Amendment 106

Police, Crime, Sentencing and Courts Bill - Report (5th Day) – in the House of Lords at 9:00 pm on 12th January 2022.

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Lord Beith:

Moved by Lord Beith

106: Clause 46, page 39, line 17, after “sport” insert “, dance, drama, music”Member’s explanatory statementThis is intended to address a potential gap in the law related to other teaching or supervisory positions/ of trust.

Photo of Lord Beith Lord Beith Liberal Democrat

My Lords, in moving this amendment, I seek to bring music, drama and dance within provisions that the Government have included in the Bill in respect of sport and religion. The Bill takes the Sexual Offences Act 2003 and imports the position of trust of someone who is training in sport or religion into the mechanism of the Sexual Offences Act. That makes the concept of positions of trust apply not simply in institutions such as schools but to individuals carrying out training on a private basis or as part of a community organisation and in any number of other ways.

It has puzzled me from the beginning how the Government have identified sport and religion alone as fields in which abuse can take place—when people who have close personal charge in a training role of a young individual can have undue influence that could be put to the wrong use, as a means of sexual abuse or a route into sexual abuse. I do not know anybody who believes that this problem exists only in the areas of religion and sport and not in other areas where very close contact is involved in training, instruction and development. The Government concede one small part of my amendment by taking the view that dance is already included, which must be true, in the wording of the legislation, if the dance is preparation for “competition or display”. I can imagine that an Irish or Scottish dancing group for which individual training was taking place might well be covered. I am less convinced that professional ballet might be covered; that is an area in which we have seen very serious abuse of people undergoing training by a professional ballet instructor.

It is very difficult to understand why the Government have alighted on those two areas alone and not others, because the characteristics of the situation are very similar in all these different areas of activity. There are some distinctive features but so many similar characteristics: being alone with someone quite a lot; a competitive situation in which the person being trained is desperate to be included in the display or team; a desire to please; and the developing of a close personal relationship. They are all elements that we find in a number of other areas, so I wonder what the Government’s argument is.

I have had very helpful discussions with the Minister, who has been generous with his time and his staff’s attention to this matter. However, despite all his efforts, he has not succeeded in convincing me that the Government have a logical case at all. The argument that the Government resort to is that extending these provisions to music and drama would have the effect of raising the age of consent, so relationships that would not be unlawful at present would become unlawful if we extended them into music and drama. That is a very odd argument because that is precisely what the Government are doing for sport and religion: they say that the danger of predatory sexual activity is so serious that we must protect people aged 16 to 18 from this being done in a training situation, but only if their training is in sport or religion.

I simply do not understand that argument or why, if the Government think it is such a serious objection, they are prepared to do exactly that for sport and religion but not in other areas. If it is because of abuse by sexual predators that such provisions are being considered and provided for those two areas, it makes no sense that these other areas are excluded. However, they can be included subsequently because the Government have given themselves the power by affirmative order in this legislation to add other activities, or indeed to remove either of the two activities currently included.

As I thought about this, I wondered what the circumstances were in which the Government would decide to add one of the areas that I have identified—music teaching or drama teaching—to the condition where people are regarded as having a position of trust when they are engaging in training. What would lead the Government to make that change? It would probably be cases coming to light. Such cases will come to light, because in all these areas we know that, despite many thousands of people conscientiously providing this kind of training, there are those who get into these roles with predatory intent, and others who might be regarded as having done so where perhaps it has arisen more innocently between two relatively young people but in a situation that we cannot simply ignore.

When those cases arise, the question will be asked: why is the perpetrator not being charged as someone in a position of trust would be? The answer will be that the Government decided that we did not need this provision in respect of music or drama, even though we need it for sport and religion. I think future Ministers will find that a very uncomfortable question to deal with from the Dispatch Box when we then point out that cases have arisen that could have been pursued under the kind of provisions that they see as necessary for sport and religion.

The Government are in an illogical position, and their only way out of it is at some point to decide to add other areas to the list. That may come at a time when more bad cases have arisen, and then they will have a difficult case to answer. I invite the Minister to think further about this matter, but for the time being I beg to move.

Photo of Lord Paddick Lord Paddick Liberal Democrat Lords Spokesperson (Home Affairs)

My Lords, as my noble friend Lord Beith explained, the amendment would extend the position of trust to include people who coach, teach, train or instruct on a regular basis in dance, drama and music.

