might have felt was right in those circumstances. We are importing trouble and difficulties which will lead—I have no doubt—to appeals, to test cases and to redefinition. Do we really need to do that?
Clause 78 of the Bill—the shifting burden, the presumption of non-consent—alarms me even more. Most troubling is the shifting of the burden on to the accused person. I pause to say that many of these offences are old. They involve children and people who have been assaulted in care homes by people in whose trust they were. It is in their nature for cases not to be reported until months or often years after the event when evidence on either side will no longer be available. In those cases to shift the burden on to the defendant to establish that consent existed is a burden
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that should not be imposed. It tilts the playing field dramatically towards the danger of wrongful conviction.
In Clause 78, the circumstances that trigger the presumption of no consent are matters that a jury would be taking into account in any event. It has already been said by noble Lords, in particular by the noble Lord, Lord Thomas of Gresford, that in order to direct a jury about the proposed provisions, a judge will have to take them stage by stage through a whole list of hurdles which they must overcome. One thing that causes a defence counsel's heart to lift as the summing-up approaches is the realisation that the jury will have to be directed to reach its decision through just such a series of hoops and hurdles.
The greater the number of ingredients a jury is told it must consider, and the greater the number of possible options on the route to verdict, the greater the likelihood that a jury will be unsure at some stage. If you want safe convictions, you must keep it simple. These provisions vastly complicate issues. I indicate to my noble and learned friend that in Committee, as a woman and a lawyer, I shall be siding primarily with the lawyers who have so far spoken.
Although these proposals may be well intentioned—and I can see the perceived unfairness of someone who has been raped and complains of rape but believes someone has been acquitted because he unreasonably mistakenly believed that there was consent—I do not believe that the proposal will help. Indeed, it is likely to lead to some undeserved convictions.
Some other aspects of the Bill trouble me. I shall be grateful if my noble and learned friend can deal with them in due course. Some points have been dealt with by other noble Lords. I am very concerned that there should be nothing in the Bill to prevent someone who has a mental disorder or learning difficulties from forming consensual sexual relationships. As has already been said, sometimes happy marriages and children can occur when parties—both or just one—are so disabled. It would be tragic if that was prevented.
No one should be under any illusions about the provisions in the Bill in relation to children or those suffering from those disabilities. The real problem is that those people are unlikely to be excellent witnesses in court, simply because of factors of age and of the difficulties they experience. They may well be incapable of giving a consistent account or of handling even relatively gentle and controlled cross-examination. We must try somehow—and it may be beyond the scope of the Bill—to provide for those people where there is no prospect of a successful conviction but where help is needed, not just for them but for those who have perhaps been guilty of offences but cannot be brought to justice, so that they cannot re-offend.
We must find more and better ways to deal with offensive sexual behaviour outside the courtroom. That is often a very blunt instrument for dealing with behaviour which may occur, for example, within a family but which cannot be brought before the court without destroying that family.

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Under the Bill, any girl who has sexual intercourse under the age of 13—like it or not, and as I mother I certainly do not like the idea—will be the victim of rape. By definition, whoever has sexual intercourse with a child, in whatever circumstances, is a rapist. I would like a reassurance from my noble and learned friend that it is not intended to use criminal law on children where, for example, consensual behaviour takes place between young people experimentally at school, in the playground or elsewhere. That is part of life and part of growing up. We must be terribly careful not to stigmatise at an early age behaviour that does not warrant the description of rape that the Bill appears to give.
I am concerned also about Clause 70, which deals with exposure. Is it right that a parent who walks from the bathroom to the bedroom in his or her own home with no clothes on and is "reckless" as to whether a child under 16 will see their genitals and possibly "be caused alarm or distress" will commit an offence? That would make many of us into criminals—at least those of us who are a distressing sight in the nude.
Can it possibly be right to criminalise sexual activity in a public place—which may be a cornfield or woodland—unless somebody is actually offended by it? On the first two occasions that I stumbled across such behaviour, my amusement greatly outweighed the embarrassment of those concerned. The third occasion was a rather different situation. I took a small daughter who could wait no longer into a public lavatory in Oxford where consensual sexual behaviour was taking place in a cubicle with the door shut—which I understand will be permitted. Not only was I embarrassed. I found that situation thoroughly distasteful. I was glad to hear what others said about that proposal.
All of us will want to examine a number of matters, but the most serious without question is the proposed change to rape law. My noble friend Lord Campbell-Savours rightly reminded us that there are two sides to this legislation. There are those who have suffered and sometimes been unable to seek redress because of loopholes in the law that we all want to see plugged. There are also those who have already suffered from political correctness—the noble Lord's phrase, but mine as well. We must be careful that we do not tilt the balance of justice too far the wrong way.
5.47 p.m.
Lord Monson: My Lords, I address the House with some trepidation after the barrage of top-rate legal expertise to which we have been treated for the past half hour.
Nobody could accuse the Government of lacking a sense of humour. There is nothing that the media love more than the House of Lords talking about sex—partly because we can afford to be more frank than hon. Members in another place, being in the fortunate position of not having to worry about re-election or reselection. By scheduling this debate for a Thursday, when little in the way of drama normally occurs in
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another place nowadays and entails an early enough start to get the debate in the first editions of the newspapers, the Government have ensured that the media can go to town if they choose—particularly the often witty parliamentary diarists.
It cannot be denied that throughout history, human beings have understandably found many aspects of sex extremely funny. Today we are discussing, for the most part, entirely serious matters. Many people predicted that the Bill would create—but it does not—the separate offence of "date rape", with appropriately lower maximum penalties and, by implication, considerably lower average sentences. One can readily appreciate that some cases of date rape are just as traumatic as rape by a total stranger. I would not deny that for a moment. Equally, surely many other cases are not nearly as traumatic. The victim in such a case is at present torn between deciding to refuse to testify or to press charges—thereby letting the alleged culprit off the hook completely, which she may think is going too far—or deciding to press ahead and co-operate with a prosecution and possibly seeing her boyfriend, former boyfriend or even husband sentenced to a minimum of five years in prison, in conformity with the guidelines laid down by the Lord Chief Justice. That means a man spending at least three years and four months behind bars, possibly being seriously assaulted by other prisoners and almost certainly ruining his career.
The lady in question may well feel that to be a totally disproportionate and excessive punishment. Should there not at least be some mechanism whereby the victim—if she so chose, and she may well not so choose—could plead for a reduced or partially suspended sentence in such a case, with her plea taken fully into account by the trial judge before he decides on the appropriate sentence? That is all the more important given that, as noble Lords have mentioned, Clauses I and 78—albeit with the best of intentions—tip the balance somewhat more against the man than is the case at present. The noble Baroness, Lady Mallalieu, and others mentioned that. I should guess that for every man who dishonestly claims that he thought that the girl consented, there is at least one who claims that honestly. I agree with much of what was said by the noble Lords, Lord Thomas of Gresford and Lord Campbell-Saviours, on the matter.
Clause 5 provides for up to 10 years imprisonment for anyone who "touches" any other adult with sexual intent without being invited to do so. That would presumably include a tipsy individual at an office Christmas party who patted someone else's backside or put his or her arm round another employee's waist or shoulder. Ten years in prison? I know that the maximum sentence is not often imposed, but really! The Government are seeking to reduce the prison population; is that really the way to go about it?
Far more worrying is the absolutist nature of the undoubtedly well-intended Clause 18. Under the clause, if a hospital nurse aged 18 and a strapping young patient of 17 years, II months who, let us say, is perfectly healthy but has a broken wrist, or something of the sort, fell for each other when he was

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in hospital and sexual contact ensued—it might be only a kiss—the nurse could be imprisoned for five years, even though the age difference between them would be as little as a couple of months. That is wrong; I cannot believe that others would not agree about that.
However, having said that, I have absolutely no difficulty with Clauses 21 and 22, which, unlike Clause 18, are rightly aimed against perversion as opposed to infatuation.
Equally, among the Bill's many commendable provisions, I commend Clause 65, which tackles so-called date rape drugs, Clause 72, which reduces the maximum penalty from life imprisonment, which is a ridiculous penalty for bestiality, to two years and Clause 73, which, not before time, makes necrophiliac activity a criminal offence.
Clause 74, dealing with sexual activity in public, has given rise to enormous mirth in the press and among the public generally. It also creates certain paradoxes. Reading carefully the clause and the Explanatory Notes so helpfully provided, it appears that a couple making love in their garden who could not be seen from the street, but who could be seen from their neighbour's first-floor window, would not be guilty of an offence. I think that the noble Lord, Lord Alli, was needlessly pessimistic about that. However, their neighbour standing at that first-floor window would be guilty of an offence attracting a sentence of two years under Clause 71 if he or she spotted what was happening but did not immediately avert his or her gaze and pull down the blinds.
However, if a number of slats happened to be missing from a fence that separated the garden in question from the pavement or road outside and a number of fascinated passers-by paused to stare at the goings-on inside, the copulating couple would be committing an offence. However, they could be sent to prison for only six months but the voyeuristic passersby could serve four times as long. It is in such matters that seriousness gives way to comic relief.
Another provision seems at first glance risible but is the opposite. Many noble Lords have mentioned the Government's strange determination to turn public conveniences into public inconveniences or even, at one remove, to eliminate them altogether. As matters stand, all over the country—I have examples from Hexham, Aberdeen, Leeds, Malmesbury, Grantham, Derby and elsewhere—public lavatories are having to be closed down as a consequence of misuse by homosexual men to the great disgust and exasperation of families with children among others. In another place, the Minister, Mr Hilary Benn, asserted in the Sunday Telegraph of 9th February that,
"what people do away from the eyes of others is a matter for them".
Perhaps I may submit that it is equally necessary to do it away from the ears of others, as the noble Baroness, Lady Noakes, the noble Lord, Lord Carlile, and others have argued.
Finally, perhaps I may backtrack to Clauses 28 to 32. I agree with the Christian Institute in deploring the proposed elimination from our statutes of the word
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"incest". It is an ancient word, understood by everyone, deriving from the Latin and found in near identical form in almost all Romance and some Nordic languages. Lord Kennet, a former colleague on the Labour Benches of the noble and learned Lord, Lord Falconer, once pointed out in one of his many books on matters sexual (written under the name of Wayland Young) that incest was the one taboo common to all religions, races, linguistic groups and civilisations, whether advanced or primitive. Although it may make little difference in strictly practical terms, for symbolic reasons it seems unnecessary and unwise to abolish it. It looks as though we shall have a very busy Committee stage.
5.57 p.m.
The Earl of Listowel: My Lords, my noble friend Lord Northbourne has asked me to tender his apologies for being unable to be present. He has to take part in an important family celebration. He asks me to alert your Lordships to his concerns about breach of trust provisions regarding social workers resident in children's homes. My noble friend believes that we need to approach the issue carefully in order not to drive away or intimidate such workers. I listened with great interest to the noble Baroness, Lady Blatch. I look forward to reading Hansard.
I confine my comments to children who display sexually harmful behaviour towards other children. Are we taking this opportunity to minimise the harm they cause and the harm caused to them? We need to consider with great care how such children may be enrolled on a sex offenders register. According to the adolescent psychiatrist, Dr Eileen Vizard, an expert in this area, at least a third of abusers are children. We know that most of those children have been abused themselves. Their behaviour is closely associated with violence in the family, either against them or other family members. Often they are victims of sexual or physical abuse or neglect.
We need to consider in our country the social context of this issue. We have far more children in prison than any of our continental neighbours. We have the lowest age of criminal responsibility. We have a care system which is still backward compared with that of many of our European neighbours despite important improvements by the Government. We struggle to recruit and retain the social workers who care for our vulnerable children and their families because of decades of under-investment in, and disparagement of, their work. We do not have a good track record in caring for our children in need.
A key point made by children's organisations is that all children are children first and foremost and that they have a large capacity for change. Adults who sexually abuse children are notoriously difficult to cure. Treatment programmes appear to concentrate on helping those adults to contain their desires towards children—the excitement and contemplation of sexual activity with a child seems to remain with them. Children are more amenable to change. That is why there is a reluctance to describe children who

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display sexually harmful behaviour towards other children as child abusers. There is a need to distinguish between adults and children.
I am concerned therefore that the decision as to whether a child is entered on the sex offenders register is taken with the utmost care. I appreciate the Minister's replies to my questions on this subject a few days ago. However, I hope that in Committee we shall consider how this might be done sensitively—for instance, whether it might be appropriate for a panel of experts to be involved and how often enrolment on the sex offenders register would be reviewed.
I also hope that this may be an opportunity to think more carefully about the roots of paedophilia. That we now recognise that one-third of cases of sexually harmful behaviour towards children derive from children, allows us to consider whether we are doing enough to intervene early and to prevent a further generation of sex offending adults.
Here, I should like to quote from Eileen Vizard. She wrote that,
"a public debate should occur about the need for early intervention to prevent the development of lifelong sexually abusive behaviour. Whilst it may appear sad to consider the sexually predatory behaviour of children against other children, it is encouraging to reflect that the early childhood origins of adult paedophilia and sex offending are being uncovered. It will now be vital that effective steps are taken to prevent a new generation of sex offenders and victims from being created".
I am concerned that, in this country, we are prepared to say that 10 year-olds are able fully to understand the consequences of their actions, just as an adult should, and can be held criminally responsible. However, I also have to welcome the fact that we treat 10 year-olds as criminals. I have to welcome it because otherwise they will not receive the multi-disciplinary assessment, and the attention from child and adolescent mental health services, that they need.
Many of these children are victims—children in need—but they are unlikely to receive the services they need unless they behave in such a way as to become criminal. That is highly regrettable and is a situation that we should strive to change.
6.3 p.m.
Lord Lloyd of Berwick: My Lords, perhaps I may begin with a short word about my credentials to speak in this debate. Looking back on my career at the Bar and how I earned my living, my former pupil, the noble Lord, Lord Thomas of Gresford, might regard it as rather cheeky that I should be taking part at all. I knew very little about crime and absolutely nothing about sexual crime.
However, it so happens that, as has already been pointed out on my behalf by the noble and learned Lord, Lord Ackner, I was a member of the Criminal Law Revision Committee in July 1975 when we were asked by Lord Jenkins of Hillhead to look at the law of sexual offences. We reported on 30th December 1983—it took us eight years. I hasten to add that we were working part-time and not full-time. Nevertheless we took quite a long
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time to investigate the subject, but nothing like as long as successive governments have taken to act on our recommendations. It is nearly 20 years since we reported and only now is there a Bill before the House. That does not suggest to me that successive governments have given the matter of sexual offences the top high priority which has been claimed on behalf of the Government this afternoon.
The Criminal Law Revision Committee consisted of a number of lawyers and judges of all sorts under the chairmanship of Lord Lawton. But more important than the composition of the committee was the fact that we had a policy advisory committee of distinguished people, one of whom was the then Dean of King's better known now as the right reverend Prelate the Bishop of Oxford. It is sad that he is not in his place this afternoon because he would have been in a very good position to help us in this debate.
A committee of lawyers such as we were might have very many and grave disadvantages. But it had one great advantage that whatever we recommended, whether it be right or wrong, one could be sure that it would be workable. The trouble with a committee of civil servants—this point has already been made, certainly by my noble and learned friend Lord Ackner—is that it does not have the experience which judges have of directing juries. So it is perhaps hardly surprising if some of its recommendations prove difficult to put into practice when explaining the law to the 12 men and women sitting in the jury box. It is perhaps not surprising if some of its recommendations also savour of an attempt to raise moral standards generally, which no doubt is an admirable objective, but finds no proper place in the criminal law. One can find examples of that type of recommendation in the Bill which is now before your Lordships.
I start with Clause 1. It contains one of the most important and controversial changes in the existing law which I have seen for many years. It will be interesting to see how it will be defended in due course by Ministers because so far the noble and learned Lord has not persuaded me. At the risk of being tedious, I remind your Lordships of Section 1 of the 1956 Act, which is not so very long ago. I was 27 at the time. It simply says:
"It is an offence for a man to rape a woman".
That is all that it says. The definition of rape was left to the common law as it still is, I believe, in Scotland. At common law the essence of the offence of rape was simply sexual intercourse with a woman without her consent. In other and older words it was intercourse by,
"force, fear or fraud".
Then there was the case of Morgan in 1975, decided by this House. It was held that it was a defence if a man genuinely and honestly believed that the woman was consenting even if his belief was unreasonable. That decision was subject to review by Mrs Justice Heilbron and the committee which was appointed with her. The extracts from that report have already been read by the noble and learned Lord, Lord Ackner. But the essence of it was that the Heilbron committee came out

