Sexual Offences Bill [Lords]

Public Bill Committee, 16 September 2003.

Standing Committee B

Sexual Offences Bill [Lords]

Roger Gale (Conservative, North Thanet)

Good morning. I am pleased to see that the Committee made rapid progress during my absence.Clause 15 Arranging or facilitating commission of a child sex offence

Clause 15 - Arranging or facilitating commission of a child sex offence

Dominic Grieve (Conservative, Beaconsfield)

I beg to move amendment No. 148, in

clause 15, page 6, line 4, leave out 'arranges or'.

The clause concerns arranging or facilitating the commission of a child sex offence. In subsection (2), a definition is provided for circumstances in which a person does not commit such an offence. There is no offence if

''he arranges or facilitates something that he believes another person will do, but that he does not intend to do or intend another person to do, and . . . any offence within subsection (1)(b) would be an offence against a child for whose protection he acts.''

That let-out clause is designed to enable people to provide support—advice on contraception and the like—to those under 16 who are engaging in sexual activity.

I have no objection to the main purpose of the clause. However, I was a little surprised by the use of the words ''arranges or facilitates''. I fully understand that those words should be used in defining what constitutes the offence. To facilitate an offence is to carry out steps that might be seen to help its commission in a rather indirect way; to arrange an offence implies direct participation as the person who sets it up. However, I do not understand why there should be a let-out clause for someone who ''arranges or facilitates''.

If someone is providing contraceptive advice or trying to protect the physical safety of the child and is, in effect, tolerating the commission of an offence—the sexual contact—because there are other considerations to be taken into account, he is merely facilitating, not arranging. The danger that I perceive is that, by providing in subsection (2) that an offence is not committed if someone arranges

''something that he believes another person will do, but that he does not intend to do or intend another person to do'',

we are drawing the exemption much too wide. Under the guise of providing, say, contraceptive advice, someone could actually be setting up the meeting between the two people concerned, and providing accommodation and a setting in which an offence could take place. I do not think that the Committee should simply let the provision go through without further consideration.

At the risk of repeating myself, I have no difficulty with providing an exemption for those acting for the purposes mentioned in subsection (3), but none of those provisions could or should amount to the arrangement of the commission of the offence. My proposal is that ''arranges or'' be deleted.

Paul Goggins (Labour, Wythenshawe and Sale East)

I have before me a long speech that deals with all the complexities of the clause and the amendment, but the Committee will be delighted to know that I will not use it. Instead, I will tell the hon. Gentleman that, given that he accepts that ''arranges'' and ''facilitates'' should both be in the clause, and that he is referring to the exception, I should like to take a bit more time to reflect on the matter. We must ensure that we get those two words, both of which need to be in the clause, in precisely the order that attains the Government's objective.

Dominic Grieve (Conservative, Beaconsfield)

In case I have not made myself clear, I am perfectly satisfied with the principle that the offence is arranging or facilitating the commission of a child sex offence. My view is that the exemption should be limited to the facilitation of such an offence and not its arrangement.

Paul Goggins (Labour, Wythenshawe and Sale East)

It is important because to facilitate can be as serious as making the arrangements. Given that the hon. Gentleman accepts that, and the fact that we are considering the nature of the exceptions, we shall reflect further on his point and no doubt return to it later.

Dominic Grieve (Conservative, Beaconsfield)

I am extremely grateful. We might be able to consider the matter in more detail in the clause stand part debate. I look forward to hearing whether the Under-Secretary thinks there is merit in the points that I have raised. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Dominic Grieve (Conservative, Beaconsfield)

I beg to move amendment No. 201, in

clause 15, page 6, line 12, leave out paragraph (b).

Roger Gale (Conservative, North Thanet)

With this it will be convenient to discuss amendment No. 200, in

clause 74, page 35, line 35, leave out paragraph (b).

Dominic Grieve (Conservative, Beaconsfield)

On page 6, line 12 is the expression,

''protecting the physical safety of the child'',

which is one of the exemptions to arranging or facilitating an offence. Amendment No. 201 is a probing amendment, because I was puzzled when I looked at that list of exemptions. I have no difficulty with

''protecting the child from sexually transmitted infection''

or

''protecting the child from becoming pregnant''

or, perhaps slightly more controversially,

''promoting the child's emotional well-being by the giving of advice''.

However, the idea of protecting the physical safety of the child raised a question in my mind. What is it in protecting the physical safety of a child that could possibly lead to an individual arranging or facilitating the commission of an offence under clause 15? I should

be grateful to learn from the Under-Secretary or the Solicitor-General of some examples of why that paragraph is thought necessary.

In protecting the physical safety of the child, I should have thought that the last thing one is likely to be doing is arranging or facilitating the offence prohibited under clause 15. I touched on a possible example earlier: arranging for two young people under the age of 16 to have a room in a house in which they could have sexual intercourse because it was a better option than their doing it behind the bicycle sheds. However, we need some explanation and justification of that paragraph, as I could think of only one example, and I am not completely happy with that.

Paul Goggins (Labour, Wythenshawe and Sale East)

The hon. Gentleman has taken the example that I would have taken. I asked Committee members to put themselves in the position of the mother of a 14-year-old girl who has tried desperately to persuade her daughter that she should not be engaging in sexual activity with another person. The mother has tried absolutely everything, but none the less knows for a fact that her daughter is engaging in sexual activity down a back alleyway. In desperation, she might allow the activity to take place in the home, where she knows that, whatever other harm may befall her daughter, at least it is happening within the security of her own home.

Perhaps I may take another example. Someone who is involved in providing sexual advice to teenagers might be aware that a 14-year-old girl is engaging in sexual activity. He or she might counsel her as necessary, but still know that the activity is taking place, and perhaps, from the child's reports, that serious physical harm or pain is occurring. We would not want that person, who is providing much-needed advice in desperate circumstances, to be caught by the provisions of the clause; that is why the exceptions are included.

Extreme as some of the examples are, when they occur they will be very pressing and I hope that, in light of that, the hon. Gentleman will withdraw the amendment.

Dominic Grieve (Conservative, Beaconsfield)

I think that the Under-Secretary has persuaded me that I would not want someone to be prosecuted in the example that we have just discussed.

My only concern is that the loophole is potentially very large and enshrined in statute; it is not a discretionary issue where, for instance, the prosecution would decide whether to prosecute. That is the reverse of what the Under-Secretary has been telling us in previous sittings: that the law would be very draconian but that members of the Committee could be reassured that it would not be used, nor would the guidelines have it used, in circumstances where it would be oppressive.

However, the clause provides a statutory exemption. On the question of physical safety, it is a pretty wide exemption, which might well be used by all sorts of people little better than pimps. They would say, ''I provided the accommodation in which the sexual activity took place because it was desirable for

the physical safety of the person concerned.'' Obviously, they would have to persuade a jury of that, but that raises the prospect of the exemption's wide use as an exculpation, or an attempted exculpation, for behaviour that is thoroughly undesirable. One inevitably has difficulties over wording; that is the one bit of the exemption that causes such difficulties. The others are sufficiently tightly drawn to make such difficulties much less likely.

Humfrey Malins (Conservative, Woking)

My hon. Friend is developing an interesting argument; the exemption is fairly wide and he touches on the issue of persuading a jury. I am not certain—I wonder what view he takes—where the burden would be. Would it be on the defendant to establish the defence, or would it be up to the prosecution to negate it once it was raised, as would be the case with self-defence? That is a difficult matter for a jury.

Dominic Grieve (Conservative, Beaconsfield)

Indeed. My understanding is that it would be for the prosecution to show, once the defence was raised—I assume that the defence would have to be raised; it would have to be suggested—that it could not possibly be said that the person's actions were for the sake of protecting the physical safety of the child.

I accept that juries have plenty of common sense but I think that the exemption would lead to a lot of hearings contested by individuals who have no merit to their defence whatever. It is terribly easy to say, ''It was better that I should have done these things,''—physical safety is very nebulous—''that I should have facilitated, arranged or allowed my house to be used. It was better that I should have driven the child to the rendezvous with the individual because I thought that that was better than for her to be walking the streets.'' It is very easy for a pimp to give such a defence for providing a 14-year-old girl to an older man.

I hope that the matter has been well thought through. I will not press the matter to a Division; I will withdraw the amendment. The Government's intention is perfectly laudable and absolutely right, but I urge the Under-Secretary to consider whether the matter could be tightened up; otherwise, I am slightly apprehensive that the exemption will be used as the standard, stock explanation in every case in which a pimp or a facilitator is accused of encouraging a child under 16 to engage in sexual activity.

Paul Goggins (Labour, Wythenshawe and Sale East)

In response to the technical point raised by the hon. Member for Woking (Mr. Malins), the burden is on the prosecution to disprove that a matter is an exception once the defendant has raised the issue. I also want to respond to the example of the pimp raised by the hon. Member for Beaconsfield (Mr. Grieve). It is important to appreciate that the exception will not apply if a person is acting to cause or encourage the sexual activity—we are not adding an exception that would allow people to actively encourage young people to engage in such activity.

As always with this Bill, we have to strike a fine balance. These exceptions have been included because professional organisations working with children and young people have pressed very hard for them—not least when this matter was discussed in another place.

We particularly want to ensure that adults acting in a professional capacity have the confidence to know in advance that this exception exists when they provide the advice and support that is so necessary. We feel that, with the help of the organisations that work directly with young people, we have struck the right balance, and I hope that my comments will offer some comfort to the hon. Member for Beaconsfield.

Dominic Grieve (Conservative, Beaconsfield)

I am grateful. The Under-Secretary might like to consider, as I certainly will, whether there is any way in which this can be tightened slightly to make it clear that these people would be guilty of the offence and discourage people from running spurious defences; otherwise, the courts will get clogged up with such cases. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Harriet Harman (Labour, Camberwell and Peckham)

I beg to move amendment No. 46, in

clause 15, page 6, line 15, after 'not', insert

'for the purpose of obtaining sexual gratification or'.

Roger Gale (Conservative, North Thanet)

With this it will be convenient to take Government amendments Nos. 48 and 49.

Harriet Harman (Labour, Camberwell and Peckham)

Clause 15 makes it clear that a person will not be guilty of arranging or facilitating a child sex offence, and clause 74 makes it clear that he will not be guilty of aiding, abetting or counselling a range of other sexual offences against a child provided that he acts for the purpose of protecting a child's physical safety, protecting a child from pregnancy or sexually transmitted infection, or promoting a child's emotional well-being by the giving of advice. That is set out in clause 15(3) and clause 74(1).

As we have heard, these provisions were included in the Bill in response to concerns that it could criminalise those acting in the best interests of a child and out of genuine concern for the physical and emotional welfare of a child, and that it could also deter children from seeking the advice and medical care that they need in relation to sexual matters. The exceptions apply to anyone who acts to protect a child, including teachers, parents and friends.

