(" . In the Criminal Law (Consolidation) (Scotland) Act 1995, after section 13 there shall be inserted--
"Sodomy with a member of the opposite sex.
13A--(1) Subject to subsection (3) below, it shall be an offence to commit or to be party to the commission of, or to procure or attempt to procure the commission of an act of sodomy with a member of the opposite sex--
(a) otherwise than in private;
(b) without the consent of both parties to the act; or
(c) with a person under the age of eighteen years.
(2) A person under the age of eighteen does not commit an offence under subsection (1) above if he or she commits, or is party to the commission of, an act of sodomy with a person who has attained that age.
(3) A person who is suffering from mental deficiency which is of such a nature or degree that he or she is incapable of living an independent life or of guarding himself or herself against serious exploitation cannot in law give any consent which, by virtue of subsection (1) above, would prevent an act of sodomy from being an offence; but a person shall not be convicted on account of the incapacity of such a person to consent, of an offence consisting of such an act if he or she proves that he or she did not know and had no reason to suspect that person to be suffering from such mental deficiency.
(4) A person who commits or is party to the commission of an offence under subsection (1) above shall be liable on conviction on indictment to imprisonment for a term not exceeding two years or to a fine or to both and on summary conviction to imprisonment for a term not exceeding 3 months, or to a fine not exceeding the prescribed sum (within the meaning of section 225(8) of the Criminal Procedure (Scotland) Act 1995).
(5) It shall be a defence to a charge of committing or to being a party to the commission of, or to procuring or attempting to procure the commission of an act of sodomy under subsection (1) above that the person so charged being under the age of 24 years who had not previously been charged with a like offence, had reasonable cause to believe that the other person was of or over the age of 18 years."").
On Question, amendment agreed to.
Clause 2 [Defences available to persons who are under age]:
moved Amendments Nos. 3 to 16:
Page 2, line 11, leave out ("sixteen") and insert ("eighteen").
Page 2, line 22, leave out (""a homosexual act"") and insert (""an act of buggery in private with another man"").
Page 2, line 25, leave out ("a homosexual act") and insert ("an act of buggery with another man or commission of an act of buggery").
Page 2, line 26, leave out ("sixteen") and insert ("eighteen").
Page 2, line 27, at end insert--
("(3A) In subsection (1A) of section 1 of the Sexual Offences Act 1967 (as inserted by section 1)--
(a) the words from "an act of gross indecency" to the end shall become paragraph (a); and
(b) after that paragraph there shall be inserted the words, "and
(b) an act of gross indecency with another man or commission of an act of gross indecency by any person shall not be an offence if he is under the age of sixteen and the other party has attained that age.".").
Page 2, line 29, leave out second ("subsection") and insert ("subsections").
Page 2, line 30, leave out ("(8A)") and insert ("(8B)").
Page 2, line 30, leave out ("sixteen") and insert ("eighteen").
Page 2, line 32, leave out ("a homosexual act") and insert ("an act of sodomy").
Page 2, line 33, at end insert--
("(8C) A person under the age of sixteen years does not commit an offence under subsection (5A)(a) or (c) above if he commits or is party to the commission of an act of gross indecency or shameless indecency with a person who has attained that age.").
Page 2, line 36, leave out (""a homosexual act"") and insert (""an act of buggery in private by a man with another man"").
Page 2, line 39, leave out ("a homosexual act by any person") and insert ("an act of buggery by a man with another man or commission of an act of buggery by a man with another man").
Page 2, line 40, leave out ("seventeen") and insert ("eighteen").
Page 2, line 41, at end insert--
(a) the words from "an act of gross indecency" to the end shall become paragraph (a); and
(b) after that paragraph there shall be inserted the words "and
(b) an act of gross indecency or commission of an act of gross indecency by any person shall not be an offence if he is under the age of seventeen and the other party has attained that age.".").
On Question, amendments agreed to.
Clause 2, as amended, agreed to.
Clause 3 [Abuse of position of trust]:
In moving Amendment No. 17, I shall also speak to Amendments Nos. 20, 21, 22, 30, 31, 34, 35, 36 and 44.
These amendments deal with extending the measures in this Bill to others in a position of trust. They also include the preparation or, as I understand it is known in the trade, grooming of a young person for sexual purposes. It is worth remembering why the abuse of trust provision was put into this Bill in the first place. Certain Members on the Government Benches in another place were unhappy and uneasy about lowering the age of consent. They brokered with the Home Secretary the abuse of trust clause. They, like us, felt that if the age of consent was to be lowered, some young people would be in a particularly vulnerable position and some people who held positions of trust over children ought to be subject to the measures in this Bill.
Amendment No. 17 deals with preparing a young person for later sexual activity. Amendments Nos. 20, 21, 22, 30, 31, 34, 35 and 36 are consequential. Amendment No. 44 defines social care workers, and there are many references to the different types of people who are involved and who are to be included in the additional categories.
Those of us who support these amendments were heavily influenced by the findings of the Waterhouse report. For those who have read it, the report makes chilling reading. For anyone who cares about the protection of children, it makes particularly chilling reading. The abuse of trust offence will operate only where there is a continuing professional relationship between the child and the abuser. For example, when a child leaves a home, he is no longer protected from those who were his carers. An abuser may with impunity groom a child for abuse, so long as that person refrains from sexual activity until after the child leaves his care. Another example would be that of a school teacher who "romances" a pupil during the final term at school but says that they must wait until the pupil is 16 and has left the school before having sex. That would also apply when a child leaves a detention centre.
Care workers understand the care system. They also understand how vulnerable young people can be manipulated. That is precisely what happened with the unscrupulous care workers named in the Waterhouse report. They groomed young people for abuse, including abuse after the young person had left care. The Waterhouse report concluded that Reginald "Gary" Cooke had ready access to children in residential care in the Wrexham area. This is significant, since Cooke was employed as a care worker for only a little more than a year. There was no ongoing professional relationship, yet he still had access. One of the buggery victims in respect of whom Cooke was convicted in 1987 was 18 years old and not in care at the time of the offence. The victim had earlier been in care at Bersham Hall, when he first met Cooke. G, referred to in the report, was abused by Jacqueline Thomas, a care worker at the children's home at which he was resident, but it was not until G was 16, and had gone to live in another home, that she had full sexual intercourse with him.
I refer to something that I said in the previous debate. We are talking about the most vulnerable young people who seek affection and go to great lengths to be wanted and loved by other people. The tragedy of the cases about which I am now speaking is that that precious trust was breached by the very people to whom these young people turned for advice. John Allen was a chief executive of the Bryn Alyn homes. Properties owned by him were used,
"to house young men who had been discharged from care".
The professional relationship no longer existed, but we all know that the abuse went on.
C, referred to in the report, alleged that Allen abused him in Bryntirion Hall, when aged 16, and subsequently after he had left, right up to the age of 23 and 24. Allen also made many attempts to abuse D, who was aged 16 when he entered Bryn Alyn. Another attempt was made many years later after he had left the home. The report makes clear its misgivings about the way in which Allen was able to continue his abuse of young people who had left care. I quote again from the report:
"It is a cause for great concern also that his influence extended for some beyond the period of their residence in care with the Community to later years when they should have been establishing themselves in normal patterns of life".
Amendments Nos. 21 and 22 refer to absconders. The Waterhouse report found that absconding was very common. In the case of local authority care or other accommodation, it is arguable that a child who is absconding is not protected, since he is no longer "resident" at the home, as the wording of the Bill requires. This is a legal loophole, which abusers could exploit. I hope that the Government, who are genuinely concerned about this part of the Bill, will allow this loophole to be plugged by these amendments.
An abuser may persuade a child to run away from the home at which he works to stay with a friend. He may then be able to take sexual advantage of him without committing this offence. If he was prosecuted, he could argue, in the case of residential care, that the child was no longer resident at the home when the sexual activity took place, which would then make it legal. Many of the abused children referred to in the Waterhouse report ran away from the children's homes. Sometimes they stayed with the very paedophiles who were abusing them. Often the abusers 'farmed out' the children, to be abused by other known paedophiles. One of the most heart-rending passages of the Waterhouse report that affected me concerned three young brothers who went to the person in charge of the home to plead for help, and they were abused by the very person from whom they sought help. I cannot think of a worse breach of trust by an adult in that situation.
It is a well established fact--and I now refer to Amendment No. 36, which refers to youth groups--that paedophiles can seek to obtain positions of responsibility in youth organisations where they can come into contact with children. The notorious paedophile, Reginald "Gary" Cooke, was employed as a care worker for a relatively short time. He worked for only two weeks in Bersham Hall, probably in or about 1972. He was later employed for over a year by the Bryn Alyn Community in two children's homes. Later still, he was the warden of a probation hostel for six months. Most of the boys whom Cooke abused were not actually in care at the time. Those who were in care tended to have met Cooke outside the home. One boy was in care from April 1973, when he was aged 16, until the end of 1974. His evidence was that he was abused by Cooke after a friendship developed between them when he attended a youth club. Cooke was a team leader in the youth club. The abuse continued until the boy told Cooke that he did not want it any more. He argued that Cooke--and I quote from the report--"took advantage of him when he was in need of friendship". When Cooke was an instructor in the Army Cadets he met boy B who claimed that he had been abused "on about half a dozen occasions" before he went into care. The years of abuse during which Cooke manipulated B into giving consent all started because of the relationship which began in a youth club.
Amendment No. 30 covers social workers who work with children outside children's homes. Jacqueline Thomas, to whom I have already referred, was convicted of abusing a 16 year-old boy called S. The police investigation followed allegations made by G following his return from Christmas leave. G alleged that on Christmas Eve he and S had stayed at Thomas's flat. David Gillison, a social worker with Clywd County Council, was also there and group sexual activity took place. Gillison was later convicted of two charges of gross indecency with G. If the abuse of trust provisions had been in force at that time Thomas could have been convicted under them but her accomplice Gillison could not since he was not the social worker directly responsible for G or S. A care worker from one home can abuse children from another without committing an abuse of trust offence. This is a straightforward loophole in the proposed legislation. I am aware that the Home Secretary is concerned about this matter, and I hope that he will accept this amendment. If Thomas had introduced the boys to Gillison and refrained from taking part in sexual activity she would not have been committing an abuse of trust offence. Young people were, therefore, farmed out by one paedophile to others who abused them.
It is difficult to draft an offence which would cover that type abuse without it being ridiculed as too wide, and I have no doubt there will be an attempt to do that tonight. However, it is possible to extend the reach of the offence to cover any contact between a social worker and a young person in a professional setting. Those who leave care may still be in regular contact with social workers in a professional setting. We have only just passed an amendment to the Criminal Justice and Court Services Bill. In that one is talking about the use of probation hostels for people whose convictions are spent. Therefore, one is aware that professionals have contact with young people in these situations.
Amendments Nos. 30 and 44 cover social workers in all their dealings with young people, not just in children's homes. The amendments protect young people only from social workers who have direct professional dealings with them. They also give effect to recommendation 32 of the Home Office review of sexual offences in respect of care staff in paid posts. As to that, my noble friend Lady Young has gone to enormous lengths to ensure that the amendments tabled today are consistent with the recommendations of that review. I have no doubt that arguments will be found to counter these amendments. However, the most vulnerable children should look to Parliament for protection, and these amendments aim to do just that. I beg to move.
In view of the enormous increase in the number of, and support for, mentors, many of whom are provided by the voluntary sector--for example, the DIVERT Trust, in which I declare an interest as its president--does my noble friend believe that this amendment embraces that activity, which should be covered? I am not sure that the amendment extends to that field.
My noble friend's point is the subject of another amendment. There is a later group of amendments which refers to those in education. I wish to cover the position of mentors who are a group of people who have particular one-to-one relationships with very vulnerable people in our schools.
I, too, have noted the tragic reports about children in care and have been horrified by what I have seen and read. That was brought into sharper focus for me because 10 years ago I purchased a house which formerly had been a care home. Over the course of 18 months my family and I turned that building back into a family house. When one buys a house one also buys its history. In the years since we have had visits from people who have come back to see the place where they were in care. They have extraordinary stories to tell, most of which are happy ones. The stories are of teachers who have devoted their lives to mending, helping and encouraging damaged young people from brutalised backgrounds who have had no love and affection at any time. For many of them the time spent in that home was the happiest in their short and unhappy lives. We have also heard darker stories of very vulnerable young people who from time to time have attracted the attentions of predatory staff at the home. I can think of nothing more terrifying and shattering for a young person than to be removed from a dysfunctional and brutalised home, perhaps where there has been alcohol abuse and a lack of money and opportunity, to what he or she hopes will be a sanctuary, only to be taken advantage of by the people with whom he or she has been placed in trust.
Over the past 10 years I have heard enough of such cases to make me feel very concerned about it. Therefore, we owe it to these unfortunate young people to ensure, if possible, that it never happens again. We must offer them every possible protection. I hope, therefore, that the Government will be able to accept my noble friend's amendments, which are designed to strengthen the protection that is afforded to these young people.
I am most grateful for the Committee's contributions, particularly the last one. I declare an interest as a former trustee of the NSPCC and chairman of the national commission of inquiry into the prevention of abuse against children. I also declared earlier--I should repeat it--that I had a connection with the Waterhouse inquiry. That inquiry is a continuing reproach to us all. When reading it we need to bear in mind that the law was not without effective sanction, although not on every occasion and in all circumstances. For example, the most persistent offender in Bryn Alyn was sentenced to six years' imprisonment. Norris who was at Bryn Estyn was sentenced to a long period of imprisonment. A large number of successful prosecutions were brought against men and women--mainly men--for the abuse of children in care. One must carefully bear in mind that the criminal law is there to provide serious criminal justice sanctions against those who abuse children.