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in favour of the decision in Morgan, so much so that it suggested that it be codified. That is exactly what happened in the following year, 1976, subject to the safeguards that it recommended; namely, that the presence or absence of reasonable grounds for the defendant's belief is a matter that the jury must, not only may, take into account in considering whether the defendant had a reasonable belief. The 1976 solution was very simple, very sensible and very satisfactory. So far as I know, judges have never had any difficulty in directing juries in rape cases in accordance with the 1976 Act. I do not recall ever having had any difficulty myself.
So the question arises of why we should now make a change by recommending the reversal of the law as established by the House in Morgan and confirmed by the Heilbron committee. The really important point in this debate—as it has been the really important point for the noble Lords, Lord Thomas of Gresford and Lord Carlile, the noble and learned Lord, Lord Ackner., and the noble Baroness, Lady Mallalieu—is whether we should now seek to interfere with the mental element in the crime of rape.
I have no difficulty with Clause 1(2), which states in satisfactory words the existing law. But I have great difficulty with subsection (3). I find it objectionable on three grounds. First, it is wrong in principle. With few exceptions, a person cannot be found guilty of a criminal offence unless he has a guilty mind, especially in serious offences such as rape. That is a general principle of criminal law. In theft, for example, the prosecution must prove dishonesty. It is not enough in theft cases that a reasonable man would regard the defendant's action as dishonest. The prosecution must prove that the defendant himself regarded it as dishonest. The test is subjective, not objective. That was decided by the Court of Appeal in the case of Ghosh, to which I was a party.
The same is true of murder. As the noble and learned Lord will know full well, it is not enough that a reasonable man would have foreseen serious harm to the victim from the action that he takes. The defendant himself must have intended the serious harm. The same has always been true of rape. I see no reason now for making an exception for the first time in the case of rape. What a reasonable man would have done in the circumstances is very relevant to the question of whether the defendant had a guilty mind. That is what the 1976 Act says. But it is not an alternative ground on which he can be found guilty, as subsection (3) proposes.
My second objection is that I foresee great difficulty in explaining subsection (3) to a jury, especially in conjunction with Section 78. What sort of reasonable person? What sort of doubt? Whenever we refer to a "reasonable man" in criminal legislation we get into trouble. We have got ourselves into an unholy muddle in regard to the law on provocation in cases of murder, to which the noble Lord, Lord Thomas of Gresford, referred, because of the reference there to a "reasonable man". It is not the fault of the courts but of that word in the legislation If anyone doubts the
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muddle we have got into. I suggest that they look at the decision of this House in the case of Smith, 2001 Appeal Cases at page 146.
It is simply no good providing a definition of rape which would satisfy a philosopher or a logician; it has to be readily understood by a jury. Subsection (3) will never be understood.
My third objection is that I simply cannot see the point. It is said that the Government are concerned that the conviction rate for rape is lower than they would like it to be. But if the Government think that they will get even one extra conviction by relying on the new definition in subsection (3), in my opinion they are gravely mistaken. The only result of subsection (3) will be not more convictions but more appeals.
There are many reasons why the conviction rate is apparently so low, some of which were given in the magnificent speech, if I may say so, of the noble Baroness, Lady Mallalieu. Perhaps I may say in passing that I entirely agree with her about rape not including oral sex. I would have developed that point myself if she had not done so. I listened with great care to what the noble Baroness said and agree with every single word.
There are many reasons for the low conviction rate, but I suggest that it is possible that juries know more about the real meaning of the offence of rape than the Home Office or even ourselves in the House of Lords. I urge the Minister not to be led by statistics but to leave the law on the definition of rape as it is.
I shall now say a few brief words on some of the other provisions. I entirely support the new provisions relating to children, to those with mental disorders, to those with learning difficulties and to those in positions of trust. All are welcome. I support the principle underlying Clause 74 in regard to sexual activity in public, although not the drafting.
As to incest, I am surprised to find that sexual activity between brothers and sisters should remain unlawful once they have reached the age of 21. Our policy advisory committee was in favour of relaxing the law in that respect; so were we, and so am I. In accordance with the general principles stated in Wolfenden, which are of great importance, the criminal law should not be concerned with what consenting adults do in private as long as no one else is harmed.
I am surprised that there is nothing about brothels. Prostitution is mentioned but there is nothing about brothels. I may be wrong about that. Clause 71 in regard to voyeurism is an absurdity, and Clauses 66 and 67 are only marginally less absurd. Their provisions will never be used in practice and should not be on the statute book.
There are many improvements to be made to the Bill, especially in Clause 1, but otherwise, despite the fact that it comes very late in the day, the Bill is nevertheless welcome.
6.18 p.m.
Baroness Jay of Paddington: My Lords, it is a privilege to follow the noble and learned Lord, Lord Lloyd of Berwick. I, too, speak with some trepidation as a non-lawyer in this expert legal debate. But, as a laywoman—and I emphasis the laywoman aspects of my remarks—I welcome the Minister's words in introducing the Bill—words which, I understand, offended the noble and learned Lord, Lord Ackner, when he said that these archaic, inchoate and indiscriminatory laws are indeed in need of broad reform.
Given the remarks of my noble friend Lady Mallalieu, I appreciate that this is not a battle of the genders but, nevertheless, as a previous Minister for Women, I welcome the proposed changes on rape. Notwithstanding the sincere legal concerns raised in the debate, I follow my noble friend Lady Gould of Potternewton in seeing these measures as a positive step. After all, many courageous women's advocacy and victim support groups have campaigned on these issues for a long time. I say with respect to my noble friends who have spoken in the opposite way, particularly to my noble friend Lord Campbell-Savours, that I am sure that if they were present they would raise equally emotive individual cases on the other side to illustrate their point, and I think they would do so without a hint of political correctness. I certainly do so in supporting the Government on the issue.
As we have been reminded today, these measures have not been dreamt up by individual Ministers. They are based on the recommendations of two review bodies and detailed testing of public opinion, which has meant that numerous previously thwarted women's voices have now been heard.
I also welcome the proposals intended to produce greater equality before the law for practising adult homosexuals and those who have a mental disorder or are learning disabled. Their causes have been championed for many years by excellent advocates, including in this House by the noble Lords, Lord Alli and Lord Rix, from whom we have already heard. I am glad that the Government have listened carefully to many varied and authoritative views and to expert advice before bringing the Bill before Parliament. As we have learnt today, Ministers have achieved broad political support for the aims of these measures.
Although I am not a lawyer, as I have stressed, I can well understand the principles of the technical difficulties of evidence on consent in this area, although I would not necessarily want to face an examination on the finer points that the noble Lord, Lord Thomas of Gresford, raised this morning. The issues of consent and intention have always been hugely complicated, from a social as well as a legal point of view. We have already heard several examples of appropriate criminal action being stymied by personal loyalties or emotional regrets. I know from voluntary work in the field of sexual offences that there are enormous dangers, in that these laws and those who use them can be destructively ridiculed. That must be so in our adversarial system, when conflicting personal stories are the only basis for prosecution and genuine—or less genuine—victims and assailants suffer from the real burden of proof.
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That is why I welcome the apparent shift in the balance in the Bill. The Government must respond to important legal questions on workability, but I hope they will stand firm on the principle of their proposals on rape and other serious offences. The tired old jibes about needing a policeman in every bedroom must not be allowed to resurface.
However, I must agree with previous speakers, including my noble friend Lady Thornton and the noble Baroness, Lady Noakes, who first raised the possibility of over-criminalising—I think that was the verb used by the noble Baroness, Lady Noakes—some sexual activities. I hope Ministers will not think me frivolous if I say that some parts of the Bill seem to provide more opportunities for television sitcom episodes than for proper, appropriate responsibility in criminal justice. Other noble Lords have given examples. My main examples are in Clauses 70 and 71, which deal with the appropriate issue of indecent exposure and voyeurism. I am glad to follow my noble friend Lady Mallalieu, who expressed her concerns on the issue. Before she spoke, I had begun to think that perhaps it was only the lay mind that boggled at the possible prosecution under Clause 70. The Explanatory Notes point out that if person A,
"is inside his house and has only adult guests, if he walks around in front of them naked, he will only commit the offence where he knows or intends to alarm those guests".
As the noble and learned Lord, Lord Lloyd of Berwick, said, prosecutions under these laws seem highly unlikely.
None the less, most of the Bill reflects extremely important issues of protecting individual human rights and protecting the public from sexual offences. I hope that when it is enacted, great care will be given to providing significant resources, especially for training, which will enable the proposed changes to be implemented sensibly and sensitively in a social as well as legal context. The Government have rightly responded to public concerns in seeking to bring sexual offences laws into line with changed social attitudes and expectations. However, it is equally important that statutory changes are not held up to ridicule, either by expert lawyers or what I can only describe as a name-calling and, perhaps, witch-hunting media.
That is particularly true in the context of offences involving children and young people. I follow other speakers in welcoming the tightened laws on abuse of trust and sexual exploitation by adults of children and young people. My major concern is with the blanket proposal that no young person of 13 or below is capable of consenting to sexual activity, even with someone of a similar age. Here, too, I agree with my noble friend Lady Mallalieu.
In an earlier debate, on the White Paper, my noble and learned friend the Minister was precise on the matter. He quoted from the White Paper, which says that,
"where it is another child or someone in their mid teens who has sexual activity involving physical contact with someone under 13, the only charge available will be a non-consensual offence".

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That is rape. However, he acknowledged in response to a question from me that some instances might be better dealt with by the child protection agencies rather than the courts.
I want to pursue my noble and learned friend on that matter, because the Government seem to have updated the law without paying sufficient attention to changing sexual behaviour among and between very young teenagers. That point was helpfully noted in the extensive briefing distributed to us all by the important children's organisations. We have already heard some figures from my noble friend Lady Gould. I remind the House that the average age of reported first intercourse is now 16, which is the legal age of consent. That means that very many young people are sexually active at a younger age.
Several research reports have suggested that girls, in particular, may later regret an early sexual experience, but as far as I know there is little indication that sex between young partners is non-consensual in the commonly understood sense. The capacity to consent is rarely challenged. By making a young teenager or a child automatically legally incapable of giving consent, the Bill could act against the grain of the vital work of schools, health educators and child protection agencies in trying to bring about mature sex and relationship behaviour in that age group.
If officiously implemented, the measures could follow some of the worst aspects of the problems that we saw in relation to Section 28, as well as reinforcing youthful opinions that the adult world is totally alien to their experience. We may regard early sexual experience as immoral, misguided or simply precocious, but there is nothing to suggest that by making it automatically criminal, we do anything except, perhaps, make it excitingly illicit.
The Department of Health is, apparently, working on drafting proposals on the legal concept of capacity. The noble Lord, Lord Rix, referred to that matter today in relation to mental disability. I hope that it may be possible to incorporate some of that thinking into these proposals—especially with regard to a child's evolving capacity to consent—before they become law. Otherwise, I suspect that these well-intended provisions may undermine other aspects of the Government's health and social education policy, such as the relatively successful campaign to reduce the appallingly high rate of teenage pregnancies in the United Kingdom.
My other concerns touch on issues such as the detail of clauses on child prostitution and child pornography on the Internet, authoritatively addressed by my noble friend Lady Thornton. Many of these concerns are embraced by the broad topic of consent and intention, which I look forward to discussing in Committee.
Overall, I congratulate the Government on bringing forward such a wide-ranging Bill. I am not alarmed by the reference of the noble Lord, Lord Alli, to buses! I am sure that as we examine the provisions closely, the consistency and the workability of the Government's ambitions will be clear.
6.29 p.m.
Lord Adebowale: My Lords, early in my career I was told that you should never start a contribution to a debate with an apology. I apologise to the House that I missed this morning's contributions. I have apologised to the Minister and I take this opportunity to apologise to the House. It was an error due to ignorance of the House's protocols, for which I hope that noble Lords will forgive me.
I am not a lawyer and feel humbled having listened to the excellent contributions made by those skilled in the law. My interest in the Bill stems from my position—in making this point I declare an interest—as Chief Executive of Turning Point. Turning Point has provided learning disability services in England for some considerable time—well over a decade. Our services span residential and day support and community services for people with severe learning disabilities. Our day service provision in Salisbury and our residential provision in Durham provide services for people who, in addition to their learning disability, also have a mental health need or have been involved in the criminal justice system. Those are just two examples of our services.
The law around sex offences is part of the criminal law that deals with the most private and intimate part of life, sexual relationships when they are nonconsensual, inappropriate or just plain wrong. The law often needs to balance two competing interests: the law must respect the right of all consenting adults to have sex, and that must include those with learning disabilities. As we have heard, many people with learning disabilities have successful relationships and many are parents. However, that needs to be balanced against the need to protect people with a learning disability from abuse and exploitation. What is important is to make sure that people are not pressurised or threatened into having sex and that those who cannot consent are safeguarded from abuse. That suggests treating sexual intercourse with someone who has not clearly consented as rape and imposing severe penalties on people who in committing sexual offences have betrayed a position of trust.
The Bill seeks to improve the current patchwork quilt of provisions that have to date poorly served people with a learning disability. Clearly, the current law of "sex with a mental defective" is offensive and outdated. It has not sufficiently protected people with a learning disability. The scope of abuse remains extensive and the law does not offer a sufficient remedy. It has not ensured that abusers are appropriately punished. Uncertain laws only serve to perpetuate misconceptions about the sexuality of people with a learning disability and fail to serve their best interests.
Clause 33 makes it an offence to have sex with a person who cannot consent to sexual relations. The Government have drawn up a sensible test of capacity to consent so it is clear whether someone was capable of entering into a sexual relationship. However, I am concerned that the defendant will still be able to claim

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a defence that they did not know that the victim was a person with a learning disability and lacked the capacity to consent. This is a dangerous loophole. Once it has been established that an individual does not understand the nature of the sexual act or its implications, it cannot be a valid defence for the perpetrator to claim that the person consented. There cannot be any excuse for a defendant's actions. The prosecution will still need to demonstrate that the act took place and that an individual lacks the capacity to consent based on the balance of evidence presented to court. This is still a high evidential burden. However, those who cannot consent to sex should be given absolute protection by law and should not have to get involved in complex legal battles.
Clauses 43 to 48 make it an offence for an individual working in a residential home or other setting to have sex with a person with a learning disability living or receiving services in that care setting. Care workers are in a position of power or influence over the people they look after and are certainly entrusted with work of a very intimate nature. There is a relationship of care and trust in these situations. The presence of that power imbalance undermines the ability of an individual to give free consent. For those reasons, compliance should not be confused with informed consent. It will mean that people find it difficult to deny sexual demands or protest effectively about their actions. It may be impossible for a resident to confide in anybody about abuse perpetrated by a care worker, and the resident may be afraid to speak out.
Noble Lords may be familiar with the Long Care inquiry, set up following extensive abuse of people with a learning disability in Buckinghamshire. In that case more than 50 people suffered serious abuse at the hands of Gordon Rowe and his staff at two homes. Effectively, the homes were running a systematic regime of physical and sexual abuse of residents, including rapes and sexual assaults, for more than 10 years. Residents lived in a climate of fear. Gordon Rowe raped women and made them undress and watch pornographic videos. He forced women to have sex with other people and with animals, which he filmed and then forced them to watch. One blind man was made to sit in a chair for days while Gordon Rowe struck him round the head each time he passed by.
I hope that that case alone will persuade the Government to reconsider the sentencing provisions under the offence. The Bill currently carries a maximum sentence of seven years and, more worryingly, a sentence of only six months under summary conviction. Inappropriate, abusive relationships between care workers and those in care should be made illegal. They should carry a maximum sentence of life, although full appeal rights should be available. While it is for the judge to consider the maximum level of sentence based on the facts of the case, the option of life imprisonment should be available in instances of grave abuse.
Clause 48 defines care workers. I understand that it is the intention to extend protection to people who receive care in training centres, day centres or other facilities. However, I hope that that can be reflected
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more clearly in the Bill. There are real concerns about the scope for abuse in those settings and that day services remain unregulated, with the potential for sex abuse to continue unchecked.
Police attitudes and those of the Crown Prosecution Service are critical. There still remains a commonly held view that an individual with a learning disability will not make a credible witness in court, and for that reason prosecutions may not proceed. The new special measures that stem from the Youth Justice and Criminal Evidence Act are important. I hope that the Government will be prepared to monitor the extent to which special measures are granted or refused to witnesses with a learning disability and whether those measures have in practice supported that individual to give their best evidence in court.
Finally, more work is needed to be done with adults with a learning disability, to help them recognise potentially abusive situations and to seek help and support. The care standards commission should certainly take on that role in relation to residential and supported living environments.
The nature of abuse of vulnerable adults is extensive. It deeply affects the lives of people with a learning disability and their families. I am grateful that the Government have introduced a new code of sex offences, with new clear and coherent offences that are fair, fit and just for the 21st century.
6.38 p.m.
Baroness Walmsley: My Lords, I am not a lawyer either, and I am quite happy about that. In fact, one might say that I am on these Benches as a counterbalance to the weighty legal brains of my colleagues. I come from a completely different starting-point to them, but noble Lords will be interested to know that we have reached the same conclusions.
We have had an excellent debate, and there is clearly a great wish in the House to work together to produce a good and workable piece of legislation. The Liberal Democrats welcome many aspects of this Bill, but we have concerns about others. The Bill seeks to protect individual adults and children against any nonconsensual sexual act, protect the public against being given unreasonable offence by people undertaking sexual acts in public, and correct areas in which adult gay men were previously criminalised for consensual sexual activity. Those intentions are right and welcomed. Having said that, the noble and learned Lord will forgive me if I concentrate at this late hour mainly on our concerns.
We work on the principles that people across the whole spectrum of sexuality should be treated equally under the law, that what consenting adults do in private is their own business, that children and people with mental and physical disabilities should be dealt with appropriately and that the human rights of victims and the accused should be protected.
First, I address the genuine attempt by my noble friend Lord Thomas of Gresford to identify an effective way in which to increase safe convictions for rape. As a woman I want to see guilty rapists convicted

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and women protected against sex offenders. As a Liberal Democrat I want to see justice done and the human rights of the accused and victims alike respected.
Currently the conviction rate for rape is unacceptably low. Experts have reason to believe that there are numerous guilty defendants who are never convicted and who are free to offend again. Rape is a terrible crime of violence, usually against a woman and anything within reason that can be done to punish the guilty and to deter potential offenders will be welcome. However, I also believe that wherever appropriate the opportunity should be grasped to offer treatment to offenders while in custody to prevent re-offending. I wonder what reassurance the Minister can give us about the availability of that.
The objective of a trial and a sentence must be to identify and to punish the guilty, to provide the opportunity for rehabilitation and prevent other women suffering the violence of rape in the future. Therefore, I welcome the pragmatic proposals of my noble friend Lord Thomas of Gresford. His idea of a lesser, albeit serious, offence could allow juries to convict on a lesser charge in cases where they believe that there is some guilt, but when they would have shrunk from a conviction on the serious charge of rape with its substantial custodial penalty.
That does not mean we should be soft on rapists. We agree with the noble Baroness, Lady Gould, that rape is rape and that the CPS should prosecute it as such whenever there is a realistic chance of achieving a safe conviction. However, in cases where it appears that a conviction is unlikely I would rather have available a lesser, albeit serious, charge with a slightly less serious penalty than risk the guilty offender walking away completely free to re-offend. I suspect that many complainants would feel that way too. I hope that the Minister will give serious consideration to that constructive suggestion.
Clearly we all want to achieve the same: more genuine convictions. We simply doubt that the Bill as it stands is the best way. As my noble friend Lord Thomas of Gresford and the noble Baroness, Lady Mallalieu explained, juries will find the provisions too difficult and confusing.
The noble Lord, Lord Campbell-Savours, made an impassioned speech about the effect on innocent men of an unfounded accusation of rape. None of us wants to see that happen. His comments prompt me to ask the Minister whether there are any plans to restore anonymity for the defendant as well as the complainant up to the point of verdict.
My second point is an aspect of sex in public places that has not been raised so far. I refer to prison cells in relation to the definition in the Bill of a private place. The current situation could be seen to be a breach of the duty of care of the Prison Service because it could lead to the spread of HIV/AIDS through prisoners having unprotected sex due to the lack of availability of condoms in prisons. We should be concerned with the health of prisoners and with harm reduction, so the current situation is unacceptable.
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It is well documented that one implication of imprisoning men and women in a large single-sex environment is that some will engage in consensual sexual activity. Her Majesty's prison regulations have sometimes been used against gay men who engage in sexual activity in prison. The basis of that is that it is contrary to good order and discipline and it is also believed by the Prison Service to be illegal. The Prison Service's contention is that a prison cell cannot be regarded as a private place under the terms of the Sexual Offences Act 1967 because a prison officer may enter a cell at any time. However, that contention has not been tested in a court of law.
Dr Rosemary Wool of the Prison Service's health department in 1995 in a letter to prison governors stated that she believed a prison cell to be a private place for that purpose. Despite this, the Prison Service felt that providing condoms would be condoning an illegal act and banned them. From 1997 onwards, official policy was that condoms could he issued by medical officers on prescription. However, some provide them and some do not. Anyway, there is a clear disincentive for prisoners to apply for them. The Department of Health even offered to provide condoms anonymously in appropriate locations throughout the prisons but that was rejected. Actually, some voluntary organisations provide them, but this provision is not universal.
Lack of access to condoms constitutes a considerable risk to public health because of the potential for exposure to HIV and hepatitis. The Bill gives the Government a chance to put this right by making it clear that, for the purposes of the Bill, a prison cell is a private place. I hope the Minister will be able to reassure me that the Government intend to do that by amending the Bill.
I now turn to the matter of sex tourism. A number of agencies have raised with us the fact that the Bill has a loophole which leaves children in other countries vulnerable to abuse by sex offenders from the UK. Convicted sex offenders have to notify the UK authorities only if they are travelling abroad for eight days or more. Even then, they have to notify only about the first destination country. Seven days is more than enough time for someone to travel to the Far East and commit offences against children without anyone knowing that they are even out of the country.
In answer to my honourable friend for Romsey Mrs Sandra Gidley the Prime Minister promised that this loophole would be closed by reducing the notification period to 72 hours. However, eight days has appeared in the Bill. This is a real opportunity for the Government to play their part in stopping sex tourism. I join the noble Lord, Lord Alli, and others in asking the Minister to say when the Government propose to bring forward that amendment.
Will the Minister also ensure that British police work more closely with the police in destination countries to track sex offenders where they are thought to be a risk to children to prevent them committing abuse. Although that was made possible by the Criminal Justice and Courts Services Act 2000, as the noble Lord, Lord Alli, has said, it is not done automatically.