I am sure the Minister will correct me if I am wrong, but I seem to remember him saying in Committee that the Government wanted evidence that these amendments were necessary before they were able to accept them. On 20 October 2021, the Guardian reported that a former ballet teacher and principal dancer at the English National Ballet had been sentenced to nine years in prison for more than a dozen counts of sexual assault against his students—I think that is dance. On 30 September last year the Sun reported that a drama teacher had been convicted of sexually abusing girls as young as 15 over five years, abusing his position of power and targeting teens who wanted to become actresses by sexually assaulting them at the theatre group he had set up in Northamptonshire—I think that is drama. The Edinburgh Evening News reported on 22 December, just last month, that a retired music teacher in Scotland had been sentenced to eight years’ imprisonment for raping and sexually abusing former pupils—I think that is music.

There is the evidence. What is stopping the Government now? We strongly support my noble friend’s amendments.

Photo of Lord Pannick Lord Pannick Crossbench

My Lords, the noble Lords, Lord Beith and Lord Paddick, make a very strong case. Clause 46 addresses a serious mischief: abuse of trust to gain sexual advantage. Like them, I cannot understand why this is to be addressed only in the context of sport and religion and not in the context of dance, drama and music.

I have one other question for the Minister. I also cannot understand why sport is only to be covered in relation to games in which physical skill is the predominant factor. What if there is an abuse of trust by someone who is training young people in chess or bridge? Why is it not equally objectionable if they take sexual advantage of those young people? Why should that not be included within the scope of the offence?

Photo of Lord Ponsonby of Shulbrede Lord Ponsonby of Shulbrede Shadow Spokesperson (Justice), Shadow Spokesperson (Home Affairs)

My Lords, I thank the noble Lord, Lord Paddick, for giving those very good and relevant examples of abuses of trust in dance, music and drama. I remember the points that the Minister made when we had this debate in Committee: he did indeed ask for examples, and I thank the noble Lord for providing them.

Surely, the similarity in everything that we are talking about is the nature of the relationship. It is a trusting relationship where a lot of time may well be spent alone with the young person, and it is open to abuse. The Minister had other arguments about why dance, music and drama should not be included, and I would be interested to hear how he rehearses them, given that there is unanimity in the views expressed in today’s debate. I do not know whether the noble Lord will press his amendment to a vote—I think probably not—nevertheless, I will listen to the Minister’s answer.

Photo of Lord Wolfson of Tredegar Lord Wolfson of Tredegar The Parliamentary Under-Secretary of State for Justice

My Lords, I am very grateful to the noble Lord, Lord Beith, for again raising this matter for debate. I am also grateful to the noble Baroness, Lady Jones of Moulsecoomb, who is not in her place but who gave up a lot of time last week to discuss this with me and the noble Lord.

I start by clarifying what we mean by a “position of trust” in this context—there may have been some confusion in Committee. The position of trust offences that we are discussing are set out in Sections 16 to 19 of the Sexual Offences Act 2003. They are necessarily narrow in scope and were never intended to apply in all scenarios in which a person might have contact with, authority over or a supervisory role over another person, even those aged under 18. Rather, these offences were created to tackle potentially abusive relationships between those under 18 and adults who were in specific positions of trust.

The existing positions of trust, as set out in Section 21 of the 2003 Act, were so drafted in an attempt to capture situations where the young person had a high level of dependency on the adult involved, often combined with some vulnerability. These included those caring for a young person in a residential care home, hospital, school or educational institution. In these contexts, the power dynamic is such that Parliament considered that any sexual activity should be criminalised.

The law was created, therefore, in recognition of the risk inherent in these types of position and the power the individual could have over the young person, which could impact on and affect the young person’s ability to consent. As such, the offences are committed as soon as the adult in one of these specified positions engages in sexual activity with the young person they are caring for; there is no need to prove any abuse or actual manipulation.

Expanding the situations in which consensual sexual activity between a person aged 16 or over and an adult is criminalised is therefore a delicate matter. Framing these offences too widely could prohibit any person aged 18 or over engaging in sexual activity with anyone aged 16 to 17, which effectively raises the age of consent by stealth. A broad approach also risks legislating beyond the original intention of the current provisions: to protect young people in those relationships which, by their nature, involve unique opportunities to manipulate and abuse, rather than any relationship with an element of supervision. Therefore, it is essential, as I said—I will come to the examples from the noble Lord, Lord Paddick, a little later—that any expansion of these provisions is backed by evidence.