On an earlier occasion I invited the Committee not to cast out the Bill because it would leave children in the continuing limbo of having no protection under the criminal law. I suggested to the Committee that the offence of abuse of trust was a gap in the law. Members took their own view and, therefore, there is still no mechanism in law, until this Bill is passed, to deal with the offences of abuse of trust. I simply recite history without reproaching anyone. We must all make our decisions, appropriate or not as they may be. Therefore, we are not talking about the sexual abuse of children which, rightly so, remains a criminal offence.
It is helpful to have in mind the Home Office consultative document about setting boundaries, to which the noble Baroness referred. The noble Baroness referred to recommendation 32. There are recommendations that there should be criminal sanctions in respect of breaches of relationship of care. They go much wider than the matters about which we are speaking today. For example, they include sexual relations between doctors and their patients and therapists and their clients.
Perhaps I may make one plea--for the last time I hope in this context. We really must get the whole of the law of sexual offences right. The consultative period extends until March of next year. I know the noble Baroness has said that that is a long time. That is a price worth paying to get the matter right. The one thing that all of us who have anything to do with this area of child protection or criminal justice can agree on is that the law is incoherent and ineffective. It is ineffective precisely because of its incoherence.
I have spent a moment or two on that because I know the seriousness with which the Committee views these matters. This is a matter that my right honourable friend Mr Alun Michael was working on for a long time when he was in charge of these matters at the Home Office. I was working with him and the Home Secretary at that time. This is not just a response to questions raised in another place in the context of the Bill.
We tried to focus on four principles, which I hope commend themselves as principles of utility and protection. First, the younger individual should be particularly vulnerable, as a result of personal circumstance such as would be the case with a young person in care. Secondly, the younger individual should be particularly vulnerable as a result of the situation he or she is in, such as in detention or residential care. We do not need to overlook those who are in young offender institutions. We must not simply limit our minds to what Sir Ronald Waterhouse was examining. One young offender was killed recently. A young white racist cellmate killed his ethnic minority cellmate in the most appalling circumstances. We need to bear that in mind as well.
Thirdly, the older individual should be in a position of particular influence; and the relationship of trust should be particularly strong. This is true of teachers of students in full-time education. Fourthly--this is important--the younger party should not have easy access to other adults for advice or countervailing influence. That is true of course for many situations of residential care.
The fact is--this is what Sir Ronald demonstrated to our continuing shame--that many people leave residential care deeply wounded and bruised. They are fragile when they go in, and, I am sorry to say--I do not think I exaggerate--they are irremediably wounded when they come out. The noble Lord, Lord Carlisle, and I have shared the experience of visiting prisons. Neither of us is a qualified psychiatrist, but when we talk to prisoners--the noble Lord, Lord Elton, will have had the same experience--without being psychiatrists, we can tell, nine times out of 10, which one of those prisoners, now adult, was formerly a child in care.
I am sure the noble and learned Lord will agree that having seen and read many reports, and through the Criminal Injuries Compensation Board when we have been compensating the victims of those who have been abused in institutions, one is shaken by the effect that it has had on the whole of their lives. As the noble and learned Lord said, they come out badly scarred.
I entirely agree. That is why we need to focus with great care on what will be effective. There are many people in positions of authority who abuse younger people. I am not saying this in any contentious way, but we know--alas--that many in the Roman Catholic priesthood have recently been found guilty of quite serious abuse. I am not saying this intending to diminish any of the concerns of the noble Baroness. I was grateful for the opportunity I had to discuss these matters with the noble Lord, Lord Northbourne, and the noble Baronesses, Lady Young and Lady Blatch. We are trying to focus on the areas where the law can be effective, bearing in mind that this is in the overall context of the Home Office review.
I turn to the amendments. The noble Baroness, Lady Blatch, spoke of the first amendment speaking about "grooming". Because of Clause 3(5)(b) of the Bill the amendment will provide that preparing a person to engage in sexual activity with him at a later stage will fall within the definition of sexual activity only if the preparatory acts are themselves,
"sexual in all the circumstances".
If the acts designed to prepare another for sexual intercourse are themselves,
"sexual in all the circumstances", then they already fall within the definition of the Bill as it stands. If the preparatory acts are not,
"sexual in all the circumstances", the drafting of the amendment will leave those offences still uncovered. Therefore, I hope I have expressed the general view that I have towards these matters. But I urge Members of the Committee, with the greatest of respect, to produce legislation that will actually work. I believe that the presently drafted Bill does that.
We then come to a different category. That is amendments to add a fifth category.
Clause 3(5)(b) provides that preparing a person to engage in sexual activity with him at a later stage will only fall within the definition of "sexual activity" if the preparatory acts are themselves sexual in all the circumstances. Therefore, what I am saying is that the Bill will catch some activity, but the amendment, as drafted, will not do the work that the noble Baroness wants it to do.
I am grateful to the noble and learned Lord. Perhaps I may return to the precise wording of my amendment. It is,
"to engage in any other sexual activity"-- which is the preamble--
"with or directed towards such a person, including".
It is only another aspect. It is another facet. It does not exclude the other acts which might indeed be sexual. The amendment says,
"including preparing such a person to engage in sexual activity".
So I am not sure that I agree with the noble and learned Lord's interpretation of my amendment.
I could be right and I could be wrong. But I believe that the summary and conclusion by way of definition of the legal consequence, first, of the Bill and, secondly, of the amendment, is correct.
I turn now to the fifth category. Our offence is to deal with the abuses of a position of trust where a young person is especially vulnerable. I recognise that this is a matter of judgment. When one looks at Sir Ronald's report, it is not unreasonable to describe that collection of childcare establishments as our equivalent of the gulag archipelago. But no one wanted to know about the archipelago and no one recognised that it was a gulag, in other words, young children away from effective remedy.
I believe that qualitatively--I put this as a serious point which, I hope, may resonate with the Committee--the situation is different. I agree with what the noble Lord was saying. If one is abused but can go home at the end of the day that is different to that feeling of utter abandonment which we know perfectly well is what typifies those in residential care homes. What is done to people who can go home at the end of the day is wrong, but I believe that it is different in consequence and practical outcome to those people in full-time care.
Our offences are particularly designed to try to deal with the mischief which I have tried to identify. In the situations that we set out, the older person will be treated as being in a position of trust if he or she "looks after" the young person; that is, regular involvement in caring for, training, supervising or being in charge of the young person. Under the proposed amendments, a member of staff at one of the institutions I have mentioned could be liable even if he or she were not regularly involved in caring for, training, supervising or being in charge of the young person. In other words, the liability in law would arise because that person worked at the institution and had engaged in sexual activity with the young person, and not because he or she had been in that caring relationship of trust.
I recognise that this is a matter sometimes of quite fine judgment but I suggest that that is different. After all, a member of staff in one of these institutions could be 18 and the person with whom he had sexual activity could be 16 or 17. In that situation there would be no true relationship of coercive trust. That really is the point. What matters is the coercion of circumstance and power, not the coercion of simply being a member of staff. We need to bear in mind that many acts would in any event be caught by the criminal law. If there is no consent, the law protects. We have to bear that in mind. We believe that the liability should be based on the abuse of the relationship of trust.
As far as concerns social care workers, in order for the older person to be treated as in a "position of trust" a condition is that he or she "looks after" the young person. I think that we have that balance right. "Looks after" is defined in the way that I suggested a few moments ago. Many of those who could be classified as "social care workers" would already be caught by the provisions of the Bill; for example, those regularly caring for someone under 18 in a children's home or residential care home. But not all those who could be called "social care workers" should be caught. I repeat: this is a matter of judgment. We believe that one should focus on the real mischief that was identified by Sir Ronald. The real vice comes because there is an element of the young person being in the care of someone. That young person's consent becomes meaningless because the consent, notionally, is overborne by the fact, first, of the relationship and the breach of trust; and, secondly, because the young person has no one else to whom to turn.
If a social worker simply visits a young person of 16 or 17 resident at their own home and a sexual relationship develops, we believe that that should be dealt with by the General Social Care Council in England or the Care Council for Wales under the Care Standards Act 2000.
Social services inspectors are caught by the amendments. I know that that is done for good motive, but they should not be caught simply because they are inspectors. They should be caught if they abuse any position of trust with a young person. Not all social services inspectors would be in that category. I say as carefully as I may that we should not categorise all behaviour of which we disapprove with this kind of wickedness and the true desperation that is brought about by the illustrations in the Waterhouse report.
The question of youth groups may conveniently tip over into the question asked by the noble Lord, Lord Elton, about mentors. The noble Lord rightly pointed out that mentors may be of a very wide category indeed. I think again that one is trying to attack here the vice of abuse of trust. I hope the noble Lord will agree with me on the basis of our general experience that not all mentors will be in that situation.
Perhaps I may reassure the Committee. I do not believe that the case is made out at the present time for the inclusion of youth groups in the scope of the new offence, but I am happy to say that we will keep the matter under review. I ask the Committee to cast its eye over Clause 4(1) of the Bill. It states that,
"if any of the four conditions set out below, or"-- these are the important words from the point of view of the concern and question of the noble Lord, Lord Elton--
"any condition specified in an order made by the Secretary of State by statutory instrument is fulfilled".
The door is held wide open so that if we are further informed by particular experience the Secretary of State has that power.
I was not quite able to understand--it is my fault--the thinking behind Amendments Nos. 21 and 22. If one adds "normally" as is proposed in Amendments Nos. 21 and 22, the noble Baroness will produce an outcome contrary to that for which she is looking. I find it difficult that the amendment seeks to restrict the protection of children to those who are normally resident in a home as opposed to those who may on some occasions reside in such a place. I know from my own experience in the Waterhouse context that some very difficult children could not be dealt with in one home and sometimes they resided in homes for quite a short period of time. If one adds "normally" one will produce the unintended consequence that the protection may well be removed. I do not believe that that is what the noble Baroness wants. It may be that I have misunderstood the thrust of the amendment. But that is how I construe it.
I know that I have been a little while. I do not apologise because the questions are quite serious.
I apologise to the noble and learned Lord because I entered the Chamber in the middle of his remarks. Over the past 12 months and more, the Criminal Injuries Compensation Board has seen many of these cases. They are, as the noble and learned Lord stated, disturbing. I agree with him that the most serious point of all is that the young people are abused in a home where they have been required to go by the order of a court. We have put them there for their care and protection and those who are supposed to be protecting them have themselves abused them.
The other serious issue--I know this from the cases that I have seen--is that when they complained their complaints were not listened to and were often totally ignored. They were then told to go back and carry on as before. I accept the strength of the noble and learned Lord's argument, but is he saying that because it is vital that there should be protection in that area one should not look at these other areas as well; or is he saying that it is the intention of the Government, through the power in the following clause, to widen it to other areas which may not have the same individual features as those who are in charge of a community home but who, nevertheless, are in a position of trust over the children at the time that they are in their care?
I am most grateful to the noble Lord, Lord Carlisle of Bucklow. Perhaps I may make two points. Neither of them is intended to be a forensic or debating point. The first point reinforces the general case that I was making. When the noble Lord served with such distinction on the Criminal Injuries Compensation Board, as it formerly was, that meant that the criminal law had sanctions. The noble Lord's authority could not have compensated without a criminal offence having been committed. That is not a full answer but it is a distinct answer; and it is an important answer from the public's point of view--that our law is not without weapon and strength.
As to the noble Lord's second question, I do not believe that we have come to a perfect solution and I do not believe that we ever can do. In private discussions I have been asked whether we should have a schedule or a list. We all know the difficulties of schedules or lists. The devious who wish to abuse children are quite skilful in avoiding definitions in schedules or lists. What I can say on behalf of the Home Secretary is that he has a distinct power in Clause 4(1):
"any condition specified in an order made by the Secretary of State".
That is additional to the four conditions set out at the end of page 3. I am grateful for the intervention and I hope that I have dealt with it appropriately.
I should like to take up two points from among those raised by the noble Baroness, Lady Blatch, and by the Minister. The first point may assist the Minister, while the second seeks to establish whether he needs to keep on making the distinction around the area of the fifth condition.
I was attracted to Amendment No. 17, but I could see the point being made by the Minister in his response. However, his argument might have been strengthened if he had referred to Clause 3(5)(a) rather than only to 3(5)(b). Subsection (5)(a) makes exactly the distinction that the Minister intended, thus making the point that it would behard to bring in "grooming"--such as sharing a box of chocolates or a new pair of trainers--within the meaning of the Act because that would covered by the words,
"knowledge of the intentions, motives or feelings".
The Minister has persuaded me, but only by reference to Clause 3(5)(a) rather than 3(5)(b), that, in the end, Amendment No. 17--which I regarded as worthwhile--would not stand.
Perhaps I may go on to ask why the Minister and the Government, while they are very properly determined to work at the questions concerning young people in care--in the broadest sense--are apparently so unwilling to move on to the areas covered by these amendments? Those concern the "family" in the widest sense, voluntary organisations--including churches and religious organisations, which have quite properly been included in Amendment No. 26. The Minister referred to Clause 4(1) which makes provision for the Secretary of State to bring in by statutory instrument other conditions laid down in the Bill. However, why should he be determined to do that only later? He seems reluctant to take action at this point. I feel that there is only too wretchedly ample evidence that terrible things have happened to children and young people in care. Thus his distinction between those wholly in the care ofothers and those only partly in such care, with the chance to go home, does not seem to me to be a distinction of the power, clarity and necessity that the Minister obviously wishes the Committee to accept.
