Sexual Offences Bill [HL]

– in the House of Lords at 5:04 pm on 9th June 2003.

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Photo of Lord Falconer of Thoroton Lord Falconer of Thoroton Minister of State (Criminal Policy), Home Office, Minister of State (Home Office) (Criminal Justice System) 5:04 pm, 9th June 2003

moved Amendment No. 105B:

After Clause 31, insert the following new clause—

"SECTIONS 28 AND 29: SE"UAL RELATIONSHIPS WHICH PRE-DATE FAMILY RELATIONSHIPS

(1) Conduct by a person (A) which would otherwise be an offence under section 28 or 29 against another person (B) is not an offence under that section if—

(a) the relation of A to B is not within subsection (2) of section 30,

(b) it would not be within that subsection if section 67 of the Adoption and Children Act 2002 (c. 38) did not apply, and

(c) immediately before the relation of A to B first became such as to fall within section 30, a sexual relationship existed between A and B.

(2) Subsection (1) does not apply if at the time referred to in subsection (1)(c) sexual intercourse between A and B would have been unlawful.

(3) In proceedings for an offence under section 28 or 29 it is for the defendant to prove the matters mentioned in subsection (1)(a) to (c)."

On Question, amendment agreed to.

Clause 32 [Sexual activity with a person with a mental disorder or learning disability]:

Photo of Lord Astor of Hever Lord Astor of Hever Conservative

moved Amendment No. 106:

Page 16, line 15, leave out "refuse" and insert "consent"

Photo of Lord Astor of Hever Lord Astor of Hever Conservative

My Lords, in moving Amendment No. 106, I shall speak also to the other amendments in the group. These flag up a number of issues raised in Committee by the noble Lord, Lord Adebowale, and myself. The amendments have been put forward by a combined group of organisations involved in helping those with mental disorders and learning disabilities. They have concerns about the drafting of Clauses 32 to 37, which they believe are essential in preserving the basic rights of those with a mental disorder or learning disability.

Amendments Nos. 106, 109, 113, 118, 120 and 172 focus on the issue of capacity to consent, which is pivotal to determining whether a relationship is appropriate for a person with a learning disability. However, there is an inconsistency in the Bill as the drafting of Clauses 32 to 37 speaks of "refusing" or,

"choosing to engage in sexual activity", rather than "consenting". Why do the Government prefer the wording "inability to choose" rather than "inability to consent"? This is not a matter of semantics—we must get these concepts right.

To be able to consent to sexual activity, there are well-established concepts that must be understood for that consent to be valid. These include that sex is different from personal care; that penetrative vaginal sex can lead to pregnancy; and that sex is associated with risk of sexual transmitted infections. I do not think that Clause 76, nor Clause 32 and its related clauses, adequately reflect these principles. Therefore, I am not convinced by the argument used by the Minister in Committee that we should not consider amending the Bill because it might create a circular definition, particularly when the definition in question is not a particularly strong one.

The effect of the clause, as drafted, would mean that some people, like the unfortunate young woman in the Jenkins case, would be regarded as being able to choose to have sex even though they clearly lack the capacity to consent to sexual relations. On that occasion, the judge held that the woman involved had chosen to engage in sex and had consequently consented to the sexual activity because of her "animal instincts". In Committee, my noble friend Lady Blatch pointed out very well this problematical lacuna in the Bill by making clear that where someone was propositioned, but had not consented, and it was shown that she had not refused, there would be no recourse in the courts.

The amendments I proposed would make it absolutely clear that these cases would come within Clause 32 because it is clear that the person could not consent to the sexual activity, even if that person "chose" to have sex with the perpetrator. I hope that I have managed to convince the Minister that "choosing" is not the same as "consent". "Consent" involves understanding what the decision is about and the impact of that decision. Consent must also be freely given. This is not adequately reflected in Clause 76.

Amendments Nos. 107, 110, 114, 119 and 121 aim to avoid implying that people with learning disabilities cannot consent to sexual activities, or that there is a test that must be passed before a person with a learning disability can engage in sexual activity. This Bill must be about protecting people from abuse and not preventing consensual adults from engaging in sex. It is essential that the Bill makes explicit that the capacity test is a functional one. The ability of the individual to consent must be in relation to a specific decision and whether the individual understands at that time the nature and effects of that sexual activity. That recognises that a person may lack the capacity to consent to sexual relations with one person on one occasion, but may be able to consent to have sex with a different individual on a later occasion. That is why my amendment follows the Law Commission's proposal to make it clear that the test is a functional one by inserting the words "at the material time".

Our amendments do not use the term,

"or for any other reason", which is in the current drafting of the Bill in subsection (2)(a). As it stands a prosecution could be brought against someone even though that person with a learning disability understood the nature of the act and understood the reasonably foreseeable consequences, because for some other undefined reason they were deemed incapable. That is the point that I raised at Committee stage. I appreciate the Government's attempt to ensure that these cases receive protection. However, I feel that by retaining this wording the clause will inadvertently set too high a test for capacity to consent and that that may in practice constrain the freedom of people with a learning disability to engage in consensual sexual relations. I am also still unclear what "other reasons" refers to, as in terms of a capacity test, the key issue is the individual's ability to understand the sexual activity that he or she may engage in and its reasonably foreseeable consequences—not anything else. Otherwise, once again, there is a risk that the Bill may prevent adults with a learning disability, who have the capacity to consent, from engaging in sex.

On a final note, it is important to ensure that the inability to communicate relates to the individual being unconscious or other similar situations, but not to people who would be able to communicate their decision with appropriate support. Our amendments reflect that and provide greater clarity to the principle behind subsection (2)(b). I beg to move.

Photo of Lord Rix Lord Rix Crossbench

My Lords, perhaps I may add my voice in support of these amendments. My name already enjoys third billing on Amendments Nos. 106, 107, 109, 110, 113, 114, 118, 119, 120, 121 and 172. Having reflected on the debate at Committee stage, I am inclined to think that the noble Baroness, Lady Noakes, and the noble Lord, Lord Astor of Hever, have the balance about right.

In response to my noble friend Lord Adebowale's amendments at Committee stage, which raised similar concerns, the Minister did not seem to argue against their principle, but more on a technical drafting point. However, his reply did not give us the required assurances. The amendments of the noble Lord, Lord Astor, get over those technical hurdles by changing the definition of consent by making it much tighter and more specific.

My concern is that, as currently drafted, the capacity test in the second subsections of Clauses 32 to 36 is not sufficiently specific and, therefore, there is a real danger that the offence will be too broadly interpreted. This may lead to unnecessary prosecutions being brought in cases where the sexual activity is actually consensual.

I look again to answers offered at Committee stage and my nagging concern is the wording "for any other reason". Echoing the noble Lord, Lord Astor of Hever, I am still unclear what the "for any other reason" refers to, as in terms of a capacity test, the key issue is the individual's ability to understand the sexual activity and its reasonably foreseeable consequences.

I do not want to move away from the principles behind those new offences. They seek to improve the outdated laws governing sex offences and to protect vulnerable adults from sexual abuse. That is absolutely crucial. Nor do I share the rather exaggerated concerns expressed in some quarters about protection being thinly veiled oppression. However, we have to get the right balance and, as I said in previous debates, Mencap respects the right of all consenting adults to have sex. I believe that the amendments of the noble Baroness, Lady Noakes, and the noble Lord, Lord Astor, find the right balance. I am not sure that assurances will do in this instance, but I am happy to listen to what the noble and learned Lord has to say.

Photo of Baroness Walmsley Baroness Walmsley Liberal Democrat 5:15 pm, 9th June 2003

My Lords, I rise to speak to Amendment No. 173, standing in my name and that of my noble friend Lord Thomas of Gresford, and to comment on Amendment No. 172. While we do not believe that every normal English word that is readily understood in the Bill requires definition, we feel that the words "consent" and "capacity" require definition. So much in the Bill depends on a clear understanding of those two words. We already have a definition of "consent", but we do not have a definition of "capacity", which is why we have tabled our amendment.

Having said that, we would have been just as happy to accept Amendment No. 172 in the name of the noble Lord, Lord Astor of Hever, which achieves much the same outcome and perhaps more as it mentions the word "freedom". Therefore, we hope that the noble and learned Lord will consider the importance of a definition of a word that is key to a clear understanding of the law in the case of sexual offences.

Photo of Lord Falconer of Thoroton Lord Falconer of Thoroton Minister of State (Criminal Policy), Home Office, Minister of State (Home Office) (Criminal Justice System)

My Lords, these amendments address the issue of the definition of the inability to refuse or to consent and go to the core of the clauses where the balance between protection from sexual abuse and freedom to engage in sexual activity is set.

I do not believe that Amendments Nos. 106, 109, 113, 118 and 120 would make a substantive change to those clauses. Capacity to consent is defined in Clauses 32 to 36 inclusive, as "unable to refuse" rather than "unable to consent" because if the latter phrase were used it would refer to the definition of consent in Clause 76 and would be circular because that clause refers to capacity to consent. In a moment I shall turn to the proposal made by the noble Baroness, Lady Walmsley, in the amendment to which she has spoken, which is whether we should consider a definition of capacity to consent which may deal with many of the problems. We need to consider that.

I shall go through each of the points that has been raised. Amendments Nos. 107, 110, 114, 119 and 121 propose a number of changes to the definition of inability to refuse. I recognise that there is real concern that because of prejudices that exist about learning disabled adults engaged in sexual activity, those clauses may be interpreted as meaning that some individuals were unable to consent for the whole of their lives. This afternoon I was grateful for the opportunity to discuss that with the National Forum of People with Learning Difficulties, a number of whose members spoke to me about it and whom I am glad to see sitting in the Public Gallery today listening to the debate.

I believe those concerns are unfounded. I am clear that they can apply only "at the material time". Throughout the Bill it is implicit that consent relates to a particular incident rather than applying generally and capacity to consent is drafted on the same basis. I would like to make it absolutely clear that capacity to consent relates to the particular time at which the sexual activity, about which there is a complaint, took place. Therefore, I do not believe that the proposal to add "at the material time" is necessary.

I note that the amendments would replace "possible consequences" with "reasonably foreseeable consequences" and would remove "for any other reason" from the same paragraph. I appreciate that there is a concern that the test of capacity is set at such a level that those with a learning disability may be required to be more aware of the implications of sexual activity than others. The amendment is intended to provide a lower test: awareness of the consequences that are reasonably foreseeable as opposed to those that are possible. But I am not sure that the amendment is necessary. The clause as drafted requires sufficient understanding of the possible consequences of the sexual activity in question. The level of understanding required therefore is qualified so I do not believe that there is any need to refer to "reasonably foreseeable consequences" as opposed to "possible consequences".

I turn to the proposed deletion of "for any other reason" from Clause 32(2)(a). We were concerned to ensure that those who genuinely lack the capacity to consent were protected by the law. However, we are aware that there are concerns that "for any other reason" might wrongly draw people into the scope of the offence because it is so broad.

I shall explain the thinking behind the conclusion. We have received advice that there are people with a mental disorder or learning disability who have sufficient understanding of the nature and consequences of the sexual activity to consent, and who could communicate their consent but nevertheless find it difficult to choose between alternative courses of action. We would not wish to leave such people unprotected; however, we need to consider both points further.

Unconsciousness is dealt with by means of a rebuttal presumption in Clause 77. That will apply regardless of whether the individual has a learning disability. We do not believe that it is necessary or helpful to make a specific reference to unconsciousness in those clauses. Clause 32(2)(b) is intended to protect people who, because of a mental disorder, cannot communicate whether they consent. That does not mean that people with speech difficulties are drawn within the clause. The issue is whether they can communicate consent by any means, not simply speech.

Clauses 172 and 173, which were referred to earlier, are intended to create a generic definition of the capacity to consent that could be used whenever the prosecution seeks to establish that the complainant did not have the capacity to consent at the time of the alleged offence. Amendment No. 172 is based on a Law Commission definition, and Amendment No. 173 is based on the definition that we have adopted in the clauses in Part 1 relating to offences against those with a mental disorder. That is the wording that we would prefer. I am not fundamentally opposed to including in the statute a generic definition of capacity to consent, but we need time to consider the consequences of such a definition, and, if we choose to include one, the best way to formulate it.

Perhaps I may return to the issue at Third Reading, as it is quite important. I repeat that we are very aware of the need in those clauses to balance the need to provide protection with recognising the civil rights of those with a mental disorder or learning disability. For the reasons that I have gone through in, I suspect, tedious detail, I do not feel able to accept the amendments. But I have listened very carefully to the debates on the issue and in my discussions with people outside the House also. It is a very difficult issue to resolve. We will take into account the matters raised as part of our further deliberations on the question of the definition of consent and the other issues raised. I shall return to the matter, if I may, at Third Reading. In the light of what I have said, I hope that the noble Lord, Lord Astor, will feel able to withdraw his amendment.

Photo of Lord Astor of Hever Lord Astor of Hever Conservative

My Lords, I am grateful to the noble and learned Lord for his response, which heartened me. I am particularly grateful to him for his explanation of the Government's thinking on the "any other reason" issue. I am also grateful to the noble Lord, Lord Rix, for his support. In the light of the Minister's very positive response, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 107 not moved.]

Clause 33 [Causing a person with a mental disorder or learning disability to engage in sexual activity]:

Photo of Lord Falconer of Thoroton Lord Falconer of Thoroton Minister of State (Criminal Policy), Home Office, Minister of State (Home Office) (Criminal Justice System)

moved Amendment No. 108:

Page 16, line 39, leave out "a" and insert "or incites another"

On Question, amendment agreed to.

[Amendments Nos. 109 and 110 not moved.]

Photo of Lord Falconer of Thoroton Lord Falconer of Thoroton Minister of State (Criminal Policy), Home Office, Minister of State (Home Office) (Criminal Justice System)

moved Amendments Nos. 111 and 112:

Page 17, line 6, after "caused" insert "or incited"

Page 17, line 14, after "caused" insert "or incited"

On Question, amendments agreed to.

Clause 34 [Inciting a person with a mental disorder or learning disability to engage in sexual activity]:

[Amendments Nos. 113 and 114 not moved.]

[Amendment No. 115 had been withdrawn from the Marshalled List.]

[Amendment No. 116 not moved.]

Photo of Lord Falconer of Thoroton Lord Falconer of Thoroton Minister of State (Criminal Policy), Home Office, Minister of State (Home Office) (Criminal Justice System)

moved Amendment No. 117:

Leave out Clause 34.

On Question, amendment agreed to.

Clause 35 [Engaging in sexual activity in the presence of a person with a mental disorder or learning disability]:

[Amendments Nos. 118 and 119 not moved.]

Clause 36 [Causing a person with a mental disorder or learning disability to watch a sexual act]:

[Amendments Nos. 120 and 121 not moved.]

Clause 38 [Causing a person with a mental disorder or learning disability to engage in sexual activity by inducement, threat or deception]:

Photo of Lord Falconer of Thoroton Lord Falconer of Thoroton Minister of State (Criminal Policy), Home Office, Minister of State (Home Office) (Criminal Justice System)

moved Amendments Nos. 122 to 124:

Page 19, line 15, leave out "a" and insert "another"

Page 19, line 16, after "in" insert ", or to agree to engage in,"

Page 19, line 25, after "caused" insert "or agreed to"

On Question, amendments agreed to.

Clause 39 [Causing a person with a mental disorder or learning disability to agree to engage in sexual activity by inducement, threat or deception]:

Photo of Lord Falconer of Thoroton Lord Falconer of Thoroton Minister of State (Criminal Policy), Home Office, Minister of State (Home Office) (Criminal Justice System)

moved Amendment No. 125:

Leave out Clause 39.

On Question, amendment agreed to.

Clause 42 [Care workers: sexual activity with a person with a mental disorder or learning disability]:

[Amendment No. 126 not moved.]

Clause 43 [Care workers: causing sexual activity]:

Photo of Lord Falconer of Thoroton Lord Falconer of Thoroton Minister of State (Criminal Policy), Home Office, Minister of State (Home Office) (Criminal Justice System)

moved Amendment No. 127:

Page 21, line 24, leave out "a" and insert "or incites another"

On Question, amendment agreed to.

[Amendment No. 128 not moved.]

Photo of Lord Falconer of Thoroton Lord Falconer of Thoroton Minister of State (Criminal Policy), Home Office, Minister of State (Home Office) (Criminal Justice System)

moved Amendment No. 129:

Page 21, line 33, at end insert "or incited"

On Question, amendment agreed to.

Clause 44 [Care workers: inciting sexual activity]:

[Amendment No. 130 not moved.]

Photo of Lord Falconer of Thoroton Lord Falconer of Thoroton Minister of State (Criminal Policy), Home Office, Minister of State (Home Office) (Criminal Justice System)

moved Amendment No. 131:

Leave out Clause 44.

On Question, amendment agreed to.

Clause 45 [Care workers: sexual activity in the presence of a person with a mental disorder or learning disability]:

[Amendment No. 132 not moved.]

Clause 46 [Care workers: causing a person with a mental disorder or learning disability to watch a sexual act]:

[Amendment No. 133 not moved.]

Photo of Lord Astor of Hever Lord Astor of Hever Conservative

moved Amendment No. 134:

After Clause 46, insert the following new clause—

"CARE WORKERS: E"CEPTION FOR PURPOSES OF SE"UAL EDUCATION

It shall not be an offence under sections 43 to 46 if a care worker provides sexual education, advice or assistance in accordance with guidelines which have been issued for that purpose by the Secretary of State."

Photo of Lord Astor of Hever Lord Astor of Hever Conservative

My Lords, in Committee we had a lengthy debate on this amendment which threw up some interesting points and highlighted problems with the drafting of the two alternative versions that we proposed. It was clear that some people, not least my noble friend Lady Blatch, thought that to include an exemption for those providing sexual education would lead to abuses of the system. People might deliberately seek to become carers in order to use the excuse of providing sexual education and then carry out abuse. Our original amendment included the phrase,

"for the purposes of obtaining sexual gratification".

It was argued that that would be impossible to prove and that subsequent convictions would be hard to achieve.

We have no wish to create a loophole. We accept that our alternative version about authorisation from the Secretary of State might have been unworkable, as the Minister pointed out. We have therefore tabled Amendment No. 134 on the basis of the Minister's response:

"The noble Lord asks about producing some sort of guidance. We need to think about that, as it seems an important issue. Without giving any assurance, I should like to come back to that on Report and indicate where we have got to".—[Official Report, 28/4/03; col. 541.]

Have the Government thought any further about guidance? We do not want those who undertake sexual assistance to people with a mental disorder or learning disability to be unfairly prosecuted under the clause. We believe that using guidance would clarify the situation. I beg to move.

Photo of Baroness Blatch Baroness Blatch Conservative

My Lords, it is with some diffidence that I rise to oppose my noble friend yet again, because I know that he has a real concern about the matter. I shall not repeat the arguments that I raised in Committee when the amendment was first moved. But I remain concerned that the provision would still allow a care worker to cause or incite a patient to engage in sexual activity, to engage in sexual activity in the presence of a patient, or to cause him to watch a sexual act, all free from the risk of prosecution under Clauses 43 to 46. It proposes that the Secretary of State should issue guidance on how that should be done.

My noble friend Lord Astor of Hever told the Committee that he was concerned with care workers who,

"engage in intimate acts as part of a programme of sex education for their patients, for example, facilitating masturbation".

He went on to say:

"It might be hard to prove in reality whether or not a care worker was helping a patient perform a sexual activity for the purposes of obtaining sexual gratification".—[Official Report, 28/4/03; col. 536.]