However, when the clauses were debated in another place, concerns were voiced that the exceptions would allow abusive behaviour by predatory adults to escape prosecution. Following a suggestion that we made during the debate in another place, we have decided to take steps to make the exception tighter and less vulnerable to exploitation by someone who does not have the child's best interests at heart, which is taking forward the process of narrowing and widening the Bill to try to achieve an appropriate result. Amendments Nos. 46 and 48 add a further restriction to the exemptions in clauses 15 and 74: they restrict the exceptions to the offence so that they do not apply if the person is acting for the purpose of obtaining sexual gratification—for example, by talking to a child about the detail of sexual matters but without going so far as to encourage the child to have sex. We recognise that there are unlikely to be many cases where a person will be acting for sexual gratification without also acting to cause or

encourage the child's sexual activity. However, there may be cases where a person gives advice about sexual matters that falls short of encouraging sexual activity but where he gains sexual gratification from doing so. It is important to ensure that such people are not able to benefit from the exceptions. This amendment will strengthen child protection.

I know that hon. Members will be wondering what will be the evidence of sexual gratification if, in all other respects, what happened looked like something that the exemption clause was uniquely designed to protect from falling into criminality.

The evidence of sexual gratification may be available in the form of written text, or from other people. Some paedophiles, for example, write about what they are doing and they sometimes share such written material with others by e-mail or text message. The end result that we are aiming for is that someone would not be guilty of an offence if he acted in one of the four specified ways to protect a child or to promote its emotional well-being, but he would if he acted with the purpose of causing or encouraging unlawful sexual activity, as the Under-Secretary said, or—as in the amendments—he obtains personal sexual gratification from those actions. I ask hon. Members to support the amendment.

Amendment No. 49 is technical and corrects a drafting error—it has no effect on how the provisions in clause 74 would work in practice.

Dominic Grieve (Conservative, Beaconsfield)

I welcome the Solicitor-General's remarks. The amendment is sensible and follows on from what was said in the other place. Although I shall return to the use of the words,

''for the purpose of obtaining sexual gratification''

in another context later during our discussion this morning, they are appropriate in this amendment and are therefore welcome.

Annette Brooke (Liberal Democrat, Mid Dorset and North Poole)

I, too, welcome the amendment. I wonder whether in summing up the Solicitor-General will tell us once more—just so that hon. Members may be confident about it—whether it is clear that the sexual gratification is on the part of the person directly concerned. Are we still considering a third party, if their reason for being involved in the activity is to make money? For example, would a pimp, whose objective was making money—so the sexual gratification would be further down the line—be picked up under the amendment? I should like further clarification on that. The Solicitor-General has touched on that matter, but I should like to see it on the record.

Harriet Harman (Labour, Camberwell and Peckham)

I hope that I can assist the hon. Lady by taking her through the stages. First the offence must be considered. We then consider whether the person comes within the exception. If they do, it must be determined whether they fall out of the exception and back into the offence by virtue of obtaining sexual gratification. The pimp would not get into the exception. The question of whether he was obtaining sexual gratification would not arise, because

he would be guilty of the substantive offence and would not escape on account of the exception. Accordingly, the person would not need to be brought back into the offence by this further narrowing of the measure.

Amendment agreed to.

Clause 15, as amended, ordered to stand part of the Bill.

Clause 16 - Sections 10 to 15: marriage exception

Dominic Grieve (Conservative, Beaconsfield)

I beg to move amendment No. 149, in

clause 16, page 6, line 26, at end add

'and outside the United Kingdom'.

We come now to an important clause that causes me considerable anxiety. It provides a marriage exception, under which the

''Conduct of a person . . . which would otherwise be an offence under any of sections 10 to 14''—

including sexual activity with a child, causing or inciting a child to engage in sexual activity, engaging in sexual activity in the presence of a child and causing a child to watch a sexual act—would be decriminalised if A and B are lawfully married.

It would be possible, according to the laws of some foreign countries, for an individual to transact marriages with, for example, two or three wives—children perhaps as young as 12—and bring them into the UK. Indeed, there may be lower age limits in other countries—I am certainly aware of countries where the limit is as low as 12. The Solicitor-General may be able to help us with that. An individual may have sexual intercourse and carry out every other form of sexual activity with a child by virtue of the fact that it takes place in the framework of a lawful marriage. That is my understanding of how clause 16 will operate. Although I understand the origin of the clause, which lies in anxiety about respect for marriage under the Human Rights Act 1998, it is highly offensive to the majority of people in the country and will lead to potentially appalling consequences.

It is difficult to justify providing a marriage exception if people, having transacted abroad a marriage that would be unlawful in this country, wish to continue to have sexual relations in this country with their partner, bride or however else we wish to describe the person. Such a provision would provide a potential loophole for paedophiles. It is not beyond the bounds of possibility that a paedophile living in the United Kingdom might go abroad, procure and lawfully marry an underage girl in that country, bring the child back to the United Kingdom and say that, because of the marriage exemption, he was allowed to continue to have sexual relations with her. I shall wait to hear from the Solicitor-General whether I have understand the position correctly.

Such matters cause me great anxiety. A halfway house cannot be established, although I suppose that we could introduce one of different ages. However, that would not tackle the problem. We set laws in this

country to protect children—those under the age of 16. The fact that the child may be married does not justify the existence of an exception and toleration of behaviour that would otherwise be regarded as improper. I appreciate that there are arguments the other way, such as the one that asks why people from perfectly respectable cultures who have come to this country, perhaps to seek asylum, should suddenly find that having underage wives—circumstances that were perfectly normal previously—is criminalised and prohibited until the girl reaches the age of 16.

However, on balance, the protection of such young children is paramount. It should be said that the laws of this country are that 16 is the age at which a person can be married and that sexual relations with children under that age are not sanctioned by the state. Of course, it would still be possible for the Director of Public Prosecutions to exercise his discretion in such matters and I very much hope that he would do so. I hope that, in approaching such cases, the Crown Prosecution Service would pay great attention to the fact that the marriage seemed to be lawful before embarking on an unpleasant and traumatic prosecution. That the Bill will simply provide a blanket exception worries me very much.

Stephen Hesford (Labour, Wirral West)

I shall be obliged if the hon. Gentleman will help me with a matter. Clause 16(1)(a) states:

''at the time, A and B are lawfully married.''

Does not that mean ''lawfully married'' within the laws of this country? What else can it mean?

Dominic Grieve (Conservative, Beaconsfield)

Perhaps I have the wrong end of the argument, but we recognise the existence of foreign marriages in this country, including marriages that are transacted between a 40-year-old and a 13-year-old. Such marriages are still lawful marriage.

Humfrey Malins (Conservative, Woking)

The hon. Member for Wirral, West (Stephen Hesford) raised an interesting point, but the proof that this country recognises marriages from foreign jurisdictions is the fact that our divorce courts will take them on board in respect of a dissolution.

Dominic Grieve (Conservative, Beaconsfield)

I want to give the hon. Member for Wirral, West the opportunity to intervene again.

Stephen Hesford (Labour, Wirral West)

Is that not the difficulty? If the couple are lawfully married for all other purposes and we accept, in civil jurisdiction, bipartisan recognition of marriages, I am not sure how far the hon. Gentleman can take his argument. We would be making exceptions and criminalising what, for civil purposes, we recognise to be lawful marriages.

Dominic Grieve (Conservative, Beaconsfield)

I appreciate the hon. Gentleman's point, but I am not wholly persuaded by it. Last week we discussed, among other things, the desirable fact that non-consensual sexual intercourse within marriage is a criminal offence. For many years it was not; it was permissible for a husband to force himself on his wife, and it was accepted as a societal norm. We have decided to change that in respect of our laws. In some countries outside the United Kingdom, it is permissible for husbands to beat their wives. I am glad to say that that is prohibited in this country, although, from the available evidence, it happens far too

frequently. Just because people might have transacted a marriage where they are allowed to beat their wives, it does not mean that when they come to Britain they are allowed to continue beating their wives as part of their domestic arrangements.

I accept that sexual relations are a fundamental part of marriage, and normally the reason why marriage takes place. Sexual relations are a basic reason for the institution. I also accept that we are going much further if we say that we recognise a marriage as legal, but that the fundamental aspect of that relationship and the reason behind it, namely that the two people have sexual relations, must be prohibited until the party who is under age reaches 16. However, I do not think that that would be negating the existence of the legal relationship completely. We would be saying that the laws of this country provide that a person cannot get married under the age of 16, which is for the protection of one of the parties, and, in such circumstances, we will not accept or legitimise sexual relations with a wife who is under that age. That is wholly different from whether we prosecute anyone.

I accept that the situation that I have described is always unsatisfactory, and we have been round the houses on that earlier. I worry about the principle because, as I said earlier, it will provide some fascinating opportunities for extremely undesirable behaviour, not just from people from foreign cultures who have a different way of life, but from paedophiles in this country who will be able to exploit a loophole. I wonder whether that is sensible.

I shall listen carefully to the Solicitor-General. I am open-minded about the clause, but it troubles me. The purpose of my amendment is to make it clear that the conduct that took place outside the United Kingdom is none of our business, but that within the UK such conduct would not be legal. If other Committee members can think of a better formula or a halfway position that meets the anxieties that I have expressed, I would be only too delighted to hear it. We cannot allow this clause to pass without some consideration.

Annette Brooke (Liberal Democrat, Mid Dorset and North Poole)

I share the hon. Gentleman's concerns about clause 16 and several other clauses, but I am not entirely convinced by his amendment.

Cultural and ethnic differences are certainly important, and we have debated at great length where loopholes might occur. This clause has the potential to create a dangerous loophole, which could be used by child abusers, who could convene a marriage under another jurisdiction. I see that as a possible outcome, and I ask the Solicitor-General whether it would be better to leave the clause out of the Bill and rely on discretion instead, as we have talked about doing for so many other difficult cases. If there was a marriage in which no abuse was going on, would not we argue that discretion should be used and there should be no prosecution? The thought that marriage could be used as a vehicle for abuse fills me with horror, and I have, in my non-legal way, the greatest concerns about the clause.

Humfrey Malins (Conservative, Woking)

This is an important clause, as my hon. Friend the Member for Beaconsfield said. There are

those, including the Law Society, who take the view that the clause is wrong in principle. The Law Society feels strongly that all children in the UK jurisdiction should have the same protection, no matter what their social or immigration status or personal history. It worries me that the provision could be a loophole that allows child abusers impunity by virtue of marriage to a child in another jurisdiction.

This is an interesting clause that raises a few questions, which my hon. Friend has mentioned. The key words are ''lawfully married''. When I looked at the explanatory notes, I found the following sentence on the clause:

''This might arise, for example, where they are foreign nationals who were married in another country.''

That, of courses, raises the question of what marriage means. We all deal with immigration and asylum cases in our surgeries. Hon. Members might be surprised to hear that in my constituency of Woking there is a large and settled population originating in Pakistan. Many asylum and immigration cases come my way. Quite often, one deals with other communities, too.

An applicant for settlement in this country may rely on a marriage to secure that settlement. Members of the Committee know that quite often it is difficult to establish a marriage. What do we mean by a marriage? There are so many different cultures and societies to which the contract of marriage into which we enter in this country is, in a sense, not so relevant. There are countries where the marriage ceremony is no more than a function—by that I mean it is, in effect, a get-together for a meal, but that is regarded as a marriage. Equally, there are countries where divorce is, or used to be, obtained quite simply by the husband or wife—in the past it was the husband—simply saying three times to the spouse: ''I divorce thee'', and that was the end of it. I just wanted to raise the issue of what we would call marriages taking place in a foreign jurisdiction.