Perhaps I may deal with those points without discourtesy. Amendment No. 26 is not included in this grouping. For appropriate reasons, it has been tabled separately and we shall debate it in due course.
Although I am a confirmed and baptised member of the Church in Wales, I am always happy to accept guidance from a sister Church. The right reverend Prelate is quite right: one cannot found criminal law on the basis of intent. However, I believe that once upon a time, in ancient China, there was an offence called the "possession of dangerous thoughts".
I am grateful for this important debate. Certainly, given the tone of the noble and learned Lord's reply, mutual concerns have been expressed on this issue.
Perhaps I may deal first with the word "normally". I am concerned that a young person is afforded protection only if they are accommodated and cared for in an institution. If they happen to be farmed out temporarily, then they will lose the protection. The intention behind the use of the word "normally" was to ensure that if a young person is normally resident in one home, but for the purposes of the offence happened to be sent off--as in the case of the incidents in Wales--to a paedophile ring operating in a bungalow, then they will still receive the protection of the law. If the noble and learned Lord can point out in what way this is the wrong word to use, then I shall be prepared not to press those two amendments, although I believe that that would leave in place a rather rigid interpretation of the protection; namely, that someone must at all times be accommodated and cared for within one institution.
We shall not oppose the abuse of trust clause as it stands. Our wish and intention is to improve and to strengthen it. The noble and learned Lord referred to the Bryn Alyn cases. However, I should point out that many of the abusers mentioned in the Waterhouse report were convicted of an "age of consent" offence--buggery and/or gross indecency. The protection as regards gross indecency will be removed under the present Bill if the Government accept that buggery should remain at 18. However, the advantage of an age of consent offence is that the prosecutor has to prove only that the action took place; thus there is no need to consider whether consent was or was not withheld.
The noble and learned Lord has argued that a review is currently being undertaken. It will consult until next spring and it may be that further legislation will be required. However, I do not think that anything in these amendments would preclude further strengthening of the Bill. Indeed, we would welcome that. We hope that a further Bill will be announced in the forthcoming gracious Speech.
If consent is not an issue, then an offence will have been committed. I believe that these are young people who are in a very vulnerable position. We know that the kind of people who abuse children can be extremely manipulative and do manage to find their way into positions as mentors, advisers and care workers. Given the importance of these amendments, and the fact that they would not preclude any further legislation to strengthen the law in this area, I wish to test the opinion of the Committee.
moved Amendment No. 18:
Page 3, line 19, at end insert--
("(3A) Where an allegation has been made that a person has committed an offence under this section and the person is a teacher at an educational institution, it shall be unlawful to publish or broadcast that person's name or address or a still or moving picture of him before he is charged with the offence.").
In moving Amendment No. 18 I shall speak also to Amendments Nos. 23, 29, 40, 42 and 43.
Morale among teachers is not very high at the moment; they have a number of concerns. One particular black cloud hanging over the profession is the increasing number of vexatious complaints made against them. The NASUWT has carried out a great deal of work talking with teachers, holding conferences with teachers, collating statistics and speaking with government about the plight of teachers, whose careers and lives very often are completely shattered by a vexatious complaint, in particular one of a sexual nature.
I shall not bore the Committee with too many statistics, but in the past decade 1,199 allegations have been made. A massive 887 of those allegations have not been proceeded with and no further action has been taken. Only 136 of the 1,199 cases appeared in court; in 73 cases there was no further action and some 52 cases of the 1,199 ended in a conviction.
A number of points need to be made at the outset. Given the debate we have just had, it is important that anyone who abuses children is brought to justice and that the courts deal with them. But we know that there are particular problems in the teaching profession. "Streetwise" is a term that I have often heard used. Many young people are very streetwise. They are learning fast that to compromise a teacher by making such an allegation can blight the life of that teacher. I have spoken with members of the NASUWT and the National Association of Head Teachers. They concur that once an allegation has been made and publicity has been given to the suspension of the teacher concerned, which is automatic following an allegation, the life of that teacher is made impossible.
The situation is made even more difficult when the allegation is dropped simply because someone has had his or her fun and does not want to take the matter further, especially when the police or social services become involved. That places the teacher in the most awful position. The situation gives rise to the response that "there is no smoke without fire" and to a feeling of unease among parents. But worst of all, the teacher has not been a position to prove his or her innocence, so there remains a very real cloud over his or her life.
There is a further, practical problem. There is a time gap of many weeks, even months, between an allegation being made, automatic immediate suspension and the case being followed up by means of informal and later formal inquiries. Cases have been known to take even longer. There is a period when the teacher concerned, his or her family, the parents of the children concerned and everyone who is touched by such an allegation live in a state of anxiety. Many of those involved are made ill; some even turn to suicide. So there is a real problem. I am referring only to statistics from one teachers' union. I have not included statistics from the Secondary Heads Association, the National Association of Head Teachers or the National Union of Teachers. The figures that I am using are only a part of the picture.
Some Members of the Committee may have read of a case reported in Saturday's edition of the Daily Mail. It highlighted the vulnerability of teachers who are falsely accused of wrongdoing. It involved seven boys who were suspended from school following the discovery of drugs. Two of the boys sought revenge on the teacher and head teacher involved. One accused the teacher of supplying the drugs in the first place; the other boy accused the head teacher of sexually abusing him four years previously. The case has been a long time coming to fruition in court. The teacher and the head teacher were cleared, but not before experiencing a great deal of anxiety. Another point made by the NASUWT is that the career of teachers involved in such cases is so blighted by the effects of malicious or vexatious allegations that almost none of those involved return to teaching.
I have no doubt that the noble and learned Lord will refer to the legal context, and I shall be interested to hear his response. One argument may be that the amendment will not be workable. I see no reason why it should not be. Under Section 39 of the Children and Young Persons Act 1933, the identity of the young person is suppressed. This currently happens in cases where teachers are accused of physical or sexual abuse of pupils. The courts have a procedure to publicise that an order has been made under the 1933 Act to ensure that journalists are aware that they cannot publish the child's name. A similar mechanism is used in rape cases. If the amendment were to be accepted, such a procedure could also be applied to protect the identity of an accused.
It is possible to make an application under the Human Rights Act to the effect that the publication of a person's name is a breach of privacy under Article 8 dealing with the right to privacy and family life. It could be argued that the article applies because a person's career and the health and safety of his or her partner and children would be jeopardised by publicity. However, in the absence of an amendment such as this, the courts are required to balance the provisions of Article 8 with those of Article 10, dealing with the right to freedom of expression--in this case, for the press. It could, therefore, be argued that the Human Rights Act has strengthened the case for the amendment.
There is some concern that my amendment applies only to teachers. I hope that that will not be regarded as a criticism. If, in the mind of the Government and/or the noble and learned Lord, that is considered to be a flaw, other categories can be added. I am making out the particular case for teachers.
I cannot overstate the trauma for a teacher or head teacher who is subject to a malicious or vexatious allegation. We know that those types of allegations far outweigh the genuine ones which end in a conviction. I am grateful to the noble and learned Lord for discussing the amendment with me when it was first tabled. He will know that I took heed of some of the things that he said: the amendment would apply up to the point when a teacher was charged with an offence. That would catch most of the teachers in this situation--given that the rule in this country is that no one is charged unless there is a more than 50 per cent chance that the case would stand up in court. I beg to move.
I have added my name to this amendment and am pleased to do so. If my noble and learned friend is unable to accept it, he and the Government really must do something about the unfairness to teachers--and in particular, but not exclusively, to male teachers. This problem continues to affect our education system.
The noble Baroness mentioned an article in Saturday's edition of the Daily Mail referring to Mr Sudbury and Mr Easterbrook. Both were accused of sexually abusing children under their care. One was acquitted; the other case did not proceed because of lack of evidence. The point is that Mr Sudbury is so traumatised that he is not returning to teaching. Mr Easterbrook is returning to teaching. Both have been through absolute hell. We all know what hell it would be if we ourselves were accused of such an offence. It would affect us mentally, it would affect our family, it would affect our career and our relationships with our neighbours and friends. The matter is extremely serious. It is abominable and unacceptable that a person who is merely alleged to have committed what is a heinous crime should be put in this position and named.
There are very serious consequences for the education system. Already we find that only 18 per cent of teachers in our primary schools are male. That is not good enough. Primary schools need at least a fair balance to ensure that children are taught in a satisfactory environment in which they can appreciate both "femaleness" and "maleness". We need male teachers.
What is even worse is that this is now happening in secondary schools. The balance between male and female teachers is being upset. One reason--but not the only one--is that men are concerned, perhaps even frightened, that they may become involved in situations such as that in which Mr Sudbury and Mr Easterbrook became involved because of the viciousness of some pupils. The idea that young people are always innocent is quite absurd. Young people can be just as difficult as adults when it comes to getting out of trouble, or, indeed, taking revenge.
If we are to retain male teachers in all our schools it is essential for the Government to do something about the situation. They can do so either by accepting this amendment or by bringing forward their own amendments. Alternatively, they could give us an assurance that government are concerned about this matter; that they believe that something needs to be done about it for the protection of teachers and for the future of teaching; and that they will bring forward proposals, which will be acceptable to Parliament, to the teaching profession and to the public generally.
The noble Lord, Lord Stoddart of Swindon, has dealt at some length with most of what I intended to say. I shall not, therefore, repeat it, although I very much support everything that he said on the subject. However, I should like to make the point that this problem extends way beyond the teaching profession and includes not only the youth service but also all the mentoring initiatives that the Government are so laudably instituting. The chief social worker in the Stepney Children's Fund, of which I have the privilege to be chairman, said to me just the other day, "I'm really worried about this situation. This is the only crime for which you are assumed to be guilty unless you can prove yourself innocent". That is the kind of mood that exists in the youth service today in many places.
I must admit to some sympathy for the objectives of Amendment No. 18. As a serving university teacher, I suppose I ought to declare an interest in that view. I have not yet been the subject of a false accusation, but I have a year and a half to go before retirement and one cannot be too careful. The use of the false accusation as a weapon of malice has been known to the law since before the limits of legal memory, which means that historians may take an interest in that evidence and lawyers may not.
It is extremely difficult at one and the same time to have the necessary severity for dealing with genuine offences and the necessary sensitivity for the fact that some people who are accused of those offences are not guilty. We try, but none of us, I believe, always succeeds. However, there is a further difficulty now; namely, that we face the danger of trial by newspaper where the principles of natural justice do not apply quite as strictly as they do in the proceedings of a court. This is a matter that clearly needs attention.
However, were the noble and learned Lord to say that the problem goes rather wider than the provision in this amendment, as, indeed, the noble Lord, Lord Northbourne, just observed, I should pay attention to that point. Similarly, were the noble and learned Lord also to say that this matter is related to the problem of the working out of a relationship between the press and the Human Rights Act--a problem that has given rise to a large amount of wallpaper--I should also pay attention to that view. I hope, therefore, that the Government will seriously consider the matter. I look forward to hearing the response of the noble and learned Lord as to whether or not they will do so in the form suggested in these amendments.
I should like to say a few words about some of the other amendments in this group. I have in mind Amendments Nos. 23 and 42, which propose the deletion of the expression "full-time", and Amendment No. 40, which seeks to delete the word "regularly". I understand the object of these amendments and it is a good one. But the question is: have we here arrived at a clear and workable situation? Normally when one has a provision to include the expression "part-time", one has a maximum number of hours that will qualify for inclusion as part-time. However, we have no such qualification here. I believe I understand why that is so. But are we moving into a situation that may be rather more far reaching than we really intend--for example, one where a single meeting, in which a relationship of trust may subsist for about an hour, is covered if the people concerned meet perhaps several months later and a relationship then develops after the relationship of trust is over? We need some boundaries as to how far this will extend. I look forward with interest to hearing what the noble and learned Lord has to say about that question.
I am grateful to my noble friend for having raised this important point. However, I should like to add my voice to those who have suggested that the amendment, as presently drawn, is rather narrow referring as it does to,
"teacher at an educational institution".
I have already wearied Members of the Committee with my practical, first-hand experience of a former care home. However, I have experience of this particular kind of case. The people at the home in question were not angels; indeed, they were very angry young people who would try almost anything to get revenge on society, which they held responsible for their plight. Most of the staff who looked after them were carers, not teachers, and, therefore, would not have the protection that I believe is proposed in this amendment. The vast majority of those carers were men and women who had devoted their lives to what was often a very thankless and unproductive task; namely, trying to mend the lives of those young people. If the Minister accepts the thrust of what we are now proposing, I hope that he will find some way to bring in the wider group of people who devote their lives to the care of such young people.
My Lords, I support the view just expressed by my noble friend. I ask the Minister to be prepared to extend the parameters proposed in the amendment and not to reject it as having parameters that are too narrow. I hope that we can establish the principle tonight that this sort of protection should be given to people who are accused of heinous crimes, quite possibly unjustly, which, once publicised, will destroy their careers irrespective of whether or not they committed them. That principle needs to be accepted. If we can go on from that point to extend the protection to those in other professions, which I believe to be essential, we should do so. However, I do not want us to reject that principle at this point.
I hope that the Committee will forgive me because I spoke only to Amendment No. 18 in my opening remarks. In my enthusiasm and support for that amendment, I did not speak to the others in the group. I do not believe it to be necessary for me to go over all the reasons for extending the categories, because we addressed that argument when discussing Amendment No. 17. However, I wish to add mentors, as established under the Learning and Skills Act 2000, and part-time teachers. If a category of teachers is to be included as being in a position of trust over children, it seems to me that part-time teachers are as important as full-time teachers; indeed, I would argue that they are probably even more so. From what we know about people who act in this way--especially paedophiles--they seem to move around a lot from post to post. Therefore, it seems to me that part-time teachers need to be included, as well as full-time and part-time trainers. It is a question of ensuring that there are no extensive loopholes, which would be the case if these amendments were not accepted.