Even if one accepts that there can be legitimate circumstances in which a care worker carries out such an activity—and I am not absolutely certain that I do—my noble friend has pointed to the danger of creating a category of persons authorised to do such things. In what way can we prevent people from taking advantage of their exemption simply to abuse patients? Setting out the detail in guidance to cover such activities would take the wisdom of Solomon. I certainly would not like to have such a responsibility.

I understand some of the concerns my noble friend has expressed. However, I remain concerned that such exemptions could provide licence for abuse. That I certainly would not support.

Photo of Lord Falconer of Thoroton Lord Falconer of Thoroton Minister of State (Criminal Policy), Home Office, Minister of State (Home Office) (Criminal Justice System) 5:30 pm, 9th June 2003

My Lords, as the noble Lord, Lord Astor of Hever, indicated we went through many of these arguments in Committee. I think—I may have misunderstood—that he tabled the amendment in order to probe guidelines rather than as a defence because we have gone through in detail the difficulties of having such a provision as a defence. The noble Baroness, Lady Blatch, touched on that aspect. We would oppose the clause in relation to it being a defence.

However, I believe that the real question is about guidelines. We have considered carefully. We have consulted about what to do. I fear that the suggestion of tying it to the issue of national guidelines could not work at this time. The nature of sex education in these circumstances is a contentious one about which the views of stakeholders are divided. It seems unlikely that it would be possible to issue early guidelines which would encompass such divergent views. So I fear that I offer no comfort in relation to guidelines.

Against that background, we believe that it is a matter which must at present be left to prosecutorial discretion in deciding whether it is in the public interest to bring a prosecution given the circumstances of the case. For those reasons, I must resist the amendment.

Photo of Lord Astor of Hever Lord Astor of Hever Conservative

My Lords, I am grateful to the Minister for his response. The amendment was tabled in order to probe the issue of guidance. I was sorry to hear what he said.

I understand my noble friend's concerns about the amendment. After a number of discussions with charities and care workers I have satisfied myself that there is a need for the provision. However, in the light of the Minister's response, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 47 [Care workers: interpretation]:

[Amendment No. 135 not moved.]

Photo of Lord Astor of Hever Lord Astor of Hever Conservative

moved Amendment No. 136:

Page 23, line 36, leave out "or an independent medical agency" and insert ", an independent medical agency, an independent practice or an independent practitioner,"

Photo of Lord Astor of Hever Lord Astor of Hever Conservative

My Lords, in moving Amendment No. 136, I speak to Amendments Nos. 137, 138 and 142. They all concern the interpretation of care workers and care staff in settings to be covered by the Bill. I thank the Minister for his response in Committee. I table the amendment today as something of a safety measure.

The Government have been laudable in their efforts to ensure that vulnerable adults are protected effectively from abusive care workers. The removal of the residence requirement and the extension to include services and assistance as well as care are most welcome. I refer specifically to government Amendment No. 274 in Committee which amended subsection (4) of Clause 47. However, I seek reassurance from the noble and learned Lord that the amendment is sufficiently broad to ensure that providers operating outside mainstream care provision will be covered by the Bill. I refer to those additional types and forms of provision encompassed in Amendments Nos. 136 to 138 and 142.

In his response to my amendments in Committee, the noble and learned Lord stated that Amendment No. 274 will encompass most of the relationships of care proposed for inclusion. Can the Minister give any assurance that the full range of those relationships of care encompassed by my amendments is covered by Amendment No. 274? Will Clause 47 as drafted cover independent practitioners and practices, including self-employed practitioners, private residences, complementary therapists, counsellors and psychotherapists? I beg to move.

Photo of Lord Falconer of Thoroton Lord Falconer of Thoroton Minister of State (Criminal Policy), Home Office, Minister of State (Home Office) (Criminal Justice System)

My Lords, in Committee I introduced an amendment to Clause 47 which is now Clause 47(4)(a). This covers all those who, whether or not in the course of employment and regardless of the setting, provide care, assistance or services to the complainant in connection with the latter's mental disorder or learning disability. I am satisfied that this definition is sufficiently broad to cover all those referred to in Amendments Nos. 136 to 138 and 142.

I believe that the approach in Clause 47(4)(a) is preferable to citing in legislation lists of too many different types of care because there is always the risk of inadvertently excluding groups which should have been included. It also avoids the uncertainty of having in the legislation such undefined terms as "general healthcare" and "social care".

I hope that that is the assurance the noble Lord seeks and that he will feel able to withdraw the amendment.

Photo of Lord Astor of Hever Lord Astor of Hever Conservative

My Lords, in the light of the Minister's very satisfactory response, and his satisfaction that the definition is sufficiently broad, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 137 to 140 not moved.]

Photo of Lord Falconer of Thoroton Lord Falconer of Thoroton Minister of State (Criminal Policy), Home Office, Minister of State (Home Office) (Criminal Justice System)

moved Amendment No. 141:

Page 24, line 6, leave out "53(1)" and insert "53"

On Question, amendment agreed to.

[Amendment No. 142 not moved.]

Clause 49 [Sections 42 to 46: sexual relationships which pre-date care relationships]:

[Amendment No. 143 not moved.]

Clause 53 [Causing or inciting child prostitution or pornography]:

Photo of Baroness Noakes Baroness Noakes Conservative

moved Amendment No. 144:

Page 27, line 16, leave out from "to" to end of line 17 and insert "be abused through prostitution, or to be involved in the making or production of abusive or indecent images,"

Photo of Baroness Noakes Baroness Noakes Conservative

My Lords, in moving the amendment, I speak also to Amendments Nos. 148 and 153 which I have tabled on a probing basis, as the Minister is aware. We debated the amendments in Committee and I do not wish to reiterate the arguments at length. I sought to emphasise that the use of the adult terms "prostitution" and "pornography" is completely misleading for juries. Whenever a child is drawn into prostitution and pornography that child is abused. I do not believe that there is serious dispute about that in your Lordships' House. However, it has been far from clear that that was well understood in the wider world. That is why my amendment sought to insert the existence of abuse into the offences.

In Committee, the Minister said that my amendment would make it harder to gain a conviction. Of course, there is no way that these Benches would want to be associated with making it harder to bring to justice the kind of people who corrupt children through prostitution or pornography. Therefore, with the Minister and his officials I have been researching ways of indicating in the Bill that the child offences we are dealing with raise a very different set of issues from adult prostitution and adult pornography. I place on record my gratitude for the work that they have done. I am disappointed that we cannot change the titles of the offences to emphasise abuse but the Minister's amendments in this group separate out the child offences and will give them their own heading. I beg to move.

Photo of Lord Hylton Lord Hylton Crossbench

My Lords, Amendment No. 144 may have a small technical defect. It appears to leave out "in any part of the world". It is important to keep those words in the Bill.

Photo of Baroness Walmsley Baroness Walmsley Liberal Democrat

My Lords, I support this group of amendments. It seems inappropriate to refer to young children as prostitutes. It has connotations of culpability which are completely inappropriate when we are dealing with children who are being abused. I support the spirit of the amendments even if, technically, they are not quite right. I hope that the Minister will help us out.

Photo of Lord Falconer of Thoroton Lord Falconer of Thoroton Minister of State (Criminal Policy), Home Office, Minister of State (Home Office) (Criminal Justice System)

My Lords, as I have indicated privately and publicly, I am sympathetic to the concerns which prompted these amendments to make it clear that child prostitution or child pornography would always be abusive to those involved. As the noble Baroness, Lady Noakes, rightly said, I think that we are all agreed that we do not want to do it in such a way that it makes it harder to prove the offence.

I believe that there is a way to reflect the House's concern. It can be achieved by changing the italic titles of the relevant sections of the Bill to reflect the view that these offences are concerned with abuse of children. That requires separating out the clauses dealing specifically with child victims from those dealing with prostitution generally.

Currently Clauses 52 to 59 are grouped under an italic heading of "Prostitution and child pornography". Government Amendments Nos. 147 and 152 rearrange the clauses so that Clauses 54 and 56 will now follow the interpretation clause at Clause 58. Government Amendments Nos. 155 and 158 make minor drafting changes to the interpretation of Clause 58 to make clear that it relates specifically to the child-specific offences that now precede it—that is Clauses 52, 53, 55 and 57. Should the House accept those amendments to regroup the clauses in that way, the italic title preceding Clause 52 will be changed to "Abuse of children through prostitution and pornography". That will be included in the print of the Bill prepared for Third Reading. I am advised that the italic title cannot be changed by way of amendment, but the changes that I have just outlined will be made by the Public Bill Office.

Clauses 54 and 56 by virtue of government Amendments Nos. 147 and 152 would then fall after Clause 58. They, along with the new interpretation clause, introduced by government Amendment No. 159 which will follow and explain the now relocated Clauses 54 and 56, form a new group relating to exploitation of prostitution, and the Public Bill Office will introduce a new italic title of "Exploitation of prostitution". I hope that that satisfies a legitimate concern which I fully share, producing a result with which we are all satisfied.

Photo of Baroness Noakes Baroness Noakes Conservative

My Lords, I thank the Minister for that reply and I thank the noble Baroness, Lady Walmsley, for her support. I apologise to the noble Lord, Lord Hylton, if my probing amendment inadvertently removed words. That was not the intention. As it was a probing amendment no harm has been done. I have said that I am grateful for the Minister and his officials taking our concerns seriously. We have a result which moves a considerable way towards meeting those concerns. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Photo of Baroness Noakes Baroness Noakes Conservative

moved Amendment No. 145:

Page 27, line 18, leave out paragraph (b).

Photo of Baroness Noakes Baroness Noakes Conservative

My Lords, in moving Amendment No. 145 I shall speak also to the other amendments in the group. I am pleased that the Minister has added his name to eight of the amendments.

All of the amendments delete the requirement to prove gain or expectation of gain as a component of the various offences covered by prostitution, child pornography and trafficking. I shall speak first to those amendments on which we have persuaded the Government of the merits of our arguments. Amendment No. 145 relates to the Clause 53 offence of causing or inciting child prostitution or pornography, Amendment No. 149 relates to the Clause 55 offence of controlling a child prostitute or a child involved in pornography, Amendment No. 154 deals with the Clause 57 offence of arranging or facilitating child prostitution or pornography, and Amendment No. 156 is consequential. We are delighted that the Government have agreed to delete the requirement for gain for the offences. Proving gain was inappropriate. We are similarly delighted that the Government have agreed with us on Amendments Nos. 160, 161, 162 and 163 which delete the requirement to prove gain from the trafficking offences in Clauses 60 to 63.

That leaves my Amendments Nos. 146 and 151. They seek to remove the need to prove gain from the adult prostitution offences in Clauses 54 and 56. Many of us who spoke at Committee were convinced that the formulation of the offences in Clauses 54 and 56 was wide of the mark. They do not focus on the real ills surrounding prostitution which are not about making money from it but are about the use of force and coercion. I have tabled the amendments as probing amendments so that I have an opportunity to raise again the issue of the review of the law of prostitution that the Government have promised. In Committee the Minister said:

"I am not in a position today to say precisely what the scope of the review will be, but I hope that when we come to the Report stage I shall be able to tell your Lordships".—[Official Report, 13/5/03; col. 187.]

The Minister has an audience hanging on his every word. I beg to move.

Photo of Lord Hylton Lord Hylton Crossbench 5:45 pm, 9th June 2003

My Lords, before the Minister replies, I want to say how delighted I am that the Government are supporting several of the amendments. I hope that that will lead to more successful prosecutions.

Photo of Lord Falconer of Thoroton Lord Falconer of Thoroton Minister of State (Criminal Policy), Home Office, Minister of State (Home Office) (Criminal Justice System)

My Lords, this group of amendments deals with the removal of "gain" from the prostitution, child pornography and trafficking offences. There is also Amendment No. 157, tabled by the noble Lord, Lord Lucas, amending the scope of "goodwill" within the definition of gain. I cannot talk to that again, so if the noble Lord wishes to speak to the amendment he should do so now or forever hold his peace.

Photo of Lord Lucas Lord Lucas Conservative

My Lords, I would have happily waited until later to deal with the matter, but that was merely because I had not spotted that the amendment was in this group. If the Minister is to say something about his promised review of the law on prostitution, then I shall have no comment to make. If the Minister wishes to address the amendment now, because that appears in his briefing notes, I shall be happy. I may be silent when we arrive there.

Photo of Lord Falconer of Thoroton Lord Falconer of Thoroton Minister of State (Criminal Policy), Home Office, Minister of State (Home Office) (Criminal Justice System)

My Lords, as the noble Baroness, Lady Noakes, indicated, I have put my name to Amendments Nos. 145, 149, 154, 156, 160, 161, 162, and 163, tabled by the noble Baroness and the noble lord, Lord Astor, which deal with the issue of "gain" when referring to the trafficking offences and the offences of child prostitution and pornography, but not to Amendments Nos. 146, 151 and 157 relating to the other prostitution offences.

In Committee I indicated that I would consider removing "gain" from the prostitution and child pornography offences in the Bill. After careful consideration I agree with those noble Lords who raised the matter in earlier debates that when a child has been abused through prostitution or involvement in pornography, the offences should not carry the additional requirement to have been committed for "gain". That is why I am supporting the amendments to which my name has been added.

Looking at the issue of adult prostitution, which is itself not criminal, we do not support Amendments Nos. 146 and 151 which remove the provision for "gain" from the offences at Clauses 54 and 56. Where an adult is "caused" to become a prostitute by another person when that is done exploitatively for the "gain" of that other person, we would want to that to be an offence. Where a person, for example, incites her friend to become a prostitute simply because she thinks her friend could, then that should not be criminal. That is different from child prostitution where we would want a lower threshold for criminality because of the particular vulnerability of the child victims. I would therefore resist Amendments No. 146 and 151 if they were moved, but the noble Baroness has indicated that that is not her intention and that her concern is to probe.

The Government are extremely concerned about the Mafia-style criminality associated with the exploitation of girls and women, the links between prostitution and drug dependency and the way in which prostitution can blight local communities. There is much work to be done to establish how best to break the links between the sex trade and organised crime, to help those who are exploited to leave prostitution and to support local communities in developing effective neighbourhood regeneration schemes. In the Bill we go some way to addressing the ways in which the criminal law can be brought to bear to stop commercial sex exploitation and we are making some progress in assessing what works in terms of both enforcement against users and abusers and support for the victims of that trade. It is a complex area and there are few easy answers. We recognise that there should now be a sensible debate on the issue so that we can benefit from the views and practical experience of the agencies and voluntary organisations working with those at risk of, or involved with, prostitution.

However, there remains much groundwork to be done before we will be in a position to announce the timing of such a debate. So I am not in a position to take the matter much further forward than when we were in Committee.

Photo of Lord Monson Lord Monson Crossbench

My Lords, I hope that I am not out of order, but I congratulate the Government on once again striking just the right balance in this difficult matter.

Photo of Baroness Noakes Baroness Noakes Conservative

My Lords, I thank the Minister. As he indicated, I do not intend to move the two amendments with which he does not agree. However, I shall proceed to move formally those with which he does. I beg to move.

On Question, amendment agreed to.

Clause 54 [Causing or inciting prostitution for gain]:

[Amendment No. 146 not moved.]

Photo of Lord Falconer of Thoroton Lord Falconer of Thoroton Minister of State (Criminal Policy), Home Office, Minister of State (Home Office) (Criminal Justice System)

moved Amendment No. 147:

Transpose Clause 54 to after Clause 58.

On Question, amendment agreed to.

Clause 55 [Controlling a child prostitute or a child involved in pornography]:

[Amendment No. 148 not moved.]

Photo of Baroness Noakes Baroness Noakes Conservative

moved Amendment No. 149:

Page 28, line 1, leave out paragraph (b).

On Question, amendment agreed to.

Clause 56 [Controlling prostitution for gain]:

Photo of Lord Lucas Lord Lucas Conservative

moved Amendment No. 150:

Page 28, line 14, after "person" insert "directly"

Photo of Lord Lucas Lord Lucas Conservative

My Lords, the amendment would insert the word "directly", restricting the offence to someone who intentionally controlled any of the activities of another person directly relating to that person's prostitution.

My intent is to remove from the ambit of the clause, say, the prostitute's travel agent—if she is a successful international prostitute—or, perhaps, her accountant, who is involved in preparing her affairs, or her maid, who keeps the diary by the telephone, or other people who are involved peripherally in what is going on. The Government's objective is to catch people who control prostitution, and I can understand that they wish the clause to be wide enough that they need not prove too much to gain a conviction. However, I want to stop the current practice of some elements in the police, who harass those in any way associated with a prostitute in order to make a prostitute's life difficult and attack people, particularly the prostitute's spouse or lover, who are frequently the target of such prosecutions.

While I am on my feet, I thank the noble and learned Lord for the letter that he wrote and the comfort that he gave as to the abolition of various old prostitution offences. I am grateful for that. I look forward to an open discussion of the law on prostitution. The noble and learned Lord says that the matter is under consideration. Can he give me some comfort that, if I were to ask him a question this time next year, it would then be imminent? Am I being optimistic? I beg to move.

Photo of Lord Falconer of Thoroton Lord Falconer of Thoroton Minister of State (Criminal Policy), Home Office, Minister of State (Home Office) (Criminal Justice System)

My Lords, the present wording covers all the situations in which a person exerts control over the prostitution of another person intentionally and for gain. If the amendment were made, we would have to determine how "directly" or otherwise the activities controlled related to prostitution. That would add to the burden of what must be proven and introduce some uncertainty about the scope of the offence.

We want control of activities that relate to prostitution to be caught. That would include, for example, telling a prostitute which street corner to stand on, telling her what to wear when she works, or controlling her supply of drugs so that she is obliged to sell herself to get the drugs. We know that pimps are engaged in doing all of those things. Including the word "directly" in the offence would throw doubt on whether all those examples would be covered.

The amendment would narrow the scope so that the control of activities that were only indirectly related to the person's prostitution would not be covered. In Committee, the noble Lord raised his concern to ensure that the partners of prostitutes were not caught by the provisions. I suspect—he has made it clear—that that is what Amendment No. 150 seeks to address. However, such individuals will not be caught. If, for example, a partner drives a prostitute to her place of work and collects her from it, that would not be caught, even if the money that she derived from prostitution benefited both of them, unless he directed or otherwise exerted control, so that she was required to be at that place for the purposes of prostitution.

My noble friend's amendment stems from a desire to ensure that people who, for gain, provide services to prostitutes that may assist them in their prostitution—a travel agent, a taxi driver or a hairdresser—are not covered by the offence. That is the other limb of his argument. If a taxi driver or a hairdresser is hired by the prostitute herself for their services, no control is exerted, and they would not be liable for the offence. If a taxi driver, a hairdresser or a travel agent is hired by a pimp to provide their services to a prostitute, it is the pimp who directs the activities relating to prostitution who is exerting the control, not the service provider. If it can be proven that the partner of a prostitute or someone providing a service to her exerts control over activities related to prostitution, it is right that he is liable to be charged in connection with the offence.

I think that, in the answers that I have given, I have dealt with the points raised by the noble Lord, Lord Lucas. Again, it is a difficult issue, but I think that we have got the balance right in framing the offence. With respect, I resist the amendment.

Photo of Lord Lucas Lord Lucas Conservative

My Lords, I am grateful for that answer and particularly grateful to the noble and learned Lord for referring to me as his "noble friend". I shall be kept warm by that flattery for a long time. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 151 not moved.]

Photo of Lord Falconer of Thoroton Lord Falconer of Thoroton Minister of State (Criminal Policy), Home Office, Minister of State (Home Office) (Criminal Justice System)

moved Amendment No. 152:

Transpose Clause 56 to after Clause 58.

On Question, amendment agreed to.

Clause 57 [Arranging or facilitating child prostitution or pornography]:

[Amendment No. 153 not moved.]