Will the Solicitor-General explain the term ''lawfully married''? Does she mean lawfully married under the laws of this country? If so, perhaps we face fewer difficulties. Does the term also mean lawfully married according to the customs or traditions of a different country? That is an interesting point because, as I said to my hon. Friend the Member for Beaconsfield a few moments ago, unless I am grievously mistaken, we in this country recognise foreign marriages to the extent that we are prepared to accept jurisdiction over divorces.

The Solicitor-General might talk to us about the age of consent for marriage in different countries, and she will be right to do so. For example, the European Union's position on ages of consent is comprehensible to us—we talked about that in relation to sexual activity between young people—and I am sure that in some EU countries marriage can be contracted at a different age than in our country. However, I hope that the Government will take the following point on board. About 30 million people—including refugees—are on the move in the world, and more of them than ever before are entering European jurisdictions. Marriage ceremonies that are entirely lawful in the countries from which they come might not be

recognised as lawful by us. I have not even mentioned bigamous marriages.

The clause could present difficulties, not least evidentially. If cases relating to it were to come to court, the defence could say, ''The couple were lawfully married in country X.'' It might be very difficult for a judge or jury to get a handle on that because we simply do not know what may or may not be a lawful marriage in a particular part of the world. Therefore, once that issue is raised, there might be difficulties.

I will say no more, as I am merely echoing what my hon. Friend said. However, I have raised a few questions, which I hope the Solicitor-General can deal with. My main point goes straight back to the issue of whether or not ''lawfully married'' means lawfully married according to the law of our country.

Vera Baird (Labour, Redcar)

I too am concerned about the clause, and I wish to echo—but not to repeat—the concerns that have been raised by Committee members.

I am opposed to the clause in principle. We are against sex with children. We are against eroding the age of consent. If we think that a girl cannot lawfully consent to sex under the age of 16—let alone under the age of 13—it is difficult to see how we can at the same time acknowledge that she has the capacity to marry. As the hon. Member for Beaconsfield has said, sex is part and parcel of marriage and it is frequently—although, perhaps, not often—its primary purpose.

It worries me that we will be licensing a person to do what anyone else would risk suffering a 14-year penalty for doing because he happens to have entered into some form of marriage contract. It is wrong in principle to say that because he has married a young person—one who, according to our assessment of what true consent is, would have difficulty consenting—she belongs to him and the rules against underage sex do not apply. That comes very near to reversing R v. R, and to saying, ''It is not all right to have underage sex with someone, but if you marry them it is fine because you own them and you can do what you want with them.''

I do not decline to acknowledge the cultural sympathy that has motivated this provision, but it raises huge concerns in my mind. I do not think that cultural sympathy is so important that it ought to lead to us authorise non-consensual sex with children, which the exception inevitably will do.

I know that there is an argument that because the current offence refers to unlawful sexual intercourse, someone who is lawfully married might not be committing an offence at present—that there might currently be an exception. I appreciate that point, but it comes back to the issue of what a lawful marriage is—and, probably, to what a lawful marriage should be. I am concerned about the clause, and I want the Government to think about it again.

Sally Keeble (Labour, Northampton North)

I share the concerns about recognising marriage involving

underage girls. I want to know whether recognising such marriages regularises their position, bearing in mind that previously the UK has not recognised polygamous marriages, for example, and has taken steps to ensure that that remains the case if people who contract such marriages abroad become resident here.

I wonder whether the exemption unpicks quite a lot of the work that is being done on forced marriages. I also wonder about its effect in respect of trafficking for the purpose of sexual exploitation. Is it okay if someone takes a girl from the UK abroad, marries her and returns to this country? It would seem that there is a complete contradiction. It is not just a matter of paedophiles taking children abroad. There is also the issue of the attitude to the forced marriages of young girls.

I agree with my hon. and learned Friend the Member for Redcar (Vera Baird). There is a principle involved in saying that a child is a child, and if a child is to be protected from sexual exploitation, it has to be done regardless of their status. The child must be protected, whether people have some sort of arrangement that means that they have a commitment to each other—whatever it is called—which might be recognised as a marriage elsewhere. The messages should not be sent through the exemption that trafficking is wrong unless someone takes a child abroad and marries them.

Stephen Hesford (Labour, Wirral West)

Will my hon. Friend give way?

Sally Keeble (Labour, Northampton North)

No, I have finished.

Harriet Harman (Labour, Camberwell and Peckham)

These are important arguments. Hon. Members have raised some difficult issues underlying the amendments, which we have given much thought to. These arguments were not made in the other place—

Humfrey Malins (Conservative, Woking)

I am not a Member of that place yet.

Harriet Harman (Labour, Camberwell and Peckham)

The arguments would, no doubt, have been advanced in the other place, if the two hon. Members in question had been present. They are not Members of the other place yet, so we have had the benefit of their arguments, which were pursued by other Committee members who also made important points. We have thought long and hard about these arguments. Hon. Members have made good points with a lot of force behind them, but I hope to be able to persuade the Committee that, on balance, it would be better to leave the Bill unamended and leave the statutory marriage exception in.

My hon. and learned Friend the Member for Redcar is correct in saying that the genesis of the marriage exception is in existing law, in which sexual intercourse with a girl under 16 is not unlawful if she is lawfully married. The hon. Member for Beaconsfield also hinted at that. The marriage defence is already contained in the law relating to unlawful sexual intercourse. That does not mean, however, that it should stay forever.

I assure hon. Members at the outset that if there is non-consensual sex and it is evident that there was not consent, the marriage exception does not apply. A person cannot rape their 13-year-old wife within

marriage. For the marriage exception to apply there must be consent.

A number of points were made about what happens if a paedophile in the UK went abroad and returned purporting to have married a girl aged 13 in a country where such a marriage is okay. Would such a person be able to get a marriage exemption? They would not, because the lawfulness of a marriage is governed by where a person is domiciled. A person domiciled in the UK cannot lawfully contract a marriage with somebody aged 13, bring them back here and have the marriage recognised. On the point made by the hon. Member for Mid-Dorset and North Poole (Mrs. Brooke), paedophiles who are domiciled here would not be able to go abroad, marry somebody and have that marriage declared lawful.

The hon. Member for Beaconsfield referred to a halfway house.

Humfrey Malins (Conservative, Woking)

There are different domiciles in life, such as domicile of origin and domicile of choice. Will the Solicitor-General confirm that if I, domiciled in this country, lawfully married someone abroad according to that country's custom or law and returned to this country with that person, our courts would be seized of the marriage in respect of divorce proceedings, thus recognising the lawfulness of my marriage?

Harriet Harman (Labour, Camberwell and Peckham)

No. As you said, there are different domiciles, but you cannot leave your domicile here, marry someone abroad whom you could not marry here, bring that person back to this country and expect the marriage to be lawful. We are talking about two foreign nationals, as you read from the explanatory notes.

Roger Gale (Conservative, North Thanet)

Order. I did not read that.

Harriet Harman (Labour, Camberwell and Peckham)

I beg your pardon, Mr. Gale. As the hon. Member for Woking read from the explanatory notes, we are discussing two foreign nationals coming to this country and having sex, having contracted a marriage that was lawful in the country in which they were domiciled. The question is whether the marriage exception protects them from the offence of sex with a child.

Sally Keeble (Labour, Northampton North)

Does my right hon. and learned Friend accept that many of us deal with communities in which domicile is difficult to establish because one partner is domiciled abroad? Movement between countries can mean that domicile changes and can be incredibly difficult to establish. Sometimes, although they are UK nationals, couples are not taken to be domiciled here, especially for child benefit purposes. The matter needs careful thought because domicile is not as straightforward as people sometimes think. It can be difficult to establish. It might be disputed and split.

Harriet Harman (Labour, Camberwell and Peckham)

My hon. Friend raises important points. We have thought about them and it is true that, with a flux of people from different cultures travelling around the world, it is not always immediately obvious and straightforward whether a marriage is lawful and capable of recognition in this country. The courts are used to identifying whether a

marriage is lawful in this country. Sometimes they consider two types of marriage, such as secular and religious marriage. They must decide whether the marriage abroad was religious but does not comply with the secular laws, and they must decide which laws this country will recognise for the purpose of marriage in the other country. A sensible line of argument can be recognised when working out whether a marriage is lawful and capable of recognition.

Paul Beresford (Conservative, Mole Valley)

The Solicitor-General was present at the teach-in given by the paedophile police at which mention was made of an Australian au pair who has now been bundled out of the country. He preferred boys. I know that most paedophiles prefer boys, but some do prefer girls. It is thought that that gentleman is disappearing to Australia, but it is feasible that he will stop in Thailand, a country in which he can become domiciled. He was not domiciled here. He will not want to return to Australia because he may receive a tap on the shoulder when he arrives. What is to prevent his becoming domiciled in a country, marrying a child and returning here?

Harriet Harman (Labour, Camberwell and Peckham)

Well, if the child is under 13, he will not be subject to the marriage exception. There is the default position in which care proceedings can be taken in respect of a child because that affects the criminal law, not civil proceedings. It is a matter of whether the person is domiciled in the place where he contracts the marriage and whether he has changed his domicile from Australia. I may have to give further consideration to such matters and return to the hon. Gentleman. The clause is difficult.

The hon. Member for Mid-Dorset and North Poole referred to the recurring theme of whether we put exceptions, and other difficult points, in guidance rather than statute. There is an argument for including them in guidance, but we preferred to include these exceptions in the Bill.

Hilton Dawson (Labour, Lancaster and Wyre)

Given the huge discussion that we have had about the Government's understandable reluctance to put exceptions to the age of consent in the Bill, would it not be more consistent, certainly with the Government's commitment to protecting children, to remove the clause?

Harriet Harman (Labour, Camberwell and Peckham)

We do have some exceptions in the Bill, which we have been discussing. For example, there is the exception of the person who is doing something to protect children. It could be argued that we are being consistent both by leaving that out of the Bill and by leaving that in the Bill. The Bill includes other exceptions, so the clause is not unique.

Vera Baird (Labour, Redcar)

However, my right hon. and learned Friend makes the clear point that the exceptions in the Bill are designed to balance the welfare of the child. The exception that we are talking about could not assist the welfare of the child; it could be only potentially damaging.

Harriet Harman (Labour, Camberwell and Peckham)

That is an interesting point. Until this weekend, I thought that that was the case. Then someone suggested to me that a young person

who was married might get left behind and not brought to this country because the husband feared committing a sexual offence. That could cause disruption and problems for the relationship. It might not be in the interests of that young person to be left behind; it might be in her interests to be with her husband. That is the best answer that I can come up with—[Laughter.] It is a serious point that it might not be in the interests of the child to disrupt the marriage.

Vera Baird (Labour, Redcar)

I hear what my right hon. and learned Friend says, but although we have a fixed position that a child cannot consent, tea and sympathy or affection and support from a partner can still be provided. The man can bring the child with him and give her all of that. This discussion is about sex. There is no reason why the child should be left behind, but she should not be having sex with him.