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The next issue I would like to address is Northern Ireland. Although the Bill seeks to bring about equal treatment under the law between heterosexuals and homosexuals, only certain clauses relate to Northern Ireland. Will the Government draft the necessary consequential amendments fully to update the Homosexual Offences (Northern Ireland) Order 1982 and other laws to achieve parity with England and Wales for homosexual people in Northern Ireland?
I now turn to the issues relating to young people. Naturally, we welcome measures to protect children from sexual abuse, but it is the way in which the Bill deals with young people who are accused of sexual offences that concerns us most. I think that it boils down to the danger of over-criminalisation and the lack of clarity about where professional assessment and treatment come into the picture.
We know that sexual activity between the ages of 13 and 16 is fairly common. A recent survey showed that those reporting sexual activity before 16 was 30 per cent for men and 26 per cent for women. Mutually agreed experimentation is a normal part of sexual development and, as long as precautions are taken against unwanted pregnancy and sexually transmitted diseases, it does not do any harm in most cases between young people close in age.
However, we also know that between 25 per cent and 40 per cent of all sex offences against children are perpetrated by juveniles. But evidence suggests that a majority of these young people do not go on to become sexual offenders in adulthood. Work in Canada shows that, with the right therapeutic help and support, most children exhibiting harmful sexual behaviour can be stopped from continuing with such behaviour in adult life. The crucial thing is to identify the problem early—if it is a problem—to treat the matter with sensitivity and to provide high quality professional assessment and treatment. That is not always available in this country.
The All-Party Parliamentary Group for Children heard about that matter in a very moving evidence session last year. I think these matters should be dealt with though the child protection system and not through the criminal justice system. That is why I am so worried about several measures in the Bill, many of which have been touched on by a number of noble Lords, including most recently by the noble Baroness. Lady Jay. A balance needs to be struck between dealing appropriately with a range of coercive behaviour without criminalising mutually agreed behaviour. I am not sure that the Bill gets the balance right. In seeking to protect young people from abuse, the Bill is in danger of criminalising normal sexual behaviour. It sends out the wrong message to young people by turning early sexual exploration from something normal to be enjoyed into furtive activities punishable by a gaol term. By doing so, it will deter young people from seeking advice and professionals from giving it. I seek the Minister's assurances.
I should like the noble and learned Lord to comment on the paradox that the Bill lays down that a child under 13 cannot understand the implications of sexual
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activity sufficient to consent to it but can simultaneously be expected to understand the implications sufficient to be held criminally liable for such an activity. There seems to be a lack of logic and consistency.
Clauses 9 to 13 concern sexual activity with a child or causing a child to engage in a sex act. They would make it an offence for an 18-year-old boy to be in a consensual sexual relationship with a 15-year-old girl. Is that what the Government intend? Clause 14 covers the same offences committed by a young person under 18. Will assessment of those offences by on a case-by-case basis? Under the Bill, it would be an offence for a 17-year-old boy to be in a consensual sexual relationship with a 15-year-old girl, but that is a fairly common situation.
Over and over again, the Bill omits any reference to a strategic, multi-agency approach to children and young people who display sexually harmful behaviour, to ensure the co-ordination of assessment, referral and therapeutic treatment services.
Clause 15 concerns arranging a sexual offence. I am greatly concerned that people providing sex education or contraceptive services to under-16s would be deemed to be committing an offence. Clauses 110 to 116 on sexual harm orders also appear to contain that risk. Clause 110(3)(c) refers to giving a child,
"anything that relates to sexual activity or contains a reference to such activity".
As a consequence of the Gillick case in the early 1980s, children are entitled to the same level of patient confidentiality as adults and to request contraceptive services under 16 years of age. They also have that entitlement under Article 8 of the Human Rights Act.
Clauses 110 to 116 appear to revoke the Gillick ruling and Article 8 of the Human Rights Act. Sex education is a vital part of the school curriculum and essential to the physical, mental and emotional wellbeing of our young people. I was astonished to hear the noble Lord, Lord Skelmersdale, refer to it as a licence to engage in under-age sex. Unless educational activity, help, advice and treatment are specifically excluded, how will the Government ensure that conscientious professionals are not at risk of falling foul of the legislation?
Clause 17 is about sexual grooming. Around 75 per cent of five to 16-year-olds use the Internet. It is sensible that the law catches up with sex offenders who seek to use new technology to abuse children but because Clause 17 relates to a so-called thought offence, the quality of evidence of intent will be crucial to obtaining a conviction. How close will the perpetrator have to get to the child before the police consider that there is enough weight of evidence? Will the child have to agree to meet the potential abuser with the police waiting nearby? If so, is that not putting the child in terrible danger? Can the Minister reassure me?
Clauses 18 to 24 concern abuse of trust and list institutions and definitions. However, the noble Baroness, Lady Blatch, mentioned that they do not include school caretakers, community groups, private

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businesses or people in church groups—by whom children could be abused. How is that matter to be addressed? Surely the provisions should be more comprehensive.
Clause 82 specifies that a person under 18 charged with a relevant sex offence should be put on the register of sex offenders, albeit for half the set period for an adult. Page 303 of Setting the Boundaries suggests that putting children on the sex offenders register is a "crude and blunt instrument" and that the courts should be allowed greater discretion when doing so. Putting a child on the sex offenders register can put a blight on the whole of its future life. The review recommended that registration should be used only where there was a risk of reoffending or the child was considered to be dangerous. No account seems to have been taken of that recommendation in drafting the Bill.
The solution to all that seems to be that the Bill should deal with those under 18 separately, punishing only behaviour that is aggressive or non-consensual and recognising that aberrant sexual behaviour in a young adolescent requires more effective intervention than that of a prison sentence. To pick up a small point made by the noble and learned Lord, Lord Lloyd of Berwick, I personally think that the Bill misses an opportunity to legalise and regulate prostitution.
Finally, I turn to the matter of sex and people with mental disabilities and learning difficulties. We on these Benches believe that all such people have the fundamental right to enjoy a healthy sex life and to have better protection from abuse than the law has provided up till now. Like the noble Lord, Lord Rix, I welcome the extent to which the Bill improves that situation. But the biggest omission from the Bill is its failure to recognise that other adults can and do undertake work for people with learning disabilities that facilitates them enjoying a healthy and active sex life, as they wish it.
It is unfortunate that the Bill views care workers only as potential offenders and ignores their vital work in assisting learning-disabled people. Care workers are not protected by the Bill, which appears to criminalise any sexual activity with a person who cannot communicate consent. That would leave many such people unable to have a sex life at all. Professionals working in the sector know that communication is carried out by more ways than speech alone, so we need an adequate definition of communication in the Bill to reflect that. No doubt we shall return to that matter later.
It is late and I have asked many questions. I look forward to hearing the Minister's response.
6.57 p.m.
Lord Astor of Hever: My Lords, this has been an excellent and well-informed debate. I thank the Minister for explaining clearly the detail and objectives of the Bill. I also thank all the charities and other interested groups that have sent helpful briefings. As my noble friend Lady Noakes said, we on these Benches agree that new legislation is urgently
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needed. We welcome the Bill, which will provide much-needed protection for some of the most vulnerable in society from abuse and exploitation.
Many issues have been covered in the debate, and I have time to mention only a few. Several noble Lords referred to Clause 17 and the grooming of children. Sexual predators lurk like spiders on the world-wide web, waiting to catch vulnerable children. The Internet has created new dangers to children as a result of the ease that it allows those who want to abuse children to do so. It is therefore vital that the police are fully resourced to deal with Internet-based crimes.
In our desire to obtain the conviction of those who are guilty, we must ensure that innocent people are not branded as sex offenders on the basis of suspicion or malicious allegations. We need adequately to distinguish between a clearly evil pattern of behaviour intended to secure later sexual activity with a child and harmless, kindly behaviour on the part of the vast majority of adults who have only children's welfare at heart. As the Victoria Climbié case and other child protection deaths have shown, we must look out for our neighbours' children, not be scared even to speak to them for fear of being accused of a paedophile offence.
In a powerful speech, my noble friend Lady Blatch addressed many of the issues relating to abuse of trust offences. I congratulate her on the work that she has done on that and other child protection issues. I am delighted that some of her proposed amendments are included in the Bill.
A number of noble Lords referred to child prostitution. Will the Minister assure the House that those children aged between 16 and 18 involved in prostitution will not be criminalised but treated as victims?
We welcome sections dealing with trafficking into, within and out of the UK for sexual exploitation. To be effective, again the necessary resources must be made available to the police to maintain effective contact with other forces.
I agree with the concerns of many noble Lords including my noble friends Lady Noakes, Lady Blatch and Lord Skelmersdale, on the proposal in Clause 74 effectively to legalise sexual activity in public toilets. Cottaging is offensive to most people, homosexuals included. The noble Lord, Lord Carlile, rightly pointed out that this has nothing to do with prejudice. I think that Ministers have misjudged the public mood. Under the Bill, more public lavatories will become no-go areas for children and families. I have a 12 year-old son. As a parent, I am pleased that the Government will look again at the drafting.
Although much of the Bill and accompanying media interest has focused on provisions relating to children, I wish to highlight the brief but important section which concentrates on protection of vulnerable adults with a learning disability or mental disorder. The noble Lord, Lord Morris of Manchester, another excellent advocate for the disabled, regrets that he is unable to be in the House today to speak on that issue. As several noble Lords have said, the law does not provide people with a learning disability sufficient

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protection from sexual exploitation. The noble Lord, Lord Rix, pointed out that people with a learning disability may be four times more likely to be sexually abused than the non-disabled population. They have just as much right to justice as those who do not have such disabilities.
Much of the substance of this section is comparable to the Private Member's Bill—not at all amateurish—introduced by the noble Lord, Lord Rix. The noble Lord has continually pressed the Government to come forward with this Bill, and on that I congratulate him.
Despite its laudable intentions, concern remains that in its detail the Bill may fail to provide adequate protection for all vulnerable adults. Conversely, the generality of several of the sections may criminalise sexual activity by people who have a learning disability or mental disorder that is neither abusive nor harmful. We must be careful not to be overly protective. Several noble Lords have made the point that the mentally handicapped should not, on top of their other deprivations, be denied sexual fulfilment. We must ensure that the Act achieves the delicate balancing act of protecting people from both sexual abuse and from legal interference in their private lives.
I hope that noble Lords will forgive my using people with autism spectrum disorders to highlight the potential impact of the Bill. I declare an interest as the father of an autistic daughter. Although some adults with autism are looked after entirely by their parents, care staff and support workers care for many. The nature of autism, as a "hidden" disability, means that people on the spectrum may be perceived as "normal" and their impairments ignored. People at the lower functioning end may not be able to speak which leaves them particularly vulnerable. However, those with Asperger syndrome are in danger of being ignored because they do not fit under the neat title of "learning disability". This group represents a significant number of those needing the protection of the Bill. Yet, while all people with autism may need protection from sexual exploitation, many will be able to engage in non-abusive and satisfying sexual activity.
The core problems with proposals for vulnerable adults centre on issues of capacity—specifically, whether a person with a learning disability or mental disorder has the capacity to consent. That does not equate to a functional test of capacity as set out in the Government's review, Setting the Boundaries. Any test must not focus exclusively on intelligence, but also on the social understanding required to consent to sexual relations. Capacity tests need to take into account the complexity of the process of consent. For example, a person with Asperger syndrome may be able to give consent in some situations, according to mood and the familiarity of the environment, but not in others.
With little clarity on the face of the Bill about the definition of capacity, victims of sexual abuse may face a range of sources of evidence seeking to demonstrate that they do, in fact, have capacity to consent. In the continuing absence of comprehensive mental incapacity
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legislation, the Government must clarify what criteria will be used to determine whether a plaintiff does indeed lack capacity under the terms of this Bill.
Do the Government intend to issue a code of practice setting out the procedure for determining capacity to consent and dealing with the practical administration of the test? If so, what consultation process do the Government propose to undertake to ensure that the test of capacity is set at the right level?
The proposed new offence to protect people with a learning disability or mental disorder from inducements, threats or deception to engage in sexual activity is welcome. People with autism may be particularly vulnerable to persuasion or deception. By creating the new offence there will be no need for a victim in this situation to demonstrate their ability, or otherwise, to consent to sexual activity.
Similarly, we wholeheartedly support the principle of criminalising any sexual relations between a care worker and a vulnerable adult in their care. However, concern remains that this offence will be undermined by the defence of ignorance as to the existence of a learning disability or mental disorder. Given the gravity of acts that may be tried under this offence, some organisations have advocated a higher maximum sentence than the suggested seven years.
The current definition of care worker clearly includes volunteers and paid staff performing the majority of duties in a care setting. However, the fact that only those in,
"regular face to face contact",
with service users can be prosecuted under this offence may mean that some auxiliary staff can and will escape prosecution. We should like to remove the word "regular" in Clause 48 to include all staff who may come into contact with a person in a care setting. This is particularly important with the growing use of casual agency staff by social care providers.
In addition, the Government must clarify a point first raised by my noble friend Lady Anelay in the previous debate on this subject. What will happen in a situation in which two people with a learning disability or mental disorder, who may be shown to lack capacity to give informed consent, are engaged in a mutually satisfying sexual relationship? The Home Office has indicated that in such instances it is likely that the law would not be applied. Why, therefore, have the Government not followed the Law Commission's recommendation that there should be criminal culpability only where there was evidence of abuse or exploitation?
The Bill goes a long way towards providing the long-overdue protection from sexual abuse that vulnerable adults and children need. But, as the noble Lord, Lord Campbell-Savours, said, many areas of it need careful examination. I look forward to helping constructively and carefully to improve the Bill before it leaves this House.
7.10 p.m.
Lord Falconer of Thoroton: My Lords, I join the noble Lord, Lord Astor of Hever, in saying what a very good debate it has been. I welcome the fact that every Peer, except the noble and learned Lord, Lord Ackner, welcomed some part of the Bill. Some welcomed all of it. I am very grateful for the fact that the vast majority—
Lord Ackner: My Lords, will the noble Lord allow me to intervene? I started by welcoming those parts that dealt with children and protected them from paedophiles.
Lord Falconer of Thoroton: My Lords, everybody welcomed the Bill. We will approach it constructively. I particularly welcome noble Lords who indicated a wish to help to make the Bill as good as possible. In many respects we share many of the objectives and outcomes sought. The issues look much more how we sought to achieve mutually shared outcomes, rather than other substantial policy differences between us as to how it may be done. While recognising that it is 7.20 p.m. on a Thursday, I shall deal with as many points as possible in the time available.
The noble Baroness, Lady Noakes, asked us to monitor the effect of the new formulation of rape and other offences. Of course we will. On grooming, she asked whether we had gone too far. She drew attention to the fact that one would have to prove the intention to meet the child with the purpose of committing some sort of illegal sexual activity. She rightly said that the proof of that intent would be pivotal in proving a grooming case. She is absolutely right. We have focused on what we think the essence of the offence is: contacting, or having a relationship with, a child with a view to committing an illegal sexual act. That is precisely how the offence is framed. Of course, we will listen if it can be more focused. Subject to the more detailed points raised by other noble Lords, we think that we have got it right, but we are more than happy to debate it in full during the passage of the Bill through the House.
The noble Baroness raised an inconsistency, giving the example that in Clause 11 the maximum sentence for inciting a child to engage in sexual activity was 14 years, whereas the maximum sentence for an identical offence involving a mentally impaired person was life imprisonment. She rightly asked whether there was an inconsistency in that regard. We need to look to see whether that is the case.
The noble Baroness raised a point about over-criminalisation, which many noble Lords mentioned. She gave two examples: a consensual relationship between an 18 year-old and a 15 year-old and a consensual relationship which is not harmful between two people with a learning disability. We are keen to ensure that proper protection be given both to children and people with learning disabilities or mental impairment. That will mean, as it does now in relation to current offences, that one must criminalise certain activities that, on the facts of a particular case, would never merit a prosecution because it would not be in
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the public interest for there to be one. But one must balance the ability of the CPS to say no to a prosecution against the fact that in certain cases, if the activity is not an offence in that form, terrible crimes may go unprosecuted.
The obvious example is a case where a 12 year-old and a 14 year-old have a relationship of such a nature that it would be wholly inappropriate to prosecute. But, equally, there may be cases in which a 15 year-old boy is brutalising someone under 13, or, worse, a 25 year-old is doing the same thing. We do not want a situation where the law requires that a lack of consent is proved in the case. As noble Lords all around the House have said, it is a delicate balance. We believe that we have got the delicate balance right. But it is that sort of balance that we need to examine as the Bill goes through the House.
Equally, as regards the relationship between two people suffering from mental impairment, we would like to make it clear—picking up the point made by the noble Lord, Lord Thomas of Gresford—that there is absolutely no intention to lead to criminal prosecution where there is a happy sexual relationship taking place. We are absolutely determined not to stop there being a legitimate sex life in those circumstances. But, again, we recognise the problems of proof which exist where abuse is occurring in relation to someone suffering from mental impairment. If there are no provisions for that one could never begin a prosecution. It is a balance which has to be struck.
The noble Baroness, Lady Noakes, made a number of points about the sex in public offence, which is Clause 74 of the Bill. There was a widespread feeling that it was important that sexual activity in public lavatories should remain criminal. It does. Clause 74 creates an offence additional to the current public order statutory and common law offences which exist to criminalise the kind of conduct referred to in public lavatories. We accept that we need to look again at the wording and its relationship with existing offences in order to make sure that the message, for which there was wide agreement in the House, is clearly sent through the Bill.
I move to a point of principle which arose. I am not sure that it is right to describe it as such. I refer to the issue of reasonableness as regards rape and related offences. The noble Lord, Lord Thomas of Gresford, supported by the noble and learned Lords, Lord Lloyd of Berwick and Lord Ackner, and by a number of other noble Lords throughout the House, took the view that we should not include reasonableness in relation to the offence of rape.
In effect, and as a matter of principle and practicality, it was being said that it was a mistake. The principle is that it is wrong to convict somebody of the offence of rape if they unreasonably, but genuinely mistakenly, believe that the victim consented. The point of principle needs to be addressed. If one allows the defence of honest but unreasonable belief in consent, it has the following consequences. It implicitly authorises the assumption of consent by the defendant, irrespective of the views of the victim. It encourages people to adhere to myths about sexual behaviour.