Photo of Baroness Noakes Baroness Noakes Conservative

moved Amendment No. 154:

Page 28, line 26, leave out paragraph (b).

On Question, amendment agreed to.

Clause 58 [Sections 53 to 57: interpretation]:

Photo of Lord Falconer of Thoroton Lord Falconer of Thoroton Minister of State (Criminal Policy), Home Office, Minister of State (Home Office) (Criminal Justice System)

moved Amendment No. 155:

Page 28, line 38, leave out from beginning to "person" in line 39 and insert "For the purposes of sections 53 to 57, a"

On Question, amendment agreed to.

Photo of Baroness Noakes Baroness Noakes Conservative

moved Amendment No. 156:

Page 28, line 42, leave out subsection (3).

On Question, amendment agreed to.

Photo of Baroness Lockwood Baroness Lockwood Labour

My Lords, I beg the pardon of the noble Lord, Lord Lucas. I have to point out that I cannot now call Amendment No. 157, under the rules.

[Amendment No. 157 not moved.]

Photo of Lord Falconer of Thoroton Lord Falconer of Thoroton Minister of State (Criminal Policy), Home Office, Minister of State (Home Office) (Criminal Justice System)

moved Amendment No. 158:

Page 29, line 6, at beginning insert "In those sections"

On Question, amendment agreed to.

Photo of Lord Falconer of Thoroton Lord Falconer of Thoroton Minister of State (Criminal Policy), Home Office, Minister of State (Home Office) (Criminal Justice System)

moved Amendment No. 159:

After Clause 58, insert the following new clause—

"SECTIONS 54 AND 56: INTERPRETATION

(1) In sections 54 and 56, "gain" means—

(a) any financial advantage, including the discharge of an obligation to pay or the provision of goods or services (including sexual services) gratuitously or at a discount; or

(b) the goodwill of any person which is or appears likely, in time, to bring financial advantage.

(2) In those sections "prostitute" and "prostitution" have the meaning given by section 58(4)."

On Question, amendment agreed to.

Clause 60 [Trafficking into the UK for sexual exploitation]:

Photo of Baroness Noakes Baroness Noakes Conservative

moved Amendment No. 160:

Page 29, line 17, leave out from "if" to "he" in line 18.

On Question, amendment agreed to.

Clause 61 [Trafficking within the UK for sexual exploitation]:

Photo of Baroness Noakes Baroness Noakes Conservative

moved Amendment No. 161:

Page 29, line 33, leave out from "if" to "he" in line 34.

On Question, amendment agreed to.

Clause 62 [Trafficking out of the UK for sexual exploitation]:

Photo of Baroness Noakes Baroness Noakes Conservative

moved Amendment No. 162:

Page 30, line 6, leave out from "if" to "he" in line 7.

On Question, amendment agreed to.

Clause 63 [Sections 60 to 62: interpretation and jurisdiction]:

Photo of Baroness Noakes Baroness Noakes Conservative

moved Amendment No. 163:

Page 30, leave out line 35.

On Question, amendment agreed to.

Photo of Baroness Noakes Baroness Noakes Conservative

moved Amendment No. 164:

Before Clause 69, insert the following new clause—

"SE"UAL ACTIVITY IN A PUBLIC LAVATORY

(1) A person commits an offence if—

(a) he is in a public lavatory,

(b) he intentionally engages in an activity within subsection (2),

(c) the activity is sexual.

(2) An activity is within this subsection if it involves—

(a) a person, with a part of that person's body or anything else, penetrating that or another person's vagina or anus;

(b) a person, with his penis, penetrating the mouth of another person;

(c) a person touching that person's vagina, anus or penis, other than through that person's clothes; or

(d) a person touching another person's vagina, anus or penis other than through the other person's clothes.

(3) A lavatory is a public lavatory if the public or any section of the public has or is permitted to have access to it whether on payment or otherwise.

(4) A person guilty of an offence under this section is liable—

(a) on summary conviction, to imprisonment for a term not exceeding 6 months or a fine not exceeding the statutory maximum or both;

(b) on conviction on indictment, to imprisonment for a term not exceeding 2 years."

Photo of Baroness Noakes Baroness Noakes Conservative

My Lords, Amendment No. 164 would create an offence of sexual activity in a public lavatory. I shall also speak briefly to Amendment No. 192, which would apply the same offence in Northern Ireland, as we believe that Northern Ireland citizens should have the same protection as those in England and Wales.

Noble Lords will recall that the introductory version of the Bill had Clause 74 creating an offence of sexual activity in public. There was much wrong with that clause, and the Government withdrew it in Committee. Our main concern was that it appeared to encourage sex in a public lavatory, provided that it was behind closed cubicle doors, because it emphasised that a part of the participants in the activity had to be seen. It was our contention that Clause 74 needed to be amended to ensure that sex in a public lavatory was always an offence, whether it was seen or heard. Now that Clause 74 is no longer part of the Bill, we have tabled an amendment to insert a new clause to make it plain that sexual activity in a public lavatory is an offence.

When the Government launched the White Paper entitled Protecting the Public last November, the Minister, repeating the Statement of the Home Secretary in another place, said:

"Our proposals for reform . . . will better protect the public, particularly children and the vulnerable".—[Official Report, 19/11/02; col. 286.]

He went on to say, at col. 288, that,

"we will introduce a new offence to deal with specific sex acts in a public place. This will reinforce a sense of decency and respect for others".

We agreed with that and had high hopes of the Bill. Those hopes have not been fulfilled.

Before this Bill, there were three main ways in which sex in a public lavatory might have resulted in a criminal prosecution; namely, the common law offence of outraging public decency, Section 5 of the Public Order Act, and the male-only offence of gross indecency, under the Sexual Offences Act. This Bill repeals the gross indecency offence because it is not gender neutral—we have no quarrel with that. But in doing so it has taken away the offence which was used very considerably to deal with sex in lavatories—that offence specifically referred to lavatories. It has failed to replace it with anything else. The result is not the better protection promised by the Government, but worse protection. That is why we want a specific offence in this Bill to strengthen protection for the public.

In my opinion, the common law offence of outraging public decency is not sufficiently clear and robust on the issue of sex in public lavatories to be relied on. It requires the prosecution to prove that an act is of such a lewd, obscene or disgusting character as to outrage public decency. First, let us assume—no mean assumption—that this is always easy to prove in the case of sex in a public lavatory. Secondly, the prosecution must prove that the act was capable of being seen. That was the view of Mr Justice Ashworth who gave the judgment of the Appeal Court in the case of Mayling in 1996. He said:

"It is, in the view of this Court, clear that more than one person must at least have been able to see the act complained of if the charge is to be made out".

As I understand it, there is no case law involving acts which have been experienced or heard but not seen. The Home Office review entitled Setting the Boundaries, which recommended a specific offence of sex in public, said in relation to the offence of outraging public decency that its

"very width and flexibility make it an uncertain offence without the clarity required of modern law".

I turn now to the offences of harassment, alarm or distress under Sections 4A and 5 of the Public Order Act 1986. First, these offences are rarely used at present and so we cannot expect much protection from them in future. Secondly, the maximum penalty is a level 3 fine. The offence that I have drafted into Amendment No. 164 has a more realistic penalty of a maximum of two years' imprisonment on indictment or six months or the statutory maximum fine in summary proceedings. Incidentally, this penalty aligns with those for the new offences of exposure and voyeurism created by the Bill.

My case is that sexual activity in public lavatories should never, ever be permitted. I believe that the vast majority of people agree with that. Too often, public lavatories have become no-go areas. Parents are afraid to send their children unaccompanied into them, which is a particular problem for mothers with sons. Many public lavatories have had to be closed. The time has come to ensure that the public obtain the protection that they deserve and which the Government promised.

This Bill has weakened the law relating to sex in public lavatories. My modest amendment seeks to state clearly and unambiguously what is not permitted in public lavatories. I hope that the Government will not persist with their policy of less protection for the public and will support my amendment so that a clear signal is sent about what public lavatories are for and what they are not for. I beg to move.

Photo of Baroness Blatch Baroness Blatch Conservative 6:00 pm, 9th June 2003

My Lords, I support my noble friend and I have added my name to her amendment. I speak also to Amendment No. 192 standing in my name, to which my noble friend has added her support. There is a serious lacuna in this Bill relating to dealing with sex in public toilets. There is, and has been for decades, a known problem of men using public toilets to meet other men for anonymous sexual encounters. That causes nuisance, annoyance and upset to very many people. Some complain about walking into public toilets and finding sexual activity already taking place. Others witness men in the street soliciting one another who then disappear into the toilets for sex. Some people live near public lavatories commonly used in this way and have the nuisance of men and cars coming and going at all hours of the day and night. There are also cases of children going into public toilets and being unwilling witnesses to sexual activity inside.

When Parliament legalised homosexual acts in private in 1967, it recognised this problem and created a specific statutory offence to deal with it. The legalisation of homosexual activity appears to have done little in 35 years to lessen the propensity of some homosexual men to use public toilets for sexual encounters. It is known as "cottaging". The fact that the activity even has a recognised slang name is indicative of the scale of the problem. Some homosexual charities even send so-called "outreach workers" to stand outside known cottaging grounds to hand out condoms to the homosexual men who come there for sex.

Sex in public toilets is a blight on many communities. That has certainly been confirmed by the hundreds of letters we have received on this issue. When I spoke in Committee, I listed a selection of cases in which the police had been having to clamp down on homosexual activity in public toilets around the country. As my noble friend said, the law that the police rely on when clamping down on such activities is gross indecency. Gross indecency is a clear, statutory offence which outlaws sexual activity if it takes place in a public toilet. It simply requires proof that the activity took place. It is a law that works.

It is not being repealed in this Bill because it is ineffective; it is being repealed because the Government regard it as discriminatory as it applies only to homosexual acts. The solution is simple—extend gross indecency to all sexual acts. To borrow the phase used by the noble Lord, Lord Alli, on 19th May, at col. 583, this would be "sexuality neutral". Instead, gross indecency is being repealed and nothing is being put in its place.

Amendment No. 164, tabled by my noble friend and to which I have added my name, creates a straightforward criminal offence which addresses this problem. It cannot be said to attract any of the criticism that was directed at the Government's Clause 74 in the introductory print of the Bill because it covers only sexual activity in public toilets. It does not cover sexual activity in people's back gardens or on mountainsides or anywhere else. It deals with the problem of public lavatories only.

This issue of sex in public lavatories is a concern to Members on all Benches in your Lordships' House. Public lavatories should be clean and safe, especially for children and their families. They should be free from seedy and, frankly, disgusting practices. My concern is that the very way in which the police can take action against such practices is being repealed and, as I said, nothing is being put in its place.

Last time, the Minister said:

"Our aim has always been to ensure that the law provides sufficient protection from such behaviour, which everyone in this House feels should take place in private",—[Official Report, 19/5/03; col. 585.]

That means, not in a public lavatory.

As the Bill stands, the Government will not achieve that aim. As everyone has agreed that the problem needs to be dealt with and since there is a much-used criminal offence on the statute book which is being removed by this Bill, why is the Minister not prepared to put something in its place to ensure that all the same ground is covered along with heterosexual and lesbian and gay activity?

If there is any shadow of doubt whether sexual activity in public toilets will be criminal after this Bill is passed, the Bill must be amended to remove that doubt. And there is doubt, because the Minister tells us that we should have to fall back on the existing common law offence of outraging public decency or on Section 5 of the Public Order Act 1986.

I ask the Minister: which one? Which of these offences will apply to the men caught engaging in sexual activity in a toilet cubicle? Is that outraging public decency or is it behaviour likely to cause harassment, alarm or distress? If the Minister cannot say with certainty, he is betraying that there is doubt about the scope of those offences, which of them the police would use and the view taken by the court.

The noble and learned Lord referred to the common law offence of outraging public decency as focusing on the broad nature of the behaviour and the impact that it causes—rather than on the technicalities. It is precisely the general nature of the offences that creates the risk that they will fail to catch the kind of behaviour about which we are all concerned.

Case law on outraging public decency suggests that the offence is only committed where two or more members of the public can witness the activity. The Minister previously referred to Smith and Hogan—the leading criminal law text book—saying that it suggested that CCTV could provide the necessary evidence for a public decency offence conviction. Is he seriously suggesting that every toilet cubicle in the country should be fitted with a CCTV camera, peering down into it? I hardly think that the public would stand for that. If they did, CCTV evidence of what was going on in the cubicle would not be enough to make out the offence. Observing the offence via a camera is not enough. The offence must occur in public and at least two people must see it with their own eyes.

The 10th edition of Smith and Hogan, at page 490, simply states that a CCTV camera may provide evidence that the act took place where it could be seen by two or more people. If the camera simply shows that the act took place in a cubicle where it could not be seen by anyone but the participants, that would not be enough. In fact, CCTV coverage could be used by the defence. Sex in public toilets could continue without committing an offence under the only remaining legal remedy—common law on outraging public decency or Section 5 of the Public Order Act 1986.

A witness may see two men go into the cubicle and hear them engaging in sexual activity—but since he cannot see it, the offence of outraging public decency would not apply. My noble friend's amendment is the solution. It is clear. It is unambiguous. It does not require that the activity be seen any more than the offence of gross indecency. The Minister said that it is difficult to know from hearing noises which act is taking place, yet that is true of gross indecency—an offence that works perfectly well.

It may be perfectly clear to witnesses that one or more of the activities listed in the proposed subsection (2) is taking place without needing to see it. It is certainly easier to prove an offence under the amendment than that the act crosses the threshold of outraging public decency and could be witnessed by two or more members of the public.

The suggested offence would be easier to prove than the public order offence of causing harassment, alarm or distress—originally intended to deal with minor acts of hooliganism, not sexual offences. The definition of what causes harassment, alarm or distress is vague and variable—whereas the list of prohibited activities in Amendment No. 164 is clear and fixed, and my noble friend's amendment has the benefit of being non-discriminatory. It does not focus on homosexuality, which is a major concern of this Government. It does not criminalise any behaviour that your Lordships may seek to defend. It only criminalises behaviour that we all agree ought to be criminalised. Why cannot we have certainly and reassurance for the public, by having a clear offence in statute? Not to accept the amendment is to accept that sex in public lavatories will continue with much less protection for decent, law-abiding communities than at present.

Amendment No. 192 applies to Northern Ireland my noble friend's proposed offence of sexual activity in a public lavatory. Until two o'clock on 20th May, Northern Ireland did not have to worry about that matter. In the draft Bill, gross indecency remained on Northern Ireland's statute book. Until then, it was government policy to leave the law on sexual offences in Northern Ireland largely untouched.

On 19th May, the noble and learned Lord restated the Government's position that,

"a fundamental reform of the law on sex offences in Northern Ireland does not form part of this Bill".—[Official Report, 19/5/03; col. 678.]

The Government decided, without any consultation, to amend Northern Ireland's laws on sex offences in one of the most controversial ways possible, by amending Schedule 5 to repeal the offence of gross indecency—which provides real protection against a known public nuisance. Repealing that offence while putting nothing in its place is irresponsible and careless. To do so in Northern Ireland, where the consultation on sexual offences has not even been published, is downright arrogant.

Some people suspect that the Government may be taking advantage of the suspension of the Northern Ireland Assembly to sneak through this controversial reform. Certainly the God-fearing people of Northern Ireland are unlikely to be pleased with the change. Nor will the police—judging from a conversation with a serving officer in the Province. One officer advised me that the offence of outraging public decency is simply not used for such behaviour. He has consulted with others in the police service and their view is that Northern Ireland, as with England and Wales, would be moving into uncharted waters. No one knows what views the courts would take once the offence of gross indecency has been moved.

The officer repeatedly stated that it is an unknown quantity. He and his colleagues did not regard that as satisfactory. They are concerned that the common law offence will be regarded as too archaic properly to address the problem. In particular, they feel that it will be persuade a court that the activity has passed the test of causing outrage. The police want new legislation that they can be confident will enable them to take action. My noble friend's amendment would do just that, which is my reason for seeking to apply it to Northern Ireland also.

Photo of Lord Glentoran Lord Glentoran Conservative 6:15 pm, 9th June 2003

My Lords, I rise to speak briefly—wearing my hat as Opposition Front Bench spokesman on Northern Ireland affairs—in support of my noble friend's amendment. I am intervening purely and simply because of the number of letters that I have received on the subject from across the Province. There is no sign that those letters were organised. They have come from north, west, south and east of the Province. They have come handwritten on little pieces of paper, formally typed and informally typed. This issue has produced the largest postbag from people in Northern Ireland since I became Northern Ireland spokesman in your Lordships' House.

It is quite wrong to leave the law so exposed. The key points made by my correspondents concern safety for children and sneaking through this sort of legislative change in the Province while it does not have a Assembly in which the issue can be raised. I support Amendment No. 192.

Photo of Lord Renton Lord Renton Conservative

My Lords, I warmly support my noble friend's amendment and the remarks of my noble friends Lady Blatch and Lord Glentoran—although I shall confine myself to the position in England and Wales. Even the present law on sexual behaviour in public lavatories is inadequate. The repeal of the offence of gross indecency will make the position even worse. In fact, it will make it terrible.

The Government, by legalising sex in public lavatories, are creating the most appalling possibilities. It is said that photographic apparatus will be used to record anything that goes wrong. I cannot believe that every public lavatory in the country would have such an apparatus—or that if it did, it would necessarily cure the matter.

One of the things we have to worry about most under the present law, but even worse, under the repeal of the law relating to gross indecency, is the effect on young people, including small children. The amendment tabled by my noble friend Lady Noakes provides a solution. People could argue on some of the detail and may think that they could suggest a stronger and better solution, but I doubt it. The amendment is well phrased. I hope that the Minister will keep an open mind on the matter and not merely put forward the decisions the Government already seem to have wrongly taken.

Photo of Lord Campbell of Alloway Lord Campbell of Alloway Conservative

My Lords, I raise a short point of construction. Of course I agree with the amendment's principle; it is wholly correct. But I am a little worried and seek clarification. Subsections (2)(c) and (d) have the qualification,

"other than through that person's clothes".

Subsection (1)(b) specifies that the touching must be intentional, and subsection (1)(c) that "the activity is sexual". Does that mean that if it is done through another person's clothes, no offence is committed? It seems a clumsy way of going about a prohibition. I raise the point only because the qualification does not ride totally with the fundamental spirit of the amendment, with which I am wholly in agreement.

Photo of Lord Hylton Lord Hylton Crossbench

My Lords, like other Members of your Lordships' House I have received a number of letters in support of the amendment. One or two have even come to me from Northern Ireland. The English ones came from doctors, parents and general members of the public. I urge the Government either to accept the amendment or to produce their own improvement on it.

Photo of Lord Fitt Lord Fitt Other

My Lords, I support the amendment and reinforce the remarks of the noble Lord, Lord Glentoran. In this House your Lordships will recognise that I have restricted myself largely to events as they unfurl in Northern Ireland, particularly in the political arena. But taking into consideration all the political developments that have taken place over the past 30 years, I have rarely seen such an avalanche of anger as I have seen from Northern Ireland in relation to the Bill. It was not one or two letters or telephone calls, but the mass of people in Northern Ireland—Catholic, Protestant, Unionist and nationalists. They cannot believe their eyes or ears when they take into account what the Government are going to permit in Northern Ireland.

I rise to warn the Government, and here I will be attacked by some people. If the amendment is not carried and sexual activity is permitted in toilets, even though it be in the cubicle with the door closed, one can see the feet under it and one will be totally aware of what is going on. I can see fathers going into those toilets with their sons and being so disgusted about what their young son is going to see that it will give rise to an outbreak of homophobia. Some fathers will feel as I would feel were I 20 years younger and saw such activity in a public toilet; like taking physical action against those involved. If that happens, the Government will have no one to blame but themselves. Public toilets are public. They are meant for a certain usage. They were never meant under any distinction for the activity we are discussing today.