Harriet Harman (Labour, Camberwell and Peckham)

That is what I thought. The girl could come here so that the marriage would not be disrupted and they could be in separate bedrooms. All these points are good, but it is difficult to balance the interests of the institution of marriage and the interests of children. The arguments are difficult, but on balance it is right to keep the clause in the Bill.

I shall respond to the point about trafficking raised by my hon. Friend the Member for Northampton, North (Ms Keeble). She asked whether someone would be able to take a young girl aged 13 from this country and arrange a marriage for her abroad. Her country of domicile would be here, so it would not be lawful for her to enter into such a marriage. The marriage would not be lawful or capable of recognition here, so it would not come under the marriage exception.

Sally Keeble (Labour, Northampton North)

I am a bit reluctant to mention this, but I have been married under a foreign jurisdiction and it was assumed that my place of domicile was different so I lost all my property rights and became a legal minor at one humiliating stage in my life. Under South African law on community of property, the place of domicile is not set.

It is right that UK law should set standards for conduct, for what is accepted, for the legal weight that should be attached to people and for issues such as whether women are equal and whether children are in need of protection. There are very basic issues involved; I am reluctant to bring in personal stuff, but I am probably the only person here who has had a marriage under a foreign jurisdiction and paid a very heavy price for it.

Harriet Harman (Labour, Camberwell and Peckham)

My hon. Friend asks whether we should include the exception at all, or have absolute standards that apply to everyone who sets foot in this country, regardless of whether they are lawfully married. She also asks whether one can work out, as matter of practicality, whether a marriage is lawful and should be recognised here.

The family courts—no doubt the criminal courts could go through the same process—have to make choices day in, day out as to whether a marriage is

lawful. I know that I have not managed to simplify the matter sufficiently for hon. Members, but it is not that complicated. It is something that is considered every day in the courts for all sorts of reasons, such as for property and immigration purposes, and the courts are capable of making rational and sensible decisions, notwithstanding my hon. Friend's experience.

Stephen Hesford (Labour, Wirral West)

Are we not left with two positions if the clause is taken out? One would be that the current law, under which unlawful sexual intercourse can be a lawful excuse, would remain. The other would result in parallel jurisdictions, whereby the civil jurisdiction would recognise a marriage for financial purposes, while next door a criminal court refused to recognise the same marriage for different purposes.

Harriet Harman (Labour, Camberwell and Peckham)

My hon. Friend is right; that would be the case. However, that does not change the point made by my hon. Friend the Member for Northampton, North: arrangements made for the recognition of marriage for financial purposes should not apply in relation to sex. So I think that he is right, but sadly he has not assisted me in overcoming the objections of colleagues.

I have been dealing with individual points as they have come up; I should like to ''recap'' some of the arguments. To remind Committee members: the legal age for marriage varies widely between countries, even within Europe. It is possible to be lawfully married to a 12-year-old in Spain and lawfully to have sex within that marriage. A married couple, where one or even both of the parties is under 16, could live in this country having legally contracted a marriage overseas that would be recognised as valid according to the laws of England and Wales. We have no wish to interfere with the right of individuals to engage in sexual activity within a lawful marriage except where the child is under 16. The hon. Member for Beaconsfield asked whether we could have a halfway house. We have a halfway house; if the child is under 13, we interfere in the matter. The rule is not absolute.

In allowing for a marriage defence, as set out in clause 16, we aim to ensure that the criminal law does not interfere with normal sexual behaviour within a marriage. However, it goes without saying that it is not our intention to legalise abusive sexual behaviour within marriage. Clearly, where sexual activity is non-consensual, the generic non-consensual offences will apply.

In addition, to protect children from being coerced into what many would consider to be abnormal sexual activity, the marriage defence in clause 16 provides that where the sexual activity complained of involves a third party or images of a third party engaging in sexual activity, the fact that the defendant and the complainant are lawfully married will not absolve the defendant of criminal liability. So we define what sort of sex they can have in their marriage; we do not let them do it a certain way and we do not let them do it below a certain age. We have circumscribed the marriage defence more narrowly than it would have been under unlawful sexual intercourse.

The Government's policy is to recognise marriage as a defence against child sex offences only if the complainant is aged 13 or over.

Dominic Grieve (Conservative, Beaconsfield)

I just wanted some clarification. I appreciate that the exception does not extend to clause 6, which is about rape of a child under 13. However, the Solicitor-General cited a moment ago the example of a 12-year-old Spanish child who could be lawfully married and, presumably, have sexual intercourse with her lawful husband. If I understand correctly, it would be a criminal offence if that child was brought to this country by her lawful husband and they had sexual relations.

Harriet Harman (Labour, Camberwell and Peckham)

The hon. Gentleman is absolutely right—that would not be lawful. They would not be able to obtain the marriage exception. I was simply making the point that some ages for contracting marriage are quite surprising. Marriage might be recognisable for purposes of civil law and property, but it would not be recognisable for the purpose of a marriage exception for having sex. I shall not go further down that path, as I can see where I am taking myself.

Moving from civil jurisdiction back to the Bill, the hon. Gentleman's amendment would have the effect of disapplying the marriage defence if the parties to the marriage were in the UK. I note that the hon. Gentleman has also put his name to an amendment that clause 16 should not stand part of the Bill.

I remind hon. Members that clause 16 and the child sex offences in the Bill to which it relates apply in England and Wales only. I do not wish to make too much of that technical point. Of course, persons outside England and Wales who are involved in sexual activity within a marriage that is recognised as valid in that country will not be committing a sexual offence, so the marriage defence in clause 16 is irrelevant.

However, the situation is different if persons who have contracted a marriage overseas engage in sexual activity in England and Wales, which is what we are discussing. If a person domiciled in England or Wales contracts a marriage overseas with a person aged under 16, even though the marriage may be valid in that country and he would not be committing an offence by having sex there, the marriage would not be capable of recognition according to the laws of England and Wales because he would not have the capacity, according to the laws of his country of domicile—that is, England or Wales—to contract a marriage if either he or his spouse is under 16.

Recognition of foreign marriages is governed by common law, although a declaration of status may be sought under the provisions of section 55 of the Family Law Act 1986. In general terms, common law provides that the capacity to marry is governed by the marriage laws of a person's country of domicile. It follows that if a marriage contracted overseas that involves a child under 16 is not valid in this country, a person would be committing a child sex offence by having sex with that child in England or Wales. The marriage defence would not apply because he would not be lawfully married. Such are the terms of clause

16. It follows that a man would not be able to travel to Thailand, marry a girl of 13, bring her back to England and have sex with her.

I also stress that a person living in England and Wales could not get around the regulations simply by claiming to have adopted a domicile of choice in a country where the age for marriage is under 16. The laws on domicile are comprehensive and complex—[Laughter.] They are not that complex—they are comprehensive and detailed.

Dominic Grieve (Conservative, Beaconsfield)

I do not claim to be an expert on the law of domicile, but I remember doing it as a student. It was amazingly complex. It was not just about whether someone had bought property but whether they had put down roots in a particular location. I suggest that it is actually very easy to change one's domicile and then to reverse that decision. Equally, one may spend years in a foreign country but not be considered by English courts as having taken up domicile if one intended to return to England.

I do not share the Solicitor-General's view that the issue is simple. I am not an expert on the subject, but my memory is that it was fascinating in the abstract but horrific in reality when it came to determination.

Harriet Harman (Labour, Camberwell and Peckham)

A set of issues must be considered and a decision must be made about what the domicile is, and that will lead on to whether the marriage is capable of being recognised. Many factors are involved and evidence is often an issue. Sometimes there will be a conflict of evidence. However, such decisions are made every day. The matter may have seemed unbelievably complicated when the hon. Gentleman was a student, but it is more or less common sense, and quite straightforward, although many factors may have to be taken into account when deciding whether a marriage is lawful.

I do not want us to get too bogged down by the idea that we are taking criminal law into an area of uncertainty by giving a defence of which we do not know the scope, because we do not know the scope of what is lawful in terms of a marriage being capable of recognition. If that were the case, we would not advance the defence. The laws of domicile are detailed and comprehensive and a person must be able to produce significant and compelling evidence to support their claim. Those are evidential issues.

The only circumstance in which we intend the marriage defence to apply is when a marriage contracted overseas is capable of recognition as valid according to the law of England and Wales and no party to the marriage is aged under 13 at the time of the alleged offence.

Precluding recognition of overseas marriages that involve children under 13 is in line with our general policy that children below that age deserve maximum protection under criminal law. Any interference in the right to private family married life in such circumstances would be justified by the greater need to protect very young children from sexual experience at such a young age. So, the defence is not absolute. It is qualified.

When an overseas marriage involves a child or children aged 13 or over but under 16, we believe that the balance between child protection and unnecessary interference by the criminal law falls somewhat differently. I sometimes wonder whether, if we had left the marriage exception out, the hon. Member for Beaconsfield would have tabled an amendment to put it in. It could be argued either way—certainly by him. He would be saying, ''This is dreadful interference with the institution of marriage.''

In the cases that I just mentioned, we are concerned to ensure that the criminal laws of this country do not interfere unnecessarily in the right of any individual to have sexual relations within a legally valid marriage. We are just trying to be practical and make the law sensible. I reassure hon. Members that should any concern arise about the welfare of a child spouse living in the UK, it is open to the authorities to apply to the courts for a care order. The civil procedure continues. Should the courts decide that a child is being abused within a marriage, provision could be made for care arrangements to be put in place.

We believe that clause 16 strikes the right balance between keeping state interference in the private lives of individuals to the minimum and maintaining under the law maximum protection for children from sexual abuse and exploitation. For the reasons that I have given, we do not accept the amendment.

Dominic Grieve (Conservative, Beaconsfield)

The Solicitor-General has been helpful and has provided a degree of reassurance about the Government's reasoning. I tabled the amendment because of my slight uncertainty about the territoriality of the clause, which was why I included the term ''outside the United Kingdom''. I accept that that is the wrong issue and that it is an all-or-nothing clause. We either delete it entirely or we keep it.

I remain curiously unhappy about the clause. It was noted that this matter was not debated in the other place. I do not wish to cast aspersions on the age of those in the other place, but there is a generation gap—a good thing in the context of legislation—between the other place and ourselves. I have no doubt that they did not focus on the clause because, when they examined it, they saw that it simply repeated the existing law, given that such sexual intercourse would be lawful because it occurs within marriage whereas the old offence of unlawful sexual intercourse applied to intercourse outside marriage. Given the circumstances, they did not see any reason to intervene.

This may be a generational matter, but we are producing a Sexual Offences Bill for the 21st century. We are making a number of radical changes to how the state views sexual activity. We have gone to great lengths to ensure that the legislation does not, for example, discriminate against homosexuals, which the previous law did. We are going to considerable lengths to introduce new offences because we think that children need protection—we will, for example, consider sexual grooming in a moment, and we have chosen to decriminalise some other areas.

We have had a lengthy debate about appropriate sexual behaviour for under-16s, although we know that many under-16s will not behave appropriately. I tabled amendments concerning the behaviour of children aged between 13 and 16 acting consensually with others of similar ages. They might have gone some way to meeting the issues in this clause, but not entirely, because they would not have permitted full sexual intercourse.