In answer to the noble Earl, Lord Russell, I can tell him, first, that this does encompass matters that extend rather wider than those presently before the Committee. Secondly, this will involve the working out of relationships with the press under Article 8, and the right to privacy and family life under the Human Rights Act. Thirdly, in answer to his question as to whether this proposal is clear and workable, the answer is no. Fourthly, I can tell the noble Earl that I believe he is safe from any charge because this relates to an offence for a person aged 18 or over, which I believe him to be, whereby that person commits an offence with a person under the age of 18. Fortunately, as he told us earlier, the noble Earl's students are normally over the age of 18.
This is an example of an amendment which is not capable of working for many reasons. The noble Baroness altered her original amendment, which mentioned no publication before conviction, to no publication before charge. Incidentally, I accept that the court process which addresses these serious offences is extremely lengthy. However, I utter the happiest words in the English language when I say, "I told you so". When we tried to introduce some rational proportionality to reform of the jury system, none of your Lordships agreed although I said that important cases were delayed in favour of the less important.
Why will the amendment not work? The offence to which it refers is to be found at the bottom of page two of the Bill:
"it shall be an offence for a person aged 18 or over--
(a) to have sexual intercourse ... with a person under that age; or
(b) to engage in any other sexual activity with or directed towards such a person, if ... he is in a position of trust in relation to that person".
Therefore, if an allegation of rape or indecent assault is made against a teacher--which could easily be made in the ways to which my noble friend Lord Stoddart referred--no protection for the teacher is offered by the amendment.
I mention another point of which I know the noble Baroness is aware. Let us assume that I have a daughter at school aged 17. There is an allegation against a teacher for having sexually interfered with another girl of 17 in the same class. Amendment No. 18 states:
"Where an allegation has been made that a person has committed an offence under this section and the person is a teacher at an educational institution, it shall be unlawful to publish ... that person's name".
I should be enraged beyond description if I were not to know of those circumstances. It might even be the case that the teacher in question had admitted matters to the senior teacher or the headmaster. However, under the terms of the amendment, it is an offence for me to know. I believe that that interferes grossly and wrongly with my rights as a parent.
Secondly, the amendment relates only to teachers. It does not mention, for example, a priest who may visit a school and who is as vulnerable, or perhaps more so, to a certain kind of malicious allegation, particularly a priest who may be celibate. It does not mention a school caretaker who has his life and his rights although he may not be regarded as a mainstream professional. It does not mention a visiting doctor or nurse. It does not mention people--of whom there are a number in this Chamber--who occasionally visit schools, perhaps once, twice or three times a year, to give lectures on politics to schoolchildren.
I understand the problem that is being addressed but the amendment will not cure the mischief. What will cure the mischief in some cases, although I concede not in all cases, is for charges of malicious prosecution to be brought. The noble Baroness is wrong to suggest that anyone has to prove innocence. My noble friend Lord Stoddart made a point which resonates with me. Both my parents were school teachers and I was a school teacher for a time. What is the difference between a false allegation against a teacher and a false allegation of indecency or indecent exposure against a well regarded bank manager? The noble Baroness says there is none. I agree. I make my next point as carefully as I can. That is why it is extremely dangerous to try to legislate on a piecemeal basis solely on the basis of what I accept is legitimate sympathy. That is a certain recipe for bad legislation.
A university lecturer may well be seriously damaged by a false allegation. Under the terms of the amendment he, or she--I am told by some that the latter is less likely--will have no protection at all. That is not workable, particularly as the other amendments in the group concern part-time teaching. Is someone who is giving part-time instruction to be protected in this way, but if the allegation is rape there is no protection?
I readily concede that it is difficult to procure a rational, overall justification for the approach we have to anonymity in sex cases. I do not pretend that that is wholly rational or intellectually sustainable. However, I counsel the Committee against introducing further anomalies on a piecemeal basis which will only make the situation unacceptable and worse. I return to my initial question; namely, why should I as a parent not know about the matters I mentioned?
I intervene briefly to ask the Minister whether he can accept the principle I mentioned. I accept the point about legislation on a piecemeal basis. However, what interests me is the whole question of anonymity where an unjust charge can destroy someone as effectively as if that person were convicted of it. The Minister's answer is that other persons interested in a case have the right to know what is going on. Presumably, the relatives of the child making the allegation will know because in loco parentis they will have the right to know. I take it that when the Minister said that he, as a parent, had a right to know he meant as a parent of another child in the class. Is that the case?
That is precisely the illustration I gave. I said that my 17 year-old daughter is in a class and another 17 year-old is the complainant. I say that I have a moral right, if not a legally assertable right, to know. I would find if extremely surprising if any parent in this Committee took a different view.
However, I did not fully deal with the noble Lord's point. As soon as the noble Lord identified his test, the answer offers itself; namely, there is no answer which can accommodate his question. I remember the Lord Chief Justice of the time mentioned my next example. I refer to the bank manager who is accused of indecent exposure in a small community; the priest who is accused of theft; and the person who sells poppies who has been in the Royal British Legion and attended the Cenotaph service for the past 40 years. They are also destroyed by such charges.
No, because the charge of theft--the noble Lord referred to certain charges and I shall try to dissect that--against someone who has committed 25 previous thefts and has been imprisoned is in a completely different qualitative category from the allegation of theft against the poppy seller who has been a devoted servant of the Royal British Legion and has attended the Cenotaph service for 40 years. Those cases are utterly different. The charge in the latter case may well be destructive of that man's life. In the former case, the person concerned hardly cares tuppence because they have, as we say in the trade, "form as long as your leg". One cannot legislate in this way. This is an unpalatable response but if one wants to have a society in which justice is public, I do not think that a remedy will be forthcoming, and certainly not in this piecemeal way. I repeat my question; the allegation of rape would be publishable, but not the allegation under the measure we are discussing. That is not a trivial or drafting question as there are difficult questions involved here. If I knew the answer to them, I should be as happy as the noble Lord, Lord Elton, to hear my response.
I appreciate the difficulties posed for my noble and learned friend which are as considerable as those for the rest of us. Those of us who have supported the amendment are perhaps in greater difficulty.
However, the people we are discussing are in a special position and, indeed, they are in a special position in the Bill because of what they are and what they do. Therefore if they are being put in a special position, and if they are being put in a worse position than anyone else, they are entitled to greater protection than anyone else. Is that not so?
My noble and learned friend talks about the family of the girl or boy who has been sexually assaulted being entitled to know and the general public--the parents of children who go to the school--being allowed to know. However, the boy or girl who makes the allegation is protected for all time. He or she will never be named. So there is no equity there. That is why I am concerned that we should try to find some balancing factor.
My noble and learned friend raised the point that when a teacher is alleged to have committed an offence, it will be difficult not to name him perhaps because he admits the offence. But if he admits the offence it is no longer an allegation; so that argument will not wash. I know that the Minister will have difficulty in accepting the amendment but we are all apprised of the enormous problems that the situation is causing. I implore my noble and learned friend to consider the issue very seriously indeed. I urge him to take the matter away to his department and perhaps to the Law Commission, asking it to undertake an urgent job on trying to protect people who are in a position of responsibility in relation to children and young persons. The matter is urgent. The public are getting very worried about what is happening. They are concerned about unfairness. I know that my noble and learned friend feels the same as we do. I ask him, therefore, to try to do something as a Government even if he will not accept the amendment; and I appreciate his difficulties.
They are not difficulties that I have. They are difficulties which arise from the unworkable nature of the amendment. That is quite different.
First, in my illustration I did not say that the general public had a right to know. I repeat what I said. If I were the father of a 17 year-old child and another girl had complained about the teacher I would wish to know about the allegation; and I think that I would be entitled to know about that.
Secondly, my noble friend Lord Stoddart said that those people have been put in a less favoured category in the Bill. That is not so because the provision refers only to teachers. It does not refer to supervisory people in children's homes. A lesson might be learned from the Waterhouse report: that when the allegations were made they should have been published. That is the other side of that particular penny. I understand what my noble friend says about the Law Commission considering the matter. A number of us know that a lot of thought has been given to the issue of anonymity for complainants in sexual offences and different conclusions have been arrived at in relation to anonymity for defendants in sexual matters. If anyone present today, or who reads these debates, is able to produce a workable formula, which I doubt, no one would be happier than me.
I am interested that the noble and learned Lord hinges much of his opposition on the fact that the amendment covers only teachers and not care workers and others. If that is the argument, I should have a good deal of respect for it. My guess is that the noble and learned Lord is against our amendment on principle and that these reasons are being used for not accepting the amendment.
The noble and learned Lord cannot get away from the fact that there is a specific issue for teachers in schools. One knows from the statistics that it is teachers who are maliciously or vexatiously accused of sexually or physically abusing a child. We are not referring to poppy sellers who are wrongly accused of having their hands in the till. The amendment empathises with the teachers in this plight and sympathises with them. I should be interested to know where the noble and learned Lord stands on the principle. If he says that there should be reference to all staff in schools, we shall attend to that point on Report. We shall even broaden the provision to care workers or make it a blanket provision until charges are preferred.
As regards teachers admitting the allegation, I know of a personal example. My children were at a school where the head teacher was convicted of abusing children. The moment he was approached he admitted it. The charges were preferred within 24 hours and that was the end of it.
Perhaps the noble and learned Lord will also remember that a teacher is automatically suspended. We do not interfere with that. The teacher would be suspended. There is no doubt that in the noble and learned Lord's example of being a parent of a 17 year-old girl, he would know. But what about the media? Is the noble and learned Lord sympathetic to the notion that the media do not have the information; that parents should be barred from going to the media--newspapers and local radio? It is that kind of publicity which does for the teacher who has been maliciously accused of sexual abuse of a child.
All these questions demonstrate the impossibility of making the amendment work. I gave the illustration of theft by the poppy seller because the noble Lord, Lord Elton, asked: should there not be some protection for those whose lives may be devastated by the mere bringing of the allegation? It seems to me that he was entitled to a response which I gave. I dealt with the question of the teacher because the noble Lord, Lord Stoddart, said that teachers were disadvantaged by the Bill. I have pointed out accurately that they are not uniquely disadvantaged.
The noble Baroness says that a teacher would be suspended and that I as a parent would know. I would know of the suspension; I would not know the charge. The suggestion that if an allegation is admitted it becomes no longer an allegation is unknown to any system of jurisprudence which I recognise.
We have heard enough to know that there are difficulties with the amendment. I wish to reflect on what the noble and learned Lord said and to bring back the amendment on Report. I believe that there is a real issue here.
My only regret--it is a serious one--is that there was not more empathy for the teachers and the plight they have. It is a very real issue for them. The Government have not responded with empathy to them in that plight. I regret that. However, I beg leave to withdraw the amendment.
moved Amendment No. 19:
Page 3, line 31, at end insert--
("(6) No proceedings shall be instituted except by or with the consent of--
(a) in England and Wales, the Director of Public Prosecutions;
(b) in Scotland, the Lord Advocate; or
(c) in Northern Ireland, the Director of Public Prosecutions for Northern Ireland, against any person for an offence under this section if the person was at the time of the commission under the age of twenty-one.").
The noble Earl, Lord Russell said at dinner that I had drawn the short straw in the timing of my amendment. How right he was.
Most of the amendments to Clauses 3 and 4, with the exception of Amendment No. 18, which we debated before the dinner break, are designed to plug loopholes inadvertently left by the Government. This amendment is rather different, going slightly in the opposite direction. It is designed to provide a safeguard against the well known law of unintended consequences, which could otherwise lead to draconian action against the undeserving, or at least the not very deserving.
Vulnerable young people must be protected from sexual exploitation by people in authority who are vastly senior to them in age and perhaps in other respects and who are accordingly difficult for the young people concerned to rebuff. On the other hand, throughout human history all over the world, young people of roughly similar age, intelligence and interests have fallen for one another in unexpected circumstances. The fact that the slightly older party may be technically in a position of trust is almost irrelevant to the romance--or to the affair, if one wants to be slightly more cynical.
Consider a 19 year-old nurse who is caught kissing a 16 or 17 year-old patient who may look 20 or more, or a 20 year-old carpentry teacher caught embracing a 17 year-old pupil. Surely none of us wants them to be sent to prison for two years, or even brought to court to face a fine. The Bill makes even the mildest sexual contact illegal.
Different considerations apply should the younger party have a mental age of 10, for example. In that case, a prosecution might well be appropriate. Nothing in the amendment would prevent that after careful consideration at the highest level. The amendment is designed to protect young people of a similar age who happen to hit it off with one another.
I hope that the Government and the Committee will accept this modest safeguard against unmerited, unnecessary and undesirable prosecutions. I beg to move.
The Law Commission has dealt with the issue and reported in 1998. The Solicitor General in another place welcomed its report in principle. It set out the following criteria for consent provisions for the prosecution of offences: where prosecution might violate a convention right; where it might involve national security or some other international element; and where there might otherwise be a high risk that the right of private prosecution would be abused and the institution of proceedings would cause irreparable harm.
The amendment is not desirable, but I hope that the noble Lord, Lord Monson, is comforted that in the case of ill-founded, malicious or vexatious prosecutions, Section 6(2) of the Prosecution of Offenders Act 1985 gives the Director of Public Prosecutions the power to take over and discontinue a private prosecution. As the Crown Prosecution Service is directed by the DPP, he would be able to give guidelines about when charges should be brought, if he thought it appropriate. I hope that that is of assistance to the noble Lord.