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The mistaken belief will arise in a situation where it is easy to seek consent and the cost to the victim of forced penetration is very high. It is not unfair to say to any person that they should take care that their partner is consenting and to be at risk if they do not take that care. There is no justice in a situation whereby a man or a woman who has been raped because he or she did not consent sees an assailant go free because of a belief system that society as a whole would find unreasonable. It is a policy issue.
With the greatest respect to the noble and learned Lord, Lord Ackner, it is a point which should be addressed in Parliament. It is not a matter simply for the lawyers to look at. There is a fundamental issue to be addressed. We have taken the view that it is right in principle that the reasonableness element should come into the case for the reasons that we have given. We believe as well that juries will be perfectly able to understand that element of reasonableness defined in Clause 1 of the Bill.
Lord Thomas of Gresford: My Lords, there is absolutely no proof that a jury has ever acquitted anybody whose defence has been "I had a mistaken belief and I accept that it was unreasonable". I have never come across a case where that kind of defence has been raised. In the experience of all the lawyers present, I would be very surprised that anybody has ever found an acquittal based on that alone.
Lord Falconer of Thoroton: My Lords, should that be so, I am surprised that the noble Lord is not encouraging the law to reflect the practice. In those circumstances, it is wrong that the law should not reflect how juries think. We believe as a matter of principle that this should be the law. It is entirely wrong to say that this is not a political issue and should not be debated politically.
I was gratified that the noble Baroness, Lady Noakes, on behalf of the Opposition, did not say that they would raise an issue in relation to this. I accept that she raised points about workability—particularly in relation to Clause 78—but I did not understand her to say that the Conservative Party objected to this change. I understand that the Liberal Democrats, however, do object to the change.
The noble Lord, Lord Thomas of Gresford, and others have suggested, perhaps pragmatically, that, in order to obtain more convictions, there perhaps should be a lesser offence than rape to deal with what has been described as the "date rape" kind of case. It is said that justice would then be done because juries would be more willing to convict in such cases.
Lord Thomas of Gresford: My Lords, I am sorry to interrupt. But also defendants would plead guilty and the victims would not have to give evidence. That is a very important consideration.
Lord Falconer of Thoroton: My Lords, it is said that they would. Let us address that point as a matter of
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principle. Setting the Boundaries contained evidence from victim and survivor groups in relation to rape. Everyone accepts that all victims are deeply affected by rape. In certain cases there was greater victimisation in rapes where there was some kind of pre-existing relationship between the defendant and the victim. Obviously stranger rape is truly appalling, but relationship rape, according to the evidence given to the steering group in Setting the Boundaries, raises additional issues of betrayal of trust and the victim being seen in certain respects as being responsible for what has happened. The steering group was told by those who counsel victims that those raped by friends or family often find it much harder to recover, and may take longer to do so in certain cases.
So it is difficult to see, as a matter of principle, that one should treat those kinds of cases as less serious offences. As a matter of principle we do not believe that it is right to have a lesser offence. As a matter of principle we believe it is right to have a reasonableness test because it would reflect a much better policy conclusion. We believe that a reasonableness test would be perfectly workable.
As to rebuttal of presumption, the noble Lord, Lord Thomas of Gresford, and other noble Lords who dealt with this issue, were again not putting it forward as a point of principle but primarily as a question of workability: could a jury be adequately directed with a sufficient degree of clarity? We shall have to look at that issue in Committee.
Let me give one example. In essence, in a case where, immediately before the relevant act of sexual intercourse which constitutes the rape, the defendant has threatened violence to the victim, we are saying that in those circumstances the defendant has to call some evidence to show that there was consent; and he has got to prove whether or not he reasonably believed the victim was consenting in those circumstances. That is simple, straightforward and utterly reflects the common-sense and justice of the position.
The noble Baroness, Lady Gould of Potternewton, raised a number of points. Let me deal with the three main ones. First, the question of advisers. She expressed the concern, as did a number of noble Lords, that advisers giving advice, particularly to young people who may be committing offences, should not be criminalised by the Bill. She is absolutely right. In accordance with the Gillick principle, the Government take the view that any adviser who is giving advice bona fide in the interests of the child cannot be guilty of aiding and abetting. I am more than happy to state that and to give the assurances sought. The noble Baroness has told me, both in the House and privately, that a number of agencies are worried about that.
My noble friend also asked whether the provisions on trafficking protect all children. There is no age limit, so they cover children and adults. Going back to the issue of over-criminalisation, my noble friend Lady Jay also asked whether we should be thinking about child protection in some cases in which what would otherwise have occurred would be a crime. Yes, we should. There will be many cases in which we will

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not prosecute, but this Bill creates criminal offences. It is not appropriate in this Bill to go through the detail of how the many agencies involved should approach an individual case in making a decision about whether to prosecute.
The noble Baroness, Lady Blatch, raised a number of issues about grooming, which I shall deal with quickly. She worried that the grooming offence was directed only at the Internet. She implied, rightly, that grooming often takes place elsewhere. We have framed the offence so that it is not dependent on it occurring on the Internet. It can occur through telephone, written or text communication or face-to-face meetings. She is wrong to worry that we have not dealt with offline as well as online situations.
On abuse of trust, the noble Baroness raised the question of scout troops or ancillary staff. We are creating a wide-ranging offence. We think it is right to restrict it to people who have a care or training function in relation to the people who may be victimised. We think it would be going too far to include a janitor or someone else who works in a school but is not a teacher. I understand the noble Baroness's argument, but a line has to be drawn somewhere and we think that is the right place. Part-time teachers or supply teachers could be covered if they regularly taught the victim. Teaching them for just one day would not be regular enough, but doing so for a whole term probably could be. It is a question of fact in every case. We need to look at the issue of part-time pupils.
Baroness Blatch: My Lords, we shall certainly return to the final points that the noble and learned Lord has just made. Is he saying that scout leaders do not fall into that category?
lord Falconer of Thoroton: My Lords, I do not think that they do. I shall come back to the issue on another occasion, but the definition covers people such as teachers.
The noble Lord, Lord Rix, raised a number of issues about mental impairment cases. He and others raised particular concerns about Clause 33(1), for example, suggesting that a provision that says you have to know that the victim was suffering from mental impairment to be guilty risks giving people a way of getting out of the offence. Again, a balance has to be struck. In some cases, the position will be utterly apparent. In other cases, particularly if the condition is such that behaviour may change from time to time, the true position might not be apparent. Some of the offences involve a maximum of life imprisonment, so some balance must be struck to ensure that an injustice is not done. We think we have the right balance there.
I saw the noble Lord, Lord Rix, together with representatives of a number of voluntary sector organisations connected with helping people with mental impairments. He forcefully and effectively made the point—which he repeated in the House this morning—that the care worker provision should not be regarded as a residual provision when inducement, threats or rape cannot be proved. That is just the sort
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of case in which abuse will occur. We then have to ask whether it is right to have only seven years as a maximum penalty for that when there are higher penalties for other offences. We need to look at that.
The noble Lord, Lord Alli, asked about a power to confiscate passports. I have spoken to the police about that. They do not seek such a power. The power to seek an order to prevent somebody going abroad, upon notification being given, is thought to be adequate in that respect. Yes, the British police will tell foreign police when someone is going abroad. That is done as a matter of course—or depending on the risk. Some noble Lords asked whether the eight-day notification of a person going on holiday should be reduced. We have said that it will be; the Bill gives a power to make regulations in that regard, and we will shortly give our decision on the period. First, we need to take advice on what is proportionate.
The noble Lord, Lord Skelmersdale, raised various points. First, sex with a corpse is a genuinely new offence, whereas sex with animals was already an offence. He said that it was odd that when a rape was committed under the influence of illegally administered drugs, it would only get 10 years, whereas the rape by itself could get a maximum penalty of life. In fact, the offence that carries the maximum 10 years is the administration of the drug. That is where the 10 years comes in.
The noble Lord asked us to distinguish between those cases involving people with a mental impairment when they are overborne and those who do not have the capacity to consent. We have done that in the Bill, drawing a distinction between those unable to refuse and those who are overborne in various ways. The definition comes in a large number of places, but I suggest that the noble Lord looks at the bottom of page 15 and the top of page 16 of the Bill. He asked about the test that we are using; we have not gone for the Law Commission's test, but for something similar.
I shall write to the noble Lord, Lord Carlile, on the meaning of "at least". I take issue with him for his views on reasonableness, for reasons that I have already given. However, I agree that when standard directions are prepared when the Bill becomes law, it will be important to ensure that the JSB is involved in helping us to prepare those drafts.
The noble Baroness, Lady Thornton, asked about an ability to stop a meeting that occurs outside England and Wales, in relation to the grooming offence. In some cases it will be an offence outside England and Wales, but it would obviously be difficult to enforce, as it would be a matter for the local enforcment authorites rather than ours.
The noble Baroness also referred to the difference between commercial and non-commercial exploitation in relation to child pornography, because the words "for gain" are used. Again, that is there to strike the balance between something that one would not want to criminalise, because it had been done in a non-criminal way, and something that one would want to criminalise because it was done in a criminal way.

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The noble Baroness, Lady Gibson, referred to Clause 14 and asked whether there should be a reference to treatment. As we are setting out a series of criminal offences, we do not think that such a reference is appropriate in the Bill, although it is plainly a matter that should be considered.
The noble Lord, Lord Hylton, also referred to the eight-day period, which I have already spoken on. In relation to trafficking, he asked why we could not have a separate definition of children. Everybody is covered as regards criminal offences in relation to trafficking. The only reason for putting in a separate definition of children would be to have a higher maximum penalty in relation to trafficking children. The penalty in the Bill is 14 years maximum, which is the highest determinate sentence that one can get. I am not sure that it is necessary to go as far as the noble Lord suggests. I shall write to him on the other specific points on which he was kind enough to write to me.
The noble Lord, Lord Campbell-Savours, took a fundamental point of principle and said that one should be incredibly careful to ensure that there were not wrongful convictions in relation to rape and other sexual crimes. That is absolutely right. One has to trust the jury to some extent, and these are difficult cases involving difficult issues for juries to resolve. We do not believe that anything that we are doing will make the risk of wrongful conviction any higher than it is. We do not think that putting in reasonableness or the rebuttal of presumption in any way increases the risk of a wrong conviction. One should bear in mind that the reasonableness requirement that we are putting in does not detract from the basic proposition that one is guilty of the offence of rape only if, in fact, the victim did not consent. If he or she did consent, the question of reasonableness does not come into it: there is no offence of rape.
The noble and learned Lord, Lord Ackner, said that the administration of justice was being politicised. He regarded it as offensive to describe the law as archaic, incoherent and discriminatory. I described the law as archaic because, as was said in the course of the debate, one has to prove that one is a mental defective to get protection under the current law. I described it as incoherent because it has grown up over a period of time in different statutes with the result that different age groups attract different protections not on the basis of coherence but on the basis of the history of the law. I described it as discriminatory because it treats male homosexuals in a different way from everyone else. That is why I used those three adjectives. I did not intend to be offensive; I considered that those adjectives were accurate.
The noble and learned Lord, Lord Ackner, kept using the word "suppressed" in relation to the report of Mrs Justice Heilbron in the late 1970s and the report of the Criminal Law Revision Committee. As the noble and learned Lord rightly said, we published a detailed review of sexual offences, Setting the
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Boundaries. It did not refer to the previous reports that had been written on the matter; it set out an argued and coherent case as to why we wanted to change the law. The noble and learned Lord did not really deal with the substance of the changes.
The noble Lord, Lord Monson, raised a number of points and focused primarily on the interrelationship between Clauses 71 and 70, but also referred to a number of clauses which he commended. It is not worthwhile commenting further on Clause 74 as I have indicated the Government's position on that.
The noble Earl, Lord Listowel, raised the point that a large number of noble Lords mentioned; namely, that we should be careful not to criminalise children in particular when the criminal law is not appropriate. I fully accept the principle underlying his remarks and indicated where the balance must be struck.
The noble and learned Lord, Lord Lloyd of Berwick, said that we should not rely on the concept of reasonableness. For the reasons that I have mentioned I say with the greatest respect to the noble and learned Lord that he is wrong on that matter. We have set out in detail why we intend to change the law in that respect.
I believe that I have dealt with the points raised by my noble friend Lady Jay of Paddington. My noble friend Lord Adebowale mentioned care workers and Clause 33. He asked about the defence that someone could claim not to know that the victim suffered from a mental impairment. I believe that I have dealt with that point.
The noble Baroness, Lady Walmsley, asked me a large number of questions to which I shall respond in writing. However, I should mention two that have not been touched upon. First, as regards anonymity for the defendant in sex crime cases, our current view is that we do not think that the defendant should have anonymity as that would signal that we regarded that crime as being in a different category from other crimes. Where one is wrongly charged with murder, one's reputation is obviously severely or potentially damaged by that, but one is not given the right to anonymity. As my right honourable friend the Home Secretary said, he is prepared to listen to argument on that matter. Our current view is that there should not be anonymity for defendants in sex crime cases but that matter can be debated.
I turn to the important issue of Northern Ireland. Northern Ireland will conduct its own review of sexual offences. To the extent that any of the changes that we propose are not inconsistent with the current underlying law in Northern Ireland they will apply to Northern Ireland, but otherwise they will not until that review has been conducted.
A significant number of issues are involved in this matter. However, as I said at the beginning of my remarks, this is an area where we are all seeking to achieve the same outcomes. I very much look forward to the debates in the weeks and months to come.
On Question, Bill read a second time.

Budget (Northern Ireland) Order 2003
7.39 p.m.
Lord Williams of Mostyn: My Lords, I beg to move the first Motion standing in my name on the Order Paper.
Moved, That the draft order laid before the House on 28th January be approved.—(Lord Williams of Mostyn.)
On Question, Motion agreed to.

Energy (Northern Ireland) Order 2003
Lord Williams of Mostyn: My Lords, I beg to move the second Motion standing in my name on the Order Paper.
Moved, That the draft Energy (Northern Ireland) Order 2003 laid before the House on 23rd January be approved.—(Lord Williams of Mostyn.)
On Question, Motion agreed to.

Housing (Northern Ireland) Order 2003
Lord Williams of Mostyn: My Lords, I beg to move the Motion standing in my name on the Order Paper.
Moved, That the draft Housing (Northern Ireland) Order 2003 laid before the House on 20th January be approved.—(Lord Williams of Mostyn.)
Lord Brooke of Sutton Mandeville: My Lords, as the noble and learned Lord knows, I was unable to attend the Grand Committee that debated the order. I had an outstanding question which I put to him this morning in writing. I would have raised it this evening if he had not replied in the interim. I thank him most warmly for the courtesy and comprehensiveness of his reply. The only loss out of the exchange is that any PhD student writing a thesis on housing in Northern Ireland between 1970 and 2005 will now not know what my question and the Lord Privy Seal's answer to it were.
Lord Williams of Mostyn: My Lords, I am grateful for the noble Lord's courtesy. If there is a PhD thesis lurking, I shall incorporate it into a government dossier.
On Question, Motion agreed to.

Education and Libraries (Northern Ireland) Order 2003
Lord Williams of Mostyn: My Lords, I beg to move this Motion standing in my name on the Order Paper.
Moved, That the draft Education and Libraries (Northern Ireland) Order 2003 laid before the House on 7th January be approved.—(Lord Williams of Mostyn.)
On Question, Motion agreed to.

Planning (Amendment) (Northern Ireland) Order 2003
Lord Williams of Mostyn: My Lords, I beg to move the Motion standing in my name on the Order Paper.
Moved, That the draft Planning (Amendment) (Northern Ireland) Order 2003 laid before the House on 16th January be approved.—(Lord Williams of Mostyn.)
On Question, Motion agreed to.

Commission for Patient and Public Involvement in Health (Functions) Regulations 2002
7.42 p.m.
Earl Howe Earl Howe rose to move to resolve, That this House calls on Her Majesty's Government to revoke the regulations laid before the House on 5th December 2002 (S.I. 2002/3007).
The noble Earl said: My Lords, let me begin, if I may, with a health warning. When I tabled the Motions more than a fortnight ago, the Government had not yet made their announcement about the abolition date for community health councils. We now know that CHCs are to disappear on 1st September.
When the Minister came to the House last week to answer my Private Notice Question about the matter, I and others made clear our dismay that the assurances we received from him last year about a seamless transition from the old arrangements to the new, and about prior consultation with stakeholders, had in the event counted for nothing. The abandonment of ministerial undertakings, on the strength of which amendments to last year's legislation were withdrawn, is an extremely serious matter. It is no good for the noble Lord, Lord Hunt, to say, as he did last week, that in the end it is for Ministers to take decisions. Ministers do take decisions, but they should also abide by the assurances that they have previously given.
On the substance of the issue it is, for me, unacceptable that in some areas of the country after 1st September there is likely to be no organisation with a statutory right to inspect the NHS, and that as a result parts of the health service will not be monitored next winter at all. There will be no patient voice on NHS boards, no patient perspective brought to NHS decisions and no patient perspective on public consultations.
I am not sure whether the Minister is prepared to acknowledge that accountability vacuum explicitly, because so far he has not done so. I should like him to comment on it tonight. Every month, some 11,700 patients make a complaint against the NHS. I therefore have to ask: is ICAS to be fully up and running by 1st September or not? If it is not, large numbers of patients will go without the assistance that they need for an indefinite period. Again, that is simply not acceptable, and not in accordance with either the letter or the spirit of the undertakings given by Ministers to Parliament.
The noble Lord, Lord Hunt, is trusted and respected in this House, but I am sure that he will see that we cannot perform our function effectively as a revising Chamber if we constantly find ourselves doubting the validity of the assurances that we receive from Ministers. It will lead to mayhem.
According to the Minister's statement last week, the abolition date for CHCs was chosen because CHCs are losing staff and membership at a rapid rate. I do not know where the Minister's information has come from about the haemorrhaging of staff, because I have been told that the loss of members and volunteers is not happening on any great scale. If staff are leaving CHCs, there is one simple reason: uncertainty combined with a lack of communication. There has been an inordinate delay by the Government in announcing when CHCs would cease to exist. Had the whole exercise been handled more collaboratively and had the Government taken the trouble to ensure that staff and members of CHCs felt wanted and needed, we would not be facing such difficulties.
It is absolutely certain that in areas where patients forums are unlikely to be in place by 1st September there will be a mass melting away of key people. Why should anyone bother to stay? Indeed, anyone with unused holiday entitlement will feel that they may as well take it in August, which would mean that CHCs effectively cease to function at the end of July. Have the Government considered that and do they care?
Against that background we now have to consider the three regulations. I turn first to the Commission for Patient and Public Involvement in Health (Functions) Regulations 2002. During the passage of the National Health Service Reform and Health Care Professions Act we discussed the extent to which the commission would and should be independent of government in its day to day work if it were truly to carry out its job, which is to represent the interests of patients and the public and to hold the NHS to account.
In Regulation 2(1) relating to the commission's functions, there is a requirement for the commission to prepare a work programme setting out its activity for the following year. It is surprising and disappointing to see not only that that work programme has to be approved by the Secretary of State, but also that the Secretary of State has the right to vary the work programme as he or she may determine.
It must be of fundamental importance that the commission should be free to deal with major health related issues as it sees fit without political interference. The involvement of the Secretary of State in determining the work programme in my view is inconsistent with real independence. I hope that the Minister will comment on that because it casts considerable doubt on the Government's previous assurances that the commission will shift the balance of power in the NHS in favour of patients and the public. The way the regulations read suggests on the contrary that the balance of power will be shifted decisively to the Secretary of State.
Furthermore, the commission's ability to take on major health issues throughout the year as they arise should not be stifled or limited in any way. Yet once again we see in Regulation 2(4)(a) that any variations of the work programme must be agreed by the Secretary of State. How is that provision consistent with freedom of action and flexibility? The independence of the new arrangement was something about which the Minister assured us. What status do those assurances have today? What about the ability of the commission to be flexible and responsive? We can well envisage that some issues of importance may be brought to the commission's attention by patients forums; indeed, the whole point of the commission is that it should be influenced by what patients forums find locally.
Are the regulations saying, as they appear to in paragraph 2(2)(b), that the only way in which the commission can respond to such concerns is by picking them up from the annual reports of patients forums and incorporating them into its work programmes? Are we to understand that the Secretary of State has a veto on whether such matters are investigated? That is hardly the model of a responsive patient-centred and independent organisation. What if we were faced with another Bristol heart hospital situation or another Alder Hey? Would it take 18 months before the commission was able to ask permission of the Government to look into the matter?
After all the warm words of the Minister during the passage of the Bill I am frankly staggered that the regulations should now say the opposite of what we understood to be in prospect. I am beginning to believe that all the assurances given by the Government on patient and public involvement were merely devices to pacify the critics and to ram the legislation through Parliament.
Let us look at ICAS. In Regulation 4 of the functions regulations I might have expected to see ICAS included as one of the bodies prescribed for Section 20(2)(b) of the Act because ICAS will be the key body for dealing with complaints made by patients and the public. The fact that it is not there may be of greater significance than it appears. I would like the explicit assurance of the Minister that there is no question of abandoning the idea of ICAS and that ICAS will be fully established on or by 1st September.
It has been suggested to me—the Minister himself hinted at it during his replies to the PNQ last week—that the PALS service may be presented as a substitute for ICAS. If so, it is a matter of very great concern to me. PALS can be very useful, but we all know that they are not independent of the NHS, nor in many trusts do they exist at all. We were told explicitly by Ministers that every PCT patients forum would have staff to commission or provide independent support for individuals to make a complaint. Does that commitment still stand? ICAS services for NHS trusts must begin immediately after the dissolution of CHCs and as soon as possible after PCT patients forums are set up.
I ask the Minister to confirm that the one-stop shop approach, about which we debated long and hard in this Chamber, has not been abandoned or watered