I believe in the sanctity of marriage, I am a practising member of the Church of England and I appreciate the need to respect other people's cultures. However, taking all those things into account, a bit of me still says, ''I cannot see the rational basis for someone coming into this country being exempt from our laws, which state that a child under the age of 16 should not be allowed to have full sexual relations, because they are married. We live in a world in which more than the odd individual will enter this country. Large numbers of immigrants will enter this country for long-term settlement, and we are in serious danger of ending up with two-tier systems of justice. What is prohibited to one section of society will be allowed to another on more than an exceptional, one-off basis. Quite a few people in a community will enjoy a right—some would say an abusive right—that other people do not have.

It is time to examine the matter again. I appreciate that such legislation interferes with private rights, but I am bound to say to the Solicitor-General that if the success of a marriage is based on whether it is permissible for sexual intercourse to occur although one of the parties is under the age of 16, that marriage's future may not be rosy. We know the remark, ''Absence makes the heart grow fonder,'' but I do not know whether abstinence makes the heart grow fonder. Such arguments could be advanced in relation to a child. Given what we are seeking to achieve, I am not persuaded that the exception is right.

Paul Beresford (Conservative, Mole Valley)

A large part of the Bill rightly concerns protecting children and attacking the stance taken by paedophiles. Anyone who has watched the BBC programme, ''Hunting Britain's Paedophiles'', will recognise that paedophiles believe that their activities are right. They believe that we are moving in their direction. For example, each time that we have lowered the age of consent they have taken it as meaning that we are moving in their direction. My hon. Friend's point about a two-tier system is also a step in that direction. I am concerned that in protecting children throughout the Bill, we have made positive changes for paedophiles, which they will be prepared to use. Those people are obsessed and will go to huge lengths to have sex with underage children.

Dominic Grieve (Conservative, Beaconsfield)

I am mindful of what my hon. Friend says, and I have an anxiety that, notwithstanding what the Solicitor-General said about domicile laws, it is possible to change domicile quite quickly. If I leave this country for Thailand—let us say that I intend to spend the rest of my life there—and sell up everything and buy property there, I will be domiciled there quickly, even if I come back a year later because of a complete change of circumstances. Changing domicile

is, in that sense, easy. Equally, I could go to Thailand for 10 years, leaving my house and various things in the UK, without ever changing domicile.

I have no doubt that paedophiles who go away and try to come back to this country within a reasonably short period will find loopholes to exploit. I come back to the wider issue, and I accept that it is difficult. Here am I, a Conservative, a believer in the institution of marriage, advancing an argument that might in the past have been thought rather radical. However, I seriously question whether, having set down such strongly worded guidelines on what is acceptable, we should allow such a major exemption simply on the ground of lawful marriage.

I do not think that the prohibition on sexual intercourse before the age of 16 will in any way alter the lawfulness of the marriage. I accept that there may be an issue about non-consummation if the marriage did not take place abroad, but that would be a rather unusual circumstance. Otherwise, civil laws of recognition of the relationship do not seem to be affected one way or the other. Of course, we are not talking about requiring abstinence for ever; we are talking, probably in many cases, about rather a short period. The longer the period, the younger the age at which the marriage was transacted.

Humfrey Malins (Conservative, Woking)

My hon. Friend provokes me strongly with reference to non-consummation. If I am not being too flippant, can he envisage a situation in which someone might bring proceedings to annul a marriage on the ground of non-consummation, in which case the spouse's defence could be that consummation would have been an unlawful act?

Dominic Grieve (Conservative, Beaconsfield)

I raised the issue because I could envisage that that might happen, but I think that the situation is fairly far-fetched. I can imagine that it would be a subject for an A.P. Herbert ''Misleading Cases''-style story, but I hope that it would be no more than that.

I do not want to take up the Committee's time further. There is a temptation to force not the amendment but the clause to a Division, but I want to hear how other members of the Committee feel about that. The alternative is to urge the Government to think again on the matter and to return to the issue on Report, when, of course, the wider view of the whole House can be sought on what I accept is a difficult issue. I note that there is a wide cross-party support for the view that clause 16 is a mistake. I think that it is but at this stage we should move on to consider the clause. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Amendment made: No. 47, in

clause 16, page 6, line 18, leave out

'a photograph or pseudo-photograph'

and insert 'an image'.—[The Solicitor-General.]

Question proposed, That the clause, as amended, stand part of the Bill.

Harriet Harman (Labour, Camberwell and Peckham)

The Committee has done justice to the clause and it was right to have this debate. We are trying to strike a balance between the great need to protect children and the great need for the law to be practical and for people to feel that it has not extended further than it should.

The marriage exemption would create a two-tier system, because someone coming from abroad could do something with his wife that he could not do if he were married here. My hon. Friend the Member for Lancaster and Wyre (Mr. Dawson) made the point that it is different from the other exemptions in that it is not a child welfare exemption; it is an institution of marriage exemption. Also, as the hon. Member for Beaconsfield pointed out, it is ironic that I should be advancing the protection of the institution of marriage and that he should be advancing the importance of the priority of child protection—I think that that is an irony that is not lost on either of us.

It is interesting that the proposal was not objected to when it was included ''Setting the Boundaries: reforming the law on sex offences''. I would have expected all the arguments about it that have been advanced by hon. Members to have come from the National Society for the Prevention of Cruelty to Children and other child welfare organisations. I think that Committee members are ahead of the game in this instance, together with the Law Society: there are many rich ironies here.

Because of the prompt that was given by the amendment, we have already given a lot of what the courts would describe as ''anxious consideration'' to the matter. That was extended because we did not deal with it last Thursday; we have given anxious consideration to it throughout the weekend. It has been a good discussion, and we will reflect on what has been said. This is not a party political Bill: the Government do not want to railroad over what might appear to be consensus. The hon. Gentleman has advanced arguments that have resonated, although it is not the case that we did not think about them. We will reflect on what has been said.

Hilton Dawson (Labour, Lancaster and Wyre)

Earlier, my right hon. and learned Friend held out the prospect of care proceedings being used in some cases. I have been pondering what would be the grounds for care proceedings if sexual relations under 16 were allowed within a marriage relationship.

Harriet Harman (Labour, Camberwell and Peckham)

Care proceedings will often be taken on the basis of action that falls short of a criminal offence, so that will not be too much of a problem. One does not need to worry about the criminal law when one looks at care proceedings; one has to look only at the welfare of the child. Some things that are against the welfare of the child are not criminal offences, and they would come under that part of the law—care proceedings would still have jurisdiction because of the person being a child and being in this country. The care proceedings remit is absolute in that we are not asking for the criminal law to be overriding. The care proceedings would override the institution of marriage in the interests of the welfare of the child. Many things that are not in the interests of the child are not criminal offences but they could be the foundation of care proceedings.

I am not making any promises but we will look again at the wording of the clause and its positioning in the Bill. We want everyone to feel that the Bill gets such judgments right: we want to be where the consensus is on the issue. There are no competing agendas here but a lot of difficult decisions have to be made. I strongly think that we should leave this clause in the Bill, but I do not rule out the possibility that we will have some further thoughts about it before the Bill is on Report.

Dominic Grieve (Conservative, Beaconsfield)

I am not minded to press for a Division on this matter. That would not be desirable. It is not a party-political issue. That is not a reason not to seek to press for a Division, but I do not wish to engage in a confrontation with the Government or to encourage their Back Benchers to embarrass the Solicitor-General.

I accept that this is a serious and difficult issue. The Government have approached it with precedent on their side and their decision can be rationally explained. I hope, however, that the Solicitor-General will seriously consider what has been said. Looking round the Room , I see no majority in favour of the clause. When we consult the wider House on Report, it may turn out that Committee members are in a minority in their own parties on the matter—it is possible. I hope that the fact that we have been charged by the House to scrutinise the Bill and to give it a lot of thought—and that a majority are very unhappy about the clause—will have some weight with the Government.

Perhaps the Solicitor-General will, after this morning's consideration, let Committee members know what happens in other countries in comparative terms. It would be useful to know whether it is largely universal in the international community to recognise the lawfulness of marriages, and thereby sexual relations in marriage, whether other countries take a different view and how that may work in practice. It would be helpful if she could do some research on that, if she does not already have the information.

We are moving into society changes and new worlds. One such change that we already know about in relation to marriage is that many of the rights that existed in marriage are no longer allowed to exist by law. We have removed many of the husband's rights in marriage, which would previously have been regarded as the norm. I never thought that that was objectionable in any way. The clause contains the idea that marriage overrides the protection of the child against sexual activity that Parliament deems to be a bad thing. I think that that is slightly strange when viewed in the context of what we are trying to achieve with the Bill.

We may have come to the point at which it is right that we as a Parliament say that the activity is undesirable and should be criminalised. The Solicitor-General argued forcefully against providing exemptions for those under 16, which I have argued for in certain limited contexts. Since that is the view, marriage should no longer be able to override child

protection. That is a perfectly logical, rational position. I am encouraged by the fact that other Committee members seem to think likewise.

Sally Keeble (Labour, Northampton North)

I am grateful to my right hon. and learned Friend the Solicitor-General for assuring the Committee that she will consider the matter further.

On reading the Bill, I did not think that the clause could mean what it appeared to mean. Having listened to the debate, I realise that it did mean what it appeared to mean. The clause provides an exemption for married people who come into the country.

I would like the Solicitor-General to consider the following issues. We know that there is an issue around British girls going abroad for marriage. Everybody recognises that. There is no point citing the communities that are particularly involved with it. Girls who are UK citizens might go abroad and get married to a person who is not. The domicile at the time of the marriage might be quite unclear—it might be abroad. The man might say that he wants to remain in his country, but the situation might change, in which case they might decide to return, although the girl could still be under 16.

We must be clear about the age at which British girls go abroad to get married. We must ensure that in those circumstances a girl has very clear protection and that she does not have to prove where her domicile and that of her husband's is or was at the time of the marriage, or what the intentions were. We should bear it in mind that in the communities where such patterns occur the woman is likely to have a much lower status than the man and is therefore rarely in a position to challenge the decisions that are being taken for her. If she does, she will pay a heavy price. I am sure that my right hon. and learned Friend has dealt with such cases, and probably many more than I have. The ones that I have seen have not been pleasant.

That is an immediate practical issue, but we must also consider what we are saying to girls about the protection that the law here would extend to them. Speaking from experience, I know that it is very important that girls growing up here are clear that the law will protect them and that they can look to the United Kingdom, as their country of origin or of permanent residence, to protect them absolutely. Clear, unambiguous standards must be set down.

I also wonder about the consistency in saying that we will pursue paedophiles abroad and thus extend our jurisdiction—which is a difficult issue in relation to the measures in the Bill and elsewhere—while saying that we are softer when it comes to what happens in our own country. I hope that clarity can be provided, so that it is clear for girls growing up here and for the communities involved where the law stands and whose side it is on.

Annette Brooke (Liberal Democrat, Mid Dorset and North Poole)

I welcome the Solicitor-General's comments about a period of reflection. I hope that that means reconsultation with some of the major children's bodies. That is important. We all know about the classic communication gaps that can occur when everyone focuses on one aspect and loses sight of

something else. Perhaps that is what has happened: so many other concerns were addressed in the House of Lords that something was overlooked.