I am grateful to the Minister for that reply. I was not thinking of private prosecutions or of malicious or vexatious ones. I was thinking of legitimate prosecutions in cases in which technically an offence had been committed but when in practice it would be unfair or unreasonable to prosecute. However, if the Minister assures me--I think that he probably has done, but I must read his comments in Hansard--that in practice the effect of the amendment will be carried, I am content to withdraw it. I shall have to study the Minister's comments, but for the moment I beg leave to withdraw the amendment.
This amendment was linked to Amendment No. 17. Clearly, now that Amendment No. 17 has been carried, I should have thought that "four" must include "five" because we have passed the other condition. I do not believe that there is a need for me to add anything further to the argument. I beg to move Amendment No. 20 and I hope that the Government will accept it.
Before the Deputy Chairman entered the Chamber I spoke to the noble Baroness to explain which amendments the Government found acceptable and which they did not; that is, which amendments were consequential on Amendment No. 17 and which were not. I am very sorry that that was not put in writing. I believed that it would be more useful if I explained the situation orally, and that is what I did.
If the noble Lord will forgive me, we were preparing for the next amendment. The Deputy Chairman was about to walk through the door. The noble Lord was indicating across his paper and saying this, that and the other. I did not take it all in. I should like to know which amendments the noble Lord considers to be consequential and which he does not.
Perhaps I may help the noble Baroness. The Committee has passed Amendment No. 17. However, I am advised that Amendment No. 20 is not consequential on Amendment No. 17. It raises the number "four" to "five". So far as concerns the other amendments in the group, Amendments Nos. 21 and 22 stand on their own. Amendment No. 30 would be one possible fifth condition if Amendment No. 20 were passed. Amendment No. 31 would be another completely different fifth condition if Amendment No. 20 were passed. Amendment No. 34 would be yet another fifth condition if Amendment No. 20 were passed, and Amendments Nos. 35 and 36 would in themselves both be fifth conditions if Amendment No. 20 were passed. Therefore, we argue that the amendments are not consequential. In fact, the latter amendments are alternatives. It is right that Amendment No. 44 in the group is consequential on Amendment No. 20.
I am not sure that I follow that. I understood the noble Lord to say that Amendment No. 17 stands alone and that Amendment No. 20 is not consequential on Amendment No. 17. Nevertheless, Amendment No. 20 is the paver for the ones that follow. Amendments Nos. 21 and 22 stand alone. However, Amendment No. 20 is linked and therefore must be a consequential amendment for Amendments Nos. 30, 31, 34, 35, 36 and 40.
Forgive me; I have not explained myself fully. Amendments Nos. 30, 31 and the other amendments that I mentioned are all quite separate from each other. They represent different alternative fifth conditions. They are not linked. They are all different conditions. In effect, they stand one against the other unless it is intended that they should be fifth, sixth, seventh and eighth conditions. Therefore, although they cannot even be voted on unless Amendment No. 20 is successful, if they are voted on, they will all be different, one from the other.
Perhaps I may ask the noble Lord how it is that they are grouped together. As I understand it, the matter of grouping is one on which the Government must make a decision and on which they must agree.
I understand that Amendment No. 20 can pave one, but only one, fifth condition. Therefore, were we to vote on Amendment No. 20 and to carry it, we would pave a fifth condition. However, we would need to know which of the possible amendments listed as the fifth condition was the one that we were paving. Were the amendment to have been worded "fifth", "sixth", "seventh" or "eighth" condition, it could have paved the way for them all. However, only one condition can be fifth; at least, that is my understanding. I hope that I have interpreted the Minister and the Bill correctly.
That was not what we were advised by the Public Bill Office; nor was it a courtesy offered to us by the Minister when we voted on Amendment No. 17. I believe that many noble Lords left this Chamber believing that they had voted for these amendments. They will learn to their horror that they had not.
Before I decide what to do about Amendment No. 20, will the noble and learned Lord answer the question that I posed in relation to Amendments Nos. 21 and 22? I explained that I believed it to be important that protection should be offered to a young person who was normally resident at a home but who was farmed out to a bungalow, such as one referred to in the Bryn Alyn case, or somewhere else and who was not technically in that particular institution at a given time. It would be helpful to have from the noble and learned Lord an answer to my interpretation of what I believed my amendment meant.
We are going back a long way in our debate, but I am happy to do it. The noble Baroness's concern is not well founded. A young person may be resident in an institution, even if he is temporarily elsewhere. Plenty of precedent exists for such a situation; for example, in immigration or benefit law.
The wording on the face of the Bill as it stands is that protection applies only if the person in question is resident. Is the noble and learned Lord saying that someone who is normally resident but at a particular time has either absconded or is in a place other than the institution would receive protection under this particular clause in this particular Bill?
If I am resident at my home, I remain resident at my home, even if at the weekend I stay in a hostel or a hotel elsewhere. I am resident at my home. Therefore, a person may well be resident in an institution even if temporarily he is somewhere else.
Perhaps I may use an analogy. In an insurance claim one can be compensated for the loss of a piece of equipment or jewellery if it is under lock and key in a residence. However, if the item is lost when one is travelling en route, some insurance companies will not meet a claim for compensation simply because at the time of the incident the item was not where it should have been. For the purposes of Pepper v. Hart it is important that I get this absolutely right. Is the noble and learned Lord saying that my concern is unfounded?Is he saying that if someone has absconded and an offence takes place or someone is somewhere else other than the place where he is normally resident, he is still protected under this particular provision which says "is resident in"? If the person has absconded, he could be resident, albeit temporarily, somewhere else.
I cannot make it plainer. The noble Baroness is confusing two concepts. She uses the description "in a home". That is not what the Bill says. "Resident in a home" is a legal concept and residence in a home continues even when the individual is not physically in the home.
It is Committee stage so I can press the noble and learned Lord to be helpful. It would be extremely helpful if he simply said "yes" to me but he is avoiding saying that on the record.
Clause 4(4) states:
"The third condition is that A looks after persons under 18 who are accommodated and cared for in an institution which is ... a hospital ... residential care home, nursing home, mental nursing home or private hospital; ... a community home, voluntary home, children's home or residential establishment; ... or a home provided under section 82(5) of the Children Act 1989, and B is accommodated or cared for in that institution".
My amendment includes the word "normally" because it is possible that at the time of the offence, a person may not be accommodated in that institution. It does not say "normally resident"; it says "in an institution". If the person is not accommodated in that institution but, nevertheless, is a person of that institution, would he be protected under this clause?
The noble Baroness is asking me a third question now. Her original question was focused, I assume, on Clause 4(3). The second condition is,
"that A looks after a person under 18 who are resident in a home or other place".
I have made it quite plain. That is a legal concept on which it is for the courts to adjudicate.
It is no good asking me whether a person is in a home, and it has nothing to do with insurance claims. I cannot make it any plainer than I have.
My amendment does not relate to subsection (3) but to subsection (4)(d). The second line of that subsection states:
"a home provided under Section 82(5) of the Children Act 1989, and B is accommodated and cared for in that institution".
If the noble and learned Lord is right in what he is saying, he should be able to say "yes" to my question. Does the protection continue to apply if the offence takes place with a child who is normally resident or normally accommodated in the home but, for the purposes of the offence, is not in the home because he has absconded or is at another residence, accommodated in another place? The Bill does not say "normally resident"; it says "is accommodated in".
If the noble and learned Lord says that the protection continues, then I do not have to worry about my amendment. But if he cannot give an affirmative answer in that regard, I shall continue to have that worry.
That is not the question that I was originally asked, which related to the word "resident". I shall put "resident" and "in a home" on one side because they no longer seem to be the phrases in question.
A person is accommodated and cared for in an institution even if that person, on occasions, while being accommodated there, for example, goes out of the house, out of the institution and out of the care home. I have never myself understood it to be suggested that "accommodated" means that you have to be within that accommodation for every second of every day in order to have that protection. It is a question for the courts to adjudicate on. But I repeat that they are well-known legal concepts. That deals with "accommodation".
Perhaps I may pursue this further because it is an extremely serious matter. It is not just a kind of legal quibble. If you are not a lawyer, it is quite difficult to follow the argument.
I can read what it says here about being "accommodated" or "resident" in. The noble and learned Lord seems to be saying that when the boy is not in the home, it would be for the courts to decide whether or not this provision applies. Is that security enough?
We are saying that if the boy has absconded, for example, and is therefore living somewhere else, and certainly not accommodated in the home or resident in it, is he covered? If I understood him right, he seems to be saying, "It is perfectly all right. Do not worry about it all. It means he is really there and the courts will decide whether he was there or not". He clearly was not there. I do not understand the point.
Perhaps I may offer some assistance. If I put it in non-legal language, it sounded to me as thought he noble and learned Lord was saying that the person remains, as it were, on the books of the home whether he is in it or out of it. That is what I understood the noble and learned Lord to be saying and it may be helpful to put it in that language to see whether that is indeed what he is saying.
I have been trying to say that, and I am most grateful. If a person is absent from the institution where he is either "resident" or "accommodated", he is still protected. I repeat that he does not have to be physically present for 24 hours of every day. I repeat that my residence remains what it is even if I am away from it.
The noble and learned Lord could have circumvented this discussion a lot earlier simply by saying that I am right. I make a distinction. I am not talking about going out shopping, going to a cinema or going to play somewhere with friends. I am talking about a young person who has absconded from an institution--and I am sorry if the noble and learned Lord is offended by the word "home"--or is on a long break in a holiday house somewhere. In the Bryn Alyn cases, young people were positively farmed out to a group of paedophiles living in a bungalow somewhere other than the home. So those young people were not accommodated in the home, although they were normally cared for and accommodated in that institution.
The more the noble and learned Lord has spoken, the more I believe that the words "normally accommodated and cared for in the institution" are appropriate. I wish to test the opinion of the Committee.
When, after the Dinner break, we discussed which amendments were consequential and which were not, the noble Earl, Lord Russell, said that if Amendment No. 20 were passed one of the numbered "fifth" conditions could be moved. Amendment No. 20 would be a paving amendment to one of those. However, any mention of a fifth condition would be inappropriate because in defeating Amendment No. 20 the Committee has agreed that there shall be only four conditions.
Perhaps I may ask two questions. First, given that there is a rumour to the contrary, will the noble and learned Lord say whether it is intended that the Bill shall receive a Report stage? Secondly, the noble Lord, Lord Bach, will know that the fifth condition proposed in Amendment No. 20 is a technicality. One cannot say "sixth, seventh, eighth, ninth and tenth" because the technicality is that there shall be a fifth condition. Therefore, the amendments would have been grouped and it is not right to say that only one would have been acceptable.
Perhaps I may also ask for advice from the Clerk. I understand that as regards a fifth condition it would not be appropriate tonight to press Amendment No. 24, but if the parent, adoptive parent and so forth became part of the relevant category, would it be necessary for the Government to find the appropriate place for it in the Bill?
The future conduct of the Bill is entirely a matter for the business managers and not for me. I believe that the advice given by my noble friend Lord Bach is correct.
I rise with the intention of being helpful but I doubt whether I shall succeed. If the argument is that we cannot proceed with further amendments which add a fifth condition because the amendment which would allow that has been defeated, these matters could be aired on the Question whether the clause shall stand part of the Bill and the Government would have an opportunity to consider them before the Report stage.
Perhaps I may return to Amendment No. 24. It is a matter which we shall raise at the Report stage and I want to give notice of that. I am astonished that the Government Front Bench and those on the Benches behind them do not see the issue as being serious. Incidentally, it was raised in their White Paper, Setting the Boundaries, and it was recommended that it should become law.
I shall not press the case because I take the point that the possibility of a fifth condition has been defeated but I want to make it clear that we shall return to the matter on Report.
I wonder whether I am the only person who is now thoroughly puzzled. I heard the noble Lord, Lord Carlisle, make a helpful proposal, which I then heard the noble and learned Lord the Minister accept as helpful, namely that it is possible to work on a clause stand part basis. I then heard the noble Baroness, Lady Young, take no notice of that, and, it sounded to me, lose an opportunity to work on the material, as she was being given an opportunity to do by the noble and learned Lord the Minister. I am therefore thoroughly puzzled. I wonder whether I am the only person who is thoroughly puzzled or whether I, too, have misheard it all.
My understanding--and I thought that the learned Attorney-General agreed with me--is that on the issue of clause stand part you are entitled to discuss not only what is in it but other matters relevant to it. I see the learned Clerk nodding. It seems to me, therefore, that although one cannot at this moment move any of the particular amendments that refer to a fifth condition, it is possible on a debate on clause stand part to raise the issues covered in those amendments and invite the Government to say what their general view is and what they are prepared to consider, so that amendments can then be put down on Report in the knowledge of the Government's overall reaction.
I can only repeat that I agree with what the noble Lord, Lord Carlisle, has said. But it is a matter for the noble Baroness to take what course she pleases on her amendments.
Perhaps I may ask the noble Lord whether it is the case that there is no reason why Amendment No. 41 should not be moved, because it is not dependent on a fifth condition. Amendment No. 41 comes naturally before Amendment No. 44. No mention is made of a fifth condition so far as Amendment No. 41 is concerned. Therefore, the noble Baroness, Lady Young, is perfectly entitled to move Amendment No. 41 if she wishes.
I think we have confused two questions here. As I understand it, the noble Lord, Lord Carter, was responding to the question as to what point we have to reach before we can have a general discussion on clause stand part. I agree with him. The noble Lord, Lord Monson, has picked up a different question: how far down the list of amendments do we have to go before we reach a point where we are not blocked by the existence of a fifth condition? It is a different question. The noble Lord, Lord Monson, is also right.