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down. Will there be a one-stop shop in every PCT to enable patients and the public to get effective and easy access to the new system by 1st September? We were told by Ministers that there would be over 300 patients forum offices across England. Is that still the plan?
At the root of these doubts is of course the question of funding. I have voiced my concern on a number of previous occasions that there may not be enough money on the table to set up properly staffed patients forums in every PCT and NHS trust. The Government's silence on that issue is alarming. On 10th December the Minister said that he would write to me "shortly" on the matter. He has not yet done so. Will the Government publish a detailed funding breakdown for the commission explaining how the agreed levels of funding match the designated functions of the new bodies? I hope the answer to that will be yes, and soon.
If the new arrangements are to work one thing above all needs to happen, which is that the skills and knowledge of CHC staff and members are harnessed and directed appropriately. There simply is no other group of staff with comparable expertise. There are currently 700 staff to support 184 CHCs. I understand that these individuals have not been offered TUPE arrangements into the new system. What are the Government's intentions on that matter? The best of these people must be transferred into the new system to get it running smoothly and effectively. We also received undertakings to that effect. Yet the commission's current plans suggest that the transfer of expert CHC staff to patients forums may not happen at all. That only compounds my apprehension that a smooth transfer to the new system will not happen either.
The answers we received last week from the Minister all pointed one way: to a significant weakening of patient and public involvement once CHCs have been abolished. Contrary to previous undertakings, we now know that there will be gaps in the system; and that those gaps may well last for several months. But gaps will appear in other ways as well.
At patients forum level, the delivery of a service will depend on the availability of appropriate numbers of staff and volunteers. My understanding is that in order to support patients forums the commission plans to set up formal partnerships with local networks. Those partnerships are expected to consist of consortia of voluntary sector bodies or other local groups, and each partner will support a number of patients forums by drawing on the local networks and knowledge within the community. I must ask the Minister how those arrangements square with the previous undertakings of Ministers, that the commission would employ and appoint staff to man patients forums? Will the commission do that or is this yet another assurance that has been jettisoned?
Local networks are not a reassuring concept. We debated, and I thought disposed of, the idea of local networks when the Bill was passing through the House. What is the Minister's level of confidence that such arrangements will work? Looking at the country
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as a whole, the coverage and quality of the voluntary sector is patchy and uneven, yet patients forums are supposed to operate to a universal standard.
How are outsourced networks supposed to be a substitute for in-house staff? How can one use voluntary organisations to monitor services when many of them are providers of services as well? How can one avoid conflicts of interest if an organisation is asked to comment on changes that will bring about cuts to its own income? It is not tenable. It is ridiculous. The public and patients will be the losers.
A piece in the jigsaw of patient and public involvement is overview and scrutiny committees. When she was the responsible Minister, Hazel Blears, said:
"A key principle for this government is the right of the public to expect its concerns over major changes to health services to be expressed through a formal statutory process".
I have to say that is yet another instance of ministerial words sounding pretty hollow. OSCs were the mechanism chosen by the Government to fulfil the role of representing the public's views on major changes. However, what have we got?
When the Bill was going through this House, the noble Lord, Lord Hunt, steadfastly resisted the suggestion that local authorities should be obliged to undertake scrutiny of the NHS. They have merely been given a power to do so. In the first place, it is more than possible that some areas may be left without any scrutiny at this level. If there is no health OSC, it will not be possible to oblige an NHS trust to undertake a statutory consultation because there will be no body for it to consult.
The duty to consult under Section 7 of the Health and Social Care Act 2001 would be legally unenforceable. Even where an OSC does exist, Regulation 3 does nothing more than enable it to make reports and recommendations to local NHS bodies. It does not oblige it to do so. Contrary to what Hazel Blears implied, there would be nothing that a local community could do if it wanted an OSC to protect the public interest in a particular way on some health issue.
Patients forums have no right to demand a consultation because they will not be statutory consultees. If we read on, we find in Regulation 4(2) a most extraordinary exclusion. OSCs are not to be consulted by the NHS on the establishment or dissolution of NHS trusts or PCTs. Why on earth is that? Community health councils currently have the right to be consulted on such matters. The establishment or dissolution of a PCT or acute trust is likely to have a major impact on provision and access to services. The loss of the powers held by CHCs is irrational, onerous for an OSC and very damaging to the rights of patients.
Regulation 4(4) places no time limit on the length of a consultation. Under the present system, bodies that are consulted must be given a reasonable time for consultation, which is usually three months. l am concerned because NHS bodies in a hurry may want to consult quickly—perhaps very quickly. That should not be permitted. The local community must be given

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a reasonable chance to assimilate the proposals and express its views. Will the Government think again about that?
The net result is that Section 7 of the Health and Social Care Act 2001, which provides the legal underpinning for OSCs, is likely to result not in an enhancement of local accountability but in a diminution as regards consulting on substantial variations in the NHS. What action will the Minister take to prove me wrong? In particular, if a local authority fails to set up an OSC, what mechanism can be invoked to enable local objections to a major variation in health services to be registered with the reconfiguration panel? Is there to be such a mechanism? And where an OSC does exist, what performance management levers are there to ensure that it does its job as it should?
I tabled the Motions to protest in the strongest terms at what the Government now appear to be doing. I strongly suspect that they are starving the new system of the necessary funds and therefore of the necessary personnel and offices. The Government are not committed, as they said they were, to a smooth transition from the old system to the new. They are not committed to the independence of the commission. Nor apparently are they concerned that the new organisations, once in place, will be able to perform their functions effectively.
That, in a nutshell, is the list of charges against the Government. It is a very grave list and one is tempted to conclude that the whole system is being set up to fail. The credibility of Ministers is really on the line. I beg to move.
Moved, That this House calls on Her Majesty's Government to revoke the regulations laid before the House on 5th December 2002 (S.I. 2002/3007).—(Earl Howe.)
8 p.m.
Lord Clement-Jones: My Lords, I congratulate the noble Earl, Lord Howe, on securing the debate and on the high quality of his forensic deconstruction of the orders and the current state of play as regards patient consultation.
There is growing suspicion that, despite the pledges that they gave and the defeats that they suffered during the passage of the National Health Service Reform and Health Care Professions Act 2002, the Government are now engaged in a cynical exercise to use the current legislation to put into effect the scheme that they wanted all along but about which they failed to persuade Parliament.
I shall not cover the same ground as the noble Earl, Lord Howe; there is enough evidence to fill several debates, let alone today's. First, let us examine the issue of independence. I share the noble Earl's worries about the work programme being subject to the Secretary of State's approval and that he may vary it. Those requirements fundamentally undermine the commission's independence.
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I remind your Lordships of our debates on the question of independence on Schedule 6 to the parent Act last year. The Minister gave us specific assurances on that score. He said:
"The independence of the system for patient and public involvement is critical to its success".—[Official Report, 21/01/02; col. 355.]
When we were discussing direction-making powers under the schedule, he said:
"I understand why noble Lords may believe that a direction-making power might diminish the independence of the commission, but in a sense we must return to our debates yesterday: it is not envisaged that that direction-making power will be one that will come into play on a frequent basis".—[Official Report, 30/04/02; col. 629.]
What is this but effectively a direction-making power over the commission's programme? For instance, could the Secretary of State intervene on a particular survey programme to be undertaken by the commission—on the same lines as Casualty Watch—if it was not planned as he thought appropriate? The Secretary of State has a clear conflict of interest in such circumstances. The Minister should take that on board.
From discussions held by the commission, it is clear that it will contract out the staffing of patients forums to voluntary organisations. The involvement of the voluntary and community sector is essential in the work of patients forums, but giving the sector the leading role of patching the unevenness that the new system sought to avoid seems to have been built in to the core of the new system. As the noble Earl, Lord Howe, described, the commission plans to set up formal partnerships with consortia of voluntary sector groups. That will create an extremely uneven pattern across the country, with inconsistency between patients forums.
However, the primary objection to the regulations is that they do not fall within the spirit of the original debates. Is it "providing" staff within the terms of the National Health Service Reform and Health Care Professions Act 2002? Surely, contracting to provide is a very different concept from providing.
I remind the Minister of his colleague's comments. Hazel Blears said:
"There will be staff employed by the Commission for Patient and Public Involvement in Health who will work with PCT patients forums, supporting all of the forums in the area, commissioning and providing independent complaints and advocacy services".—[Official Report, Commons, 22/5/02; col. 349.]
The word used was "employed", not engaged, contracted or any other word. "Employed" has a clear legal meaning.
Voluntary organisations will have mixed feelings about the current system, but they will face a conflict of interest. Surely the role of patients forums will sometimes require them to make themselves unpopular with government. Will not voluntary organisations be rather fearful for their contract? Will the staff provided by them have genuine independence because of those contracts? If staff were employed to support forums and facilitate patients forum opposition to controversial changes or cuts in services, the employing organisation—that is, the voluntary sector organisation—may well feel that its

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contract is at risk or subject to pressure not to oppose such changes. In those circumstances, it would be difficult for it to support the independence of patients forums if to do so would compromise its own source of income. There is a clear conflict of interest.
Will not there be inconsistency between more services being provided by the voluntary sector, as envisaged by government policy, and the voluntary sector's role in monitoring that provision? If the voluntary sector is increasingly to become service providers, it is inconsistent that it should also have an enhanced role in monitoring those services.
As regards staff who could be used by the commission or the voluntary organisations, the Department of Health seems deliberately to be constructing a system designed to exclude current staff of CHCs. The Minister made a precise pledge on 11th April 2002, at col. 629 on the fourth day in Committee, that CHCs will not be abolished,
"until we arc confident all their functions have been picked up in the new system: independent advocacy by independent complaints advocacy providers; scrutiny by OSCs; and monitoring of local services by patients forums. There will be a managed transition to all parts of the system".
The noble Earl, Lord Howe, quoted that to the Minister only last week. Many of us were flabbergasted by the decision to abolish CHCs on 1st September on the ground that people are leaving. It is a completely circular argument. We should be striving to retain them. Contrary to the Minister's commitment, there is expected to be a six month period between 1st September 2003 and 1st April 2004 when the substantial amount of patient and public involvement work currently carried out by CHCs will be terminated. I refer to Casualty Watch, NHS monitoring and the CHC complaints service.
Staff are not being managed into the new system: they are being manipulated out of it. They will be issued with their redundancy notices by 31st May. They will be made redundant on 31st August. Senior staff heard today from department officials that all that is being offered to them is a clearing house through which they can apply for general health jobs. There is no undertaking being given about when jobs for the commission will be advertised or when the arrangements with the voluntary sector for the staffing of patients forums will come into being. In short, there appears almost a deliberate desire to exclude the current CHC employees from the new system. Why is the commission not being more proactive in securing these valuable skills?
Perhaps I may quote more ministerial statements. On 6th December 2001, at col. 280 of the Official Report, Hazel Blears said:
"I am absolutely determined that we find a pathway for staff of Community Health Councils who want to take part in the new system, members of Community Health Councils and members from all other communities that I identified on Tuesday. I genuinely believe that it is important to hear from all of them if the NHS is to respond properly to the whole of our community".
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There are various other statements about wishing to bring through CHC staff into the new system. But even if by some miracle a former CHC employee manages to get a job with or through the commission, again there will be deliberately no continuity of employment.
If that were not enough, as the noble Earl, Lord Howe, pointed out, there is even more uncertainty about ICAS than about patients forums. Even less information has been vouchsafed by the Government. As the noble Earl pointed out, it looks as though PALS may be the way into ICAS and, in the short term, may perform its functions. That, again, is not as forecast by Ministers when we believed genuinely that it would be an independent service accessible separately by the public. ICAS, too, it appears will not be off the ground until after 1st September.
Let me again remind Ministers of their statements on previous occasions.
On 22nd May 2002, Hazel Blears said at col. 325:
"To summarise, every NHS trust and PCT will have a patient advocacy and liaison service, ensuring that concerns are dealt with before they become a serious problem",
and so forth. She said that,
"the staff of the PCT forums will be able both to provide and to commission independent advocacy support. During various stages of the Bill's consideration many Members have talked about incorporating the duty to represent the views of local people, and the provision of independent complaint and advocacy support would make sense. We genuinely picked up on that idea".—[Official Report, Commons, 22/5/02; col. 320.]
And so it continues—more commitments from Ministers which appear to be at least tenuous at present.
Even at this late stage, it is not clear who will be funding the ICAS service. Will the funding be provided by patients forums, the Department of Health, NHS trusts? Perhaps the Minister may cast some light on that.
I turn now to one-stop shops, as mentioned by the noble Earl, Lord Howe. Do we any longer have commitment to these? Once again, I remind the Minister of his commitment to one-stop shops. On 4th November 2002, in reply to a Question for Written Answer, at col. WA 60 he said:
"Patients forums in Primary Care Trusts will act as one-stop shops by advertising locally their presence and the services they provide in person, over the phone or over the Internet and by being based in premises that are accessible",
and so forth. Those are the commitments to a one-stop shop.
In summary, the Minister and his colleagues appear to be in the process of ripping up a number of hard-won undertakings made during the passage of the Bill. I am not sure, but I believe that the Department of Health, rather stung by criticisms of its current policies on the abolition of CHCs, is actually constructing a register of commitments made in both Houses relevant to its activities. It is high time that it did, because unless it can plead ignorance its behaviour to date has every sign of being conducted in bad faith. I entirely endorse the comments made by the noble Earl concerning the

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Minister. However, the Minister needs to backtrack and ensure that current implementation follows the commitments made.
As the noble Earl, Lord Howe, pointed out, unless the new bodies are put in place by 1st September there will be major gaps. There will be a complete vacuum. If the CHCs are abolished and patients forums are not established immediately, there will be no patient perspective brought to NHS decisions; no patient voice on NHS boards; no monitoring or inspection of the NHS; no referrals to OSC committees; no patient perspective on public consultations; no competent informed support for complainants; no "early warning system"; and no organisation to take action on failing PALS.
That does not seem to have been the intention of those who were present at the passing of the Bill of 2002. In the light of those criticisms, and when allied to what is likely to be a very low budget for the commission and patients forums, there is only one conclusion to be drawn: the department is determined that the new bodies will be ineffective. No indication has yet been given about the resourcing of the new system—certainly no official indication has been given—in terms of levels of staffing, funding and volunteer requirements. However, the auguries are not good. We need assurances from the Minister on the points raised today, failing which there will be a total lack of confidence in the new system. Certainly, the skills of those staff currently employed in CHCs will not be employed to the optimum.
8.15 p.m.
Lord Rea: My Lords, my noble friend will remember well that I was never convinced of the need to abolish community health councils. They did not seem to be broke in the sense that they did not work. Certainly, they were not so badly broken that they needed to be totally written off and replaced. However, they were broke in the sense that they always had been under-funded and under-staffed. But, of course, that was last year's discussion.
Now we have these regulations which spell out how the new system will work. The noble Earl, Lord Howe, ably supported by the noble Lord, Lord Clement-Jones, has called for their revocation simply to ask a series of cogent questions, which has been done extremely eloquently. It is not my intention to follow-up those questions, but only to say that I believe they are questions which need to be answered. The whole purpose of bringing forward this Motion was to allow my noble friend a chance to hear the serious concerns of those who work in the CHCs—so well expressed by noble Lords—and to give him a chance to spell out how the new arrangements will operate. My main concern, as expressed by both other noble Lords, is whether the new structures will be in place when the CHCs are abolished on 1st December. It seems extremely unlikely at present. Will my noble friend assure us that, if they are not in place, the abolition of the CHCs will be postponed? It would be ideal if the operation of the two organisations could overlap while
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one is phased out and the other phased in. That, I hope, would make it easier for CHC staff, whose skills we want to retain, smoothly to move over for the new bodies. That is what a "managed transition" involves, to quote my noble friend. I shall be interested to hear how he answers some of the extremely searching questions that other noble Lords asked.
Lord Hunt of Kings Heath: My Lords, I am overwhelmed by the warmth with which the regulations have been received in this debate. I hesitate to reopen the debate that we have had over the past few years on the issue. But both the noble Earl, Lord Howe, and the noble Lord, Lord Clement-Jones, seem to have misunderstood completely why the Government wish to make changes to improve patient and public involvement in the National Health Service. If we had really wanted the kind of weak, patchy patient representation that they both accused the Government of seeking, we would not have proposed the new arrangements. Instead we would have retained community health councils—the very bodies that have produced such patchy performance in their 25 years' operation and that have had such little influence in improving the outcome of care for patients. We made the changes because we wanted enhanced patient and public involvement.
When we first debated the issues, I said that I would not have brought legislation before your Lordships' House if I did not believe that the new arrangements would be profoundly more powerful for patients and the public than the current ones. Arrangements including the architecture of patient advisory and liaison services within each trust; the establishment of patients forums; the powerful new role being given to local authorities through overview and scrutiny committees; the independent arbitration service; and the role of the national commission—which will have an enormously influential role in ensuring that patient forums, in particular, perform strongly and effectively—will be far more powerful than those provided by community health councils at present.
Listening to some noble Lords, one would imagine that CHCs provided a golden age of public involvement in the health service. The evidence is very different. Surveys have found that only 3 per cent of the population have ever heard of community health councils. I am convinced that the new arrangements will touch many more people in this country than CHCs ever did. I do not detract from the hard work of many staff and members of CHCs. But the cumulative impact of CHCs over 25 years has been disappointing and patchy. Noble Lords will know that I was one of the first CHC secretaries to be appointed in the early days of the system. But I do not believe that they ever achieved the role that they were given.
As regards the date of abolition of the CHCs, which was announced a few days ago, the intention is that they will cease on 1st September. I say to my noble friend Lord Rea that that is a firm government decision. As I said during the debate on the Private Notice Question from the noble Earl, Lord Howe, it was the firm intention that there would be no gap

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between the abolition of CHCs and the appointment of patients forums. But we have had to make changes in the light of experience. I am satisfied that the problems currently faced by many CHCs, with staff and members leaving, are genuine. Because of uncertainty it was best to give people a clear date when CHCs would be abolished.
I would have wished to assure noble Lords tonight that there would be a patients forum in place in all parts of the country on 1st September. I regret that I cannot do that, but I do know that the commission will be working very hard indeed to establish patients forums as soon as possible. I say to the noble Earl, Lord Howe, that there will be continued inspections by other bodies such as the Commission for Health Improvement and the patient, environment and access teams. I hope that patients forums will be established very quickly so that inspections by them can be maintained and continued, but I cannot at the moment give a firm date by which all patients forums will be established. I know that the commission hopes that it will take place certainly by the end of the year and as soon after 1st September as possible. I have no doubt that the commission will have more to say about that in the weeks ahead.
As regards ICAS, it is for the Secretary of State to establish it through commencement of Section 12 of the Health and Social Care Act 2001. ICAS will be covered by the commission's work programme. It will be funded by the commission. I give an assurance that there will be an ICAS service up and running on 1st September and that it will be provided to all who wish to use its services from all over the country. The commission will be providing a national helpline so that it will be very straightforward for patients, relatives and carers to access that helpline and the ICAS service.
I recognise that as regards complaints and case work, it is essential that there should be no hiatus at all between CHCs being abolished and the new arrangements being put into place. I give an assurance that case work will be carried over.
I also refer to the comments made about patients' advocacy and liaison services. I have always been a keen advocate of the PALS service. The indications that we are receiving from the field are that they are having an enormously beneficial impact both in terms of being able to deal with problems as they arise when patients, relatives or carers raise them, but also on the way NHS services are run. I am absolutely determined to ensure that the NHS recognises the value of those services.
As to the issue of the independence of the commission and its work programme, we discussed this when the legislation was passing through the House. This kind of situation is not out of the ordinary in similar bodies where the Secretary of State has to approve the work programme. I wish to make it clear that if the work programme did not need to be agreed by the Secretary of State, or if changes could be made without his consent, that would detract from the commission's overall accountability to Parliament and the public for its actions and use of public funds.
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We have got the balance right between the necessary accountability and the freedom of manoeuvre that the commission wishes to have, and which I am sure it will operate.
Lord Clement-Jones: My Lords, I apologise for interrupting the Minister but he seems to have substituted "freedom of manoeuvre" for "independence". Is the Minister redefining the remit of the commission?
Lord Hunt of Kings Heath: My Lords, not at all. I am trying to describe the appropriate balance for public bodies that are ultimately accountable to Parliament. Far from the commission being inhibited and under the control of the Government, I am confident that it will be in a strong position to operate in the way it wishes and to develop its work in the light of experience.
Lord Clement-Jones: My Lords, can the Minister confirm that the commission will be independent, as pledged by Ministers during the passage of the Bill through Parliament?
Lord Hunt of Kings Heath: My Lords, of course the commission will act independently. There is no suggestion that it will not. Frankly, when I look at the members of the board, who are led by Sharon Grant, the chair of the commission, the idea that the commission will act as a kind of government poodle is ridiculous. Indeed, there have already been extremely vigorous discussions between the chair of the commission and Ministers and officials in my department. I have no doubt whatever that the commission will act vigorously. That is what we want it to do.
The noble Lord and the noble Earl raised the issue of casualty watch. We have debated this time after time. I have made it consistently clear that the commission has the power to ask forums to undertake work on specific themes, based on reports it receives from patients forums. It will be able to instigate reviews on what is important to patients over a wide range of subjects. This could include surveys of accident and emergency departments and the implementation of national service frameworks.
The one-stop shop is important. It will be built around primary care trusts because they are population based. I am absolutely assured that the patients forum in each primary care trust will be able to provide access to all who require its use. In addition to helplines and the other ways in which it can be accessed, as I suggested in our debates, there will be a physical presence, either in the form of members of the patients forum going out to meet people in their own homes or the public coming to meet them to discuss their concerns.
We do not want to tie the whole situation down by saying that there must be, say, a high street shop for every patients forum. Clearly that must be decided at local level. The point about ready access is crucial h ere. It will be provided.