I have been given some reassurance by the Solicitor-General's comments. However, I still have the vision of a 13 or 14-year-old child who is in a marriage in this country and living outside her culture being told by her husband, ''This is okay. We are married, so I can do anything.'' That child will not be able to distinguish between the exceptions. How will she know? As the Bill stands, I fear that there is scope for exploitation and abuse because a child does not know what is acceptable. An additional period of reflection is most important, and I hope that there will be some change to the current situation.

Question put and agreed to.

Clause 16, as amended, ordered to stand part of the Bill.

Roger Gale (Conservative, North Thanet)

Before we proceed, I apologise to the Committee for the racket going on outside. I have asked Officers of the House to investigate it, but I fear that it is a symptom of the early recall and the work that is being carried out.

I do not often do this, but I also thank the Committee for giving me the opportunity and privilege of listening to an exemplary debate. I sometimes wish that people outside this House could hear some of the work we do in the manner in which it is being done this morning.

Clause 74 - Exceptions to aiding, abetting and counselling

Clause 17 - Meeting a child following sexual grooming etc.

Dominic Grieve (Conservative, Beaconsfield)

I beg to move amendment No. 156, in

clause 17, page 6, line 37, at end insert—

'( ) the earlier communications are sexual in nature or involve A impersonating another person in a way calculated to induce B to believe that it would be safe and appropriate to meet A,.'.

In clause 17, we come to an important area in relation to the creation of a new offence. I wholly support the principle of the new offence that we are introducing of meeting a child following sexual grooming. It is, therefore, with a certain amount of diffidence that I table amendment No. 156. I should make it clear that it is not my amendment; it was introduced by Liberty. As I open on the matter, I say that I am not wholly convinced of the merit of the amendment, but I am convinced that it raises a legitimate issue that the Committee should consider. That is why I tabled it.

Liberty's anxiety, which one can follow when one reads clause 17, is whether there is a danger that in our worthy attempt to properly criminalise an activity that is preparatory to carrying out a sexual assault or offence against a child, we might criminalise perfectly innocent communication and reach the conclusion that because a 40-year-old happens to be communicating by e-mail with a 13-year-old it is absolutely of necessity that a nefarious purpose lies behind it. Our society seems to me to be increasingly sexualised in many ways—sexual motives are attributed even to innocent actions and activities. We are sometimes in danger of putting labels on individuals and activities that are not always deserved.

Liberty's amendment spells out specifically that the communication that has to take place before the meeting is organised must be either ''sexual in nature'', or involve a deception by the person concerned so that although there is no sexual nature to the communications, one would be able to examine them and see that one person has attempted to deceive the other as to their identity, for instance, or age.

Sandra Gidley (Liberal Democrat, Romsey)

The hon. Gentleman attended the briefing by the paedophile unit at Scotland Yard. One of the points raised there—I am not sure how it is covered by this amendment or the Bill—was that sometimes there is an initial period of deception before the truth is revealed. How would the amendment deal with a situation where a 15-year-old is attracted by someone over the internet?

Dominic Grieve (Conservative, Beaconsfield)

Looking at the amendment, if it were a question of starting with innocent communications that became gradually sexual in nature, it would clearly still be an offence. The second possibility is that an individual might start by saying, ''I'm John, aged 14'' on an internet chat line, and thereafter, prior to the meeting, admit that he is in fact Peter, aged 28, but say that everything is still all right. The hon. Lady raises an interesting point concerning such circumstances. As I read it, the amendment would still make that a criminal offence because the process of arranging the meeting involved an element of deception in order to soften up the child. That said, and arguing against the amendment, it may be argued by the Minister that sufficient safeguard exists in subsection (1)(b) because intent must be proved in order to make out the offence. All the surrounding circumstances will be considered.

If there were a situation where all that someone had done was to enter into what appeared to be completely innocent communications of a non-sexual nature and organise a meeting, and there was no other evidence to suggest that sexual activity was intended to take place, it would be a bold jury that would convict. Effectively, there would be no evidence to show or prove the intent. Doubtless the anxiety that the proposers and those who asked me to table the amendment have is that, in this era, we rightly have great fears about predatory paedophiles. It is also possible to react hysterically to innocent matters. Notwithstanding the lack of evidence that could justify the intent, people would still be convicted because juries might consider that anyone who engages in such e-mail communications must be up to no good. That is the

issue before the Committee, and the amendment provides the opportunity to consider it. It is the one possible objection to clause 17, which otherwise I welcome entirely. I am making a legitimate point. Even if I am not persuaded by the amendment, it is a proper proposal to put before the Committee.

Humfrey Malins (Conservative, Woking)

I agree that the clause is entirely admirable. Does my hon. Friend know whether there is a particular reason why the clause specifies

''on at least two earlier occasions''?

Could not a serious matter have taken place had there been only one previous lengthy contact? I make just a small point.

Dominic Grieve (Conservative, Beaconsfield)

My hon. Friend is right. The Government are attempting in difficult circumstances to strike a balance to prevent people from being wrongly prosecuted or prosecuted in circumstances where a conviction would leave the Government and the Court of Appeal uneasy about whether justice had been done. That is the reasoning behind two shows of conduct rather than a one-off communication. Equally, if it were really internet grooming, it could be argued whether contact should have been made on three or four occasions. Such issues are difficult. Having sought to tackle the problem, I considered that two occasions were probably appropriate. I know that the Government have consulted widely on such matters with individuals who have more expertise than we do. I hope that the Minister can provide the Committee with a little background to the Government's reasoning, although having attended the briefing by the paedophile unit, I am aware of some of the approaches taken to such matters. However, that does not mean that we should rubber-stamp the clause. Clearly, we must consider its implications carefully.

Sandra Gidley (Liberal Democrat, Romsey)

I too have some trouble with the amendment, although I thank the hon. Member for Beaconsfield for tabling it. It raises an interesting debate. Were this any other Bill, we would all be up in arms because I am not sure whether it will create a precedent of intent to commit a relevant offence, in that the planned offence does not have to take place. I seek reassurance about how intent will be proved and what guidelines will be given to the police so that the clause is not used in a vexatious way by someone who has a grievance against a neighbour, for example.

The clause does not just cover the internet; it deals with contact of any nature. Let us suppose that a lonely, elderly gent chats to children on their way to school and that, in an atmosphere of suspicion, someone brings a complaint against that gentleman because they see him talking to children. In reality, the gentleman is not a paedophile. Perhaps talking to children is the only contact he has during the day when he is out in the garden. I have seen such innocent activity in my neighbourhood, but I am not aware of any complaints about it. However, in an era in which there is a certain tabloid frenzy about such matters, such complaints could be made. I seek reassurances about how the problem could be delicately handled.

Vera Baird (Labour, Redcar)

I rise briefly to ask whether the measure is necessary or whether attempting to have a completed meeting, which would involve an offence under clause 17(2)(b), would meet the real mischief of the occasion.

Paul Goggins (Labour, Wythenshawe and Sale East)

I begin my remarks by paying tribute to the Government taskforce on child protection on the internet for its work, and in particular to sub-group A, which formulated the thinking behind the clause. I pay tribute to the hon. Member for Mole Valley (Sir Paul Beresford) and to the hon. Member for Sutton and Cheam (Mr. Burstow), who are members. The taskforce membership is wide, including the Metropolitan police paedophile unit, the Crown Prosecution Service and a wide range of children's charities, academics and others with an interest. It is an exemplary form of modern governance to bring together experience of that kind to get our minds around such key issues and come forward with proposals that will work in practice.

Paul Beresford (Conservative, Mole Valley)

If I recall correctly, Liberty is a member of the taskforce and, possibly, of that sub-group, so has had an opportunity to put its case.

Paul Goggins (Labour, Wythenshawe and Sale East)

Indeed it has had such an opportunity, but we would not deny it the opportunity to press some of its thoughts further through the representations made by hon. Members.

I emphasise to the Committee that the Government do not want to criminalise activity that is absolutely innocent. I agree with the hon. Member for Beaconsfield that in our increasingly sexualised and dangerous world, relationships that might once have been seen as innocent are less easy to sustain in the modern day. For all our need to protect children, such relationships can be important and the legislation is certainly not intended to criminalise people involved in them. The sexual intent must be proved by the prosecution beyond reasonable doubt, so the measure does not intend to capture innocent behaviour such as buying a neighbour's child an ice-cream, about which there has been some discussion in the media.

The hon. Member for Woking asked why the clause specifies two occasions. As the hon. Member for Beaconsfield said, we are seeking to establish a course of action. We do not want to capture here one foolish moment that never goes beyond that. We want to capture people who are engaged in a course of action, but to do so at an early stage. Two occasions suggests a course of action, and we want to ensure that that and any subsequent contact is captured.

I want to impress on the Committee the need for the provisions and the reasons why the amendment would not help. I shall do so through an example, which I hope that Committee members will find persuasive. Let us say that a man in his 20s communicates with a girl of 13 or 14. He does so using the internet and talks through the internet about his favourite pop group and television programme, and the things that he likes and does not like, and in that way befriends the child. He then makes an arrangement to travel to meet her with the intention—with the intention—of committing

a sexual offence against her. He may even communicate his intention to commit the sexual offence to another adult friend, perhaps someone with similar sexual interests. But in that case, he has neither tried to impersonate someone else nor been remotely sexual in anything in his communication or the way in which it has been undertaken. If we amended the offence in this clause in the way suggested in the amendment, that gentleman would walk away scot free. I believe that all hon. Members would agree that we are trying to catch precisely that type of individual with the offence. I hope that the Committee will accept my reassurance and explanation and that the amendment will be withdrawn.

Dominic Grieve (Conservative, Beaconsfield)

I am grateful to the Under-Secretary, who has given us a good and compelling example. I wholly accept that, if surrounding circumstances make it clear that a sexual offence was intended against the child, it would completely negate the purpose of the legislation to say that no prosecution can lie just because the criteria laid down in the amendment have not been met. I am grateful to the hon. Gentleman for putting the matter in clear and succinct terms and beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Dominic Grieve (Conservative, Beaconsfield)

I beg to move amendment No. 40, in

clause 17, page 7, line 21, leave out '7' and insert '14'.

This amendment deals with a much more difficult area, one in which what I believe to be my general reputation in Committees on criminal justice Bills for trying to temper the fierceness of the criminal law will be reversed. Therefore, I should try to explain why I have come up with the suggestion that the maximum penalty should be raised from seven to 14 years.

I accept the argument that, normally, we must make a clear differentiation between a merely preparatory offence and a full offence. Generally speaking, if it was the defendant's good fortune that he was stopped from doing something before he actually did it, even though the intention that he wished to do it is clear, the courts recognise in sentencing that he benefits from not having been able to carry out the full details of his criminal intention.

That said, we face particular problems in respect of sexual offences. The most obvious, which was brought home to us at the briefing, is that paedophile behaviour is particularly intractable, despite punishment. Unless some of the psychological causes of the behaviour can be addressed—that is not always easy or possible—the dreadful truth, according to the evidence, is that individuals who have a propensity to commit paedophile offences will continue to do so over and over again. Indeed, it appears to be something that is almost beyond their control. That is a serious problem.