The wording of this amendment makes its meaning perfectly clear. It seeks to protect children from adults who are in loco parentis. Once again, we are talking about an abuse of trust by adults who are in a position of trust with children, defined in law as 16 year-olds and others. This amendment includes them in the list of those people who have been excluded by the Government's very narrow definition of "abuse of trust" in this Bill. The amendment is perfectly clear and I hope that the Government will accept it. These very serious points arise not only from the Waterhouse inquiry but the fact that currently another 32 inquiries are being conducted into local authority children's homes of one kind or another. When we have an opportunity to try to correct some of the matters that have been identified as being wrong we should do so. This important category stands with all the others. I beg to move.
If one looks at subsections (2) to (5) of Clause 4, a person who cares for, trains, supervises or is in sole charge of a young person is already covered by the proposed offence and will frequently be "in loco parentis to". We find it difficult to envisage circumstances in which a person would be in loco parentis and yet would not look after a child. After all, if one asks what it is that parents do--in other words, what "in loco parentis" means--they look after children. One possible example is the director of the social services department of a local authority. He may be in loco parentis, but it is very unlikely that he will ever come into contact with the child, let alone engage in a relationship. A person such as a head teacher or head of a care home will have more regular contact with a child, but that individual will have a caring and/or supervisory role and, therefore, is caught by the "looks after" requirement.
My understanding is that this additional category is unnecessary. I take the points that the noble Baroness makes. Without giving any particular promise, I shall look at the matter again with officials to see whether there is truly a gap which needs to be filled. At the moment, my advice is that there is no such gap. Bearing in mind the concern of the noble Baroness, I am more than content to review the position with officials.
I attach considerable importance to these amendments. Having lost the previous Division, perhaps we shall return to many of these matters on clause stand part, but that puts them in a very different position. I am grateful for the noble and learned Lord's offer to look at the matter. When we discussed these matters earlier the noble and learned Lord referred to Clause 4(1) and the possibility of including further groups of people by statutory instrument. For example, at Second Reading he referred to the possibility of including scouts. Another group is the present one. That would be a constructive way forward which would meet our concerns. We shall listen with great interest to what the noble and learned Lord says at Report stage. I beg leave to withdraw the amendment.
This amendment is consequential on Amendment No. 18. My noble friend Lady Blatch and the noble Lord, Lord Stoddart, carefully pressed the whole case relating to allegations about full-time teachers. This consequential amendment covers part-time teachers, who would be equally involved. As my noble friend has agreed to withdraw her amendment for further consideration I shall not press the matter at this time of night. Once again, the particular case of teachers is a real one. We believe that since 1991 there have been well over 1,000 allegations made against teachers. There have been few convictions. But for many people, their lives and those of their families have been ruined, together with their relationships with neighbours and friends. Not only is that issue damaging to them, but--if I may take up a point made by the noble Lord, Lord Stoddart--it actually makes recruitment to the teaching profession more difficult.
From what I have read of his remarks, I believe that the right honourable Mr David Blunkett, the Secretary of State, is sympathetic to this case. I am at a loss to understand why the Government cannot draft their own amendment to meet the case of teachers, and in this case part-time teachers, who are affected by it. All the other cases referred to are of course serious. I am not in any way writing those down. The one professional group who could possibly be subject to these allegations--we know from the number of cases that have been brought forward--are teachers. Both for the sake of individual teachers and for the teaching profession as a whole, this matter needs to be looked at. I hope that the noble and learned Lord will be able to say that this is something that the Government can take away and redraft to meet what I genuinely believe is a real case. I beg to move.
In the context of what the noble Baroness, Lady Young, has just said, it occurred to me that those who accept the considerable responsibility of a post which puts them in a position of trust in relation to a child could reasonably expect to have some proper protection. It may be that it is in that context that some degree of confidentiality for teachers and other people who are defined as being in a position of trust towards a child could be afforded so that they are protected from the risks to which the noble Baroness has drawn attention.
I set out the Government's position fairly plainly. I regret to say that I do not think this amendment will be workable. I have not gone at any great length into the question of Article 10--the function of a free press in a free society.
The noble Baroness is quite right. It is undoubtedly true that my right honourable friend Mr Blunkett has had extensive consultations with the teaching unions. I repeat my own personal sympathy, although that does not take matters further forward. As I have said, both my parents were school teachers throughout the whole of their professional lives.
I take the point made by the noble Baroness. The difficulty is that we begin with teachers, but the noble Lord, Lord Northbourne--who has also had discussions, from which we have all benefited--then extends it to others. I sympathise with the point that is made. I simply question whether one will ever be able to draft a law to cover this issue. One simply adds to the category of anomalies. I am always willing to think about things, but I would not want the noble Baroness to think that there is a likely happy outcome for her concerns.
We had this discussion privately last week. What I find disappointing is that the noble and learned Lord, together with his advisers, feels that he cannot bring forward an amendment to meet this difficulty. I would guess that there is no one in the Chamber who does not have sympathy for the situation in which these people find themselves. Many members of my family have taught. I have a daughter who teaches full-time in a maintained school so I am very conscious of the kinds of situation which arise. I believe profoundly in the importance of teachers and in getting high quality people to go into teaching. But I can assure the House that a great many able graduates would not consider going into teaching. They do not quite laugh at the prospect, but, apart from anything else, why should they take this kind of risk?
It gives me no pleasure to say that, because it is such a serious situation. I shall, of course, withdraw the amendment but I very much hope that the noble and learned Lord, perhaps in conjunction with his colleagues in the DfEE, who must be very concerned about the effect on the teaching profession, will consider the matter carefully. I know that it is not easy--lots of the most difficult problems are not easy to solve--but that does not quite exonerate us from trying to do so. I beg leave to withdraw the amendment.
Despite the lateness of the hour, I wonder whether I might take up a little of the Committee's time to discuss Clause 4.
My understanding of the position--I should be grateful for the agreement of the Attorney-General when he comes to reply--is that we have voted to retain 18 as the age below which buggery will be a criminal offence, but we have accepted those clauses of the Bill which provide that other sexual activity, if I may use a general phrase, is a crime only when committed against a person of 16. The Government have then gone on in Clause 3 to say that, despite that decision to lower the age of consent to 16, in certain circumstances, where there is a person in a position of trust, it shall still be an offence for that person to engage himself in any other sexual activity or to have intercourse with a person who is under his care at that time. Clause 4 then sets out the meanings of the phrase "position of trust" and proposes the four classes which the Government recommend should be covered by that new offence.
In an earlier discussion I referred to the cases we faced on the Criminal Injuries Compensation Board. While I accept that almost by their very nature the offences we are considering are offences where the abuse is a criminal act and therefore would remain a criminal act because they are done without consent, I am sure the Attorney-General would agree that the issue of consent is not necessarily an easy one to decide. What happens in many of these cases is not a question of physical coercion to impose the will of an older man on a younger child. It is first of all befriending a vulnerable child, particularly in a home where he is perhaps lonely and isolated. The older man is the member of staff to whom the child goes. From there the child starts being invited into the member of staff's room in the evening. Then perhaps "small favours", to use a phrase used by the Attorney-General at Second Reading--I read with great care what he said about these cases--are offered to the child. Small presents are given. Slowly, the child is moved into a situation in which he becomes involved in sexual acts with that individual without ever clearly either consenting or refusing to give consent.
In the Criminal Injuries Compensation Board it was easy to determine, on the balance of proof, that that consent had been suborned and was not real consent and therefore the act remained a crime of violence for which the victim could be compensated. But when it comes to prosecuting the individual in the courts and proving beyond reasonable doubt that the act he committed was carried out without the consent of the individual on whom it was imposed, it may be considerably more difficult to meet that burden of proof and achieve a result. I can understand why the Government have felt it necessary, in so far as any matter which is non-consensual is already a crime, to bring in provisions to cover where a person in a position of trust who acts in a sexual way towards an individual could himself, by that act, be committing an offence. It meets the case where it is difficult to say whether or not the act on the part of an individual is consensual.
The Attorney-General earlier explained very clearly why the Government felt it right to set out in Clause 4 the four classes of people who fall into such positions of trust. I do not disagree in any way with the arguments that he advanced. As he said, the gravamen was the fact that such children were being used or abused by those in whose care the courts had ordered them to be detained.
The purpose of all the amendments to Clause 4 is to ask whether we have covered adequately those groups of people in positions of trust whose influence on the individual may be such that they should also be put at the same risk of infringing the criminal law, should they involve themselves in sexual activity with that individual. Perhaps I may take, for example, Amendment No. 24, to which I have added my name. Over my years serving on the Criminal Injuries Compensation Board, experience taught me that, sadly, a proportion of abuse was concerned with the family situation. The amendment seeks to examine the position of the step-parent or half-sibling of the individual being abused. They are in a position of trust as regards that individual and thus, certainly in my experience, from time to time they will abuse that trust in a situation where it can be difficult to say whether they were committing an offence because they were achieving something that was non-consensual, but who have persuaded their step-child or half-sibling to involve themselves in acts to which otherwise they would not have agreed, had they had been freely able to consent. I believe that a recent Home Office publication examines whether abuse in the family is an area which should also require protection under the position of trust provisions.
Moving on quickly through the other amendments to the clause, I notice that Amendment No. 26 deals with members of a church or a religious organisation. Sadly, we all know that, over recent months, considerable publicity has been given to certain cases where a tiny minority of individuals have involved themselves with abuse of those in their care through a religious organisation. The amendment asks should they, too, be covered by the position of trust? Equally, should social care workers be covered by the position of trust? The final amendments ask whether a social services inspector of services should also be covered by the position of trust.
The general point I wish to make--to which I invite the noble and learned Lord the Attorney-General to reply--is this. Recognising the need for an offence of breaking a position of trust, is he sure that the Government have adequately covered the groups to which that offence should apply; or should they at least look again at the groups proposed by the Opposition? None of the groups can be voted on individually today because the paving amendment was defeated, but the Opposition may or may not wish to return to them at a later stage.
Perhaps I may take this opportunity of mentioning a matter which has concerned me throughout the Bill. Very often government spokesmen speak of the Bill as one which, somehow or other, extends the rights of young people. Frankly, I do not imagine that very many young people aged 16 or 17 who, if they were involved in some kind of sexual relationship with another young person, would run the risk of prosecution. The truth of the matter is that if the Bill bestows rights on any particular class of person, it bestows rights on older people who may be minded to prey on young people. That is the problem with the Bill.
I would not mind if the Bill dealt with that situation--I am sure that, with some ingenuity, it could have done--but it riles with me that time and time again people get up and say "This is all about the rights of people aged 16 and 17". It has nothing whatever to do with that. What makes me such a fervent opponent of the Bill is that it confers rights on those who may be minded to prey on young people, and prey on young people who, as I said earlier, are mere children in terms of international law and the international documents which control these matters.
What is wrong with the clause is that it is not as wide as it could be. People like myself could be completely mollified. If the Government were to take the view that, in every case where there could be the opportunity of someone taking advantage of young people, the young people were protected, I would be a happy man. We do not get that attitude from the Government; instead, we get exactly the opposite and they say, "No, no. It is far too difficult. There is no real position of trust there. We cannot accept this amendment, we cannot accept that amendment".
If they were prepared to face the concerns of the public, the Government would be willing to extend the abuse of trust provisions as wide as possible in order to prove to the public that they were giving new rights to young people while at the same time protecting them against those who might be minded to prey on them. That is what has worried me throughout the whole of the Bill and why I have taken this opportunity on clause stand part to say these few words.
Perhaps I may put again in summary the point I made earlier, although at the wrong moment, to the noble and learned Lord the Attorney-General by reference to something which the noble Lord, Lord Carlisle, said. If I heard aright, he summarised the Minister's insistence on four conditions only by saying that the gravamen of all four of them was that they had to do with young people who were committed to particular institutions by the action of a court or within the law. But it seems to me that only the first two of the conditions in the Bill fall under that head and that the third and fourth, set out in subsections (4) and (5) at the top of page 4, are more general.
I hope it is reasonable to raise again the question that I put to the Minister at a less opportune moment earlier. Why should there be an absolute distinction between the Government's commitment on the one hand to those elements that are in the Bill and their apparently acute reservations about including within the clause provisions relating to other elements of abuse of trust--including a reference to churches and religious organisations, which we on these Benches support, and the references to family in the broader sense?
I hope that, before Report stage, the Government will take a clear look at how many of the proposals on which we have not been able to vote today can be written on to the face of the Bill. I have heard no clear reason why the distinction that the Minister drew should be drawn and why as many as possible of these proposals should not be included in the Bill.
I shall detain the Committee only briefly. I am glad that Clause 4 is in the Bill. The noble Baroness, Lady Young, will remember that right from the beginning I supported her suggestion that some such clause should be included.
As the noble Lord, Lord Carlisle of Bucklow, explained with numinous clarity, we are dealing with a situation where there is an abuse of power. There is a situation of unequal power; therefore, there is an unequal relationship which gives rise to a serious possibility of oppression. It is right that we should deal with such situations.
We are, however, attempting something of extraordinary difficulty in the drafting. We have here a grey area. We have relationships that we clearly wish to prohibit and relationships that are on the edge of what we wish to prohibit. I take the courtship of Othello and Desdemona as an example of what I have in mind--where there is clearly an inequality of power and estate. I think it is just outside the scope of what we want to cover in the clause.