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I said that I would tell your Lordships as soon as I knew the position on funding. Details on that have been sent out to the health service today. The figure will be £34 million, compared with the £23 million currently received by community health councils. The commission assures me that it can deliver a meaningful and effective system of patient forums and ICAS for that figure.
Lord Clement-Jones: My Lords, will the Minister clarify that? Is that £34 million purely for the commission or does it also include the money available for ICAS?
Lord Hunt of Kings Heath: My Lords, it will be for the commission, for patient forums and for ICAS. However, I am sure that the noble Lord agrees that it is significantly more than the sum currently being spent on community health councils.
Lord Clement-Jones: Yes, my Lords, although the estimate made for a meaningful figure for the structure set out in the original Bill was £100 million.
8.30 p.m.
Lord Hunt of Kings Heath: My Lords, I am confident that the figure we have given will certainly be sufficient to ensure that a very effective service is put in place.
The commission will have a small staff at national level. It also intends to have nine regional offices located in government office regional areas. I understand that they are likely to have around 18 staff per office, on average. Those will be directly employed. It will also contract out support for PCT patients forums to 150 consortiums of voluntary organisations—one operating in each locality. The 150 areas will be broadly modelled on local authority areas, with some boundary tweaking to ensure coterminosity with NHS boundaries.
I listened with care to the comments of the noble Earl and the noble Lord about the direct employment of staff. The question is whether they are good and will provide an effective service rather than whether they are directly employed by the commission or by the consortium. We have debated the role of the voluntary sector many times in this House. The commission has come up with an imaginative solution to the issue of where people should be employed. It is fantastic that they are to be placed within the voluntary sector. I know that many people in the voluntary sector welcome the fact that they will be able to forge just the right kind of partnerships at local level, but based on a contractual arrangement so that the commission can assure the quality of the service to be provided. I hope that noble Lords accept that it is an imaginative approach that deserves to succeed.
As for the conflict of interest question, let me make it clear that voluntary organisations are simply providing staff to support patients forum members. It is the members who will monitor NHS services and make recommendations, not the staff. It is important
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to recognise that this is not a staff-led but a member-led approach, and the members will make the judgments and recommendations and be the engine room of patient and public involvement at local level. The staff are there to support that function.
I listened carefully to the question of the staff position. I always said that I hoped that there would be room for many of the good people working in community health councils in the new structure. There is a great deal of room and enormous opportunity in local government, with the overview and scrutiny committees, in the NHS, with the PALS, with the independent advocacy services and in patient forums. However, we have never envisaged that we could guarantee employment. I never at any stage suggested that we could do that; we never believed that we could deal with CHC staff differently from the way in which we deal with other staff in the NHS when they are affected by restructuring.
I have seen some work from overview and scrutiny committees, not least in Birmingham City Council where the committee produced an excellent report on breast-feeding which had strong recommendations from the NHS and local government. I should declare an interest, as my mother-in-law chaired that committee. That impressed me because it showed how influential those committees will be in future.
The noble Earl, Lord Howe, asked about the power to scrutinise, as opposed to the duty. We argued about that when the Bill was debated, and, as I said at the time, the Government want local authorities to have discretion. They should have discretion because they are democratically elected at local level. Therefore, I do not accept that we should have put a duty on them. That said, I find it almost inconceivable that a local authority would not establish an OSC when making a major change in service. That is when representations may certainly be made to the Secretary of State. If it were ever the case that a local authority did not establish an OSC, it would be up to the local community to make representations direct to the Secretary of State. However, that is a very remote suggestion.
The noble Earl, Lord Howe, asked why OSCs were not given a role in relation to the establishment and dissolution of trusts. That is not a major change in service but a structural issue. With the greatest respect, we should not accord structural issues the importance of a service issue, in which case the change could have a big impact on the country. Indeed, having lived through any number of structural reorganisations, I can say that most of them pass the public by. I still meet doctors and members of the public who refer to area health authorities, which were established in 1974 and abolished six or seven years later.
I say in conclusion that I do not doubt the sincerity of all noble Lords in wanting to ensure that the new arrangements work. Nor am I complacent about the need for patients forums to be established as soon as possible so that there is as small a gap as possible between the abolition of CHCs and the establishment of patients forums throughout the country. I am optimistic. I believe

899
that in the chair of the new commission we have someone who has already shown great leadership skills. The commission will clearly be determined and will not be backward in making its views known. I imagine that within a very short space of time the noble Earl, Lord Howe, and the noble Lord, Lord Clement-Jones, will gladly use the ammunition and evidence that they put forward to have a go at the Government, and that is absolutely right. I am absolutely convinced that as the new arrangements bed down they will be seen by the public, patients and the NHS to be much more powerful than what we have at the moment. On that basis, I commend the regulations to the House.
Earl Howe: My Lords, I thank the Minister for his reply which I have to say I found far from reassuring in many, if not most, respects. A good proportion of the early part of his speech was devoted to rehearsing past debates about CHCs. I do not think that there was any need for him to do that. I accept that CHCs are about to come to an end. My concerns are purely for the future. I remarked earlier that the credibility of Ministers on these issues is on the line. As far as I am concerned, it still is.
The Minister essentially implied at the end of his speech that it is for the commission to get on with the job of setting up the new arrangements and that Ministers can effectively stand back from that process. I simply raise again the issue of the raft of ministerial undertakings. We were told that there would be consultation. What seems to be in store for us is a model for patient and public involvement on which no one whatever has been consulted. How is it credible to set up a system to service the interests of patients and the public if neither patients nor the public have been asked what they want? It seems to me an absurdity.
I turn to the issue of the commission's independence. What we have in these regulations is not what I would view as a reserve power; it is a licence to micro-manage. I think that I know a reserve power when I see one. A reserve power, which I quite understand is needed in certain circumstances, takes the form of a power of direction. That power of direction was indeed in the Bill. If the Minister wishes us to believe that a power for the Secretary of State to approve, alter and veto the commission's work programme is necessary to enable him to fulfil his accountability to Parliament, then I say that that is palpable nonsense. What other non-departmental public body is subject to the same restrictions? I cannot think of one and I challenge the Minister to name one. I do not accept his explanation. I do not accept that a power is needed to dot every "i" in the work programme.
Lord Hunt of Kings Heath: My Lords, I give the example of NICE. No one suggests that NICE is
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anything but independent in the technology appraisals or the clinical guidelines that it undertakes. But Ministers approve its work programme.
Earl Howe: My Lords, is not NICE a special health authority? I think that that falls into a different bracket altogether.
Lord Hunt of Kings Heath: My Lords, let me give another example—the Commission for Health Improvement, which I think is a non-departmental public body. There is no suggestion that Ministers have ever sought to intervene in the way it carries out its reviews. But I as the responsible Minister have regular meetings with the commission and have agreed issues to do with a number of reviews that it undertakes. That is a perfectly satisfactory arrangement.
Earl Howe: My Lords, but is there a power for Ministers to approve or vary the work programme of the Commission for Health Improvement? I do not believe that there is. I think that the commission can act perfectly freely as it sees fit. What we are talking about here is something of a different order altogether. I simply do not accept that Ministers need a power to dot every "i" in the work programme. The Minister's words of 21st January last year were:
"The independence of the system for PPI"—
patient and public involvement—
"is critical to its success".
How strongly I agree. I do not think that to talk about acting vigorously and being in a strong position to promote a programme is any comfort.
I see the flexibility and responsiveness of the commission as very important in the way in which it operates, but I am not sure that anything that the Minister said on that gave me any comfort either. For example, will the commission be able to undertake legal action against the NHS and to fund patients forums to do so? Will the commission and patients forums be able to campaign to change government policy? From what the Minister said, I doubt very much that that will be the case.
The Minister referred to the transfer of staff from CHCs and said that there would be room for the best staff. I quite agree that there was never any guarantee or indeed a suggestion of a guarantee of a passport to further employment after CHCs came to an end. However, how many of the staff can now look forward to a continuing role in representing patients and the public? It is clear that the answer is very few. That is a grave disappointment, and I am sure will be met with dismay by the hard-working staff of CHCs.
We come to the concept of consortiums and networks. It may well be an imaginative approach that the commission has adopted, but I am still just as negative as I was and, indeed, not a little confused. How exactly is it suggested that consortiums will be

901
involved in the running of patients forums? What does that concept actually mean? Has the Minister thought about the practicality?
Lord Hunt of Kings Heath: My Lords, it means that the consortium of voluntary organisations will employ staff who will provide the infrastructure support to patients forums to undertake their work.
Earl Howe: My Lords, let us see how that works. I think that it will be enormously bureaucratic and complicated. For a start, we are in for a huge tendering exercise. There will be a vast array of bids, all needing evaluation. All the contracts will need to be monitored. Arrangements will have to be put in place for that, and all that is before anyone has even set foot in a hospital. It is a guaranteed recipe for bureaucracy.
We understand that the local consortiums are to be in place by 1st September, or at least that that is the aim. What one gathers from that—the Minister admitted it—is that patients forums will not be. That is deeply regrettable and contrary to the understanding that we had during the passage of the Bill.
I thank the Minister for his comments on a one-stop shop, although I am not sure that I fully understood them. He spoke about patients forums providing access to all and providing a physical presence. I do not know whether that is or is not a one-stop shop. It seems to me a roundabout way of saying that it might not be, which I again find deeply regrettable.
Lord Hunt of Kings Heath: My Lords, I think that what I said was consistent with what I said in debate. There must be discretion to decide the arrangements at local level. What I cannot say is that every patients forum PCT will set up a high-street shop. They will have to ensure ready access through various means. One of those forms of access will be physical access.
Earl Howe: My Lords, I do not think that a telephone line, for example, is what most of us have been led to think of as a one-stop shop.
Lord Hunt of Kings Heath: My Lords, that is what I meant by physical access. Clearly, it will be important, if a member of the public needs the services of a patients forum, that they can meet representatives of the patients forum and that there is not simply a telephone line.
Earl Howe: My Lords, I thank the Minister for that reply. The issue hinges on practicalities and accessibility for patients and the public. The Minister gave the overall budget figure for the commission, for which I am grateful. I am frankly amazed that the commission believes that a comprehensive patient and public involvement service can be provided for £34 million, bearing in mind that there will be 571 patients forums, if I have the figure right. We must have a strong, rigorous system for patient and public involvement in which all elements are properly resourced. I know that the Minister believes that too as
902
I have quotes from him saying exactly that. However, I do not share his confidence that it will be forthcoming. That is no criticism whatever of the chairman of the commission.
The Minister addressed the accountability vacuum. I do not see CHI as a substitute of any kind for the involvement of patients in the monitoring and scrutinising of the day-to-day work of the NHS. It cannot possibly be a substitute. I am surprised that the Minister should suggest that. As to the date for establishing patients forums, that is still a matter of hope and vague guesses. The Minister has done his best, but I am not reassured.
Turning to overview and scrutiny committees and the establishment and dissolution of trusts, the Minister suggested that structural issues did not constitute a major change to the health service. The closure of a facility, even temporarily, is well established by case law as amounting to a substantial variation of services. I hope that the health service will bear in mind that point and that it will be included in the relevant guidance.
I am most grateful to the noble Lord, Lord Clement-Jones, for his sterling and cogently argued speech which dovetailed neatly with my own without any prior consultation between us. I do not intend to divide the House on these Motions. There would be no point in doing so. The reason for the debate has already been stated. I thank the Minister for his reply, which I shall study carefully in Hansard. I give him notice that we shall return to these matters. In the mean time, I beg leave to withdraw the Motion.
Motion, by leave, withdrawn.

Commission for Patient and Public Involvement in Health (Membership and Procedure) Regulations 2002
8.52 p.m.
Earl Howe Earl Howe had given notice of his intention to move to resolve, That this House calls on Her Majesty's Government to revoke the regulations laid before the House on 10th December 2002 (S.I. 2002/3038).
Motion not moved.

Local Authority (Overview and Scrutiny Committees Health Scrutiny Functions) Regulations 2002
Earl Howe Earl Howe had given notice of his intention to move to resolve, That this House calls on Her Majesty's Government to revoke the regulations laid before the House on 11th December 2002 (S.I. 2002/3048).
Motion not moved.
House adjourned at seven minutes before nine o'clock.

Official Report of the Northern Ireland Orders Grand Committee
Thursday, 13th February 2003.
The Committee met at twenty minutes before twelve of the clock.
[The Deputy Chairman of Committees (Lord Brougham and Vaux) in the Chair.]
The Deputy Chairman of Committees (Lord Brougham and Vaux): Before the Minister moves that the first order be considered, it may be helpful to say a word about the procedure for today's Grand Committee. Our proceedings are essentially the same as those of the House. Noble Lords will speak standing; all noble Lords are free to attend and participate; and the proceedings will be reported in Hansard.
As we are in Committee, Members may speak more than once on any Motion.
Since this is a new procedure, I should perhaps make it clear to noble Lords that this Committee is charged only to consider orders, not to approve or not approve them. The Motion to approve will be moved in the Chamber in the usual way.
The main difference between our proceedings and the proceedings on the Floor of the House is that the House has agreed that there shall be no Divisions in a Grand Committee. Any Motion on which agreement cannot be reached should be withdrawn.

Official Report of the Northern Ireland Orders Grand Committee

  Education and Libraries (Northern Ireland) Order 2003
  11.41 a.m.
  The Lord Privy Seal (Lord Williams of Mostyn): I beg to move that the Grand Committee do report to the House that it has considered the draft Education and Libraries (Northern Ireland) Order 2003.
  The main purpose of this order is to bring about an enabling provision to allow the department to introduce one common funding formula for the calculation of school budgets for all schools funded under local management of schools arrangements. A word of history: this legislation was introduced as a Bill in the Assembly on 24th June 2002. The Second Stage occurred on 2nd July 2002, and indeed the Committee stage had begun and the Education Committee had begun its evidence sessions.
  There are currently seven different LMS formulae in operation: one for each of the five Education and Library Boards; one for voluntary grammar schools; and one for grant maintained integrated schools. They have some common features, but there are differences in the factors and the values. That means—absurdly, Members of the Committee may think—that schools that are similar in size can receive quite different levels
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  of resource simply because their budgets are calculated under different formulae. The make-up of the formula has not yet been agreed, but there is general agreement that a common formula should be put in place.
  It had originally been the hope to implement common formula funding from 1st April 2003, but there is not sufficient time. The current arrangements will therefore continue for a further year. The benefit of that is the provision of a further timescale for the notification of school budgets, facilitating further consultation with the education sector on the construction of the formula and enabling the department to work with Education and Library Boards on the better alignment of the mechanism.
  I turn, if I may, to the important provisions of the rest of the order. On a point that the noble Lord, Lord Glentoran, touched on yesterday, although in a different context, Articles 13 to 16 introduce a best value regime in respect of services provided by Education and Library Boards and repeals the existing tendering provisions of the Education and Libraries (Northern Ireland) Order 1993.
  There are a number of provisions that deal with the protection and welfare of children. Article 17, for instance, places a duty on the board of governors of all grant-aided schools—that is, schools receiving public funding—to safeguard and promote the welfare of registered pupils while in the care of the school. Article 18 places the duty on the governors to ensure that there is a child protection policy at their school rather than simply the good practice guidelines currently in place.
  Article 19 places a duty on all grant-aided schools to address the problem of bullying through their discipline policies. For the first time in Northern Ireland, there is a requirement for schools to consult with pupils in the development of their anti-bullying policies. I note from our discussion yesterday in the Chamber that that will be of particular interest to some Members of the Committee.
  Article 36 extends the abolition of the use of corporal punishment to independent schools—that is, schools which do not receive public funding. This change is required to ensure compliance with a judgement of the European Court of Human Rights, so that simply paying for one's child's education does not, now or in the future, give a warrant for hitting it.
  I am sure that Members of the Committee will agree that these are important steps. Although the main purpose, as I have sought to indicate, is the introduction of the single common funding formula, the other matters are of importance. I beg to move.
  Moved, that the Grand Committee do report to the House that it has considered the draft Education and Libraries (Northern Ireland) Order 2003.—(Lord Williams of Mostyn.)
  11.45 a. m.
  Lord Glentoran: I thank the noble and learned Lord for bringing this order into Grand Committee and giving us a chance to debate it. Only this morning, I had a short conversation with Danny Kennedy,