Increasingly, when I visit prisons—I have no doubt that the Minister who will reply to the debate has had the same experience—I come across paedophile offenders who are subject to life sentences. The sentences are discretionary; nevertheless, the prisoner may be in prison for a very long time. In some cases, the prison governor takes one aside and says that the

prisoner has been in prison for X number of years and probably will never be released, which, if one wishes to temper the criminal law, is a terrible thing to happen to an individual. However, we recognise that the safety of children must come first.

Let us think for a moment of likely examples of an offence of the kind that we are creating in clause 17. At one end of the scale will be someone who has no previous track record of paedophile behaviour. I dare say that the sentence will be relatively short in such circumstances, although the court may be worried that the defendant will go on to offend again unless the underlying causes of the behaviour are addressed. Indeed, one of the most telling things said by the officer was that what mattered was not so much the length of the sentence but whether something could be done with the defendant during the course of his incarceration. As I said, very often that is not possible.

Another situation that I can easily foresee may involve an individual who has committed two serious paedophile offences but, because of past changes in the rules, may on each occasion have received a determinate sentence of considerable length. However, determinate sentences come to an end. He may have spent a large part of the previous 20 years in prison. Nevertheless, he is out. He may be on the sex offenders register. He is a great worry to the police. He is found to be communicating by e-mail and there is no doubt, from the surrounding circumstances, about the criminality of his intention. He has impersonated someone else and groomed the child. When he is arrested on his way to the rendezvous with the child, all the apparatus and paraphernalia for committing an appalling child sex offence is found in the back of his car. It is all there. He is charged, and can only be charged, with meeting a child following sexual grooming. The reports produced by the probation service and the Court Service clearly show his propensity, his long history of committing such offences and the fact that he has been unamenable to treatment. It is clear that he intended to commit a very serious offence. The court says, ''Well, the maximum sentence that we can pass is one of seven years' imprisonment, which means, in practice, that he will be released three and a half years later.'' The public will consider that we have provided them with insufficient protection.

Humfrey Malins (Conservative, Woking)

My hon. Friend's example is fascinating. I assume that, if the evidence were overwhelming, the man would be advised to plead guilty. In that case he would automatically be granted a discount, which, despite his background, could bring the sentence down, on a plea, to four and a half years, which would result in even less time being served.

Dominic Grieve (Conservative, Beaconsfield)

I agree. There would have to be a discount. It might be tiny, but the judge would have to accept the fact that there had been an immediate plea of guilty by giving such a discount.

I have put the facts before the Committee. In the circumstances that I described, the public would feel that there was insufficient protection from the activities of that individual.

It could be argued that the amendment is draconian, because it proposes a long sentence—in fact, it would be seven years in prison, because people serve half their sentence—for an individual who has not committed a full offence against someone else, but who had that intention. At least the proposal provides a measure of reassurance that that person will not be released for a considerable time. I do not support the provision of a power for life imprisonment because I consider it disproportionate. We cannot lock up for life people who have not committed serious offences, even if we think that they may commit such offences in future. We cannot run the criminal justice system on that basis. Including the possibility of a 14-year sentence means that judges will be able to provide some reassurance to the public, in exceptional cases, that Parliament takes the issue seriously.

I fear that there will be more than one or two examples of judges saying, ''This is all that I can do.'' Admittedly, what can be done is better than what could be done. Often, nothing at all could be done. However, given the nature of paedophile offences and offenders, we would be justified in widening the sentence to 14 years and opening up that possibility to the courts. Other members of the Committee may disagree. I do not wish to sound silly, but I have not moved the amendment with a light heart. I rather regret having to do it, but in this case it may be justified, and I should like to hear what other members of the Committee feel.

Stephen Hesford (Labour, Wirral West)

I support the hon. Gentleman. I welcome his repentance for his sins on previous criminal justice Bills and his confession—it is good for the soul and it is certainly good for the Committee. As a prompt, he clearly read my Second Reading speech, in which I raised the issue. On that occasion, no doubt due to the way in which matters get wound up, I received no response. The problem is not that the matter has not been placed on record, because I did so on Second Reading.

I part company with the hon. Gentleman because when I first looked through the Bill, bearing in mind that we were trying to find a consistent approach to child sex offences and their gravity—we have been wrestling throughout with the minimum consistency of approach that Parliament wants—my first reaction to such offences was that life imprisonment could be the correct maximum. I shall not argue that, but if we start from the premise that that is a possible argument—I accept the hon. Gentleman's argument as to why life imprisonment might not be appropriate—I do not resile from the fact that the maximum sentence in the clause does not mark the gravity of the offence, for the reasons given by the hon. Gentleman.

For my part—I hope that those in the Chamber will agree—I believe that in some circumstances clause 17 is akin to clause 15, which refers to arranging or facilitating the commissioning of a child sex offence. It seems to me that someone could easily be involved on the internet in the activities to which clause 15 refers. Seeking to groom for the purpose of introducing the

victim to others or for financial gain is serious and a seven-year sentence would not begin to meet that offence. One of the cautions from those who suggested the seven-year maximum is that the offence is new and we do not know how it will operate, so let us not go over the top at the beginning. I understand that that is the logic for a seven-year term of imprisonment rather than 14 years in clause 15.

Dominic Grieve (Conservative, Beaconsfield)

The hon. Gentleman may remember that I raised that issue on Second Reading. The Home Secretary at that stage kept referring to five years. He did not dream that up. I understand that the original proposal was five years and that seven years came in following further consultation and representations from the police—I only discovered that at the briefing. The hon. Gentleman will also remember that when I raised with the Home Secretary in that debate my anxiety that seven years might not be long enough, he seemed to be sympathetic to my anxiety.

Stephen Hesford (Labour, Wirral West)

I am obliged to the hon. Gentleman and I hope that that is right, but I confess that it was not at forefront of my mind. I shall go away and read the Second Reading debate again, but I do not know whether we shall conclude the matter before the end of this sitting.

My simple point is that this is a grave offence and a new offence. I congratulate those who introduced it and did the work to justify its inclusion in the Bill, but in terms of what it might cover and of consistency with the message that we are seeking to send, it is a statement of social policy. To be consistent in criminalising such offences, I ask the Minister who replies to the debate to state that it is analogous to clause 15; and if 14 years imprisonment is good enough for clause 15, I submit that it is good enough for clause 17.

Paul Beresford (Conservative, Mole Valley)

The hon. Gentleman is right in linking clause 15 with clause 17. The difference, of course, is that in clause 17 the arrangement is for the individual. If Members have got into the depths of that, they will know that the most interesting and horrifying part of paedophile activity is that it is obsessional. In the teaching and the BBC programme, which I mentioned, attention was drawn to members of a group of paedophiles, which has been active since 1957. They have persisted with their activities over that period in spite of everything that the police have been able to do.

The aim of the clause is prevention. That gang had among its members a fairly elderly gentleman about whom the court was benign. He was in his 70s and he got a short sentence. Within weeks, if not days, of release he was patrolling the schools on his moped again and his activities were the same. He does not have the intellect for the internet and he does not need it. The police could not touch him but they may be able to do so now.

In that area of criminality, repetition is the norm. There is a form of treatment and, if the paedophiles are treated early enough, they can have a form of aversion treatment that is similar to the way in which Alcoholics Anonymous works. Usually, however, the paedophile will not stop—they will continue. Some of

them, especially those with internet access, are very active.

One can see the court encountering two problems. First, it will encounter consistent, persistent, repeat offenders, in whom it is recognised—even with young men—that they will harm children and that they should therefore be imprisoned for a considerable length of time. A provision by which they can be sentenced to seven years and can be out in three and a half years is inadequate.

Secondly, we must recognise that the internet has given paedophiles the opportunity to act across a broad range of children. There was a case about to go to court in which a man was charged with abusing a child. When the police looked at his internet activity, they found that he was grooming 54 children concurrently. If he were taken to court under the Bill, he would go away for a maximum of only five years. He is clearly a considerable danger to children. It is clear that the courts must be able to decide whether he should go away for some considerable time. The court needs an opportunity to consider that particular man, and many others, and realise that, in that area, seven years does not fit with the pattern of the rest of the Bill. The sentence does not fit with the patterns of behaviour of many persistent, obsessional and predatory paedophiles.

I hope that the Minister will think again, follow the trend of the Bill and accept 14 years as a maximum.

Vera Baird (Labour, Redcar)

I have some concerns about the desire for a much higher sentence because of the limitation

on the offence. There are abundant other offences in the legislation with penalties that will punish and keep off the streets people of exactly the type that the hon. Gentleman talks about—active paedophiles who offend repeatedly.

When the paedophile commits the offence, it is all in his head. Nothing has actually happened and, of course, one does not want it to happen. It is, however, rather harsh that an offence by which someone has something in their head is as grave, and therefore merits the same penalty, as a completed offence in which a child has been damaged, perhaps permanently. That is a mistaken principle. At the stage in which the offence is in their head, one wants to send a shot across their bows to let them know what they face if anything else occurs. If he has committed any other offence—especially in the case of the person grooming 54 children at once—he stands to receive the maximum term multiplied by the number of charges faced. There is no problem, therefore, when someone has groomed several children.

I disagree with my hon. Friend the Member for Wirral, West, who puts clause 17 and its offence together with clause 15 and its offence. In effect, clause 15 deals with a conspiracy involving other people.

It being twenty-five minutes past Eleven o'clock, The Chairman adjourned the Committee, without Question put.

Adjourned till this day at half-past Two o'clock.

Standing Committee B

Clause 17 - Meeting a child following sexual grooming etc.

Vera Baird (Labour, Redcar)

The amendment would increase the maximum sentence for the offence to 14 years. I propose a compromise of 10 years on the basis that we should keep the harsher sentencing for the full offence, rather than for activity that is merely preparatory to committing an offence. Given that the traditional and right approach is to give a sentencing discount for an attempt as opposed to the full offence, I suggest that something that is merely preparatory should also be subject to a discount.

Paul Beresford (Conservative, Mole Valley)

The drive behind the clause, which is the main proposal from sub-group A, was preventive and proactive. An example cited by the police to the Committee was that of Luke Sadowski. Because the Bill is not on the statute book, that man was charged with attempted indecent assault, attempting to incite another to procure a child—a girl under 21—for sex, and possession of a firearm. It was his first offence and the police were fortunate that he pleaded guilty, as it would have been hard to make the offence stick. When the police went to his accommodation, they found firearms, handcuffs, knives and other paraphernalia, the implication being that ultimately he would kill a child. It was an offence in the mind, but if we follow that mind, 10 years would not be enough. Fourteen years must be available to the court, given that he might come out of prison in much less time than that.

Vera Baird (Labour, Redcar)

The hon. Gentleman takes such issues seriously, as do we all, and gives the worst imaginable case as an example. There is a good reason to keep the harsher sentences only for the fullest offences. It will then be clear to those who even contemplate committing such offences that they will be punished severely if they do so. We must keep the position secure and allow some discount in view of the fact that no one has been harmed. The only logic in increasing the sentence to 14 years would be if the full offences were subject to higher punishments.