We have also a whole series of problems about the drafting of legislation. First, there is the problem to which the noble and learned Lord the Attorney-General has constantly, and rightly, drawn our attention: the problem of single issue legislation, which needs to be interlocked with the greatest of care with other legislation in the field. Listening to the noble and learned Lord, I was again reminded of a work on criminal legislation in the 18th century when there was a proliferation of criminal offences because everyone got angry about one thing in turn and legislated about it in isolation. As the author of that book put it, a member who was robbed of his turnips introduced a statute for the death penalty for stealing turnips, never thinking that the catastrophe that happened this year to his turnips might happen next year to his potatoes. So we need to be sure that we interlock the legislation with other provisions.
We need to be aware also of the dangers of single purpose legislation. Very often, in any Parliament, in any century, we get into a general state of strong feeling about one particular issue. We have usually identified a genuine mischief, but we never think that when the statute is used in court it will be applied to a case that is almost certainly oblique to our original purpose in discussing the Bill. So there may be an overflow effect, with the clause touching matters that we had no intention of touching.
In the case of abuse of trust, there are clearly relationships that we wish to prohibit. It is also clear that a relationship of trust and a sexual relationship cannot exist concurrently. However, there are cases where they have existed sequentially with, perhaps, a period of some length in between the two. I can think of many businessmen who have married their secretaries--in fact, that is a position of trust--where what has ultimately resulted has been a genuine loving relationship of a sort that we would not wish to see harried by the criminal law. Getting that boundary right is something of quite extraordinary difficulty.
Therefore, when we deal with amendments that define a position of trust, we need to be certain of the following factors: how long the trust goes on; when it is terminated, which is not clear in the draft of the Bill now before us; and how long a relationship creates a position of trust, which is why the amendments here regarding the words "full-time" and "regularly" raise questions that go a good deal deeper than we realise. I am glad that this provision is in the Bill, but I am not yet sure that we have got it right. Although we are, rightly, concerned about one particular issue, we must avoid the risk of single purpose legislation blinding us to its possible consequences in other areas.
As I understand it, Clause 4 is about the question of who is in a position of trust. It seems to me that the definition of "a position of trust" will, inevitably, sooner or later become an issue that has to be thought about and settled. That is particularly so in the context of those categories of young people and of adults who do not fall neatly into the categories of one or other kind of employment, activity or status in the family.
In my view, a position of trust comprises two elements, which the Bill perhaps does not make quite clear. There are two kinds of trust: first, there is the trust placed by the child in an adult. Such a person may be in a position to influence the child for one reason or another; for example, he may have the child's admiration through hero worship, he may have lived in the same household as the child for 10 or 15 years and, indeed, may be able to frighten or threaten the child or be able to flatter him with compliments, presents and treats. In that context, we must remember not only the bright, street-wise kid. We must also remember the kid with learning difficulties and the one who is on drugs and, therefore, desperate to get money. There are also other categories of vulnerable, young people.
Secondly, there is the trust placed by the state in an adult who is put in a position to look after children. Indeed, parents, guardians or the state may put you, me or someone else in a position of responsibility for a child. That is a position of trust. My Amendment No. 37, which I hope to have the opportunity to speak to at a later stage of the Bill's proceedings, suggests three categories of situation where a position of trust exists. The first relates to the trust that a child may have for certain adults. The second relates to the trust placed in an adult by parents, guardians and the state. The third emphasises the issue of undue influence, which is a key issue in defining a position of trust--as the noble Earl, Lord Russell, just observed, a position of unequal power.
I turn for a moment to the matters discussed under Amendment No. 24; namely, sexual abuse within the family. The noble and learned Lord was kind enough to arrange for me to receive a chapter from the Home Office paper, Setting the Boundaries. Having studied the text, I think that all noble Lords who are interested in this debate should take the opportunity to study it carefully before the next stage. It seems to me to consider the issues most sensibly and to come forward with very sensible solutions. I hope that the noble and learned Lord will be able to give us an assurance at some stage that it is the Government's intention to put as many as possible of the paper's proposals on the statute book as soon as possible.
I too am glad that Clause 4 forms part of the Bill. I am grateful to the noble Lord, Lord Carlisle, for engineering a situation in which it is possible to say that. However, it is important to bear in mind that we are talking about criminalising particular conduct. If we are talking about criminalising it, we have to think of the prospects of matters coming to court and the circumstances in which they may do so, as the noble Earl, Lord Russell, reminded us.
If the noble and learned Lord is able to show that some changes to these categories can be made in a way which leaves the position workable, I shall be happy with that. Indeed I should be pleased because it is important that young people--we are talking here about boys and girls--receive protection. However, I wish to draw attention to one concern that Amendment No. 17--which was passed earlier--gives rise to. Clauses 3 and 4, as they stood together, were concerned with a person who, while in a position of trust, engaged in sexual intercourse or engaged in any other sexual activity. It seems to me that the consequence of adding Amendment No. 17--which amends Clause 3--which includes as a criminal offence,
"preparing such a person to engage in sexual activity with him at a later stage", is the following. It adds a new dimension to the balance between criminalising conduct and the protection of the young.
One of the points powerfully made earlier today concerned the position of teachers or others in important positions who may be subject to unfair and malicious allegations. It would be right to say that the amendment made will have that impact in relation to those who are in positions of trust; that is to say, they will be open and more vulnerable to an accusation that they have been preparing someone for the activity I mentioned.
I say that at this stage because in considering the balance with regard to those categories of trust where children are most vulnerable and most in need of protection, and therefore where it is most justifiable to create a criminal offence, one must bear in mind that if one pushes the line too far, one may well put people who are doing a proper and good job at risk of allegations. Why are the allegations different? I refer to an allegation that someone has engaged in sexual activity--that is a definite and clear statement of conduct--and an allegation that someone has prepared someone for that at a later stage which must be much more open to interpretation of events. I respectfully suggest to the Committee that that must be carefully considered when deciding whether it is right to extend the categories in the ways proposed. As to the details, given that this is a general discussion on the clause rather than on the detailed amendments, I say nothing.
I am grateful to my noble friend Lord Carlisle for giving us the opportunity to consider these issues on a clause stand part debate. The noble Earl, Lord Russell, referred to the dangers of single issue amendments. We would not be talking about abuse of trust if we did not have a Bill which lowers the age of consent to 16. This does not worry only myself. I believe that I am right in saying that the first person to raise the matter of abuse of trust was the Labour Member, Mr Joseph Ashton, who tabled an amendment on that issue. He was right to do so. I am glad that the Government have included provisions in the Bill on that matter. Our concern with regard to the amendments which we have not been able to debate tonight is that we do not feel that those provisions go far enough.
I should be concerned if the Committee thought that in tabling the amendments we had sat in a small room thinking up things to do. In fact all the amendments, almost without exception, arise from people who have thought about the issue at great length and in great detail. The amendments which we have been unable to move--Amendments Nos. 21 and 22, 30, 31, 34 to 36 and 44--arise from the report of Sir Ronald Waterhouse, a highly respected judge who had studied the issue.
Leaving aside the amendment regarding education, Amendment No. 24 was grouped with Amendments Nos. 25, 32 and 38. Those amendments arise from the Government's own report, Setting the Boundaries. If noble Lords look at Setting the Boundaries they will discover that the amendments to which I have referred pick up recommendation 32, which extends the provisions on the abuse of trust to ancillary staff in residential homes to cover all social care workers.
Finally, Amendment No. 24 covers recommen-dations 35 to 39, 41 and 42 in the review. I have read most of the review. Clearly, having considered the matter in considerable detail and at considerable length, members made recommendations. If we fail to do anything about any of those recommendations, we can do as the noble and learned Lord suggested earlier. I understand that all these matters will be considered. By next March they will be looked at. Two or three months later we may get something. And--who knows?--after the next election in the next Session of Parliament we might have legislation. In the meantime, those children who are affected by the Bill will not have the care that they should have. I believe that it is a matter of conscience that we do something about it. If the amendments are incorrectly drafted, or do not meet the case, I and my colleagues would gladly accept any provision that the Government may bring forward. But before we reach the next stage of the Bill, I hope that they will look seriously at these amendments because they meet points which have been raised.
Before the noble Baroness sits down, will she agree that the abuses described in the Waterhouse report took place when the age of consent was much higher? What did that fact do to help the people who were subject to them?
My Lords, I believe that Sir Ronald Waterhouse said that were the age of consent to be lower, then the abuse would have been worse still. I think that society has a tremendous responsibility for what emerges from Waterhouse. It is not a point-scoring issue. I think that I am right in saying that there were children who, if the age of consent, were lowered, would have suffered. We should look at his recommendations and those in the Government's own White Paper. That is the point I make. Outsiders have considered the issue. We have simply picked up their amendments.
I support all that my noble friends have said. The Government bear some responsibility for having voted against a fifth condition. They have set their face against any extension of the conditions in the clause. That is unfortunate.
Apart from the example referred to by the right reverend Prelate regarding abuse of those people in the church, the 20,000 mentors established by the Learning and Skills Act will be in positions of trust, very directly, in one-to-one relationships with some of the more vulnerable people in our schools. Those vulnerable people will be befriended and advised, often in a physically isolated place where they can talk and discuss problems openly. My noble friend Lord Carlisle of Bucklow explained how manipulative people operate, befriending young people and generously buying their favour to the point at which consent is almost assumed rather than asked for. We are talking about young people who are hungry for someone to take notice of them and to give them attention, love and affection and who find themselves in a situation that makes them very vulnerable to such people.
The Attorney-General and the noble and learned Lord, Lord Falconer, have referred a number of times to the Government having a view on the issues. I thought that we were having free votes on everything. I did not think that the Government had a view. The Bill was not a manifesto pledge and every Member of this House and another place, including the Prime Minister, as I understand it, can take a view on the issues. It is deeply worrying that the Government appear to have decided that they do not want any extension to the conditions in the Bill. I have mentioned mentors and the Church and others have mentioned familial relationships. We know of instances of young people, particularly very small children, being abused in the home. Even children between 16 and 18 are not immune to that kind of relationship. However, they will be left outside the protection of Clause 4.
If a young person is taken advantage of by a personal adviser, someone from social services, a guardian, a mentor, a member of a youth organisation or someone from within a church, there will be no offence of abuse of trust, unless the relationship is directly professional. Even in education, full-time teachers are included, but why not part-time teachers? How much less is the abuse if it is perpetrated by a part-time teacher rather than by a full-time one?
It would be helpful if the Minister would give some defence of the Government's reasons for not being prepared to include such inoffensive amendments. The Government may have problems with some of the categories, but others are so glaringly missing from the four conditions set out in the clause that passing the Bill as it stands would mean knowingly leaving some young people without protection in a high-risk situation.
The Minister will no doubt remind us again of the review committee's recommendations and the consultation that will be completed in the spring. However, unless a Bill is announced in the coming gracious Speech, we have to be pessimistic about the chances of there being one in the next Session. If there is not, we shall have to wait for the new Parliament after the general election. That will bring further unacceptable delays. Nothing in the amendments would have precluded further strengthening and additions that the Government might have thought up after the consultation. I am deeply depressed that the Government have unequivocally set their face against any extension of the categories of people in a position of trust who will be included in the Bill.
Perhaps I may disabuse the Committee of any false apprehension. It is utterly incorrect to say that very small children in a home lack the protection of the criminal law. Nothing could be further from the truth and I regard it as not responsible to make that suggestion.
This is a free vote and we all vote according to our conscience. I am entitled to my view as much as any other Member of the Committee. My view has been made perfectly plain. On the previous occasion when we debated this matter, I said that Mr Hague and Mr Portillo, in an act of rare moral and political courage, supported that. I know that Mr Blair does, and I believe that Mr Charles Kennedy does also.
In the meantime, it was said that those young people are left without protection. I repeat what I said on Second Reading when the Bill was thrown out: if the whole Bill is thrown out, those young people will remain without protection. I said that; it is shown in Hansard. No one was sufficiently persuaded by my argument to vote accordingly.
It is said that this protection was brought about and made necessary only by the introduction of this Bill. I disagree profoundly. I believe, and I hope that Members of the Committee will agree with me, that young girls also require protection. Without this protection of trust legislation which we have put before this Parliament, there would have been no protection for young girls over the age of 16 in care homes, in places of custodial detention or in any other circumstances which are set out. Those are the unfortunate facts to which I am afraid I must refer.
Perhaps I may also make it clear that we are not opposing Clause 4 as it stands. We are saying that we wish to add to, improve and strengthen it. We are certainly not arguing against anything that is in Clause 4. The protection for girls was brought in by the amendments which we moved earlier in the day and which were voted in by this Committee.
That is not the point that I am making. I am saying that the assertion that has been made that the protection of girls was made necessary by the introduction of this Bill with equalisation of consent is simply factually and historically wrong. The noble Baroness says that that is not true. I find that offensive. If she has a point to make, I shall sit down. However, it is true.
I do have a point to make. The effect of passing the Bill unamended was to lower the age of buggery against girls for the first time to the age of 16. That meant that they went unprotected and the amendments moved today have remedied that.
Was it not also the fact that girls of 16, whether in custodial institutions, in schools or in positions of trust, as described by the noble Lord, Lord Waddington, were wholly without the protection of the criminal law? I believe that that is true. I believe that what the noble Lord, Lord Waddington, said bears a good deal of thought.
The fact is--I have mentioned this on earlier occasions; therefore, the noble Lord will forgive me if I am brief--that until this law is passed, young girls of 16 have very little protection. I agree that older people prey on them. I have mentioned previously custodial circumstances, positions of trust, and the wealthy man with lots of money, well able to gull a young girl of 16 in one week. I have not heard much about the protection of young girls in those circumstances except from the noble Lord. I believe that the logic of his position--
I believe that the noble and learned Lord misunderstood what I said. I said that this Bill was dressed up as one which gave new freedom to young boys when in fact it was a Bill which licensed older men to commit buggery on young boys. That is what I said.