I feel embarrassed that the noble Baronesses had to put down in such graphic detail the wording of Amendment No. 164. They must have found it distasteful to have to put such words into their amendment. But I know that they are motivated by trying to prevent an awful evil from being committed and appearing to be sanctioned by the Government. I can only reinforce what the noble Lord, Lord Glentoran, said. He spoke for the majority of people in Northern Ireland, as I do standing on my feet at this moment. This permission for sexual activity in public toilets is anathema to all right-thinking people, not only in Northern Ireland but in the rest of the United Kingdom.

Photo of Lord Thomas of Gresford Lord Thomas of Gresford Liberal Democrat

My Lords, we on these Benches share the antipathy expressed to sexual acts in public toilets. We too believe that public toilets should be used for the purposes for which they were built, as the noble Lord, Lord Fitt, said. However, we think that the best way of dealing with the matter is that such toilets should be clean, safe and supervised and that the sanction of the criminal law should be applied in a proper way. Therefore we agree with the Government that the best way of dealing with the matter is by using the common law offence of outraging public decency.

The noble Baroness, Lady Blatch, said that the common law was archaic. In fact it is flexible. A reliance has been placed on a case named Mayling, which was decided in the court of criminal appeal in 1963 with the judgment given by Mr Justice Ashworth. It is of some authority, but not of the highest authority. Mr Justice Ashworth decided to translate the words of the indictment in this way:

"the prosecution has to prove, first, that the act complained of was committed 'within the purview of' . . . divers of Her Majesty's subjects".

He construed that as being "in the sight of". That is where we get the idea that there is no criminal offence unless what happens takes place in the sight of a particular witness.

But purview does not simply mean in the sight of. It also means in the experience, the contemplation or consideration of a person who happens to witness what is going on. I agree entirely with the noble Lord, Lord Fitt, that that would cover a person hearing something in a public lavatory. It does not have to be within his sight.

The offence of outraging public decency is very old and wide. The noble and learned Lord, Lord Simon of Glaisdale, in a case decided in the committee of the House of Lords in 1972, set out what it covers: indecent exposure, acts of sexual indecency in public, indecent words—and, rather more archaicly—disinterring a corpse, exhibiting deformed children, exhibiting a picture of sores and procuring a girl to be taken for prostitution. The noble and learned Lord said that they have a common element in that, in each, offence against public decency was alleged to be an ingredient of the crime, except Grey where it was said to be "disgusting and offensive":

"so disgusting that it is calculated to turn the stomach".

Conduct that outrages public decency is therefore widely defined. The noble and learned Lord said later in his speech that he did not think it would necessarily negative the offence that the act or exhibit was superficially hid from view. Later he said that moreover the offence was, in his view, concerned with recognised minimum standards of decency, which are likely to vary from time to time.

The Government have taken the right course not to prescribe in complete detail—as the amendment seeks to do—the conduct to be criminalised. The fact that it now becomes an offence which is triable in the magistrates' court will mean more prosecutions on this basis. A wide and flexible definition is much more likely to attain the result that most noble Lords and their correspondents are hoping for than the proposed amendment.

Photo of Lord Alli Lord Alli Labour 6:30 pm, 9th June 2003

My Lords, I agree with much of what the noble Lord, Lord Thomas of Gresford, said. I wish to make one or two points. I am grateful to the noble Baroness, Lady Noakes, for the tone of the debate. I welcome the way in which she has conducted and constructed it.

Let me say one or two words about the history of sex in public lavatories as it pertains to gay men. We are in a transitional period and the practice is dying out. If the noble Baroness, Lady Blatch, wishes to intervene, she may do so.

Photo of Baroness Blatch Baroness Blatch Conservative

My Lords, I know that not to be the case. Only very recently some public toilets had to be razed to the ground by the public authority because it could not cope with the public nuisance of people collecting at the public toilets for sex with unknown strangers.

Photo of Lord Alli Lord Alli Labour

My Lords, it is that myth that I wish to challenge and to ask for a little understanding. A study of the history of homosexuality in this country shows that for much of the past century homosexuality was illegal and homosexuals were driven underground. That process forced them to meet in places where the practice is deemed now to be unacceptable.

I am not defending sex in public lavatories—I do not believe I can. I agree with much of what has been said: public lavatories are designed for a specific purpose, not for having sex in. I do not disagree with that. But for generations—not my generation, the generation before me—homosexuals did not have the meeting places that my generation, the younger generation, now have. They did not have a much more open society, where they could meet people at dinner parties or at work and where the tolerance level is much greater. It is this which will change the practice more than anything else. It is a practice which is well on the decline.

My second point is simply this: I have an inherent objection to locking people up for having consensual sex. I do not feel comfortable with it. Whether the people involved are heterosexual or gay, whether they are having sex in a car, whether they are young people coming back from a party at Christmas time and using the works' lavatory or a public lavatory, locking up two young people and sending them to prison for having consensual sex seems the wrong method. Those are the two points that I wanted to make.

Photo of Lord Molyneaux of Killead Lord Molyneaux of Killead Crossbench

My Lords, I fully support both amendments, particularly the one providing for the application to Northern Ireland. I agree with the noble Lord, Lord Fitt. The representations made to him are common to all noble Lords, as the noble Lord, Lord Glentoran, said, and they have all homed in on one specific problem. It is clear from our correspondents that, whether or not they regard the common law as suitable for the debate, what is required here is something more specific, such as the amendments. I warmly support both amendments.

Photo of Lord Clarke of Hampstead Lord Clarke of Hampstead Labour

My Lords, I did not intend to intervene. I apologise to the noble Baroness, Lady Noakes, for not being in the Chamber when she moved the amendment. I had popped out to get my notes, which I still cannot find. I decided not to say anything because I could not say it in a constructive way but, having listened to the debate, I cannot in all conscience sit here and support the Government. I intend to support the amendment if it is moved.

The noble Lord on the Cross Benches suggested an alternative. I believe that most people in this country would fail to understand why the House of Lords would reject an amendment which is clearly designed for the protection of decency and people's feelings. I am not a lawyer—I thank God that I am not a lawyer—and I cannot speak with the eloquence of some of the lawyers in the Chamber, but I can speak for ordinary folk. They will find it very difficult to understand why the amendment, if it is moved, is resisted by the Government.

There is plenty of time for the Government to put in the safeguards contained in the amendment and to bring back the matter at a later stage. It is as simple as that. As it stands, if the amendment is not accepted by the Government I shall have no alternative but to oppose them in the Lobbies.

Photo of Lord Tebbit Lord Tebbit Conservative

My Lords, perhaps I may draw attention to the curious situation which arises under the present law as enunciated by the noble Lord who spoke from the Liberal Democrat Front Bench. Under the law as it stands, it would seem that for two persons or more to have sex in a public lavatory would not be an offence until the moment that someone else entered that public lavatory. They would be performing a perfectly legal act until that moment. Is this a sensible and logical way in which the law should be constructed?

Another aspect should be borne in mind. Not all public lavatories are terribly large. If a group of persons should go together to such a site and among them there were those who engaged in sex, no offence would be committed because none of them would be outraged.

There is an ultimate absurdity. If there are only two people and no one else is there—no offence; one person entering—offence created; a whole mass of people there, all for the same purpose—no offence created. Surely the noble and learned Lord on the Government Front Bench is not going to defend such a situation when there is a perfectly obvious, simple and straightforward amendment before the House which will get him out of that hole.

Photo of Lord Falconer of Thoroton Lord Falconer of Thoroton Minister of State (Criminal Policy), Home Office, Minister of State (Home Office) (Criminal Justice System)

My Lords, there is not much dispute about the fact that public toilets should be used for the purpose for which they are built. There is equally not much dispute that people do not want public toilets used in a way that upsets, outrages, offends and distresses people of a reasonable disposition. There is no dispute about that. The question is how to achieve it.

We take the view, for the reasons broadly advanced by the noble Lord, Lord Thomas of Gresford, that the common law, subject to one amendment, is capable of dealing with the problem. It is flexible and it is based on the propositions advanced in the House that the conduct causes offence, upset, harassment and outrages public decency. That is the problem in relation to the law.

The noble Lord, Lord Tebbit, said that surely someone has to see what happens. If no one is there, there is no offence. That is not right. If a reasonable man were there—even though he is not—and could see it, that is sufficient. The noble Lord, Lord Tebbit, is shaking his head. Perhaps he will tell me where I am wrong.

Photo of Lord Tebbit Lord Tebbit Conservative

My Lords, the noble and learned Lord is missing the point. The proposition that I advanced was that for those concerned in committing the act, it is a perfectly lawful act today provided that no one else comes into the public lavatory. The moment someone else comes in, it becomes unlawful. Surely that is not sensible.

Photo of Lord Falconer of Thoroton Lord Falconer of Thoroton Minister of State (Criminal Policy), Home Office, Minister of State (Home Office) (Criminal Justice System)

My Lords, it would not be sensible if that were the proposition I am advancing. However, the proposition I am advancing is that if such an act occurs, it is not a question of whether someone is there at the same time but whether the act is capable of being seen if someone were there. That is what we are proposing and it is a perfectly sensible way of dealing with the issue.

What is the alternative being suggested? The amendment of the noble Baroness, Lady Noakes, specifies that certain activities have to be committed. I shall not read them to the House because they are printed on the Marshalled List in Amendment No. 164 and are fairly precise. In the law as we see it operating, if something were to happen behind a cubicle door, for example, it would not be necessary to identify precisely what act had occurred, it would be enough, if looking at all the circumstances, people using the toilet were outraged, offended or distressed by what happened.

As regards the noble Baroness's amendment, particular, specific acts have to be identified. I fully understand the motive behind the amendment, but I can assure noble Lords that it is not going to have the effect which the noble Baroness hopes because of the specific problems of proof. Like the noble Baroness, Lady Blatch, we do not want to put CCTV in every cubicle, which is the effect of the amendment of the noble Baroness, Lady Noakes.

We are united in what we wish to achieve: using the law based on outraging public decency or offending or distressing people who visit public lavatories is the appropriate way to deal with it. It is effective. We thought about the clause proposed by the noble Baroness but came to the conclusion that it would not work for the reasons I have indicated.

I hope that noble Lords will reflect on what I am saying. I do not believe that there is any dispute about the aim which we wish to achieve.

Photo of Lord Glentoran Lord Glentoran Conservative

My Lords, can the noble and learned Lord explain how he sees sufficient deterrent to make it safe for children to use public lavatories? A major thrust in the mail I have received is that parents are frightened that there will not be sufficient deterrent for them to feel comfortable that their children can go into public lavatories.

Photo of Lord Falconer of Thoroton Lord Falconer of Thoroton Minister of State (Criminal Policy), Home Office, Minister of State (Home Office) (Criminal Justice System)

My Lords, I am making it an enforceable crime rather than one which raises difficulties of proof which the proposal of the noble Baroness, Lady Noakes, provides. We are proposing something that is workable and can be proved. I earnestly suggest that noble Lords look at what is proposed and deal with the issue of how it is dealt with behind a cubicle door.

Photo of Lord Thomas of Gresford Lord Thomas of Gresford Liberal Democrat

My Lords, does not the noble and learned Lord agree that if this amendment were accepted it would be necessary in each case for the prosecution to prove either A, B, C or D, and that that would produce a much more difficult burden of proof on the prosecution than to prove outraging public decency, which is directed to the outrage which people feel, not the specific act which has been carried out?

Photo of Lord Falconer of Thoroton Lord Falconer of Thoroton Minister of State (Criminal Policy), Home Office, Minister of State (Home Office) (Criminal Justice System)

My Lords, that is obviously right and I understand that that is what the noble Baroness wishes. She wants the law to be that even though the offence takes place behind closed doors in a public lavatory where proof is difficult, one of the specific acts needs to be proved. If and in so far as the noble Baroness is seeking to suggest to the House that that would make it easier to get convictions, she is not right.

We share the same aim. I believe that we achieve that better than the noble Baroness's amendments. As regards the position in Northern Ireland in relation to Amendment No. 192, Article 19 of the Criminal Justice (Northern Ireland) Order 2003, which will be enacted in July, makes it an offence for a man to commit buggery with another person unless it is in a private place. Paragraph (4)(b) states that a public lavatory is not a private place.

As we have made clear throughout the course of this Bill, while we are dealing with certain aspects of the law in Northern Ireland, there is a much wider review going on there which will embrace a number of these issues. I hope that noble Lords will be reassured by what I say on that matter.

I conclude by saying that we all share the same ends. We are trying to be effective in what we are doing, but I am not so sure that what the noble Baroness, Lady Noakes, is suggesting is that effective.

Photo of Baroness Blatch Baroness Blatch Conservative

My Lords, why was it that the offence of gross indecency, which worked and covered these acts, was repealed? If the only problem was that it discriminated against homosexuals, the offence could have been extended to cover all sexual acts in public toilets.

Photo of Lord Renton Lord Renton Conservative

My Lords, before the noble and learned Lord replies, I point out that the present law is inadequate. The repeal of the offence of gross indecency makes it even more inadequate. The Government are simply trying to preserve the present position, which will not do.

Photo of Lord Falconer of Thoroton Lord Falconer of Thoroton Minister of State (Criminal Policy), Home Office, Minister of State (Home Office) (Criminal Justice System)

My Lords, the noble Baroness, Lady Blatch, says that the present law is adequate, but the noble Lord, Lord Renton, says that it is not. Subject to the amendment which we are making, which is to make outraging public decency an offence triable summarily, we believe that there is adequate and effective protection.

Photo of Lord Monson Lord Monson Crossbench

My Lords, the noble and learned Lord claims that the Government's proposals will be effective. Is he aware that in 2001, for example, the conviction rate in prosecutions for outraging public decency was a mere 20 per cent?

Photo of Lord Falconer of Thoroton Lord Falconer of Thoroton Minister of State (Criminal Policy), Home Office, Minister of State (Home Office) (Criminal Justice System)

My Lords, I was aware of that, but I do not think that that conviction rate indicates whether or not the current law will be effective.

Photo of Baroness Noakes Baroness Noakes Conservative

My Lords, I thank all noble Lords who have taken part in this debate. They have made some extremely valuable points, which I do not have time to go through. My noble friend Lord Campbell of Alloway raised the issue of clothes. I borrowed the drafting from the introductory draft of the Sexual Offences Bill. The explanation is given in the Explanatory Notes. A might scratch himself through his clothes or his knee might touch another's person or crotch. That is not caught within the terms of the offence.

The issue is clear for me. The Bill weakens the protection of the law against sexual activity in public lavatories. The gross indecency offence has gone and instead we are invited to rely on the common law offence, which is hardly used. We heard a moment ago from the noble Lord, Lord Monson, about the conviction rate, but the number of cases brought is extremely low. It is only a couple of hundred in total, only about 30 of which resulted in conviction.

We are invited to rely on this offence, which has hardly been used for dealing with sex in public lavatories in recent years. It covers a wide range of things and the statistics relate to all of the matters covered, not just sex in public lavatories because in recent years we have been using the offence of gross indecency. I do not want to reinstate that offence because I believe that it is offensive to homosexuals. That is why I drafted my amendment in entirely gender-neutral terms.

I say to those who are concerned about how the existing common law offence has been used that that offence evolved in an era not of sexual neutrality, a concept introduced by the noble Lord, Lord Alli, in Committee, but during the period that he referred to in his interesting survey of the background to homosexual behaviour when it was strongly disapproved of by society. That is the background as to how that offence has evolved.

In effect the Minister has said the offence would cover all activity, whether or not it was heard. The noble Lord, Lord Thomas of Gresford, has said the same. But there is no case in point. In any event, my contention is that it is better to have a certain and clear expression of the law rather than having to rely on interpretation of an archaic offence. Flexible can be synonymous with unclear. The noble and learned Lord has said that it may be difficult to prove the offence I have drafted in my amendment. But it should be capable of being proved and it is worth giving it a try.

I believe that those who support the Bill in its current form will in effect be sending a strong signal to those who seek sexual activity in a public lavatory, especially behind the cubicle door. I hope that no noble Lord would want to send a signal that that sort of activity is acceptable. This issue is so important that I seek the opinion of the House.

On Question, Whether the said amendment (No. 164) shall be agreed to?

Their Lordships divided: Contents, 133; Not-Contents, 95.

Division number 1 Private Parking: Ports and Trading Estates — Sexual Offences Bill [HL]

Aye: 131 Members of the House of Lords

No: 93 Members of the House of Lords

Ayes: A-Z by last name

Tellers

Nos: A-Z by last name

Tellers

Resolved in the affirmative, and amendment agreed to accordingly.

Clause 72 [Intercourse with an animal]:

Photo of Lord Lucas Lord Lucas Conservative 7:00 pm, 9th June 2003

moved Amendment No. 166:

Page 34, line 19, leave out "a living" and insert "an"

Photo of Lord Lucas Lord Lucas Conservative

My Lords, in moving Amendment No. 166, I shall also speak to Amendment No. 166A.

When the noble and learned Lord, Lord Falconer, and I discussed this matter in Committee, he said that it was a matter of deciding where the line should be drawn. Yes, that probably is the question, and I think the line should be drawn in a rather different place from where the Government have chosen to draw it. I am sorry to have to trespass on the noble and learned Lord's sensitivities—he was extremely successful in avoiding indelicate language in the course of the debate on the last amendment. I suspect this amendment may prove more difficult.

I think we are all agreed that none of us wishes to decriminalise the existing offences with animals. That is, as I understand it, the way in which the noble and learned Lord has drafted the clause in this part of the Bill. It seems to me, however, that we ought, when having what I suspect will be a very rare opportunity to consider this particular offence, to think about where we should properly draw its boundaries. Amendment No. 166A addresses what is a fairly common and well-attested variety of sexual activity with animals, and that is felching. I do not know how far the classical education of the noble Lord goes—certainly when researching this particular offence I began to understand why classics is a popular subject at university—but he will perhaps be aware that Messalina won a competition with a prostitute for suffocating stoats. She won with 25 stoats in 24 hours. I do not believe that anyone takes it to quite that extent now, but certainly the use of gerbils appears to be popular, and snakes and other animals. As I understand it, it is both a male and female practice.

It seems to me that if we are going to outlaw what one might call conventional penetration of a human by an animal, that is, of using a large animal's penis to do the penetration, one should similarly outlaw the use of a whole smaller animal to undertake the penetration. I do not see the difference in the quality of the offence. If one is outrageous to public decency in the public imagination, then it seems that the other one should be too.

Amendment No. 166 addresses the question of sex with a dead animal. Again, I do not see the quantitative difference between one and the other, particularly when you have well-known sexual practices on the borderline such as avisodomy, which is the practice of breaking a hen's neck at the moment before penetration so that you benefit from the spasms that the animal undergoes afterwards. That, as the Government have drafted the Bill, would seem to be legal, since the animal is certainly clinically dead once its neck has been broken, even if it continues to move.

If we are to have this as an offence, it might at least have logical boundaries. That is, if one is interfering with an animal in a way which would be considered full-on sex, as it were, then that is not to be allowed. As I understand it, neither the noble Lord nor I are proposing that masturbating an animal should be an offence, or using an animal in the process of masturbation. It is the only example of bestiality that I have ever personally observed, and I cannot say that it was a pleasant sight.

Leaving that aside, we ought to have boundaries which are drawn in a reasonably logical place and which reflect the current practice of bestiality, rather than something which perhaps has been drawn from a civil service cushioned from coming across these matters on a day-to-day basis. I beg to move.