We in the department led a review of the law in this area, which did not deal only with abuse in sport and religion, and we engaged with representatives from a wide range of backgrounds and sectors. After that careful review of the law, the Government have concluded that those who teach, train, supervise, instruct or coach in a sport or a religion are particularly influential over a child’s development and should be captured under the position of trust laws. That is what Clause 46 does.

Photo of Lord Beith Lord Beith Liberal Democrat 9:15 pm, 12th January 2022

To clarify, is the noble Lord saying that when the department looked into this matter it discovered more evidence in respect of sport and religion than in other fields, or some specific evidence that made it clear that this was much more likely to occur in sport or religion?

Photo of Lord Wolfson of Tredegar Lord Wolfson of Tredegar The Parliamentary Under-Secretary of State for Justice

As I say, we discussed this with a wide range of people, and it seemed to us from looking at all the material that sport and religion are the particular areas where law at the moment should intervene. I was coming to this point. The noble Lord presented the amendment saying, “Abuse can take place in other relationships too”, and of course he is absolutely right. However, abuse can take place where there is no relationship at all, and I am afraid it can take place in lots of different relationships. The question here is when the law should intervene to prohibit automatically, regardless of the particular 17 or 19 year-old and whether any abuse is taking place, to prevent any sexual contact. For those reasons, we consider that at the moment, we should intervene—I will come to the delegated power—in sport and religion only. Those settings involve high levels of trust, influence, community recognition, power and authority, and these figures are often well-established, trusted and respected in the community.

The report of the Independent Inquiry into Child Sexual Abuse found that religious organisations

“may have a significant or even dominant influence on the lives of millions of children” and that

“what marks religious organisations out from other institutions is the explicit purpose they have in teaching right from wrong.”

Also, both sport and religion can provide a young person with a strong sense of belonging, whether in a team, a squad, a community or a faith. Such deep feelings held by the young can provide unique opportunities for predators to exploit or manipulate and can make it more difficult for the young person or concerned relatives to report abuse.

With respect to sport specifically, the physical nature of the activities means that coaches often ostensibly have legitimate reason physically to touch the children and young persons they are coaching. A sports coach will often have opportunities for closer and more prolonged physical contact compared with other roles, and this can be manipulated by abusers. That is why, to respond to the point made by the noble Lord, Lord Pannick, the 18 and a half year-old tennis coach would be prohibited from having a relationship with a 17 and a half year-old tennis student, but the 18 and a half year-old chess coach could have such a relationship —assuming for these purposes that chess is not a sport; I do not need to decide that because it is a physical definition that is in the Act—because there is not that scope, ostensibly, for a physical relationship.

The noble Lord’s amendment addresses dance specifically. Again, let me reassure him that the definition of “sport” in Clause 46 includes types of physical recreation engaged in

“for purposes of competition or display”.

We consider that this includes dance.

On the delegated power for the Secretary of State to amend new Section 22A, we accept that new evidence may emerge that may justify legislating further. Let me reassure the House and put it on record that this power will not be used lightly, but nor will we wait until instances of abuse are brought to our attention. We will proactively monitor data on child sexual abuse to ensure that we have the evidence needed to inform policy and act decisively where required, including evidence relating to the nature of roles and the institutional or organisational context, the level of power and control, other factors which we have seen contribute to abuse including opportunities for extensive unsupervised contact, and any inherent risks posed to young people as well as any data on incidents of concern. We are establishing channels through which partners such as the police, the CPS and local authorities can share emerging evidence and highlight patterns of behaviour.

Some of the behaviour that has been mentioned this evening and in Committee is already covered under other offences within the Sexual Offences Act 2003. Let us be clear: sexual activity with someone under the age of 16 is a crime. Non-consensual sexual activity such as rape is obviously a crime. I certainly heard the word “rape” in at least one example mentioned by the noble Lord, Lord Paddick. We are not talking about that—that is the point—because rape is already a crime. We are talking about sexual activity which would otherwise be lawful and consensual. I did not quite catch all the examples, but one cited was from a newspaper in Scotland where somebody had done something. How old was the person? If they were under 16, it is already caught. Was there consent? If there was not, it is already caught. One has to be careful when one is talking about evidence. We will be proactive in looking for that evidence and, for the avoidance of any doubt, we will of course re-read the examples that he gave us.