Yes. However, when I do not deal with the various points, many of which I readily agree are not relevant to Clause 4, the Government are then accused of not taking them seriously. Therefore, I am trying to draw a middle path. However, I repeat that at present there is no protection whatever in our law for girls of 16 who are in positions of trust.
Of course, and that assistance is unalloyed and pure, not my universal experience of some assistance that is offered.
The consequence of some of the amendments will be an infringement of the freedom of the press. Some Members of the Committee will say that that is justified. I am simply reminding the Committee that that is what it means. Article 10 does exist. We claim to live in a free society. Without a free press, we cannot have a free society. If Members of the Committee want to infringe the freedom of the press, all well and good. I am simply reminding the Committee that that is the consequence of some of these amendments.
I turn now to the contributions made by the noble Lord, Lord Carlisle of Bucklow, and the right reverend Prelate, because they overlap in some ways. Amendment No. 24 deals with familial relationships. The noble Lord, Lord Northbourne, is quite right to say that if one looks at what the Home Office has said, there is a good deal there for us all to reflect on.
Recommendation 35 states:
"There should be an offence of familial sexual abuse to reflect the looser structure of modern families ... For the purposes of familial sexual abuse, the prohibition on sexual relations should apply until the child is 18. The offence of familial sexual abuse should apply to the sexual penetration of a child of all relations, including the existing offence of incest, with the addition of uncles and aunts related by blood. Adoptive parents should be treated on the same basis as natural parents. Sexual relations between adoptive siblings should be prohibited until the age of 18".
Those are very wide and they go further but, as the right reverend Prelate said, it is late. I am simply drawing the attention of the Committee to that document.
It is not a case that this will be put off. It is a case that we need consultation on the matter. It is a very thoughtful document indeed, I suggest, and it is well worth looking at.
There was then the question of religion. I believe that that was referred to by the right reverend Prelate and, certainly by the noble Lord, Lord Carlisle, in Amendment No. 26. One must bear in mind, of course, that some areas of religion, like church schools or children's homes, will be covered by the new offence.
Amendment No. 26, to which the right reverend Prelate referred, and also the noble Lord, Lord Carlisle of Bucklow, states:
"The fifth condition is that A looks after persons under 18 who are members of a church or religious organisation and B is a member of that church or religious organisation".
There is opportunity there for two forms of sexual relationships: one is coercive and abuse of trust; and the other is perfectly acceptable and normal in society generally.
At the moment, the amendment will not deal with the one mischief without encompassing the other activity. These amendments are not easy to draw up at all. I believe that the general cast of the Bill is right. There is no point in rehearsing the arguments, of course, on the first approach which the majority of the Committee supported.
I believe that one must be extremely careful and look at some examples. I take the phrase "preying on younger people" or "using the opportunity of taking advantage of younger people". What about a 17 year-old girl who is an employee working for an employer who is 18½ or the 16 or 17 year-old girl who is working in a coffee bar and the manager happens to be 18½? One could say that that is abusive and he is in a position of authority. I rather doubt it in today's world, I really do, and perhaps even in the world of 30 years ago, for which I shall have to ask my noble friend Lord Bach for his comments.
These are extremely difficult, subtle relationships. We can blunder in and achieve the wrong conclusion. I am grateful--he will know that I mean this sincerely--for the suggestion of the noble Lord, Lord Carlisle, that we should have our debate, about which everyone is deeply engaged, although people have different views. I shall not repeat what I said about social care workers and social services inspectors, if the noble Lord will forgive me, because I dealt with that a little earlier. I appreciate that he wanted to put the full spectrum.
I believe that the suggestion was good and that it was helpful to the Committee. I have a feeling that in the end there will be a gulf between people's views. If possible, we must try to reconcile that gulf, but if people come to different conclusions the Committee must decide for itself or the House will decide on Report.
I believe I have dealt with the point about the 20,000 mentors by pointing specifically to the powers of the Secretary of State and I have dealt with the argument about part-timers. We believe that this series of conditions ought to relate to those who are in a position in which they can coerce children.
moved Amendment No. 45:
After Clause 6, insert the following new clause--
(". Sections 12 and 13 of, and paragraph 16 of Schedule 2 to, the Sexual Offences Act 1956, sections 1 and 8 of the Sexual Offences Act 1967, section 13 of the Criminal Law (Consolidation) (Scotland) Act 1995 and Article 3 of the Homosexual Offences (Northern Ireland) Order 1982, as read by the application of the existing law and as amended by sections 1 and 2, and with the omission of repealed provisions, are set out in Schedule (Sexual Offences Acts 1956 and 1967, Criminal Law (Consolidation) (Scotland) Act 1995 and Homosexual Offences (Northern Ireland) Order 1982, as amended) to this Act.").
I seek to introduce into this Bill a Keeling schedule covering Clauses 1 and 2 of the Bill. I shall say a few words about a Keeling schedule for the benefit of those Members of the Committee not familiar with the device. If a Bill intends to amend a section, including a subsection, of an existing Act of Parliament there are two ways to do so. The amendment can take the form of a patchwork amendment, adding a word here, substituting or deleting a word there, as in Clauses 1 and 2 of this Bill.
Alternatively, the amendment can take the form of deleting the whole section and substituting a new clause. The principal advantage of the patchwork type of amendment is that it spotlights the precise changes intended and also will often avoid amendments to amendments, which are a bugbear.
The advantage of the wholesale type of amendment is that the amended section can be read as a whole when the Bill is passed and becomes an Act of Parliament. That advantage becomes overwhelming if the section being amended has already been amended by previous Acts of Parliament so that one has to keep four or five fingers in past volumes of statutes in order to read the amended section in its new form.
I accept that a patchwork amendment is more convenient to the House than a wholesale amendment. On the other hand, a wholesale amendment of an already heavily amended section is almost always more convenient to judges, lawyers and other members of the public who are our customers. The customers can read the amended section in its current form without having to trudge through past legislation.
We make Acts of Parliament for the public and not for ourselves. Fortunately, there is a halfway house. It is possible to have the best of both worlds--by amending a section in patchwork style and adding at the end of the Bill words to the effect, "Section 1 of the so-and-so Act, as previously amended and as further amended by this Act, is set out in the schedule to this Act".
To illustrate the need for a Keeling schedule, perhaps I may tell the Committee the contortions through which a reader must go in order to read Section 1 of the Sexual Offences Act 1967 if it is amended as proposed by this Bill. Section 1 of the 1967 Act has seven subsections. First, the reader must go to Schedule 11 of the Public Order Act 1994 to amend line 2 of subsection (1). Secondly, the reader must go to Section 145 of the same Act and also to Clause 2(3) of the Bill for the remainder of subsection (1).
Thirdly, for subsection (3), the reader must go to paragraph 34(a) of Schedule 1 to the Mental Health (Amendment) Act 1982 to amend lines 1, 2 and 8 of subsection (3). Fourthly, the reader must go to paragraph 34(b) of the same schedule to insert a new subsection numbered (3A). Fifthly, his researches will reveal that subsection (4) is unchanged. Sixthly, the reader must go to Section 146 of the Criminal Justice and Public Order Act 1994 to discover that subsection (5) has been repealed.
Seventhly, to ascertain subsection (6) the reader must go back to Section 145 of the Criminal Justice and Public Order Act 1994 and then return to Clause 1(2) of the Bill and the final words of subsection (6). Eighthly, the reader heaves a sigh of relief on discovering that the final subsection of Section 1 of the Sexual Offences Act 1967 is unchanged.
To foist an Act of Parliament on the public in this form is simply not fair. It is not democratic. Of course, the answer may be given that the reader can spend £1,000 or so on Halsbury's Laws of England or a computer and that will, to a large extent, overcome his difficulties. But it is not an answer which appeals to me. The proper answer is to add to the Bill a Keeling schedule.
A Keeling schedule, though not often now used, has a respectable ancestry. It first arose on 26th July 1938. Mr Keeling, the Member for Twickenham, asked the Prime Minister,
"whether he has considered a memorandum on the evils of legislation by reference submitted to him by a number of Members; and whether he has any statement to make".--[Official Report, 26/7/38; col. 2919.]
The Prime Minister, Mr Neville Chamberlain, said at col. 2920,
"I have considered the memorandum with interest ... The suggestion made is, in effect, that a Bill amending or applying an existing enactment by reference should contain a Schedule setting out the enactment as it will read when amended by the Bill ... This method is not, I understand, put forward as a panacea to be used in all cases ... There are, however, undoubtedly some cases where the method suggested by the memorandum would be both practicable and advantageous; and I have instructed the Parliamentary Counsel to proceed experimentally on the lines suggested in suitable cases".
Members of the Committee may be puzzled why the Prime Minister was considering the policy of drafting Acts of Parliament at a time when he was shuttling between London, Godesberg and Munich when his mind was mainly occupied with the rising power of Hitler's Germany. The answer is that under our quaint system of legislation the office of parliamentary counsel, who do the basic work, is responsible for policy to the Prime Minister and to no one else. Only the Prime Minister can give policy directions to the office of parliamentary counsel. The Committee may feel that it would be more appropriate if the office of parliamentary counsel were responsible to the Lord Chancellor, to the Attorney-General or perhaps to a joint committee of both Houses.
How can matters of general drafting policy have been expected to engage the attention of Sir Winston Churchill in 1940 to 1945 or the attention of Mr Blair today? The effect of the Prime Minister's 1938 policy direction to the office of parliamentary counsel was substantial. Between 1939 and 1949, 23 public Bills had Keeling schedules. In more modern times, between 1966 and 1993, 24 public Bills had Keeling schedules. Since then, they have died out save for a single exception; the Criminal Evidence (Amendment) Act 1997.
I ask myself whether parliamentary draftsmen are disenchanted with Keeling schedules and will no longer have anything to do with them. It would be quite inappropriate for me to seek to bring my amendment to a conclusion today. As a result of the amendments made to Clauses 1 and 2 it is already out of date. However, I would respectfully ask the noble and learned Lord the Attorney-General to consider inserting a Keeling schedule into the Bill. He might even find time to grant me the favour of an interview.
Before I sit down, perhaps I may say that I owe a deep sense of gratitude to Mr Edward Ollard, then of the Public Bill Office, for drafting the Keeling schedule, which I could never have done accurately myself. I ought to thank his successor for his research at short notice into past uses of Keeling schedules. I beg to move.
We should be grateful to the noble and learned Lord, Lord Brightman, for an extremely helpful series of suggestions and an extremely interesting series of remarks. I have always been attracted to Keeling schedules, ever since I was introduced to them by the noble Lord, Lord Renton, whose remarks on drafting as always deserve a great deal of attention.
I have experienced two Keeling memoranda, if that is not an improper phrase--kind of sub-Keeling documents--drawn up by the Minister for the assistance of the House on the Child Support Acts 1995 and 1999. Both of those were extraordinarily helpful. I wish only that they could have been used in the full Keeling sense in the Bill.
When one approaches legislation, especially in social security, one feels that one is being asked to undertake a crossword puzzle. To those such as myself who lack skills in crosswords, that can be extremely difficult. So I hope that the noble and learned Lord's remarks will receive very careful attention. In this particular case it is possible that the Minister might reply that if it were done now, it would only have to be done again in the very near future in the review of sexual offences. Were he to make that reply, I would, of course, listen to it with great seriousness. But the principle of what the noble and learned Lord has said remains sound and remains in need of urgent attention from parliamentary counsel and all those to whom they may on occasion answer.
I support the amendments tabled by the noble and learned Lord, Lord Brightman. When I was elected to the House of Commons, after being a member of a local authority, I can remember how bemused I was by parliamentary procedure and parliamentary Bills and amendments. It seems to me that the noble and learned Lord, Lord Brightman, is absolutely right that legislation is for the people. If legislation is for the people, then the people ought to be able to read the legislation in one go, not in several goes, as he outlined. Therefore, I hope that my noble and learned friend will give very serious consideration to what has been said. I shall be interested to hear his reply.
I rise briefly to support the noble and learned Lord, Lord Brightman. Having spent a good deal of the past three years doing my own research, I would welcome this provision in many other Acts of Parliament. I find the cross-referencing of one piece of legislation with another an absolute minefield. As well as people outside, some of us here would benefit greatly from the suggestion of the noble and learned Lord, Lord Brightman, and I hope that the advice is followed.
I always believe everything that your Lordships tell me! I am thinking of having a T-shirt printed: "I have always been attracted to Keeling schedules--Earl Russell". I think some eyebrows shot up a little around the House when he said that.
As always, of course, what the noble and learned Lord has said commands enormous attention in your Lordships' House. It may be--I hope he will not think that I am being presumptuous--that his suggestion would fall more usefully to be considered when the outcome of the comprehensive review of the sexual legislation ought to bring about a major rewriting of the whole law on sexual offences.
He asked, with his usual charm and courtesy, whether or not we might have a meeting. I would certainly welcome that. Perhaps his suggestion, which seems to all of us to be of great value, may well be deployed on a subsequent occasion because, of course, this Bill deals with only a limited number of sexual offences. However, I am most obliged not only for his suggestions but for the most helpful tone in which he deployed his submissions.
I entirely agree with what the noble and learned Lord, the Attorney-General, said. It occurred to me that this could be dealt with by means of a consolidation Bill. However, that means that there would have to be a First Reading and a Second Reading here, followed by a joint consolidation committee of the two Houses, which would take quite a long time. Your Lordships may feel that, if it can be done, it would be quicker to have a Keeling schedule in this Bill rather than wait for a consolidation. I am very grateful to those of your Lordships who have spoken but, in the circumstances, I beg leave to withdraw the amendment.