Photo of Lord Monson Lord Monson Crossbench

My Lords, I cannot match the quality of the research done by the noble Lord, Lord Lucas, on this matter but I have always thought that the present maximum penalty of life imprisonment for this offence to be utterly ridiculous and disproportionate. I said as much when we were debating another de facto sexual offences Bill some years ago. Equally, it would be going a little too far to decriminalise it altogether. Once again, as so often in this Bill, I think that the Government have struck about the right balance.

The judges are of a like mind to myself, in that, in the relatively rare cases when prosecutions are brought and convictions obtained, the average custodial sentence is about nine months. Quite often, non-custodial sentences are imposed. If the Government's two-year maximum is accepted, I would guess that this will be brought down somewhat and that most convictions will result in non-custodial sentences. That, except in cases involving actual cruelty—which by definition obviously must occur occasionally—I think is right.

I understand what the noble Lord, Lord Lucas, is aiming at in the second amendment but I have not been able to give much thought to it. However, as to the clause as a whole, I think that the Government have broadly got it about right.

Photo of Lord Falconer of Thoroton Lord Falconer of Thoroton Minister of State (Criminal Policy), Home Office, Minister of State (Home Office) (Criminal Justice System)

My Lords, the sex offences review heard evidence that sexual activity with living animals was a matter that needed to be addressed by the criminal law. We have no reason to believe that other types of sexual activity with animals, about which the noble Lord, Lord Lucas, treated us to a long—I do not complain about it being long—well-researched exposition, is anything other than extremely rare. I am not persuaded, therefore, that there is a need to extend the offence in the way suggested.

It is also important to remember that there is a longstanding provision in the Protection of Animals Act 1911 which makes certain cruel behaviour towards or neglect of an animal an offence.

The provisions in the Sexual Offences Bill are therefore not the only means of providing protection for animals in law. I think that, as the noble Lord, Lord Monson, has said, we have the balance about right. We are not minded to increase the scope of the Bill and for that reason we must resist the amendment.

Photo of Lord Lucas Lord Lucas Conservative

My Lords, it is quite clear that I am not going to carry the House with me in a wave of approbation for these amendments. I therefore beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 166A not moved.]

Clause 73 [Sexual Penetration of a Corpse]:

Photo of Lord Lucas Lord Lucas Conservative

moved Amendment No. 167:

Leave out Clause 73.

Photo of Lord Lucas Lord Lucas Conservative

My Lords, the noble and learned Lord has just said that he was not inclined to accept my amendments on felching because he had very little evidence that this was a current practice. Here we have the Government proposing to make a new offence of something for which the Government have absolutely no evidence that it existed before. That is what the noble Lord said in Committee. He could produce no instance where this offence, or what is to be an offence, had been proved. There was no public evidence of it taking place at all, let alone of it being common.

We are therefore creating an offence for a crime which, as far as the Government know, does not exist. I consider that an extraordinary thing to do and that is my principal reason—other than the fact that the noble and learned Lord is not listening—for wishing to move this amendment.

My Lords, we should not start to create crimes for things that do not exist. I entirely accept the noble and learned Lord's strictures that if felching is not common and the Government consider that it is not a current practice, we should not seek to stretch the criminal law to outlaw it. I believe that the Government should take their own medicine with regard to accepting that a particular activity does not exist and consequently not introducing an offence to cover it. We have in front of us in the newspapers an example of outrageous behaviour in relation to a body which has caused real offence, and where there seems to be a problem of producing a crime to fit the behaviour.

The noble and learned Lord will be well aware of the Muslim woman whose body was covered in bacon in Hillingdon. The police have looked very hard to find something with which to charge the perpetrators. They quite clearly—having talked to them—will find it extremely difficult to dream up a charge which will stick or have any great relation to the offence or certainly bear any relation to the seriousness of the outrage felt by the relatives of the person who was subject to the offence. One can imagine other things that one could do to a dead body which would cause great offence. One could paint swastikas on or mutilate a dead body. All of those acts seem to me much more likely and much more current that what is proposed as an offence in the Bill.

I tabled a Written Question to which the noble and learned Lord kindly replied. He said that the Government had absolutely no intention of even investigating, let alone preparing clauses to deal with, other ways in which a body might be treated outrageously and the offence caused by that. All the Government seek to outlaw is the one offence in relation to a body which might actually in some perverted way be an expression of love. That seems to me strange, and in the circumstances of what is going on at the moment, unfortunate. If one considers what one would wish to happen to oneself, I suspect that the one thing that one cares about is reputation. I care not whether my body will be consumed by worms, burnt or dealt with in some other way. What comes after me is my reputation and the way in which people think of me. There is absolutely no proposal to defend that. Indeed, one's reputation is without shield after one's death.

Therefore, from all those points of view, this is an entirely unnecessary and inappropriate clause. I very much hope that the Government will choose to withdraw it. I beg to move.

Photo of Lord Monson Lord Monson Crossbench

My Lords, I am fairly open-minded about the amendment except that I take issue with the noble Lord, Lord Lucas, on the frequency of the prospective offence. I cannot believe that it has never happened at all. I would guess that it is very rare: it might even happen only once every two, three or five years but I cannot believe that there have never been cases of it.

However, I should like to take this opportunity to draw attention to a curious paradox. Shortly we shall be invited—or, in practice, told—to approve a European Union directive which will make it illegal for employers to refuse to employ anyone on the grounds of sexual orientation. By definition sexual orientation has a perfectly obvious and clear meaning. The directive will mean that not only will it be illegal for employers to refuse to employ people whose orientation is towards their own sex but also people whose orientation is towards animals, dead bodies or, indeed, children. It is worth reflecting upon that.

Photo of Lord Falconer of Thoroton Lord Falconer of Thoroton Minister of State (Criminal Policy), Home Office, Minister of State (Home Office) (Criminal Justice System) 7:15 pm, 9th June 2003

My Lords, this is the Sexual Offences Bill; it is not a Bill concerned with how one treats dead bodies generally. There must be a limit to what is possible under the Bill. There is currently no law that covers sexual penetration of a dead human body, which is a surprising omission in the criminal law as we believe that such behaviour represents a violation of the respect that ought to be shown to human remains and, when such behaviour comes to light, is profoundly distressing for the family of the dead person.

While existing legislation covers exhuming a dead body without lawful authority there is no other protection for the body of a person once he or she is dead. Setting the Boundaries heard anecdotal evidence that sexual penetration of dead bodies took place, albeit in rare and unusual circumstances. It is impossible to quantify the extent of the behaviour but that is not surprising when the law is silent on the issue. There is, however, no indication that it is anything other than extremely rare. Having said that, I do not agree that the offence should be struck from the Bill. I am sure that it will be agreed that sexually to penetrate the corpse of another person is profoundly abhorrent, that it is not only incredibly disrespectful to the deceased but that it could also be capable of causing the deepest possible distress to the friends and family of the dead person. The current gap in the law needs to be addressed for those probably rare occasions when such behaviour takes place. For those reasons we are minded to keep the clause in the Bill.

Photo of Lord Lucas Lord Lucas Conservative

My Lords, when I asked the noble and learned Lord whether the Government proposed to create additional offences to ensure that the respect that ought to be shown to human remains was not violated, he said that the Government had no plans to introduce any additional offences of that kind. Although the noble and learned Lord argues his case strongly—I find in my heart no way of disagreeing with him as regards the context—he shows no inclination at all to carry that logic over into other ways in which a corpse may be violated and great offence may be caused thereby, although we have in front of us a real case of that and no real evidence—or anything other than anecdotal evidence—that necrophilia takes place in modern Britain. I consider that aspect of the matter extraordinary.

I also consider extraordinary that the noble and learned Lord chooses to create an offence for something which does not exist although he resisted the creation of an offence in my previous amendment on the ground that the relevant offence did not exist. The noble and learned Lord wishes to have it both ways, if that is not an indelicate thing to say in the context of the Bill. I must accept the fact that the Government have that right. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 168 to 171 not moved.]

Clause 76 ["Consent"]:

[Amendments Nos. 172 and 173 not moved.]

Clause 77 [Presumptions about the absence of belief in consent]:

Photo of Lord Lucas Lord Lucas Conservative

moved Amendment No. 174:

Page 36, line 30, at end insert—

"( ) the defendant knew or had reason to believe that he or another person had committed an offence under section 64;"

Photo of Lord Lucas Lord Lucas Conservative

My Lords, this amendment arises out of discussions we had in Committee and afterwards. An offence under Clause 64, entitled, Administering a substance with intent, appears to me to lack a link to Clause 77. It seems to me that if someone knew that the woman or man in question had been drugged to the extent that it was an offence under Clause 64, or who believed that that had happened, that should be grounds equivalent to the other grounds in the relevant clause why the defendant should then have to prove that he had reasonable grounds for believing that consent had been given. I cannot envisage a circumstance under which one would know that someone had been drugged and one could reasonably be offered the shelter of not coming within Clause 77. It is almost the same as knowing that someone is unconscious because you know that their brain is not connected with the world having been given rohypnol or some equivalent drug. I put the amendment forward as a suggestion but, having suffered grievously on previous amendments, I hold out no great hope of success. I beg to move.

Photo of Baroness Noakes Baroness Noakes Conservative

My Lords, I support my noble friend's amendment. No doubt we shall debate the presumption of belief at a later stage but if we are to have such a presumption it seems to me that this is an entirely sensible one to include and that it provides the logical link to which my noble friend referred.

Photo of Lord Falconer of Thoroton Lord Falconer of Thoroton Minister of State (Criminal Policy), Home Office, Minister of State (Home Office) (Criminal Justice System)

My Lords, I agree that it is extremely hard to imagine how a defendant could successfully argue in the circumstances posited in the amendment that he believed in consent. The wording of the amendment as tabled is not in accordance with the way in which the rest of Clause 77 has been framed. However, that is largely a question of technicality. I am concerned that the amendment proposes that it would be sufficient for the prosecution to prove that the defendant had reason to believe. That does not set a high enough standard of proof. The law should depend on whether the defendant knew of the existence of the given circumstances. Those objections aside, there may be some merit in the amendment and I should like to take time to consider it further. I shall return to it at Third Reading.

Photo of Lord Lucas Lord Lucas Conservative

My Lords, I am immensely cheered. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 175 and 176 not moved.]

Clause 78 [Conclusive presumptions about consent]:

Photo of Lord Falconer of Thoroton Lord Falconer of Thoroton Minister of State (Criminal Policy), Home Office, Minister of State (Home Office) (Criminal Justice System)

moved Amendment No. 177:

Page 37, line 6, leave out paragraphs (a) and (b) and insert "that, in all the circumstances (including any steps the defendant took to ascertain whether the complainant consented), the defendant could reasonably be expected to have doubted whether the complainant consented.".

Photo of Lord Campbell of Alloway Lord Campbell of Alloway Conservative

My Lords, I have a few words to say about the amendment. It is really a reflection of its sister amendment, which was Amendment No. 6 to Clause 1(3), and of a series of similar amendments to Clauses 3, 5 and 7. As an implementing provision, it is not appropriate.

Clause 78 would alter the burden of proof. As it stands, the burden of proof under the amendment would be very simple. The Crown would have to establish beyond all reasonable doubt that the accused did not take such steps as he could reasonably have been expected to take in all the circumstances of ascertaining whether the complainant consented. With a burden of proof shifted under Clauses 77 and 78, the result would be wholly unacceptable.

Photo of Lord Cooke of Thorndon Lord Cooke of Thorndon Crossbench

My Lords, I support the noble Lord, Lord Campbell of Alloway. The Minister tabled an amendment to Clause 1(3) to introduce a partly objective test in cases where the victim does not in truth consent, but the defence of honest belief in consent is raised. The element of objectiveness under the amended test would be whether,

"in all the circumstances (including any steps A has taken to ascertain whether B consents), A could reasonably be expected to doubt whether B consents".

On 2nd June, the sense of the House appeared to be that some element of objectivity was desirable. I respectfully applaud the Government's amendment, which appears an elegant and comprehensive way of dealing with a distasteful subject. It may well be an improvement on the enacted laws of both New Zealand and Canada. However, at present it seems less clear—it has not been specifically debated—whether, assuming that the amendment is agreed to, the complicated provisions of Clauses 77 and 78 would add anything of much value to the legislation. In one view, they may be otiose and productive of more confusion to juries than clarification.

If now is not the occasion to debate the question, I hope that it will be carefully considered by the Minister and, if necessary, reviewed at Third Reading.

Photo of Lord Falconer of Thoroton Lord Falconer of Thoroton Minister of State (Criminal Policy), Home Office, Minister of State (Home Office) (Criminal Justice System)

My Lords, I have made a mistake. On the first day of Report, we left the issue by saying that we would come back and discuss the precise formulation of the reasonableness test using shorthand. As part of that, I indicated that I would not move my amendments on reasonableness. I should not have moved Amendment No. 177, because it is part of that sequence of reasonableness amendments. It would add my definition in Clause 1 to Clause 78. I am grateful to the noble Lord, Lord Campbell of Alloway, for drawing attention to my mistake, in effect. That also indicates why we have not yet had the debate to which the noble and learned Lord, Lord Cooke, referred. I apologise and, so that I do not go back on what I said, I cravenly beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 178 and 179 not moved.]

Clause 79 [Sections 77 and 78: relevant acts]:

[Amendment No. 180 not moved.]

Clause 80 ["Sexual"]:

[Amendment No. 180A not moved.]

Photo of Lord Lucas Lord Lucas Conservative

moved Amendment No. 181:

Page 38, line 5, after "sexual" insert "in intent"

Photo of Lord Lucas Lord Lucas Conservative

My Lords, in moving Amendment No. 181, I shall speak also to Amendment No. 182. Sadly, the noble Lord, Lord Northbourne, is away this week, so is not in a position to speak to his amendments, but we both share continuing concern about the use of "sexual" in the context of the Bill, particularly on qualifications such as touching being sexual.

We are both clear in our opinion that the word is too broad and ill-defined, and will lead to many circumstances in which men in particular—given some court cases that I remember, I am sure that the same will apply to women—when in the ordinary operations of day-to-day life as a teacher, a nurse or anyone else charged with the care of children, are unsure whether "sexual" applies to them. In our litigious society—one that takes extremely seriously sexual crimes towards children, as it should—they might tend to err on the side of caution and of not giving a child the comfort or help that it perhaps deserves or needs in the circumstances, for fear of being accused of a crime under the Bill because of the use of "sexual".

In common parlance, to say that touching is sexual could easily, in the minds of a jury or the public, be broadened to include acts that are not sexual in intent. If a teacher touches a boy on the bottom, or if a male teacher touches a girl on the bottom, one immediately connects that act with "sexual". It is sexual because that is a sexual gesture. It is commonly part of the sexual lexicon of relationships between the two sexes.

The use of the word "sexual" in such contexts in ordinary conversation and in ordinary parlance makes it such a dangerous word to use in this Bill. I at least am concerned that we should not put up further barriers to a proper relationship between a child and a caring adult such as a teacher where we should allow a human interaction—where the interaction between the two should not be bound by a rule book the size of a Dispatch Box. One should be allowed to act naturally and to feel confident in that where there is no element of sexual intent. The effect of my amendments is to make it clear that the "sexual intent" is to be considered, not just "sexual".

Unless the Minister disagrees with me, I would like to know what kind of acts that are not sexual in intent he intends should be caught by the various clauses in the Bill that use the word "sexual". I do not intend to press the matter to a Division today, but I shall consult with the noble Lord, Lord Northbourne, and others to decide what we should do by the end of the Bill. It strikes me as being the one remaining aspect of the Bill where the level of potential damage, albeit unintended, to the way in which teachers and others relate to their charges is not worth any benefit which may arise from making it slightly easier to prosecute people under its various provisions. I beg to move.

Photo of Lord Elton Lord Elton Conservative

My Lords, I should draw your Lordships' attention to a misprint in the groupings list. The last amendment in the group should be Amendment No. 182ZA and not Amendment No. 182A as printed.

Photo of Lord Falconer of Thoroton Lord Falconer of Thoroton Minister of State (Criminal Policy), Home Office, Minister of State (Home Office) (Criminal Justice System) 7:30 pm, 9th June 2003

My Lords, dealing with Amendments Nos. 181 and 182, Clause 83, which, as the noble Lord, Lord Lucas, pointed out, is fundamental to many of the offences in Part 1, has been drafted so that it captures only activity that would generally be thought of as sexual. Our definition requires the jury to use three criteria in its assessment of whether an activity was sexual: the nature of the act itself; the circumstances in which it took place; and the purpose of any person in relation to the act. But the first part of the test rules out any activity that a reasonable person would never consider sexual by reason of its very nature; for example, removing a person's shoes. We do not want to capture activity that no reasonable person would consider to be sexual just because the defendant happened to have a secret fetish not known to the victim.

Only where the jury believes that the activity was possibly sexual—for example, touching a person's leg—will the jury need to go on to look at the defendant's state of mind to see whether that touching was in fact sexual or whether its purpose or other circumstances mean that it was innocent. In some cases, the purpose of the defendant will be pivotal to the decision. But in many other cases—for example, where one person masturbates the other—a reasonable person would be in no doubt simply because of the nature of the act itself that the act was sexual.

In other cases, it will be clear that the activity was sexual from the nature of the act together with the circumstances in which it took place. In those circumstances, it will not be necessary to examine sexual intent to reach that conclusion. However, if we were to introduce Amendment No. 181, that would require the prosecution in every case to prove that either the defendant or someone else involved in the sexual activity had a sexual purpose in relation to the act. As I explained in reply to a similar amendment tabled in Committee, this would add significantly—and we believe unnecessarily—to the evidential burden.

Amending paragraph (a) of Clause 80 to require that a reasonable person would, from the nature of the activity or touching, consider that it may at least be sexual in intent would not be acceptable. What we are looking at here is whether an activity was sexual, not whether it was of sexual intent.

Paragraph (a) is intended to cover not only acts that may or may not be sexual depending on any person's intent, but is also intended to cover acts that are always sexual—in which case one does not need to add the additional element of intent. In such cases, it is not necessary to examine sexual intent.

I believe that the amendment misses the point of the first part of the test, which is to rule out any acts that no reasonable person would from their nature consider may be sexual. Therefore, under the noble Lord's amendment one catches things that one does not want to catch and one imposes an additional hurdle in relation to things to which one does not need to add the intent aspect in order to catch.

Clause 80(b) already includes as one of its criteria the purpose of any person in relation to the act. It follows that this paragraph already covers the question of sexual intent and covers it in such a way as to make clear that sexual intent, along with the nature and circumstances of the activity, can make that activity sexual. I cannot therefore see any need for Amendment No. 182. For the reasons given, I invite the noble Lord to withdraw his amendment and not move the later one.

Photo of Lord Lucas Lord Lucas Conservative

My Lords, I am grateful to the noble and learned Lord for his explanation and I shall consider what he has said. However, I believe that there is a fundamental difference and a problem to which the noble Lord, Lord Northbourne, and I will want to return at Third Reading. It seems that if an act is of itself sexual because of its nature—for instance, touching someone on the bottom in order to shove a child out of the way of something—it is potentially caught under the Bill. I believe that the jury should not have to consider whether touching a bottom can be sexual, which clearly it can, and then a reasonable person would consider whether it was sexual because of its nature. That would seem to catch touching someone on the bottom.

There is then no need for the purpose or any other circumstance to be discussed in order to satisfy paragraph (b). I would like to see something stronger so that in order to satisfy paragraph (b) there had to be an element of purpose or in another way making it clear that the clause and all those that it serves does not catch anything which an ordinary person would say was innocent because there was no sexual intent. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 182 and 182ZA not moved.]