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  chairman of the Education Committee and someone I have known over the years in Newry. As he said to me, the devil is in the detail.
  The noble and learned Lord said in his introduction that the formula, which is one of the main purposes of the order, has not yet been fully developed. I understand that. However, the Assembly, and I suspect Members of the Committee, need to beware of that as it could become contentious. According to the officials when they briefed me, it is pretty complicated. It must become transparent and be made available for consultation. The educationists must have an opportunity for input into it, for school management and so on.
  It is hoped that the order will become law by April 2004, which should give adequate time. However, Mr Kennedy suggested that it would be inappropriate to go out to consultation in May and June, for the obvious reasons of exam preparations and exams and the like, and then running into the July holidays. So consultation on this particularly complicated issue would not be welcome in May, June and July. I hope that that will be noted.
  Furthermore, as the matter is complicated and it is likely that the order will be passed later today, which rushes things, it is felt very important that there should be a safety net in relation to the procedures and that we should have a review procedure. I think, if I have read Hansard correctly, that the Minister in another place has agreed that there should in fact be a review procedure which kicks in after either the first year or second year, but certainly no later, to allow adjustments to be made where necessary. We hope to have a devolved Assembly operating and in a position to do that where necessary.
  There are two other issues. I am delighted to see bullying dealt with in the order. It has been a terrible problem in schools, I suspect ever since schools were started. I remember it being absolutely pertinent throughout my school career and my children's careers. I am sure that we have all had the same experience. Getting pupils involved, if it is possible, is an excellent innovation, and I hope that it works. I have always been anti-corporal punishment, ever since I was in a position of authority at school, at age 17, when I did my best to stop it in my own house at Eton. So I have been anti-corporal punishment for a very long time.
  The second issue is the removal of boards of governors. I understand, particularly as a result of my discussions with officials, the thinking of government on this measure. However, it is a pretty draconian measure. Although Jane Kennedy gave a pretty satisfactory answer when questioned on this matter in another place, I should like an absolute undertaking from the Government that this measure is intended to operate only in extremis.
  With those few comments, I am very happy to support the order.
  Lord Maginnis of Drumglass: The Ulster Unionist Party welcomes the chance to consider this order in
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  Committee. However, I have serious concerns about the impact that the common funding formula will have on schools. Clearly there is a real problem of underachievement in a minority of our schools, especially among young males. Further research is required to tackle this problem, and to justify the present funding levels, before any additional allocations are considered. Certainly the current system of using the incidence of free school meals as a basis for allocating funding is entirely unsuitable. Rather, funding allocations, if they are to be truly targeted at the greatest need, should be based on objective measurements including key stage results.
  Our primary schools are also facing funding problems. The current level of under-funding of the primary sector will have far-reaching effects as children move through the education system and should not be allowed to continue. We need to look again, in some detail, at the balance of funding between the primary and secondary sectors in Northern Ireland. Any planned funding increase for the integrated and Irish medium sectors should not be at the expense of other school sectors. Spending should be equitable.
  Further detailed consideration of the formula is required to reflect the natural progression of teachers towards the top of the salary scale, while still leaving schools the freedom to take staffing decisions within their delegated budgets. More guidance should be made available to school governors to assist them in determining appropriate individual salary ranges for principals and vice-principals and salary levels within those structures.
  The noble Lord, Lord Glentoran, has already spoken on this topic. I simply add that the formula proposes to give the department power to remove members of boards of governors in order to address school management weaknesses. Can the noble and learned Lord reassure us that this power will not be misused and would be exercised by the department only as a last resort—after all other practical alternatives have been exhausted?
  There is also a need to refine the way in which money is allocated for the upkeep of buildings under the formula. The formula must reflect that old buildings are much more expensive to maintain than purpose-built newer ones.
  In order to guarantee and maintain openness and transparency, the schools common formula should be reviewed annually or biannually. It is important that such a review mechanism exists in order to re-evaluate the scheme and its value for public money. We await with interest the speedy publication of the scheme and hope that the department will allow an adequate period for open, transparent and inclusive consultation. There are a number of issues under the common funding formula which need to be given particular consideration.
  Lord Molyneaux of Killead: My intervention is in the nature of a question regarding article 22. In the absence of an Explanatory Memorandum, it was not clear what constituted "special schools". Subsequently,

  NI 35
  an Explanatory Memorandum has mysteriously arrived, and I have studied it in the short time available. However, I am still not entirely clear on precisely what constitutes a special school.
  Until the mid-1980s, there was a comprehensive structure known as the special care hoards, of which there were three in Northern Ireland. The Muckamore Abbey board was responsible for special schools and for teacher training for those schools. It was responsible also for very sophisticated training in skills such as carpentry and in many other aspects of building. I had the privilege of being vice-chairman of that board, which covered County Antrim, County Down and all of Belfast. We had somewhere in the region of 9,000 patients/pupils under our care.
  My only point is this. As vice-chairman of the hoard, I was personally responsible for linkage with our counterparts in Dublin. Occasionally they had spare capacity in terms of accommodation; occasionally we had something to spare. There was an informal exchange of pupils and even of teachers. The only friction between us was the hard bargaining over costs and general finance. It could be considered a worthy example of what is possible when party politics, north and south, are excluded. I should like to think that that has not been obliterated entirely by the present order.
  Lord Brooke of Sutton Mandeville: I shall be very brief. I am following substantially in the footsteps of my noble friend Lord Glentoran and the two Members of the Committee who spoke on behalf of the Ulster Unionists.
  I refer briefly to Article 22. The Select Committee in another place did a report on children with special educational needs and the development of policy in that sphere. I do not recall the particular issue covered in Article 22 as being part of our report or an issue that we considered, but I am delighted to see movement on that front. I do not need any comment on that observation.
  On the larger issue, which constitutes the main thrust of the order, I should like to have a brief word about paragraph 6 in the Explanatory Memorandum, which describes the views of the Northern Ireland Assembly Education Committee during the unfinished Committee stage, and the reaction to those views as expressed in the order. This observation is partly borne of personal experience in another and, I freely admit, unrelated condition.
  The department argues that it would be impracticable to give a formal approval role to the Assembly in approving whatever arrangements are finally reached. I served for four years on the Budget Committee of the European Union—as it then was not—and on two occasions had to negotiate on behalf of the presidency with the European Parliament in terms of its work on the budget. What the European Parliament did was to take matters absolutely up to the last ecu, so that it had totally filled the amount that could be put in the budget under the rules. There were occasions when the Council of Ministers disagreed with the Parliament, for whatever reason.
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  The manner in which those negotiations were conducted was such that there really was no way in which the Parliament could unscramble the arrangements. It had used up every single ecu, and for understandable political reasons it had no organised priorities in terms of the items that it would have to take out if that were required. We therefore found ourselves permanently in a stalemate in the closing stages of the budget negotiations.
  That case is not dissimilar to this one. The formula in this case is so complicated that, changing whatever the Northern Ireland equivalent of an ecu is, one basically has to revise the whole system. However, as that cannot be done, it is not right to give the Assembly the final say. I understand that, just as I understood the stalemate which we had with the European Parliament.
  This is my question. The last few sentences of paragraph 6 state:
  "The formula will be subject to detailed consultation and will be fully discussed with education partner bodies before implementation as will any proposed changes post operation. It is anticipated that if the Assembly returns, the Department will seek to ensure that the Assembly's views will be considered in the calculation of the Common Formula Funding Scheme".
  In so far as we are a pale simulacrum of the Assembly in scrutinising these orders, I should like a slightly clearer idea of how that would actually be done in terms of the Assembly being able not only to give its views, but perhaps also—although it does not have the final say—to give a verdict on the solution that the department has reached.
  Lord Williams of Mostyn: I am grateful for those contributions. Perhaps I may deal with the questions separately. The noble Lord, Lord Molyneaux, asked for the definition of "special schools". I am happy to give it. They are schools which cater solely for children with special educational needs. They are defined in legislation and are designated by the Education and Library Boards.
  The noble Lords, Lord Glentoran and Lord Maginnis, both asked pointed questions about the removal of governors. I am able, and happy, to confirm that we expect the power to be used only in exceptional circumstances. If, for example, a school fails to provide an adequate education for the children and the department is of the view that the whole board of governors—either because it has done things or, more often, has failed to do things—is contributing to that failure in whole or in part, it would have to consider the matter very carefully.
  To reassure both noble Lords, I believe it is helpful if I say that the order provides for regulations to prescribe the general and foreseeable circumstances in which the power may be used. Consultation on the regulations will take place with schools and school authorities. I believe that that should meet the concerns expressed by both noble Lords. It is intended that the provision will be used only in limited and extreme circumstances.
  I am grateful for the courtesy shown by the noble Lord, Lord Glentoran, in giving me notice of certain matters so that I can serve the Committee more

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  usefully. Over the next few months, officials will hold meetings with Education and Library Boards and other representative bodies to finalise the common funding scheme. There will then be a round of consultation with schools, as required under the present legislation—the Education Reform (Northern Ireland) Order 1989—and this proposed legislation. We hope to complete that as soon as practicable. Officials have taken on board that May, June and July need to be either avoided or approached with discretion.
  The noble Lord, Lord Glentoran, also made the valid point that one needs to keep these schemes under continuing review. Continuing review will take place. We would expect the schemes to be refined over the next few years in the light of practical experience. I can assure your Lordships that each year any changes will be discussed fully with the representative bodies. Irish-medium schools require a different approach because significant additional costs are attached to their running.
  The noble Lord, Lord Maginnis, raised the subject, which certainly chimed with me, of why some children under-achieve. Oddly, that was a curious feature of a discussion that I had yesterday in the context of large cities in England. For example, children from different parts of the sub-continent of India can have completely different achievement patterns. Therefore, it is a difficult subject. When considering the matter of free school meals, one of the key indicators is that those from socially and economically disadvantaged backgrounds are more likely to under-achieve. They often lack the motivation to learn and have attendance and behavioural problems. Therefore, that is an indicator, although it should not be the only determinative one. These are subtle and difficult areas of research. I agree with the noble Lord that the more research carried out on the matter, the better.
  I was very pleased to hear the robust views of the noble Lord, Lord Glentoran, on corporal punishment. I was caned only once and it annoyed me even more because the caner was my father, who was the head teacher. I still believe that he was wrong.
  The noble Lord, Lord Maginnis, also made the point, which certainly chimes with my experience, that one needs to consider the age and type of the school building. We shall develop a database relating to the school's estate. When that has been developed, we shall have further consultation on the lines that he indicated. I am grateful for the very helpful observations that have been made.
  On Question, Motion agreed to.

  Planning (Amendment) (Northern Ireland) Order 2003
  12.4 p.m.
  Lord Williams of Mostyn: I beg to move that the Grand Committee do report to the House that it has considered the draft Planning (Amendment) (Northern Ireland) Order 2003.
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  This order will introduce provisions broadly in line with those already in force in Great Britain by virtue of the Planning and Compensation Act 1991. The draft order combines proposals previously before the Assembly in the Planning (Amendment) Bill and the Strategic Planning Bill. It includes an amendment to the Planning (Northern Ireland) Order 1991, which the Department for Social Development requested following the suspension of the Assembly. The Planning (Amendment) Bill and the Strategic Planning Bill were both at Committee stage when the Assembly was suspended.
  In respect of the Planning (Amendment) Bill, the Assembly Committee had published an interim report and had recommended some changes. Those were accepted in principle by the former administration. The Government have decided to include three of the six recommendations: first, provision for a stop notice to come into effect immediately unless the Department of the Environment specifies a later date; secondly, provision for district councils to have a statutory consultative role when the Department of the Environment is drawing up, modifying, varying or discharging a planning agreement; and, thirdly, a further increase in the maximum level of fine from the £20,000 proposed to £30,000. There were other recommendations of which the Government were not convinced.
  Articles 3 to 17 introduce new enforcement powers and make other changes relating to the existing enforcement powers. Article 18 is an amendment to make clear that all demolition should come within the meaning of "development" in the planning context. Articles 19 to 23 make some minor changes to controls over development. Article 24 introduces building preservation notices for the temporary listing of buildings, commonly referred to as "spot-listing". From my reading of newspapers in Northern Ireland, I know that that is particularly controversial at present.
  Articles 26 and 16 provide a major overhaul of the Department of the Environment's powers in respect of the protection of trees and tree preservation orders (TP0s). Articles 27 to 29 amend the Planning (Northern Ireland) Order 1991 and assist the Department of the Environment and the Department for Social Development in carrying out their statutory functions in the context of regional development strategy. Articles 30 to 37 make some miscellaneous amendments to the Planning (Northern Ireland) Order 1991. They also amend the Home Loss Payments (Northern Ireland) Order 1992. They enable the Department for Social Development to enter into development agreements where it intends to acquire land and has initiated the requisite statutory process.
  Finally, I did not reply to a question put by the noble Lord, Lord Brooke. The quality of my handwriting is so poor that I did him an inadvertent discourtesy. If I may, I shall write to him. I did not want to let that pass. I apologise to the noble Lord. I commend the order to the Committee.

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  Moved, That the Grand Committee do report to the House that it has considered the draft Planning (Amendment) (Northern Ireland) Order 2003.—(Lord Williams of Mostyn.)
  Lord Brooke of Sutton Mandeville: It may make matters easier for the noble and learned Lord if I explain that I was asking a hypothetical question. As the Assembly is not meeting, perhaps it is not within our power to say what the Assembly would do. But I still retain an interest in the question.
  Lord Glentoran: Those of us who have lived and worked in Northern Ireland for a long time, including officials, know that over the past 25 or 30 years one of the worst situations and biggest impediments to development and a smooth-flowing economy in Northern Ireland has been the state and administration of planning departments. I sincerely hope that matters will change.
  However, my observation is that one of the main reasons for such a situation is that planning departments have been grossly under-funded, understaffed and under-resourced. If a sophisticated planning authority is to be on top of its job, it must be able to deal with planning permissions in a short space of time and not take two and a half years or so, as was the case with a certain development for Sainsburys. That company has now pulled out of the project because it is simply not relevant any more, and the result has been a loss of jobs. Therefore, we must ensure that, by the time the order becomes law, planning in Northern Ireland is adequately funded, adequately staffed and adequately resourced. I sincerely hope that the order will achieve that.
  I also make a plea to the noble and learned Lord to speak to his friends in the judiciary. The order strengthens the department's hand in relation to enforcement. It allows for imprisonment under certain circumstances; it increases fines under certain circumstances; and it also allows for serious stop procedures under certain circumstances.
  However—I shall be very naughty here—my information, based on briefing, is that the department feels seriously unsupported on these matters by the magistrates and the judiciary in the Province. I make a plea to those in authority. We now have a new criminal justice regime in Northern Ireland. Now is the time for that regime to ensure that daily life improves and that the world becomes a better place for those with an interest in the development of the Province. I speak from a preservation point of view, and from a commercial and functional point of view and, as we discussed yesterday, from the point of view of housing development.
  That said, in a press release at the launch of this legislation, Angela Smith referred to "tough new planning laws", including spot-listing. Speaking for the Government, she said:
  "Importantly, the Order will enhance DOE's planning enforcement powers and will enable enforcement action to be taken more quickly and more effectively".
  NI 40
  I sincerely hope that she is as good as her word. I suspect that she will have the support of 99 per cent of the people in Northern Ireland.
  There is one area that I do not fully understand in relation to paragraph 5 of the Explanatory Memorandum. It appears that the Assembly committee wanted to make an amendment to the order but it was not included. Apparently:
  "The Department for Social Development sought agreement to include in the draft Planning (Amendment) (Northern Ireland) Order 2003 an amendment to Part VII of the Planning (Northern Ireland) Order 1991, which would enable that Department to enter into development agreements where it intends to acquire land in connection with a development scheme, or in the interests of the proper planning of an area",
  and so on. Can we have an explanation of the Government's thinking in leaving that out of the order?
  I turn to Annexes A and B of the same document. Annex B lists the three recommendations of the Environment Committee which were left out of the legislation. With regard to my opening words, I certainly regret that recommendation tin) was omitted. Why should there not be an offence of commencing development? I know that there are arguments concerning when one does and does not commence development. However, in my experience it is common for developers in Northern Ireland to start down a road without any planning permission—or virtually none. They get well into a project before obtaining retrospective planning permission. In so doing, they go round corners. I know by name—I shall not mention them, even in Parliament—people who have made a profession out of this. Therefore, I should welcome some explanation on the point. I am sorry that I did not give the noble and learned Lord notice of those questions. Other than that, I support the order.
  Lord Smith of Clifton: We on these Benches also support the order. I take seriously many of the remarks made by the noble Lord, Lord Glentoran. From my experience, planning in Northern Ireland is not easily understood.
  I want to ask two questions. I apologise for not giving the noble and learned Lord advance notice; however, given the spate of orders that we have dealt with this week, I got round to studying this one only last night. My questions concern trees. First, what is the definition of a "woodland" protected by a tree preservation order? Will the protection extend to include not only the trees but also the ground flora within the boundaries of the wood? The noble and learned Lord may wish to write to me about that.
  Secondly, proposed new Article 65B in Article 26 provides for the replacement of trees covered by a tree preservation order at the same place. However, in respect of woodland it states that it will,
  "be sufficient for the purposes of this Article to replace the trees …

  (a) on or near the land on which the trees removed … stood;
  or

  (b) on such other land as may be agreed between the Department and the owner of the land".

  NI 41
  My understanding of the article is that if an ancient woodland covered by a TPO were removed, in some instances the department might agree to the replanting of trees on another site in the locality. That would clearly not be an adequate compensation for the loss of an irreplaceable habitat and suggests that new woodland is of equal value to ancient woodland, which is clearly not the case. It is also an inconsistency in that any tree that is removed must be replaced with a tree in the same place. It seems strange that that does not apply to woodland as well.
  Finally, we must be aware—this touches on the points raised by the noble Lord, Lord Glentoran—that strengthening legislation alone will not in itself provide the protection that is needed for trees and woodland. We must also ensure that resources are in place to guarantee a proactive approach by officials in enforcing the legislation. Apart from those observations, we support the order.
  12.15 p.m.
  Lord Maginnis of Drumglass: I welcome the order, yet stress from the outset that I regard it merely as a first step on the road to improving the planning system in Northern Ireland. The Ulster Unionist Party believes that much more work is required to give Northern Ireland the planning system that it needs. As the noble Lord, Lord Glentoran, said in relation to another order, the devil is very much in the detail.
  The planning process in Northern Ireland has long been a source of discontent. It is plagued by inconsistency and intolerable delays and suffers from widespread public dissatisfaction. The past year has seen a number of high-profile cases in Northern Ireland. Some cases that have evoked considerable anger include the demolition of the poet Seamus Heaney's former home in Ashleigh Avenue in south Belfast, the flattening of the listed Tilly and Henderson shirt factory in Derry City and the destruction in east Belfast of Redhall, which has connections with the author C S Lewis. I do not want to appear to be a philistine but I should be the first to acknowledge that the links between some of those authors and some of the buildings are tenuous. I do not underpin the criticism in all of those cases. However, the fact that there is public dissatisfaction should be considered.
  Whatever the merits of those cases, such decisions clearly contribute to the already widespread public disquiet about planning policy. I trust that the new legislation before us will go some way towards restoring public confidence in the entire planning system.
  I welcome the further increase in the maximum level of fine that can be imposed by a magistrates' court for breaches of an enforcement notice, a tree preservation order, a stop notice, a listed buildings enforcement notice or a hazardous substances contravention notice. I hope that the increase from £20,000 to £30,000 will go some way towards encouraging those who infringe to think again. However, while that may inhibit the ordinary individual, I cannot believe that it
  NI 42
  will sufficiently constrain someone who is engaged in a multi-million pound development. With a development of £250,000, one would add 12.5 per cent if one imposed the maximum fine. With a development costing £3 million, one would add only I per cent. So there is a potential inequity. I do not expect the noble and learned Lord to come up with a solution, but perhaps he will consider the point at some stage.
  The order omits one very important provision proposed by the Assembly's Environment Committee; namely, the creation of a new offence to deal with the commencement of a development before planning permission has been granted. The matter was referred to by the noble Lord, Lord Glentoran.
  This applies mainly to larger developments, which seem to be able to drive a coach and horses through the present system. By criminalising major planning offences, one could effectively deter those developers who flagrantly and carelessly abuse the law and get away with it. Will the noble and learned Lord the Lord Privy Seal outline his reasons for watering down this part of the order?
  Perhaps I may take this opportunity to ask the Minister to ensure that applications by farming communities to provide accommodation for their sons and daughters on the farm are viewed sympathetically. The farming sector has suffered greatly in recent years. Farming practices are being forced into change, with many farmers being forced into a part-time mode. As a result, they increasingly rely on sons and daughters to help to oversee the daily work on the farm.
  I urge the Department for Environment, Food and Rural Affairs, and particularly the Planning Service, to liaise more closely with their counterparts in the Department of Agriculture actively to assist farming communities. To fail to do so will ultimately undermine and endanger the whole rural tradition. Environmentally, that would be much more damaging than allowing controlled development, which in itself will help to preserve our traditional family ethos and may help to slow down the steady exodus from the west of the Province to the east, with all the difficulties that that creates for society.
  I make no apology for reiterating the remarks of the noble Lord, Lord Smith—whom I suspect has been briefed by Patrick Cregg, who is head of the Woodland Trust in Northern Ireland—on an issue dear to my heart. Will the Minister define what is meant by a,
  "woodland protected by a Tree Preservation Order"?
  Will the protection extend not only to the trees but also to the flora and fauna within the boundaries of the wood?
  I welcome the provision for the replacement—in broadly the same general area—of trees covered by a tree protection order. Why, however, is a distinction made between "trees" and "woodland"? There is a requirement that these should be replaced "on or near" land from which they are removed, or—this is the crucial point raised by the noble Lord, Lord Smith—"on other land" approved by the department. What provisions are in place for the protection of the surrounding habitat? I urge the Minister to ensure that