I accept that Clause 46 does not represent everybody’s preferred approach, but we believe that, on the material that we have at the moment, our approach strikes the appropriate balance between the protection of young people and the sexual freedoms and rights otherwise granted to 16 and 17 year-olds, while still allowing for rapid responses to emerging patterns of abuse in the future. For those reasons, I respectfully invite the noble Lord to withdraw the amendment.

Photo of Lord Paddick Lord Paddick Liberal Democrat Lords Spokesperson (Home Affairs)

Before the Minister sits down, can he clarify two points? First, is he saying that those people who teach drama, music and dance should be allowed to exploit their positions up until the point that they rape or indecently assault somebody, or does he agree with my noble friend that action should be taken to prevent that in the first place? Secondly, what is to stop a teacher of a young person who wants to engage in sexual activity with them distancing themselves from their teaching role to enable that to take place? How on earth does this amendment change the age of consent?

Photo of Lord Wolfson of Tredegar Lord Wolfson of Tredegar The Parliamentary Under-Secretary of State for Justice

I am struggling with that second point, but let me try to answer the first. On whether I am saying that anybody should be allowed to exploit a young person, the answer is no. Frankly, I do not understand how the noble Lord has reached that conclusion. There is nothing in the provisions about justifying exploitation or abuse up to the point of rape and assault. Maybe this is the confusion that he is under in relation to the second question. At the moment, if someone is caught in a position of trust—let us say, for example, a minister of religion who is 18 and a half—that person is prevented from having any sexual contact with, say, a 17 and a half year-old congregant. Before that person was ordained or appointed to the position as a minister of religion, that person could have had a sexual relationship with a 17 and a half year-old. That is why I am talking about changing the age of consent, because that 17 and a half year-old is able to sleep with an 18 and a half year-old but not if that 18 and a half year-old is, for example, her minister of religion. I hope that answers the noble Lord’s second question, although I confess I did not quite understand it because, if I may say so, it seemed to proceed from a fundamental misapprehension of what we are talking about.

Photo of Lord Beith Lord Beith Liberal Democrat

My Lords, one thing I want to say in response to the Minister is that, as I said earlier, there are many thousands of people engaged in the training of young people in many contexts, but particularly in some of these fields very close contact and continuous interchange is involved, including activities in which the contact is physical. That applies not just to sport but to teaching someone how to hold their violin and their violin bow; it applies to all sorts of activities. There are spheres too in which the relationship is affected by the authority of the training person, the desire to please that person and to be successful in the activity. The more the Minister described those activities, the more it seemed that what he described happens not just in sport and religion but in many other areas as well.

It is important that we remind society that vast numbers of people are engaged in this kind of training work entirely selflessly and giving great service to young people. They are people we recognise and support. A very small number of people do everybody else so much damage by the kind of abuse referred to in the course of the debate. Unfortunately, we still have to deal with it, which means we have to talk about it, debate it and devise laws that work for that purpose.

I would much have preferred to see a wider clause that used the concept of a position of trust in a series of places in which it is clearly relevant. The Government have preferred to retain power by statutory instrument to make extensions to the list, and the Minister, in response to my request, tried to give a bit more indication of the sort of circumstances involved. He has said that they are not just waiting for cases; they will look to the views and experience of organisations in the field. That could usefully be done. If organisations in any of the fields I have talked about respond to the Government by saying, “Yes, it would help us in our disciplinary and regulatory arrangements if this power was extended”, then I hope that is the kind of information that might lead Ministers to come before the House to make use of those powers. I certainly do not want them to be waiting for cases. I am serious in my concern that some cases will arise where abuse has taken place that otherwise falls within the definitions in this clause but where the position of trust appellation has not been applied because it is in one of the other groups—it is not sport or religion.

This is a serious problem that undermines the wonderful work that so many people do with young people, and the wonderful achievements of those young people in sport, drama, music and the arts. We have to keep it under continuous review but, at this stage, I beg leave to withdraw the amendment.

Amendment 106 withdrawn.

Amendment 107 not moved.