Clause 83 [Persons formerly subject to Part 1 of the Sex Offenders Act 1997]:

Photo of Lord Falconer of Thoroton Lord Falconer of Thoroton Minister of State (Criminal Policy), Home Office, Minister of State (Home Office) (Criminal Justice System)

moved Amendment No. 182A:

Page 39, line 41, at end insert—

"( ) section 20 of the Crime and Disorder Act 1998 (c. 37) (sex offender orders and interim orders made in Scotland);"

Photo of Lord Falconer of Thoroton Lord Falconer of Thoroton Minister of State (Criminal Policy), Home Office, Minister of State (Home Office) (Criminal Justice System)

My Lords, as presently drafted, the Bill preserves only the existing sex offender order-making powers (and interim sex offender order-making powers) in England and Wales and Northern Ireland as provided for in the Crime and Disorder Act 1998; namely, Sections 2 and 2A and Article 6 of the Criminal Justice (Northern Ireland) Order 1998. It does not currently maintain the equivalent sex offender order-making powers and interim sex offender order-making powers that courts in Scotland make under Section 20 of the 1998 Act.

Amendment No. 182A will ensure that on commencement of Part 2 of the Bill, offenders previously subject to the notification requirements of the 1997 Act by virtue of being subject to a Scottish sex offender order or an interim sex offender order will continue to be subject to notification but will now be subject to the provisions of this Bill.

As drafted, the Bill excludes a person who is subject to a sexual offences prevention order or interim sexual offences prevention order—as those orders will apply in Scotland—from being the subject of a parental direction.

Amendment No. 182B seeks to extend the power of courts in Scotland to make parental directions where sexual offences prevention orders or interim sexual offences prevention orders are being considered by a court. Amendment No. 190E provides a new clause that makes specific provision for the application of sexual offences prevention orders as they will apply in Scotland.

While the process mirrors that in England and Wales, the clause makes clear that unlike the position in England and Wales only the police in Scotland will be able to apply for such an order where they take the view that an offender has committed an offence listed in Schedule 3. It also provides that SOPOs can be granted against an extended category of offender in Scotland pursuant to recommendations 40 and 41 of the expert panel on sex offending—that is, the Cosgrove report—whereby a person is convicted of an offence with a significant sexual aspect. As in England and Wales, the court must be satisfied that the order is necessary for the purposes of protecting the public from serious sexual harm from that person. Otherwise the new clause seeks to make specific reference to Scottish terms such as "chief constable", "sheriff" and "sheriffdom".

Amendment No. 190F ensures that in considering what is a sexual offences prevention order in respect of Scotland, the provisions of the new Clause 103A are to be read along with the principal provisions of Clause 103. Amendments Nos. 190G and 190H remove the Cosgrove type of offender from consideration by a court in England and Wales where a SOPO is being sought. Cosgrove type offenders, as introduced by paragraph 52C of Schedule 3, are dealt with in respect of Scottish applications at Clause 103A. In applications in England and Wales, only offenders listed in that schedule and Schedule 4 are to be considered. That mirrors the different approach in each jurisdiction. Courts here will use paragraph 64 of Schedule 4 when considering an offence in Scotland.

Amendment No. 190J introduces an appeal mechanism for offenders in respect of sexual offences prevention orders as they will apply in Scotland in accordance with normal civil procedure in Scotland. It also makes clear that where an appeal has been taken in Scotland a sexual offences prevention order can continue to have effect pending the outcome of the appeal.

The amendment ensures that the procedure works for Scotland and mirrors as far as possible the sexual offences prevention order appeals provisions that will apply in the rest of the UK as well as following the approach that we have put in place in relation to appeals against notification orders in Scotland.

Amendment No. 190K sets out the modifications required for sexual offences prevention orders as they are to apply to Scotland as set out in Clause 103A. I beg to move.

On Question, amendment agreed to.

Clause 91 [Young offenders: parental directions]:

Photo of Lord Falconer of Thoroton Lord Falconer of Thoroton Minister of State (Criminal Policy), Home Office, Minister of State (Home Office) (Criminal Justice System)

My Lords, the purpose of the amendments in this group is to ensure consistency across the clauses in Part 2. Amendments Nos. 183 to 189 add the chief officer of police for the area where the defendant resides to those who can apply for a parental direction under Clause 91 and make the same amendment for the chief constable in Scotland. The amendments bring the police officers who can apply for a parental direction into line with those who can apply for a notification order, a sexual offences prevention order, a foreign travel order and a risk of sexual harm order.

Amendment No. 190 adds the chief constable for the area in which a young offender resides to the police officers who can apply for a parental direction to be varied, renewed or discharged in Scotland. That ensures that the provisions are consistent with those that apply to England, Wales and Northern Ireland. I beg to move.

Photo of Lord Lucas Lord Lucas Conservative

My Lords, perhaps I am being entirely dim, but I do not see how Amendment No. 183 achieves that. It removes the requirement that the relevant offender is under 18, which does not appear to have anything to do with the area that a policeman is in or what grade the policeman holds. It removes the requirement that he is in or intends to come into a police area that gives him the extra territoriality so that presumably a police officer in Greater London could take out such an order against someone who was happily living in Glasgow. I cannot match what the noble and learned Lord has said to what Amendment No. 183 says.

Photo of Lord Falconer of Thoroton Lord Falconer of Thoroton Minister of State (Criminal Policy), Home Office, Minister of State (Home Office) (Criminal Justice System)

My Lords, I was speaking to Amendments Nos. 183 to 189; the whole group of amendments achieves that. Amendment No. 185 is the relevant one.

Photo of Lord Lucas Lord Lucas Conservative

My Lords, what is the relevance of leaving out the words "is under 18" in line 12 on page 46 as accomplished by Amendment No. 183?

Photo of Lord Falconer of Thoroton Lord Falconer of Thoroton Minister of State (Criminal Policy), Home Office, Minister of State (Home Office) (Criminal Justice System)

My Lords, I am saying that Amendments Nos. 183 to 189 add the chief officer of police for the area where the defendant resides to those who can apply for parental direction under Clause 91 and makes the same amendment in relation to the chief constable in Scotland. The amendments bring the police officers who can apply for a parental direction—the age aspect—into line with those who can apply for a notification order and so on.

Photo of Lord Lucas Lord Lucas Conservative 7:45 pm, 9th June 2003

My Lords, I thought that the noble and learned Lord said that, but I cannot square that with the amendment. The amendment takes out the words "is under 18" in line 12 on page 46. Amendment No. 183 states:

"leave out from 'police' to end of line 13".

Line 12, containing the words "is under 18", goes. I do not see how that action relates to what the Minister has said in describing the amendments.

Photo of Lord Falconer of Thoroton Lord Falconer of Thoroton Minister of State (Criminal Policy), Home Office, Minister of State (Home Office) (Criminal Justice System)

My Lords, I can confirm the situation in writing. We are talking about a parental direction where there is an age limit and it is extending the numbers of chief police officers who make the applications. That is what Amendment No. 185 achieves.

Photo of Lord Lucas Lord Lucas Conservative

My Lords, he can seek that direction for an offender who is 95. Why take out the age limit? I will be happy for the noble and learned Lord to write to me.

On Question, amendment agreed to.

Photo of Lord Falconer of Thoroton Lord Falconer of Thoroton Minister of State (Criminal Policy), Home Office, Minister of State (Home Office) (Criminal Justice System)

moved Amendments Nos. 184 to 189:

Page 46, line 16, leave out first "the" and insert "a relevant".

Page 46, line 16, at end insert "—

( ) who resides in his police area, or who the chief officer believes is in or is intending to come to his police area, and

( ) who the chief officer believes is under 18." Page 46, line 17, leave out from "constable" to end of line 19.

Page 46, line 21, leave out "that area" and insert "the area of his police force"

Page 46, line 21, leave out "the" and insert "a relevant"

Page 46, line 22, at end insert "—

( ) who resides in that area, or who the chief constable believes is in or is intending to come to that area, and

( ) who the chief constable believes is under 16."

On Question, amendments agreed to.

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

Photo of Lord Falconer of Thoroton Lord Falconer of Thoroton Minister of State (Criminal Policy), Home Office, Minister of State (Home Office) (Criminal Justice System)

moved Amendment No. 190:

Page 46, line 33, after "Scotland" insert "—

( ) the chief constable of the police force within the area of which the young offender resides;

( )"

On Question, amendment agreed to.

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

Photo of Lord Falconer of Thoroton Lord Falconer of Thoroton Minister of State (Criminal Policy), Home Office, Minister of State (Home Office) (Criminal Justice System)

My Lords, this group of government amendments represents a commitment given by Scottish Ministers to implement the recommendations made by the Cosgrove committee.

Amendment No. 190A is part of a package of interrelated amendments. It will implement the recommendation in the report which sought to broaden the scope of offences to which notification requirements apply. The amendment relates to what is to be considered a relevant offence when a court is considering the making of a notification order in terms of Clauses 96 and 97. Where a court is so doing, the court must be satisfied that the offence committed abroad constituted an offence under the law in force in the country concerned, and that it would have constituted an offence listed in Schedule 3 if it had been done in any part of the United Kingdom. In doing so for Scotland, the court is to disregard paragraph 52C of Schedule 3. As those facts will rarely if ever be so available, Scottish Ministers consider that this is a step too far, and that courts will not be able to form a proper view in this regard on the facts available to them.

Amendments Nos. 194, 195, and 196 will also fulfil the panels' recommendations, by removing the age and sentencing thresholds in Schedule 3 for three specific offences; namely, abduction of a woman or a girl with intent to rape, assault with intent to rape or ravish and indecent assault. Presently the notification requirements are limited to circumstances where any other person involved in the offence—for example, the victim—is under 18 or where the offender was sentenced to at least 30 months' imprisonment. This amendment will broaden the scope of these sexual offences to which the notification requirements apply in Scotland by requiring notification regardless of the age of the victim or the length of sentence imposed.

Amendments Nos. 198B and 201A fulfil a further Cosgrove recommendation—recommendation 42—which recommended that Sections 106 and 107 of the Mental Health (Scotland) Act 1984 be included in Schedule 1 to the Sex Offenders Act 1997. The 1984 Act will be repealed by the Mental Health (Care and Treatment) (Scotland) Act 2003, which replaces these provisions with two new offences concerning sexual acts involving a mentally disordered person who has not consented, and sexual relationships between persons providing care services and mentally disordered persons. These amendments add both provisions to the notification requirements of the Sexual Offences Bill, meaning that persons convicted of either offence will be liable to be included on the register of sex offenders.

Amendment No. 201A also adds a new paragraph to the list of automatic trigger offences in Schedule 3 allowing a court in Scotland, where an offender is convicted of any offence which does not carry automatic registration but where the judge considers that the offence discloses a significant sexual aspect in the offender's behaviour in committing the offence, to order registration, subject to a right of appeal against the order by the offender. The provision will sit with the list of offences in Scotland that attract automatic registration in Schedule 3 and will allow judges to determine from the facts of the case whether there was a significant sexual aspect to the case where it is not apparent from the charge.

I am not sure whether it is appropriate for me now to deal with the other amendments. I may not get another chance to speak on them. I am resisting them. I beg to move.

Photo of Lord Astor of Hever Lord Astor of Hever Conservative

My Lords, I shall speak to Amendments Nos. 194 to 202. Amendments Nos. 194 to 201 deal with offences in Scotland that would trigger the requirement to notify on the sex offenders register. Amendment No. 202 would insert a detailed list of offences for Scotland into Schedule 4, which allows for sexual offences prevention orders to be made. Those points have been aired in Committee.

I was heartened that the Minister added his name to Amendments Nos. 194 to 196. In Committee, the noble Lord, Lord Bassam, said that he would look at our amendments. It appears that the Government have accepted some—Amendments Nos. 194 to 196—but not the rest. That seems a curious approach since the same principle underlies Amendments Nos. 194 to 196 as Amendments Nos. 197, 199 and 200. All those amendments probe the need to have regard to factors other than the conviction itself—for example, the age of the offender and the victim—before the notification requirement will apply.

The Government have supported that approach in our first three amendments on the offences of abduction of a woman or girl with intent to rape, assault with intent to rape and indecent assault. But they have not supported it with regard to the three further offences that Amendments Nos. 197, 199 and 200 address; namely, shameless indecency, incest as set out in Section 1 of the Criminal Law (Consolidation)(Scotland) Act 1995 and intercourse with a stepchild under Section 2 of the same Act. Can the Minister explain on what basis the Government have adopted some but not all the amendments on that point? Incest, shameless indecency and intercourse with a stepchild are very serious offences, yet notification in each case is triggered only if the victim was under 18 at the time of the offence.

Amendments Nos. 198 and 201 focus on a slightly different point. They would amend the drafting of paragraphs 40 and 51 of Schedule 3 so that sub-paragraphs (a) and (b) of each paragraph are read cumulatively, not alternatively. As drafted, if the offender is under 20, irrespective of the age of the victim, notification will not be triggered. We want both sub-paragraphs (a) and (b) to apply so that an offender under 20 is exempt only if the other party was a willing participant aged over 18. Essentially, our amendments limit those who can be exempt under paragraphs 40 and 51. The Government did not, we feel, give a satisfactory response to those amendments in Committee.

Amendment No. 202 would amend Schedule 4 by including a list of relevant Scottish offences in the Bill. The offences in Schedule 4 are relevant to the powers conferred on the court to make sexual offences prevention orders. At present, as drafted, the Bill contains merely one line to cover Scottish offences that infer personal violence. We tabled the same amendment in Committee, when the Minister replied that, because most of the offences involving personal violence in Scotland were common law offences, it was preferable not to include on the face of the Bill a definitive list of Scottish offences. I do not understand why England, Wales and Northern Ireland have a list of relevant offences for triggering sexual offences prevention orders but Scotland has only the vague, one-line description of,

"an offence inferring personal violence".

That seems to lack clarity and definition.

The Scottish Law Society has told me that,

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

In the interests of clarity and consistency, we think that that is not satisfactory. Will the Government think again about putting a list on the face of the Bill?

Photo of Lord Falconer of Thoroton Lord Falconer of Thoroton Minister of State (Criminal Policy), Home Office, Minister of State (Home Office) (Criminal Justice System)

My Lords, on Amendment No. 202, with which the noble Lord dealt last, as I indicated in Committee, most offences involving personal violence in Scotland are common law offences. If you set out a definitive list, you might miss something, because there is the whole of the common law to deal with. To provide the appropriate protection, therefore, it is best to take our approach. However, Clause 214—I am pausing, as there is no such clause. A particular clause—I will identify it when a note arrives in the box—allows the Secretary of State to amend the description of offences in Schedule 4 if necessary. That provides the better course.

The noble Lord, Lord Astor of Hever, said that some of his party's amendments appeared to be supported by Cosgrove yet the Government were not implementing them. He asked what our reasons are for choosing some but not others. The position on that is essentially a matter for Scottish Ministers, but I need to consider each amendment. I shall respond to the matter in correspondence, and then the noble Lord can consider whether it is worth raising it at Third Reading.

I shall try to deal with the matter before the noble Lord tables amendments for Third Reading. I have wonderful news: the clause that I meant to refer to earlier is Clause 124. I apologise for referring to it as Clause 214. I beg to move.

On Question, amendment agreed to.

Clause 102 [Sections 96 to 99: Scotland]:

Photo of Lord Falconer of Thoroton Lord Falconer of Thoroton Minister of State (Criminal Policy), Home Office, Minister of State (Home Office) (Criminal Justice System)

My Lords, Amendment No. 190B corrects a typographical error in which the word "order" was omitted after "notification". Amendments Nos. 190C and 190D make appropriate drafting changes to remove the term "sexual offences prevention order" where it appears unnecessarily.

Amendment No. 191A sets out how sexual offences prevention orders are to operate for Scotland with the addition of the interpretative provisions of new Clause 103A by virtue of Clause 104(A1).

Amendment No. 192A sets out the extent to which the provision of the Bill as amended will apply to Scotland. At present, risk of sexual harm orders as set out in Clause 117 shall not apply to Scotland. The Scottish Executive will decide in due course whether similar provisions are to be brought forward for Scotland.

Amendment No. 201L ensures that where a court has ordered notification for an offence that does not carry notification but the evidence discloses that there was a significant sexual aspect to the offender's behaviour, there is a right of appeal against the order by the offender.

Amendments Nos. 212, 215, 229 and 233 are consequential provisions that recognise that we are replacing sex offender orders with sexual offences prevention orders. Accordingly, the various provisions and references to sex offender orders in the Crime and Disorder Act 1998 and the Police Reform Act 2002, as they both relate to procedural provisions in respect of sex offender orders in Scotland, have been identified and listed as those provisions that need to be removed.

Amendment No. 216 is a consequential amendment to the Criminal Justice (Scotland) Act 2003. Section 21(9) of that Act places a duty on the court to adjourn certain cases following conviction to obtain reports. The provision was intended to provide an extended period of adjournment for sex offences or offences with a significant sexual aspect beyond that available to the court in terms in Section 201 of the Criminal Procedure (Scotland) Act 1995. A late amendment to the 2003 Act during its passage through the Scottish Parliament should have resulted in the proposed amendment being made but was overlooked. This is therefore a technical amendment to rectify an error in the 2003 Act.

Section 21 of the 2003 Act makes changes to Scottish court procedures, placing a duty on the court to adjourn certain cases following conviction but prior to sentence in order to obtain reports. Section 21(9) was intended to amend the time limits for adjournment of these cases beyond the time limits provided for in the Criminal Procedure (Scotland) Act 1995. A late amendment to the Bill had the effect of amending the time limits laid down in the 1995 Act, rendering Section 21(9) unworkable. Amendment No. 216 will remedy this issue. I beg to move.

On Question, amendment agreed to.

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

Photo of Lord Falconer of Thoroton Lord Falconer of Thoroton Minister of State (Criminal Policy), Home Office, Minister of State (Home Office) (Criminal Justice System) 8:00 pm, 9th June 2003

moved Amendments Nos. 190C and 190D:

Page 51, line 34, leave out from "section" to "in" in line 35.

Page 52, line 11, leave out "a sexual offences prevention order" and insert "an order under this section"

On Question, amendments agreed to.

Photo of Lord Falconer of Thoroton Lord Falconer of Thoroton Minister of State (Criminal Policy), Home Office, Minister of State (Home Office) (Criminal Justice System)

moved Amendment No. 190E:

After Clause 103, insert the following new clause—

"SOPOS: FURTHER PROVISION AS RESPECTS SCOTLAND

(1) A chief constable may apply for an order under this section in respect of a person who he believes is in, or is intending to come to, the area of his police force if it appears to the chief constable that—

(a) the person has been convicted of, found not guilty by reason of insanity of or found to be under a disability and to have done the act charged against him in respect of—

(i) an offence listed in paragraph 52C of Schedule 3; or

(ii) before the commencement of this Part, an offence in Scotland other than is mentioned in paragraphs 33 to 52B of that Schedule if the chief constable considers that had the conviction or finding been after such commencement it is likely that a determination such as is mentioned in paragraph 52C would have been made in relation to the offence; and

(b) the person has since the conviction or finding acted in such a way as to give reasonable cause to believe that it is necessary for such an order to be made.

(2) An application under subsection (1) may be made by summary application to a sheriff within whose sheriffdom lies—

(a) any part of the area of the applicant's police force; or

(b) any place where it is alleged that the person acted in a way mentioned in subsection (1)(b).

(3) The sheriff may make the order where satisfied—

(a) that the person's behaviour since the conviction or finding makes it necessary to make such an order, for the purposes of protecting the public or any particular members of the public from serious sexual harm from the person; and

(b) where the application is by virtue of subsection (1)(a)(ii), that there was a significant sexual aspect to the person's behaviour in committing the offence.

(4) Subsection (2) of section 104 applies for the purposes of this section as it applies for the purposes of section 103 and subsections (2) and (3) of section (Sections 103 and 104 to 107: Scotland) apply in relation to a summary application made by virtue of subsection (1) as they apply in relation to one made by virtue of subsection (1)(g) of that subsection."