  NI 43
  adequate resources are in place to guarantee that a protective approach is the foremost consideration of planning officials.
  More work is required to improve existing processes and to change the overall planning culture. Besides introducing new legislation, we need to make better use of existing legislation. This order must, therefore, be seen as the first stage of a comprehensive overhaul of the entire planning system.
  Lord Glentoran: I do not wish to dissent from the points made by the noble Lord, Lord Maginnis. However, perhaps I may comment on his plea for the sons and daughters of farmers to be able to build cottages. If they genuinely intend to continue to work on the farm, I support the idea. But that has led to a proliferation of the most appalling scattered dwellings all across County Antrim. I do not know County Tyrone so well as I do not visit it frequently, but the system has been badly abused in the area in which I live.
  As a farmer myself, I have a great deal of respect for farmers and an understanding of the problems that they are experiencing. However, I am not sure how such a plea in respect of farmers' relatives will fix in with this order. If such a reference is included in the order, it is important to tie the matter up tightly so that the proliferation of small houses in the middle of green fields all across the country does not continue. It is unsightly; it does not help farming; and it makes it extremely costly for local authorities to service the dwellings. I support the main thrust of the comments by the noble Lord, Lord Maginnis, that farmers must be helped to encourage their sons and daughters to remain in the countryside and run the farms.
  I take a slightly similar approach to tree preservation. I have experience of it in this country. It should not mean that trees cannot be cut down. If trees are not cut down, in time they fall down. What is necessary is to preserve woodlands and to ensure that, when trees reach the stage where they need to be removed, their removal is allowed provided that they are replaced. In this country, since the major storms of the past decade, huge acres of woodland have been destroyed. A great deal of that land has been replanted and will bring back the woodlands and wildlife that existed there previously.
  In Northern Ireland, even beeches and hardwoods do not live very long. I see that with the trees around my own home. They have reached the stage where, every time there is a storm, one, or a part of one, comes down. It is necessary for the Department of the Environment, to pay attention to this matter and to ensure that plantations are replanted.
  Lord Maginnis of Drumglass: I do not wish to extend the debate much further. I appreciate the intervention of the noble Lord, Lord Glentoran. I merely regret that his visits to County Tyrone are so few. I hope that the noble and learned Lord the Lord Privy Seal will understand that County Antrim is to the east of the area where the people of County Tyrone are forced, for economic reasons, to migrate. That is part of the
  NI 44
  reason for the pressure in terms of planning for new dwellings. People moving from west to east obviously want to try to maintain something of their rural heritage. Therefore, although only some 60 miles separates the two areas, the situation is somewhat different.
  There is no reason why a system could not be devised whereby ugly and unsightly houses are not built in the middle of green fields but families can maintain a noble tradition—that of mutual support, where the older members of a family can rely on having their sons or daughters close to them as they approach old age. In that, I do not differ from the noble Lord, Lord Glentoran; but neither would I want his caveat to undermine my point about the needs of the rural community in places such as Tyrone and Fermanagh.
  As regards woodlands, I ask only that woodland is not viewed in isolation from the associated flora and fauna and the impact on water supplies. I assure the Committee that we do not have a huge problem with water supply in Northern Ireland! But woodlands and water supply are now becoming increasingly linked in terms of planning for the future. I hope that there will be an awareness in that particular area. I am grateful to the Committee.
  12.30 p.m.
  Lord Brooke of Sutton Mandeville: The noble Lord, Lord Dubs, and I have been engaged in a silent exchange as to which of us would speak first. The noble Lord has been very gracious. I declare an interest in trees. I was particularly glad that the subject was introduced by the noble Lord, Lord Smith. It has always struck me as a happy antithesis, in terms of 19th century political history, that Gladstone, who took a great interest in the affairs of the island of Ireland, spent his life cutting trees down, whereas Disraeli spent his time planting them. That seems to me to be an index of the nature of those two great parties.
  Lord Dubs: Answer that!
  Lord Brooke of Sutton Mandeville: There was a period in Northern Ireland when, because of the state of the economy, planning laws, particularly in terms of building in the countryside, were largely disbanded in order to make sure that economic activity was occurring. There are people who are connoisseurs of ministerial speeches at dinners within this city as to which part of the speech has been written by the department and which has been added by the Minister in the car on the way there. As I drove round Northern Ireland I used to keep an eye open to decide which houses had been built without planning permission during that period of economic encouragement and which had been built properly.
  The National House-Building Council for the United Kingdom says that there is no question that the best quality houses are built in Northern Ireland and that the standard of the work is high. Nevertheless, there is no doubt—the matter has been debated seriatim since it was originally raised—that the countryside fares worst in terms of what might be termed spot building.

  NI 45
  I hesitate to make any observations on spot listing—I am not totally up to date with the controversies in Northern Ireland—but I have believed strongly in the principle ever since the late Lord Rippon saved Covent Garden by the nature of the decisions he took, upon an instant, to spot list a whole series of buildings there, thus preventing its large-scale demolition under the plans of the local authorities.
  Underlying my remarks about building in the countryside without planning permission was my strong approval of the basic principles of this order—which I am happy to support. Likewise, I, too, regret the fact that the third amendment proposed by the committee of the Assembly was not pursued. I do not know the reasons, but the Lord Privy Seal will tell us shortly. In my experience, it is not only the operations of large developers that cause distress—although, even today, the decision of the Firestone company to destroy its factory on the Great West Road when spot listing was about to occur still rankles among conservationists, so great a building was that art deco building. Irritation occurs in regard to small-scale schemes and relatively modest changes. That is certainly the case in inner-city areas, where, for example, your next door neighbour cheerfully goes ahead without planning permission and seeks to have the changes endorsed afterwards; and yet you, the local householder, have had no opportunity to express your views on the scheme. However, I approve of the basic thrust of the order.
  Lord Dubs: This is an important piece of legislation. If it were primary legislation, we should spend several weeks on it. In default of doing so, I welcome this procedure, which gives us a better chance of engaging with the issues than we could have secured under the old way on the Floor of the House.
  I should admit that for some two and a half years after the 1997 election I was in charge of planning matters in Northern Ireland. I shall resist the temptation of making an interminably long speech. I am full of views about almost everything in the provisions.
  Lord Glentoran: Guilt.
  Lord Dubs: The noble Lord says, "Guilt". No, not guilt, except where I failed to save some listed buildings. I shall come to that shortly.
  I pay tribute to the Planning Service, under-resourced as it is; it does a pretty good job in view of all the difficulties and pressures on it and its lack of resources. That should be said in light of the criticisms that several Members of the Committee have implicitly made.
  What do we expect of a planning system? There are at least four things that we expect: it should be sensitive to the needs of the economy, which should be able to flourish and develop—the system should not hold back economic development; it follows that we want reasonably quick decisions—long and protracted decisions are not helpful or healthy; we also want to
  NI 46
  ensure that planning provisions are toughly and robustly enforced; and the whole system should show some respect for the built environment.
  Sadly, there are not that many outstanding buildings in Northern Ireland. It is therefore even more important that the planning system should be robust enough to preserve those that there are.
  In my experience—perhaps things have changed in the recent past—the built heritage is not sufficiently respected by the people of Northern Ireland. There is what I call a bulldozer mentality—"Let's get this out of the way and put up something new in its place". Vernacular buildings and even the countryside are neglected because of the pressure to build new bungalows. It is rather sad that some of the finest buildings in Northern Ireland are not being preserved. When a fine building is pulled down—this is so obvious that it hardly needs stating—it has gone for eternity, and there is nothing that one can do about that. That is why it is important that the buildings that have merit should be protected and that only in the most exceptional cases should they be allowed to be pulled down.
  I take the point made by the noble Lord, Lord Glentoran, about developments in the countryside. As the noble Lord, Lord Maginnis, said, that is always a matter of contention. However, I recall—I speak from memory—that more than 80 per cent of planning applications for building on farms and so on were agreed. I kept pointing out to district councillors that one hears only about the applications that were turned down. We should bear in mind that the system grants many—probably too many—applications. The granting of planning permission should depend on the needs of farmers and whether essential members of their family want to work on the farm. The danger is that the farmer gets permission and sells the building; another part of the countryside therefore has a building on it but it lacks a relationship with the farm for which it was originally intended. The Planning Service must be careful. I have sympathy with the views of the noble Lord, Lord Glentoran.
  There are dreadful examples in the Republic of what happens when buildings are allowed to be developed all over the place. About a year and a half ago. I visited Donegal. I found that one of the most wonderful landscapes in Europe, at Bloody Foreland, was absolutely pepperpotted with buildings—they were all over the place. One of the best landscapes in western Europe has been ruined. Lest someone believe that I am attacking the system in the Republic, which is not the subject of our debate today, I stress that I have made that point to every politician from the Republic whom I have met, and they all agree that the system failed completely. The lesson for us is that we must not allow the system to fail us in Northern Ireland. I am really seeking some assurances about the way in which the provisions will work. I shall concentrate on that. I welcome the increased penalties for pulling down listed buildings. I am not a lawyer, but I note that there is to be a fine of £30,000 or six months' imprisonment on summary conviction or a limitless fine and two years' imprisonment on indictment. When a listed building is

  NI 47
  pulled down without consent, will the department be sufficiently robust in seeking a penalty of the right order? The proposal is that it will, but I would like to be assured of that. It is all too easy for a developer to pull down the listed building, pay the fine and make a profit 10 or 20 times larger than the fine. That has happened, and I shall give examples in a moment.
  The profits for developers in getting rid of a listed building are high. Some examples have already been given. The case that shocked me most, when I was in Northern Ireland, was the pulling down of listed buildings in Ogle Street in Armagh. As far as I know, the penalty was £5,000, and the developer made hundreds of thousands of pounds of profit. He got off scot-free. That was a tiny penalty in comparison with the benefit that he got. There are other examples: the Tilly and Henderson factory, Redhall, 9 to 11 Bangor Road in Holywood and 1 to 7 Malone Place in Belfast. All those buildings were pulled down when they should not have been.
  Apart from the buildings that I have mentioned, there are others under threat, which is, perhaps, more relevant at the moment. They include 1 and 2 Corry Square in Newry, Limavady Town Hall, Olderfleet Hotel in Larne, 16 Upper Crescent in Belfast, 2 to 4 Market Square in Dromore and the Chapel of the Resurrection in north Belfast. I understand that all those buildings are under threat, and I hope that the department will deal robustly with those threats. They are all fine buildings, and it would be better for Northern Ireland and its built heritage if they could be retained.
  There are also buildings that are not listed but are in conservation areas. It is not clear how the new provisions will apply. Are buildings in conservation areas as well protected as listed buildings? If not, what protection is there for such buildings? Pulling down such a building leaves a gap, and the concept of the conservation area can be weakened.
  I note that the penalties for breaching planning controls are fairly small. There is a fine at level 3, which represents a fine of £1,000. That is a small sum in the context of a commercial development, although it may be a significant sum for the owner of a small house. It depends on how it is applied. The maximum seems low, and I share the concern that there has been no new offence created of commencing development without planning permission. I agree with the comment made by the noble Lord, Lord Brooke of Sutton Mandeville. We have all seen such things happen in Britain, and they are not desirable. Allowing people to evade planning controls creates an incentive for everybody to do so.
  I must make a plea for better co-ordination between those responsible for planning decisions and the Department of Culture, Arts and Leisure. That department ought to have some standing in consideration of such matters and should be involved before any decisions are made about listed buildings, in particular.
  Having said all that, I am sure that there are some good proposals in the order. I merely seek an assurance that excellent parts of the built heritage in Northern Ireland will be properly protected.
  12.45 p.m.
  Lord Williams of Mostyn: I am grateful to the Committee for those observations. The issue is of great importance to those who live in Northern Ireland, and that is reflected in your Lordships' remarks.
  I share the anger expressed by the noble Lord, Lord Brooke of Sutton Mandeville, about the demolition of the Firestone art deco building. Fortunately, the Tesco building is still there. Even illuminated on a dank Sunday evening, it is a triumph of the art deco style. The problem with the Firestone building was that it had not been spot-listed and was demolished over a weekend before the department could list it on the following Monday. I shall not name the developer, but his name will live in odium for some time.
  I shall deal with some of the weapons in the armoury, an issue raised by the noble Lord, Lord Maginnis of Drumglass, and others. There is an important weapon contained in Article 5, which provides a useful power. It says:
  "Where the Department considers it necessary or expedient for—

  (a) any actual or apprehended breach of planning control;

  (b) any actual or apprehended contravention of Articles 44(1) or (5), 66 or 66A; or

  (c) any actual or apprehended contravention of hazardous substances control … it may apply to the court for an injunction".

  Had the Firestone building been listed, an immediate injunction on the emergency application might have brought about the desired outcome. That deals in part with the level of penalty. I shall develop that theme in a moment.
  The noble Lords, Lord Glentoran, Lord Maginnis of Drumglass and Lord Dubs, spoke about those living in farming communities. I sympathise with the thrust of what the noble Lord, Lord Maginnis of Drumglass, said. It will always be difficult to strike a balance between the social and cultural interest to which the noble Lord referred and the adverse consequences to which the noble Lord, Lord Glentoran, referred. In England and Wales, we are all familiar with an application to build for agricultural purposes a house that is then sold on. That is an abuse of the planning system.
  I hope that it will be of satisfaction to the noble Lord, Lord Maginnis of Drumglass, to hear that we are going to issue a draft policy statement on development in the countryside. It will be issued for consultation later this year, so there will not be any undue delay. There is a delicate balance to strike. Sometimes, there is a continuing blot on the landscape; in other circumstances, for social or family reasons, development is legitimate. That will be of benefit. I echo what the noble Lord, Lord Brooke of Sutton Mandeville, said: we must bear in mind the need to sustain rural communities and not destroy them. I am happy to give your Lordships that reassurance.
  Tree preservation orders apply only to trees and do not protect ground flora. However, other powers are available, including those under the Nature

  NI 49
  Conservation and Amenity Lands (Amendment) (Northern Ireland) Order 1989, which can be used in some circumstances. There was also a question about trees and woodland. A tree preservation order can be used only to protect the amenity value that the tree affords to the general area. Sometimes, the protection of woodland can be better achieved under the amenity lands order that I mentioned.
  The issue of the creation of a new criminal offence exercised all noble Lords who spoke, I think. I have made my point about the injunction, which is the alternative weapon in the armoury. I recognise the strength of feeling expressed not just here but in the Environment Committee at Stormont. We have borne in mind the fact that, as your Lordships said, the Executive Committee had agreed the recommendation in principle. The Government's attitude was that any extension of the criminal law required strong justification. I note the strength of the argument that has been put, and I can tell the Committee that it is a matter for further consideration.
  Manifold though my duties are, I do not think that issuing directions to the judiciary in Northern Ireland is something that any sane person would attempt. I will ensure that the Hansard record of the noble Lord's comments is passed to the relevant authorities.
  I was asked about the level of fines and imprisonment. My noble friend Lord Dubs asked about the department's policy. The department's policy will be to be increasingly proactive. Where appropriate, application for trial in the Crown court will be made. My personal view—it is not necessarily a government view—is that the sanction of imprisonment ought not to be overlooked. However large the unlimited fine, a possible maximum sentence of two years in prison will be a useful reminder for anyone who carries out such actions. Some might say—I could not possibly comment—that it is too infrequently used.
  I was grateful to the noble Lord, Lord Dubs, for what he said about the Planning Service, which has been working in difficult circumstances. We will recruit additional staff; some are already in place and others will be recruited. We want to reduce the number of live applications in the system—applications are more usefully done on a documentary basis—and to reduce over-regulation. We shall have improved consultation arrangements with statutory consultees, including councils, and improved handling of Article 31 cases.
  The number of enforcement posts, which was raised, will be reviewed because of the department's strengthened enforcement powers and its absolute commitment to be proactive in the way that I mentioned.
  The noble Lord, Lord Dubs, asked about heritage and protection in relation to the Bill. I have dealt with the sanction of imprisonment. He rightly referred to two years, which is available to a Crown court; an unlimited fine is also available to Crown courts. One would have thought, without interfering with the judiciary, that those fines should be proportionate and proportionate multipliers of the benefit that has inured to someone
  NI 50
  acting unlawfully. Enormous public anger and distress are caused when people appear to get away with things and to make a profit, and destroy buildings of quality. I take the noble Lord's observations on the Bill. He will understand that I cannot properly comment on them. When courts are assessing fines, they often assess the financial benefit that has inured.
  My noble friend Lord Dubs asked about the position of buildings in conservation areas. I am happy to reassure noble Lords and my noble friend in particular that all buildings in conservation areas require the consent of the Department for Environment, Food and Rural Affairs under the Planning (Northern Ireland) Order 1991. That order applies the new enhanced and increased fines and penalties that apply to listed buildings to buildings in conservation areas.
  I was asked about the increase in the level 3 fine of £1,000 to the level 5 fine of £5,000. The conclusion that was come to—I can only recite it—was that the case had not been sufficiently made.
  On the question of buildings that are under threat, the new powers of spot listing are extremely valuable. I agree with my noble friend that they require constant vigilance on the part of the department and of those living in the locality.
  Lord Maginnis of Drumglass: Will the noble and learned Lord take account of the fact that in areas in which there are listed buildings, those who own the listed buildings sometimes allow them to fall into such disrepair that nothing can be done to preserve them? I am involved in such a case in my home town. Is any facility available, or is one contemplated, that would deal with that situation? I do not expect the noble and learned Lord to give me an instant answer.
  Lord Williams of Mostyn: The analogy is fairly made with the powers in England and Wales, where the local authority has the power to serve a notice requiring works to be carried out on a building that is listed but which is allowed to run into disrepair. In certain circumstances, local authorities can carry out the repairs themselves and charge the owner. Difficulties often arise—notoriously so recently—when the owner is not an individual but a corporation. A corporation often registers outside the jurisdiction and the process is laborious. The answer is that planning departments and enforcement agencies must be as vigorous and diligent as those seeking to profit from unlawful behaviour.
  I am grateful to noble Lords for their interest and support.
  On Question, Motion agreed to.
  The Grand Committee adjourned at five minutes before one o'clock.

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  Northern Ireland Act 2000: Legal Opinions
  Irish Language Agency
  Irish Language Agency