On Question, amendment agreed to.

Clause 104 [Section 103: supplemental]:

Photo of Lord Falconer of Thoroton Lord Falconer of Thoroton Minister of State (Criminal Policy), Home Office, Minister of State (Home Office) (Criminal Justice System)

moved Amendments Nos. 190F to 190H:

Page 52, line 24, at end insert—

"(A1) In this Part, "sexual offences prevention order" means an order under section 103 or (SOPOs: further provision as respects Scotland)." Page 52, line 36, after "3" insert "(other than at paragraph 52C)"

Page 53, line 16, after "3" insert "(other than at paragraph 52C)"

On Question, amendments agreed to.

Photo of Lord Falconer of Thoroton Lord Falconer of Thoroton Minister of State (Criminal Policy), Home Office, Minister of State (Home Office) (Criminal Justice System)

moved Amendments Nos. 190J and 190K:

After Clause 108, insert the following new clause—

"APPEALS IN RELATION TO SOPOS AND INTERIM SOPOS: SCOTLAND

In Scotland

(a) an interlocutor granting, refusing, varying, renewing or discharging a sexual offences prevention order or interim sexual offences prevention order is an appealable interlocutor; and

(b) where an appeal is taken against an interlocutor so granting, varying or renewing such an order the order shall, without prejudice to any power of the court to vary or recall it, continue to have effect pending the disposal of the appeal." After Clause 108, insert the following new clause—

"SECTIONS 103 AND 104 TO 107: SCOTLAND

(1) Sections 103 and 104 to 107 apply to Scotland with the following modifications—

(a) subsections (1)(b), (2) and (3) of section 103 shall be disregarded;

(b) an application under subsection (5) of section 103 shall not be competent in respect of a person who is a qualifying offender by virtue only of a conviction or finding which relates to an offence listed at paragraph 64 of Schedule 4;

(c) in section 106(8), for the words from "orders", where it first occurs, to the end of paragraph (c) there is substituted "sex offender orders under section 20 of the Crime and Disorder Act 1998";

(d) in section 107(8), for the words from "orders", where it first occurs, to the end of paragraph (b) there is substituted "interim sex offender orders under section 20 of the Crime and Disorder Act 1998";

(e) references to a chief officer of police and to his police area are to be read, respectively, as references to a chief constable and to the area of his police force;

(f) references to the defendant are to be read as references to the person in respect of whom the order is sought or has effect;

(g) an application for a sexual offences prevention order or interim sexual offences prevention order is made by summary application to any sheriff within whose sheriffdom lies—

(i) any part of the area of the applicant's police force; or

(ii) any place where it is alleged that the person in respect of whom the order is sought or has effect acted in a way mentioned in subsection (5)(b) of section 103,

(references to "the court" being construed accordingly);

(h) an application for the variation, renewal or discharge of either such order is made by summary application to the sheriff who made the order or to a sheriff—

(i) within whose sheriffdom the person subject to the order resides; or

(ii) where the application is made by a chief constable, within whose sheriffdom lies any part of the area of the applicant's police force,

(references to "the court" being construed accordingly).

(2) A record of evidence shall be kept on any summary application made by virtue of subsection (1)(g) or (h) above.

(3) The clerk of the court by which, by virtue of that subsection, a sexual offences prevention order or interim sexual offences prevention order is made, varied, renewed or discharged shall cause a copy of, as the case may be—

(a) the order as so made, varied or renewed; or

(b) the interlocutor by which discharge is effected, to be given to the person named in the order or sent to him by registered post or by the recorded delivery service (an acknowledgement or certificate of delivery of a copy so sent, issued by the Post Office, being sufficient evidence of the delivery of the copy on the day specified in the acknowledgement or certificate)."

On Question, amendments agreed to.

Clause 111 [Section 110: interpretation]:

Photo of Lord Falconer of Thoroton Lord Falconer of Thoroton Minister of State (Criminal Policy), Home Office, Minister of State (Home Office) (Criminal Justice System)

moved Amendment No. 190L:

Page 57, line 34, leave out "England and Wales or Northern Ireland" and insert "any part of the United Kingdom"

Photo of Lord Falconer of Thoroton Lord Falconer of Thoroton Minister of State (Criminal Policy), Home Office, Minister of State (Home Office) (Criminal Justice System)

My Lords, this group of amendments seeks to extend to Scotland the provisions for foreign travel orders in the same way as they are currently provided for in the Bill for England, Wales and Northern Ireland, thereby providing a United Kingdom-wide system of such orders.

The purpose of Amendment No. 190L is to provide that the definition is contained in subsection (2) of Clause 111 of,

"protecting children generally or any child from serious sexual harm from the defendant outside the United Kingdom", for the purpose of the making of a foreign travel order under subsection (3) is widened to cover the doing abroad of anything that would constitute an offence listed in Schedule 3 to the Bill if done in any part of the United Kingdom. At the moment, the definition only covers acts which would be offences if done in England, Wales and Northern Ireland. The amendment effectively includes the Scottish offences listed in Schedule 3.

The purpose of Amendment No. 190M is to provide that the definition "relevant offence" at subsection (3) of Clause 112 is widened to cover criminal acts done overseas that would constitute offences listed in the specified paragraphs of Schedule 3 to the Bill being offences involving children if done in any part of the United Kingdom including Scotland. At the moment, the definition covers only equivalent offences committed in England, Wales or Northern Ireland.

Amendment No. 190N provides for appeal against the making of a foreign travel order in accordance with normal civil procedures in Scotland. It also makes clear that where an appeal has been taken in Scotland, a foreign travel order can continue to have effect pending the outcome of the appeal.

This amendment brings the procedure into line with established Scottish practice and mirrors as far as possible the foreign travel order appeals provisions that will apply in the rest of the United Kingdom as well as following the approach that we have put in place in relation to appeals against notification orders in Scotland.

Amendment No. 190P sets out the modifications appropriate to Scotland and the Scottish legal system subject to which foreign travel orders are to apply to Scotland. The procedures for the foreign travel order mirror the proposed procedures for notification orders so these modifications ensure that the various legal processes are consistent so far as concerns Scotland.

Amendment No. 190Q recognises that the Scottish equivalent to "an order for conditional discharge", which is not a competent Scottish sentence, is "a probation order". In the same way that courts in England, Wales and Northern Ireland will not be able to make an order for conditional discharge in imposing sentence for breach of a foreign travel order, this amendment will prevent the Scottish courts from making probation orders for breach of a foreign travel order. I beg to move.

On Question, amendment agreed to.

Clause 112 [Section 110: qualifying offenders]:

Photo of Lord Falconer of Thoroton Lord Falconer of Thoroton Minister of State (Criminal Policy), Home Office, Minister of State (Home Office) (Criminal Justice System)

moved Amendment No. 190M:

Page 58, line 42, leave out "England and Wales or Northern Ireland" and insert "any part of the United Kingdom"

On Question, amendment agreed to.

Photo of Lord Falconer of Thoroton Lord Falconer of Thoroton Minister of State (Criminal Policy), Home Office, Minister of State (Home Office) (Criminal Justice System)

moved Amendments Nos. 190N and 190P:

After Clause 115, insert the following new clause—

"APPEALS IN RELATION TO FOREIGN TRAVEL ORDERS: SCOTLAND

In Scotland

(a) an interlocutor granting, refusing, varying, renewing or discharging a foreign travel order is an appealable interlocutor; and

(b) where an appeal is taken against an interlocutor so granting, varying or renewing such an order the order shall, without prejudice to any power of the court to vary or recall it, continue to have effect pending the disposal of the appeal." After Clause 115, insert the following new clause—

"SECTIONS 110 TO 114: SCOTLAND

(1) Sections 110 to 114 apply to Scotland with the following modifications—

(a) references to a chief officer of police and to his police area are to be read, respectively, as references to a chief constable and to the area of his police force;

(b) references to the defendant are to be read as references to the person in respect of whom the order is sought or has effect;

(c) an application for a foreign travel order is made by summary application to any sheriff within whose sheriffdom lies any part of the area of the applicant's police force (references to "the court" being construed accordingly);

(d) for paragraphs (a) to (c) of section 114(5) there is substituted—

"(a) the sheriff who made the foreign travel order; or

(b) where the application is made by a chief constable, a sheriff whose sheriffdom includes any part of the area of the applicant's police force".

(2) A record of evidence shall be kept on any summary application made by virtue of subsection (1)(c) above.

(3) The clerk of the court by which, by virtue of that subsection, a foreign travel order is made, varied, renewed or discharged shall cause a copy of, as the case may be—

(a) the order as so made, varied or renewed; or

(b) the interlocutor by which discharge is effected, to be given to the person named in the order or sent to him by registered post or by the recorded delivery service (an acknowledgement or certificate of delivery of a copy so sent, issued by the Post Office, being sufficient evidence of the delivery of the copy on the day specified in the acknowledgement or certificate)."

On Question, amendments agreed to.

Clause 116 [Offence: breach of SOPO or interim SOPO]:

Photo of Lord Falconer of Thoroton Lord Falconer of Thoroton Minister of State (Criminal Policy), Home Office, Minister of State (Home Office) (Criminal Justice System)

moved Amendment No. 190Q:

Page 60, line 35, at end insert "(or, in Scotland, a probation order)"

On Question, amendment agreed to.

Photo of Lord Astor of Hever Lord Astor of Hever Conservative

moved Amendment No. 191:

After Clause 126, insert the following new clause—

"REVIEW OF OPERATION OF ACT

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

(2) The review shall cover the following matters—

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

(b) practical difficulties encountered in interpreting the offences contained in the Act and their related defences;

(c) sentencing experiences in respect of the offences contained in the Act in comparison with the maximum sentences prescribed by the Act;

(d) any cases where prosecutions have proceeded in circumstances which were not envisaged when the Act was passed.

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

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

Photo of Lord Astor of Hever Lord Astor of Hever Conservative

My Lords, Amendment No. 191 will insert a new clause after Clause 126. This new clause would require an annual review to be published and laid before each House of Parliament on the operation of the Act. The matters to be included in the review are set out in subsection (2).

Throughout our consideration of the Bill we have encountered a number of difficulties in being sure that the legislation that the Government have drafted will deal adequately with the problems it is designed to address. The Government have tabled welcome amendments to deal with many of the issues but there remain a number which have not been satisfactorily resolved. It may help noble Lords if I draw briefly from that list in order to illustrate the purpose behind each of the paragraphs of subsection (2).

Paragraph (a) asks for conviction rates and trends in conviction rates. The clearest example to give here is that for the newly defined offence of rape. I am sure that noble Lords will have joined me in being shocked at the 2001 conviction statistics given by the Minister on our first day in Committee. Only 41.2 per cent of rape trials resulted in a guilty verdict and that compares with 73.4 per cent for all trials by jury. I think that most of us believe that that has to be wrong, but there is still no consensus on how to achieve a better result through legislation. When this Bill is enacted it will have something in it dealing with the issue, whether Clause 1 as currently drafted or something else. Paragraph (a) would ensure that Parliament kept in view the conviction rates so that if they failed to respond there would be a further opportunity for Parliament at least to debate the issues.

Paragraph (b) asks for practical difficulties encountered in interpreting the offences and the related defences. Again, we have had many issues raised here. A simple example is whether the definitions of care workers stand up and what kind of contact is determined to be "regular" for both the abuse of trust and care worker offences.

An annual review summarising the issues would indicate to Parliament whether the Government were right or whether further legislation was desirable. Paragraph (c) covers reports on sentencing experience. Many of the offences have an option of summary conviction or conviction on indictment—for which sentences vary widely.

Regarding Clause 17, for example, the offence of sexual grooming, there is an option of summary conviction. Following amendment in Committee, that now has a maximum sentence on conviction on indictment of seven years. An annual report would allow Parliament and others to satisfy themselves that the law, which is designed to catch dangerous sexual predators, is resulting in appropriate sentences.

Lastly, paragraph (d) covers cases where prosecutions have proceeded in circumstances that were not envisaged when the Act was passed. We have had some interesting discussions in Committee about how the Bill, which is often extremely widely drafted, will be applied in practice. For example, the abuse of trust offences in Clauses 18 to 22, while drafted in broad terms, is intended for offences involving 16 and 17 year-olds. We do not yet have a way of excluding from the Bill's ambit harmless sexual activity between two mentally-disordered patients or between consenting teenagers. However, we have been told that the Act would not be used to attack those areas. An annual review would allow all those difficulties to be kept in view.

We discussed a similar amendment briefly in the middle of the night on our last Committee day. The Minister then said that the Act must be fully operational before its success could be tested in any meaningful way. I accept that. Amendment No. 191 allows for a two-year lag before any reporting requirement would begin. I know that the Minister agrees that monitoring is important. The issue is whether the obligation to monitor and then report should be in the Act. We think that it should. I beg to move.

Photo of Baroness Walmsley Baroness Walmsley Liberal Democrat

My Lords, we believe that when one has many new offences and new ways of describing other offences, monitoring the success of the new Act is highly desirable. We would be interested to hear the Minister's proposals. To have a review laid before Parliament may or may not be the best way, but we would like to be assured that the operation of the Act and its effectiveness will be reviewed in some way that is transparent and public.

Photo of Lord Falconer of Thoroton Lord Falconer of Thoroton Minister of State (Criminal Policy), Home Office, Minister of State (Home Office) (Criminal Justice System)

My Lords, the Bill is a major piece of legislation. It provides the first comprehensive reform of the law on sexual offences since 1976. Everybody agrees that we need to keep a very close eye on the operation of the new offences following the commencement of the Act. Everybody agrees that we need to monitor the Act's effect over a period of time. We do not believe that it is wise before even the Bill has become law to try to second-guess the best way of evaluating its impact. Commissioning particular types of research, setting up a review team or other ways of monitoring how the Act is working could turn out to be the best.

I do not wish to commit the Government to an indefinite annual review with such narrow terms of reference as defined in the amendment—although many of the items specified in the amendment would be among matters that would need to be looked at. That, however, may not be the best way of either performing the review or making it public. I accept that there should be monitoring and regular reviews and that their results should be made public. I hope that in the light of my comments the noble Lord will withdraw his amendment.

Photo of Lord Astor of Hever Lord Astor of Hever Conservative

My Lords, I thank the Minister for his response. I am disappointed that he will not accept an annual review. We all agree that monitoring is important. The Government will obviously keep the matter under review, and in the light of that I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 127 [Part 2: general interpretation]:

Photo of Lord Falconer of Thoroton Lord Falconer of Thoroton Minister of State (Criminal Policy), Home Office, Minister of State (Home Office) (Criminal Justice System)

moved Amendment No. 191A:

Page 69, line 2, leave out "103(1)" and insert "104(A1)"

On Question, amendment agreed to.

Clause 135 [Extent, saving etc.]:

Photo of Baroness Blatch Baroness Blatch Conservative

moved Amendment No. 192:

Page 71, line 35, leave out "and 81" and insert "81 and (Sexual activity in a public lavatory)"

On Question, amendment agreed to.

Photo of Lord Falconer of Thoroton Lord Falconer of Thoroton Minister of State (Criminal Policy), Home Office, Minister of State (Home Office) (Criminal Justice System)

moved Amendment No. 192A:

Page 72, line 2, leave out "103 to 123 and Schedule 4" and insert "117 to 123"

On Question, amendment agreed to.

Schedule 1 [Extension of gender-specific prostitution offences]:

Photo of Lord Lucas Lord Lucas Conservative

moved Amendment No. 193:

Page 73, line 10, leave out from "prostitution)," to end of line 11 and insert "leave out "common prostitute" and insert "person""

Photo of Lord Lucas Lord Lucas Conservative

My Lords, we had a sensible discussion of the matter in Committee. The noble Lord, Lord Bassam of Brighton, said that it was all very well to try to deal with the ancient and, I find, entirely unacceptable practice of referring to a woman who is up in court for the first time as a "common prostitute" but the amendment that I wished to make would amend the underlying offence, which the Government would find unacceptable.

I studied the Bill in detail and found such an amendment to the underlying offence entirely acceptable. So, I press the Government again to consider whether we cannot rid ourselves of the archaic unfairness that a woman who has merely been cautioned on a couple of occasions by a police officer should be held up to insult and ridicule in court. It is two thirds of the way to a conviction, without any evidence having been offered against the woman—or, indeed, the man, as the offences are now to be gender neutral. We should do away with it.

I would accept as an answer a little further encouragement on the review to which the noble and learned Lord referred in an earlier answer. He did not put a timescale on it. The noble and learned Lord will know that, since the first days of this Government, I have asked them to reply to my questions and letters by e-mail. He will also be aware that on no occasion during the passage of the Bill has he sent copies of any of his answers or letters to me by e-mail. That is a long time. I understand that it requires careful consideration, but I hope that the noble and learned Lord can give us some comfort that the review will be with us within a reasonable timescale. It is a subject that we should be able to tackle directly and in the round, and I should like to see us doing that. I beg to move.

Photo of Baroness Blatch Baroness Blatch Conservative 8:15 pm, 9th June 2003

My Lords, I want to reinforce the point that my noble friend made about the more effective use of electronic mail. In the recent break, I tried to find out the noble and learned Lord's e-mail address. Unlike the rest of us mere mortals, he does not have an address such as thorotonc@parliament.uk, as the rest of us do. I found it very difficult. In the end, I made contact with the department and got the longest e-mail in the world from the office. It is absurd these days not to have electronic mail from our Ministers.

Photo of Baroness Walmsley Baroness Walmsley Liberal Democrat

My Lords, I tried to put my name to the amendment, so I am not sure why it does not appear. I support it very much. Although we are not carrying out a thorough review of the laws on prostitution, we have been promised that it will come eventually. As this Bill re-enacts bits of the Street Offences Act 1959, this might be an opportunity to do some small thing, at least.

Charities that support and work with prostitutes have campaigned for 80 years to get the terminology removed. It is derogatory and judgmental, particularly if we bear it in mind that some of the women who find themselves in that situation in court and so addressed as a "common prostitute" are, in fact, victims. They may well have been trafficked or put onto illegal and addictive drugs by the pimps who control them. In most people's judgment, they are the victims, and it seems wrong to use such a derogatory and judgmental term when describing them. If this is an opportunity to remove it from the law, I hope that the Minister will take it.

Photo of Lord Falconer of Thoroton Lord Falconer of Thoroton Minister of State (Criminal Policy), Home Office, Minister of State (Home Office) (Criminal Justice System)

My Lords, existing case law suggests that the term "common prostitute" refers only to a female prostitute. The amendment moved by the noble Lord, Lord Lucas, would remove that term and replace it with the word "person". I fully understand his reasons. The term "common prostitute" is, he says, archaic and derogatory.

Although the effect of the amendment would be fine with respect to gender neutrality, removing the term "common prostitute" would have other problematic effects. The word "common" in the expression "common prostitute" is important and is well established in case law. It means that the person must be a habitual prostitute, rather than a person who engages in prostitution on a one-off occasion. The offence is not designed to capture the latter category.

Accepting the amendment would open up issues that are central to the law on prostitution, which is outside the scope of the sex offences review, whereas the amendments in Schedule 1 will have a more limited effect, ensuring that the law applies equally to men and women. It is for those reasons that I must resist the amendment.

I must pick up the point about electronic communications. The noble Baroness, Lady Blatch, managed to communicate with me at my e-mail address at the Home Office. I hope that it will not be regarded as a personal remark if I say that the e-mail from the noble Baroness came, in fact, from her husband's e-mail address. It may be that it is she who, unlike normal mortals, has no e-mail address.

Photo of Baroness Blatch Baroness Blatch Conservative

My Lords, for the record, I have a parliamentary e-mail address. I just happened to be using my husband's computer.

Photo of Lord Lucas Lord Lucas Conservative

My Lords, will the Minister answer the one question which I had hoped he would answer? Can he give a timescale?

Photo of Lord Falconer of Thoroton Lord Falconer of Thoroton Minister of State (Criminal Policy), Home Office, Minister of State (Home Office) (Criminal Justice System)

My Lords, I am afraid that I cannot. I have dealt with it on two occasions—in Committee and again now. I have indicated our commitment to it, but I am not in a position now to give a timetable.

Photo of Lord Lucas Lord Lucas Conservative

My Lords, I know that I shall not win this one but I shall keep at it, as indeed I shall keep at the issue of electronic mail. It would be a very small step for the Minister to get himself an address on the parliamentary system. It could be set to forward to his ministerial address or to his ministerial PA. It would make matters a great deal easier for us because the addresses are all programmed into our machines and we could find the noble and learned Lord with the greatest of ease.

I appeal to him also to make some progress in the cause of our great electronic government 2005—which we have been promised for a very long time by this Government—and to making it a matter of course that those of us with e-mail addresses on the parliamentary system are corresponded with by e-mail or at least copied on e-mail. It would make all our lives a great deal easier. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Schedule 2 [Sexual offences to which section 74 applies]:

Photo of Lord Falconer of Thoroton Lord Falconer of Thoroton Minister of State (Criminal Policy), Home Office, Minister of State (Home Office) (Criminal Justice System)

moved Amendment No. 193A:

Page 74, line 32, at end insert—

"( ) an offence of indecent assault upon a female;"

Photo of Lord Falconer of Thoroton Lord Falconer of Thoroton Minister of State (Criminal Policy), Home Office, Minister of State (Home Office) (Criminal Justice System)

My Lords, Amendments Nos. 193A, 193C and 193D update the list of Northern Ireland offences to which Clause 74—headed "Offences outside the United Kingdom"—will apply. That is necessary here as Sections 61 and 62 of the Offences Against the Person Act 1861, as referred to in the schedule, have recently been replaced by Articles 19, 20 and 21 of the Criminal Justice (Northern Ireland) Order 2003 respectively.

Amendment No. 193B is a necessary structural modification. Amendment No. 210B is a minor technical amendment which replaces an incorrect reference to "indecent assault against a female" to "upon a female". Amendments Nos. 201C, 201H and 201J harmonise the thresholds which apply to the statutory indecent assault offences across the genders. The same threshold will apply to Sections 52 and 62 of the Offences Against the Person Act 1861 and to Article 19 of the Criminal Justice (Northern Ireland) Order 2002.

Amendments Nos. 201D and 201G are strictly technical in nature and modify references in the schedule to the age limits which the victim must fall within to trigger the operation of Part 2. In each case a reference to "under 18" is replaced by "17". Amendment No. 201K makes a similar replacement to a reference to age 18 and should be accepted. Amendments Nos. 201E and 201F are very minor and entirely consequential making necessary structural changes to the schedule.

Amendments Nos. 203 and 204 take account of the fact that Section 4 of the Vagrancy Act 1824 is drafted differently in application to Northern Ireland. Amendments Nos. 205 and 206 are consequential amendments arising from the proposed repeal of Sections 61 and 62 of the Offences Against the Person Act 1861 and the Vagrancy Act 1898. Amendment No. 207 removes an unnecessary amendment to the Criminal Law (Amendment) Act 1912. Amendments Nos. 208 and 209 make minor modifications to the Children and Young Persons Act (Northern Ireland) 1968 which are consequential on the extension of the prostitution offences from Part 1 of the Bill to Northern Ireland.

Amendment No. 210 inserts the new offences under Clauses 17, 22, 52 to 62, 69 and 70 from Part 1 of the Bill into Schedule 1 to the Children and Young Persons Act (Northern Ireland) 1968. Amendment No. 211 is consequential arising from the proposed repeal of certain offences from the Homosexual Offences (Northern Ireland) Order 1982. Amendment No. 213 represents a minor consequential amendment to the Criminal Justice (Children) (Northern Ireland) Order 1998. Amendment No. 214 inserts a reference to Clause 72 of the Bill into Schedule 1 to the Criminal Justice (Children) (Northern Ireland) Order 1998.

Amendment No. 217 is purely technical. Amendments Nos. 218 and 219 take account of the fact that Section 4 of the Vagrancy Act 1824 is drafted very slightly differently in application to Northern Ireland. Amendment No. 220 repeals Sections 61 and 62 of the Offences Against the Person Act 1861. They are replaced by Articles 19 to 21 of the Criminal Justice (Northern Ireland) Order 2003 which makes the offences of buggery and assault with intent to commit buggery at Articles 19 and 20 gender neutral.

Amendment No. 221 repeals the Vagrancy Act 1898 as a consequence of the offences contained in this Act being replaced by the gender neutral prostitution offences in Part 1 of the Bill which are extending to Northern Ireland. Amendment No. 222 is consequential in nature and repeals Section 7 of the Criminal Law Amendment Act 1912. This amendment arises from the extension of the prostitution offences from Part 1 of the Bill to Northern Ireland.

Amendment No. 223 represents a number of minor consequential amendments to the Magistrates Courts (Northern Ireland) Order 1981 arising from the repeals proposed.

Amendment No. 224 removes the reference to "gross indecency" in Article 2(2) of the Homosexual Offences (Northern Ireland) Order 1982, consequential to the repeal of Section 11 of the Criminal Law Amendment Act 1885. This amendment also repeals Article 3 of the 1982 Order, as that will be replaced by Article 19 of the Criminal Justice (Northern Ireland) Order 2003 and Article 7—a plainly discriminatory offence, as no such provision exists for similar situations in heterosexual relations. There is some evidence to suggest that that offence has fallen into disuse. Therefore it would seem sensible and appropriate to repeal it.

Amendment No. 225 repeals Article 10(2)(b) of the Homosexual Offences (Northern Ireland) Order 1982, which is about time limits on prosecutions. This is a consequential amendment arising from the proposed repeal of the Vagrancy Act 1898.

Amendment No. 226 removes the reference to "gross indecency" in Article 11(1) of the Homosexual Offences (Northern Ireland) Order 1982, which is consequential to the repeal of Section 11 of the Criminal Law Amendment Act 1885. This amendment also repeals Article 12(1) of the 1982 order, consequential on the proposed repeal of the Vagrancy Act 1898, and Article 13 as a direct consequence of the other repeals to the order.

Amendment No. 227 is consequential to the schedule to the Homosexual Offences (Northern Ireland) Order 1982 arising from the proposed repeal of the Vagrancy Act 1898. Amendment No. 228 is a consequential amendment to the Mental Health (Northern Ireland) Order 1996 arising from the repeals already in the Bill and now proposed in addition to the Homosexual Offences (Northern Ireland) Order 1982.

Amendment No. 230 represents a number of consequential modifications to existing repeals to Schedule 1 to the Criminal Justice (Children)(Northern Ireland) Order 1998. Those modifications arise from the proposed repeal of the Vagrancy Act 1898 and repeals, both already in the Bill and now proposed in addition, to the Homosexual Offences (Northern Ireland) Order 1982.

Amendments Nos. 231 and 232 make consequential modifications to existing repeals to the Sexual Offences (Amendment) Act 2000. The additional repeals take account of the repeals now proposed. Amendment No. 234 repeals Article 19(4)(a) of the Criminal Justice (Northern Ireland) Order 2003. This subsection provides that consensual homosexual anal penetration does not occur in private and is hence an offence if there are more than two participants. No such restriction is placed on consensual heterosexual anal penetration. That is clearly discriminatory, so it seems sensible and appropriate to repeal that restriction.

I apologise for going through the amendments at such length but that detail may be helpful to noble Lords who are not in the Chamber. I beg to move.

Photo of Baroness Blatch Baroness Blatch Conservative

My Lords, the repeal of Northern Ireland sexual offences statutes seem precipitate when a consultation exercise has yet to take place. Has there been consultation on the statutes that are now being repealed?

Photo of Lord Lucas Lord Lucas Conservative

My Lords, I apologise to the Minister for raising a question on Amendment No. 183. Having spent some of the intervening minutes deciphering how that group of amendment works, I think that I understand. The noble and learned Lord need no longer write to me.

I shall be grateful for a further explanation of Amendment No. 207. What exactly is being rescued from oblivion and what will be the effect?

Photo of Lord Falconer of Thoroton Lord Falconer of Thoroton Minister of State (Criminal Policy), Home Office, Minister of State (Home Office) (Criminal Justice System)

My Lords, perhaps I may reply in writing on that question instead of the earlier one.

In reply to the noble Baroness, the amendments deal with a number of statutory inequalities currently present in Northern Ireland law, as applied between homosexual and heterosexual offenders. Combined with the repeal already in Schedule 6, the total package will serve to address legitimate concerns among the homosexual community in Northern Ireland and increase its confidence in the criminal justice system. The work done by the Bill will be followed by a fundamental and comprehensive review of sexual offences in Northern Ireland, which will be underpinned by appropriate public consultation.

Photo of Baroness Blatch Baroness Blatch Conservative

My Lords, before the Minister sits down, I questioned whether there has been consultation on the statutes that are now recommended for repeal.

Photo of Lord Falconer of Thoroton Lord Falconer of Thoroton Minister of State (Criminal Policy), Home Office, Minister of State (Home Office) (Criminal Justice System)

My Lords, it is a limited series of reforms. I will write about the precise amount of consultation that has been done.

On Question, amendment agreed to.

Photo of Lord Falconer of Thoroton Lord Falconer of Thoroton Minister of State (Criminal Policy), Home Office, Minister of State (Home Office) (Criminal Justice System)

moved Amendments Nos. 193B to 193D:

Page 74, line 35, at end insert "or"

Page 74, line 37, leave out sub-paragraphs (iii) and (iv).

Page 75, line 24, after "children);" insert—

"( ) an offence under—

(i) Article 19 of the Criminal Justice (Northern Ireland) Order 2003 (S.I. 2003/1247 (N.I. 13)) (buggery),

(ii) Article 20 of that Order (assault with intent to commit buggery), or

(iii) Article 21 of that Order (indecent assault on a male);"

On Question, amendments agreed to.

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

Photo of Baroness Walmsley Baroness Walmsley Liberal Democrat 8:30 pm, 9th June 2003

moved Amendment No. 193E:

Page 76, line 7, leave out "18" and insert "16"

Photo of Baroness Walmsley Baroness Walmsley Liberal Democrat

My Lords, in moving the amendment I shall speak also to Amendments Nos. 193F, 193G, 198A and 200A. They all relate to consensual homosexual sex in a situation that is no longer an offence, where people are still on the sex offenders' register from a time when such situations were offences. I tabled the same group of amendments in Committee, where the Minister gave me reason to feel optimistic that he would find a way of correcting that injustice and allowing those men to get on with their lives. The existence of their names on the sex offenders' register is a great obstacle to their getting jobs and other activities that are lawful and desirable.

I have retabled the amendments to give the Minister that opportunity and I hope he will be able to set my mind at rest about the future life opportunities of those men. I beg to move.

Photo of Lord Falconer of Thoroton Lord Falconer of Thoroton Minister of State (Criminal Policy), Home Office, Minister of State (Home Office) (Criminal Justice System)

My Lords, as I indicated in Committee, some of the convictions for indecency and buggery before the age of consent was lowered in 2000 will have involved non-consensual activity with 16 and 17 year-olds. From before 1994 there may also be a small number of cases that involve anal rape of a 16 or 17 year-old.

However, I recognise that placing a registration requirement on those involved in purely consensual activity with a person who would now be above the age of consent is unfair and unnecessary for the protection of the public. It is not a question of whether, but of how. We have been looking at how we might be able to deregister such people while ensuring that those who should remain on the register do so. We need a practical solution that is fair to those involved but that maintains public confidence in the registration requirements.

That may involve looking at each individual case, but further work needs to be done on the practicalities. We will therefore provide a final statement of our intentions in time for consideration of the Bill in Committee in the Commons. I assure noble Lords that we are determined to find a solution to the issue that will remove from the register all those who were involved in consensual activity without compromising public protection.

Photo of Baroness Walmsley Baroness Walmsley Liberal Democrat

My Lords, I thank the Minister for that reassurance and look forward to what is proposed in the Commons. Stonewall, which suggested I tabled the amendments, has suggested that applications from people who feel they should no longer be on the register might be an appropriate way forward with reassurance from the Minister that under the circumstances he has outlined such applications will meet with a satisfactory response. In the meantime I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Photo of Baroness Walmsley Baroness Walmsley Liberal Democrat

moved Amendment No. 193F:

Page 76, line 10, leave out "18" and insert "16"

On Question, amendment agreed to.

Photo of Baroness Walmsley Baroness Walmsley Liberal Democrat

moved Amendment No. 193G:

Page 76, line 22, leave out "18" and insert "16"

Photo of Baroness Walmsley Baroness Walmsley Liberal Democrat

My Lords, I beg to move.

Photo of Lord Falconer of Thoroton Lord Falconer of Thoroton Minister of State (Criminal Policy), Home Office, Minister of State (Home Office) (Criminal Justice System)

My Lords, the list I have is wrong. I do not support the amendments. I apologise.

On Question, amendment negatived.

Photo of Lord Falconer of Thoroton Lord Falconer of Thoroton Minister of State (Criminal Policy), Home Office, Minister of State (Home Office) (Criminal Justice System)

moved Amendments Nos. 194 to 196:

Page 79, line 4, leave out from "rape" to end of line 9.

Page 79, line 10, leave out from "ravish" to end of line 15.

Page 79, line 16, leave out from "assault" to end of line 21.

On Question, amendments agreed to.

[Amendments Nos. 197 to 198A not moved.]

Photo of Lord Falconer of Thoroton Lord Falconer of Thoroton Minister of State (Criminal Policy), Home Office, Minister of State (Home Office) (Criminal Justice System)

moved Amendment No. 198B:

Page 79, line 38, at end insert—

"An offence under section 106 of the Mental Health (Scotland) Act 1984 (c. 36) (protection of mentally handicapped females).

An offence under section 107 of that Act (protection of patients)."

On Question, amendment agreed to.

[Amendments Nos. 199 to 201 not moved.]

Photo of Lord Falconer of Thoroton Lord Falconer of Thoroton Minister of State (Criminal Policy), Home Office, Minister of State (Home Office) (Criminal Justice System)

moved Amendments Nos. 201A to 201L:

Page 80, line 22, at end insert—

"52A An offence under section 311(1) of the Mental Health (Care and Treatment) (Scotland) Act 2003 (asp 13) (non-consensual sexual acts).

52B An offence under section 313(1) of that Act (persons providing care services: sexual offences).

52C An offence in Scotland other than is mentioned in paragraphs 33 to 52B if the court, in imposing sentence or otherwise disposing of the case, determines for the purposes of this paragraph that there was a significant sexual aspect to the offender's behaviour in committing the offence." Page 80, line 25, leave out "against" and insert "upon"

Page 80, line 25, at end insert "if—

(a) where the offender was under 18, he is or has been sentenced, in respect of the offence, to imprisonment for a term of at least 12 months;

(b) in any other case—

(i) the victim was under 18, or

(ii) the offender, in respect of the offence or finding, is or has been—

(a) sentenced to a term of imprisonment,

(b) detained in a hospital, or

(c) made the subject of a community sentence of at least 18 months." Page 80, line 44, leave out "18" and insert "17"

Page 81, line 1, leave out "(" and insert "of"

Page 81, line 2, leave out from "buggery" to "if"

Page 81, line 3, leave out from "under" to end of line 7 and insert "17"

Page 81, line 7, at end insert—

"An offence under section 62 of that Act of indecent assault upon a male person if—

(a) where the offender was under 18, he is or has been sentenced, in respect of the offence, to imprisonment for a term of at least 12 months;

(b) in any other case—

(i) the victim was under 18, or

(ii) the offender, in respect of the offence or finding, is or has been—

(a) sentenced to a term of imprisonment,

(b) detained in a hospital, or

(c) made the subject of a community sentence of at least 18 months." Page 81, line 19, leave out "18" and insert "17"

Page 82, line 5, at end insert—

"An offence under Article 19 of the Criminal Justice (Northern Ireland) Order 2003 (S.I. 2003/1247 (N.I. 13)) (buggery) if—

(a) the offender was 20 or over, and

(b) the victim or (as the case may be) other party was under 17.

An offence under Article 20 of that Order (assault with intent to commit buggery) if the victim was under 18.

An offence under Article 21 of that Order (indecent assault upon a male) if—

(a) where the offender was under 18, he is or has been sentenced, in respect of the offence, to imprisonment for a term of at least 12 months;

(b) in any other case—

(i) the victim was under 18, or

(ii) the offender, in respect of the offence or finding, is or has been—

(a) sentenced to a term of imprisonment,

(b) detained in a hospital, or

(c) made the subject of a community sentence of at least 18 months." Page 83, line 31, at end insert—

"A determination under paragraph 52C constitutes part of a person's sentence, within the meaning of the Criminal Procedure (Scotland) Act 1995 (c. 46), for the purposes of any appeal or review."

On Question, amendments agreed to.

Schedule 4 [Other offences for purposes of Part 2]:

[Amendment No. 202 not moved.]

Schedule 5 [Minor and consequential amendments]:

Photo of Lord Falconer of Thoroton Lord Falconer of Thoroton Minister of State (Criminal Policy), Home Office, Minister of State (Home Office) (Criminal Justice System)

moved Amendments Nos. 203 to 217:

Page 90, line 4, after "vagabonds)" insert "except so far as extending to Northern Ireland"

Page 90, line 5, at end insert—

"In section 4 of the Vagrancy Act 1824 as it extends to Northern Ireland, omit the words from "wilfully, openly, lewdly" to "any female; or"." Page 90, line 11, leave out from "1861" to end of line 14 and insert ", omit sections 61 and 62."

Page 90, line 20, leave out paragraph 5 and insert—

"The Vagrancy Act 1898 ceases to have effect." Page 90, line 22, leave out paragraph 6.

Page 91, line 13, leave out "In section 21 of"

Page 91, line 14, after "1968" insert "is amended as follows.

( ) In section 21 (causing or encouraging seduction or prostitution of girl under 17)" Page 91, line 17, at end insert—

"( ) In Schedule 1 (offences against children and young persons to which special provisions of that Act apply), at the end insert—

"Any offence against a child or young person under any of sections 17 to 22, 52 to 62, 69 and 70 of the Sexual Offences Act 2003 or any attempt to commit such an offence."" Page 92, line 8, leave out paragraph 20.

Page 93, line 13, leave out sub-paragraphs (4) to (6) and insert—

"( ) Omit section 20.

( ) In section 21 (procedural provisions with respect to orders)—

(a) omit subsection (2);

(b) in subsection (4)—

(i) omit "or (2)"; and

(ii) for "either of those subsections" substitute "that subsection";

(c) in subsection (5), omit "or 20";

(d) in subsection (6), omit "and sex offender orders" and "or 20(4)(a)";

(e) in subsection (7)(b)(i), omit "or, as the case may be, chief constable";

(f) omit subsections (7A) and (7B); and

(g) in subsection (10), omit "or 20".

( ) Omit section 21A.

( ) In section 22 (offences in connection with breach of orders), omit subsections (6) and (7)." Page 94, line 27, leave out "sub-paragraph (e)" and insert "sub-paragraphs (c), (e) and (j)"

Page 94, line 28, leave out sub-paragraph (b) and insert—

"( ) after sub-paragraph (l) insert—

"(m) Section 72 of the Sexual Offences Act 2003."" Page 95, line 16, leave out "to 69 and 72"

Page 95, line 26, at end insert—