At a time when the public are dissatisfied not so much with the gravity of sentencing, but the inconsistency of sentencing for the same offences, the position must be made clear to judges by setting the limits which sentences are to be more severe. As a rule, an attempt is sentenced less seriously than the full offence, and we are not discussing even an attempt. I accept that such matters are not just in the person's head, because there has been an element of

communication prior to the attempt to meet; none the less, despite the real gravamen of what is in the person's mind, it is only in his mind at the time. I do not agree with my hon. Friend the Member for Wirral, West (Stephen Hesford) that we can equate clause 17 with clause 15 and say that the offences therein merit a similar sentence. Clause 15 contains elements of a conspiracy with other people to set up a group to behave in such a way, which is more grave.

The mischief that the amendment claims to cure could be dealt with if the Government were willing to accept a maximum sentence of 10 years. The spectre of the low sentences that were quoted by Conservative Members this morning would be lifted.

Sandra Gidley (Liberal Democrat, Romsey)

I approach the subject with an open mind. While listening to the debate, it struck me that we are approaching a wide range of intentions, and in such cases, there will potentially be a wide range of circumstantial evidence to back up the police. In the most severe cases, I am fairly convinced that other provisions of the Bill would be contravened and that that would lead to a greater sentence. We have to take account of the greater as well as the lesser offences. The hon. Member for Mole Valley (Sir Paul Beresford) quoted one such example. Seven years is probably a reasonable sentence for the vast majority of offences under the clause but I am tempted to consider increasing the maximum to 14 years—or to come to a compromise of 10 years—to give judges more discretion.

The clause would be an ideal candidate for the Sentencing Guidelines Council; will the Under-Secretary consider the matter and come up with relevant guidelines?

Paul Goggins (Labour, Wythenshawe and Sale East)

I am very grateful for the support from both sides of the Committee in relation to the offence that we are creating; it is an important, groundbreaking offence, which recognises a modern problem.

I have listened carefully to the debate on the amendment. My hon. Friend the Member for Wirral, West, who is not with us at the moment, said that I had failed to respond to his speech on Second Reading. I humbly apologise for that; in the 15 minutes available to me, it was not possible to respond to every argument. However, he has had the opportunity to put his argument today.

We have talked today about sentencing issues that apply more widely than simply to the offence in question. The hon. Member for Beaconsfield (Mr. Grieve) said several times that if somebody is sentenced to seven years, they actually serve three and a half years and that if they are sentenced to 10 years, they do five years. That is a wider issue that does not apply simply to the offence in question. None the less, I recognise that that is a matter of debate.

The important points as far as I was concerned were made by the hon. Member for Mole Valley and my hon. and learned Friend the Member for Redcar (Vera Baird), who emphasised the preparatory nature of the offence. That goes to the heart of what the offence is about. We are trying to prevent a serious sexual

assault on a child; the powers that we have at the moment do not allow us to intervene as we would like to prevent that most serious event from happening.

I should tell the hon. Member for Mole Valley that Liberty is not a member of the taskforce, though I understand that a senior figure in Liberty has attended meetings; so although not part of the taskforce it has made a contribution.

Some time ago, the hon. Member for Mid-Dorset and North Poole (Mrs. Brooke) raised the issue of—

Mrs. Annette L. Brooke (Mid-Dorset and North Poole) indicated dissent.

Paul Goggins (Labour, Wythenshawe and Sale East)

Perhaps it was the hon. Member for Romsey (Sandra Gidley) who raised the issue of intent and how sexual intent could be proved. It was the hon. Member for Romsey; I apologise. Clearly the prosecution and those conducting the investigation would look carefully at the circumstances in which the defendant was found. For example, if he were found going to the meeting with ropes, lubricants and paraphernalia that would indicate his intention to carry out sexual activity, that would be the kind of evidence sought.

To return to the issue, raised by my hon. and learned Friend the Member for Redcar, about the law in relation to attempt, clearly more would need to be proved than merely preparatory activity. The evidence sought would be far more significant: it might involve the removal of a child's clothing, or something that was part of the process of assaulting the child. We are trying to prevent that sort of thing from happening by putting the offence much further up the line, in the area of preparation. As the hon. Member for Romsey said, if a serious sexual assault takes place, that can be dealt with in a number of other ways that are addressed in other clauses: heavy penalties can be paid, from 14 years to life imprisonment.

The Government have tried to find a penalty that both reflects the seriousness of the offence and is proportionate. We are trying to anticipate offences that are of a lower order than the carrying out of the most serious kinds of sexual assaults on children and to prevent them from happening. For the penalty, we arrived at a figure of seven years, but it is important to emphasise that the sex offender notification requirements will apply to anybody who is found guilty of such an offence, and as a result of that registration they will be eligible for sex offender treatment programmes—that relates to a point made by the hon. Member for Mole Valley.

We think that we have got the principles right, but I am happy to reflect further on whether we have got the penalty right, so that we arrive at a final figure that reflects the principles and the need for proportionality as well as the fact that we regard this as a very serious offence.

Dominic Grieve (Conservative, Beaconsfield)

I am pleased to have heard the Minister's comments. I tabled the amendment in order to argue that the penalty might be insufficient in certain cases. I suspect that they would

be a very limited number of cases, but they would be the sorts of cases that would excite a great deal of press and public comment.

I am glad that the Minister is undertaking to think again. A figure of 10 years has been suggested, which might merit consideration. It was never my intention to press the amendment to a Division. It would probably be sensible for all Committee members to go away and reflect on this matter. We can come back to it on Report—or the Minister might tell us his views before then.

Vera Baird (Labour, Redcar)

I was persuaded to suggest 10 years largely because that would introduce some consistency as clauses 62, 63 and 64, which address other preparatory offences, have that penalty.

Dominic Grieve (Conservative, Beaconsfield)

I had appreciated that that figure was not plucked out of thin air: that might well provide an element of comparability that could be followed.

Although in 95 per cent. of cases the penalty of seven years will probably be sufficient, there will be some cases in which the police intervene to prevent what clearly would have been a dreadful crime and the person involved already has a serious track record of committing the complete offence. In those circumstances, the public are going to say that there is an opportunity to protect them but that the sentence does not match the gravity of the threat that is posed by the individual.

I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Question proposed, That the clause stand part of the Bill.

Paul Beresford (Conservative, Mole Valley)

This Bill has been interesting because the way in which the Committee has acted is unique. Outside the Committee, the hon. Member for Walthamstow (Mr. Gerrard) said to me that he had been struck by that uniqueness. It relates to the subject under discussion.

The Committee has spent quite a lot of time talking about what goes on behind the bike sheds and so forth, which has been of interest to some newspapers. For me however, the unique thing is this clause, which came out of many meetings of many hours by members of sub-group A, which the Government set up specifically to investigate the internet. Sub-group A looked specifically at legal changes and came up with this clause but, interestingly, it moved on from that to look at broader issues—the protection of children and grooming in a context far wider than just the internet.

The clause is fascinating because people from America, Iceland, New Zealand, Canada and throughout the world are looking at it. There is much interest outside this country—much more than the media realise. The Committee was lucky to have some extremely able people sitting on it. Although those were mainly from child protection groups, there were also people like Detective Chief Inspector McLachlan from the police paedophile unit, and one of his successors, and academics. As the Under-Secretary said, one senior member of Liberty also sat on the Committee. Its membership was quite broad.

In a way, the Committee has come up with a more or less black and white Bill. I say in a way, because we must recognise that many of the people at whom the Bill is aimed are exceptionally clever. The Committee learned about some of those people, and they range from schoolteachers to computer experts and rocket scientists.

The clause was set up to be able to adapt, to a fair degree, to the changing times. We have dealt with the internet satisfactorily and with pictures and drawings, and so on. However, since the sub-group has been sitting there have been changes in technology, such as webcams, for example, which have had an effect on the activity of paedophiles and the link to children. We moved on to discuss the new phones with associated cameras, and how paedophiles are using those.

We are now discussing something about which I am deeply concerned and which I am not sure the clause will help much. The new phones—particularly pay-as-you-go phones—are becoming a real danger. On buying a mobile telephone nowadays, one gives a name, address, credit card number and so on, which is provided because the firm behind the supply of the phone and network wishes to be paid. If one buys a pay-as-you-go phone, that does not happen. That leads to a complication, because the paedophiles will give a child a phone and use it as part of their grooming. Their next step is to return to The Carphone Warehouse, or another organisation, pay £29.50 and explain that they want to track their daughter, for whom they are buying the phone. They, however, give no name, address or other details at all.

On receiving the £29.50, The Carphone Warehouse will check up by texting the daughter, because as far as it is concerned she has the phone. Of course, the paedophile has the phone, and he will text back the word ''yes'' on behalf of his imaginary daughter. We have moved on to a modern technology, through which the grooming paedophile can phone The Carphone Warehouse and locate the child. I think that that is quite extraordinary.

I do not think that we can quite cover this, but I want to follow what the Minister said at the beginning and offer support and thanks to the sub-group for its efforts. Many of us went away to work on the subject. I worked with an American researcher and one from New Zealand, looking at the law in the rest of the world. There is nothing anywhere that is comparable to this clause.

In one of the interviews on the ''Today'' programme—although not with the Under-Secretary—the Committee's efforts and the clause were belittled on the grounds that the internet is international and the clause would have an effect only on our small patch. We have 58 to 60 million people in this country, so there are, presumably, some 230,000 potentially active paedophiles. The clause is a darn good start. The interest of the rest of the world, particularly the western world, in the clause is such that if it works—I hope that it does for the children's sake—the rest of the world will follow in our footsteps. That is a nice way to be—with the British

Government, the British Parliament and this Committee protecting children through this one, little, unique clause.

Sandra Gidley (Liberal Democrat, Romsey)

I welcome the clause. It is an excellent attempt to get to grips with what must be acknowledged as a real problem. However, I hope that the Minister does not mind if I ask a series of questions.

Last night I was considering the clause's ramifications, both internationally and internally. I started from the premise that both A and B are based in the UK; that is clearly covered by the Bill. I then considered the case of A living abroad and travelling to the UK to meet B. I assumed that that was covered, because some of the travel would have taken place in the UK, so UK law would apply. I would be grateful if the Minister confirmed that. What measures do we have at our disposal to liaise with police in other countries to facilitate such processes?

I then starting thinking about the Shevaun Pennington case, in which A, who lived abroad, and B, who lived in the UK, met in this country and went to a third country. I assumed that that would also be covered for the reasons that I just mentioned—part of the travel took place in the UK. I am a parent of teenagers, and know the number of sleepovers that are alleged to have taken place that, on closer inspection, did not. It occurred to me that A might live abroad and B might go on a school trip abroad, and the meeting might take place outside the UK. I was not sure whether the clause would capture that situation and, if not, whether there was something that we could do about it.

Finally, it occurred to me that A could sit quite happily in this country talking to children in other parts of the world, and I was not 100 per cent. sure how those children abroad would be protected by the clause, whether we would do anything to intervene and how we would liaise. Any light that the Minister can shed on that would be useful.

Paul Beresford (Conservative, Mole Valley)

The hon. Lady was at the teach-in, where the Metropolitan police discussed the American Marine. When the American Marine case came up, all the people on sub-group A and its legal advisers considered it very carefully. Two points arose: first, the sub-group thought that the clause applied, as the Marine was someone from outside coming in to collect the young lady and take her away. Secondly, the co-operation on this crime across the world, involving Interpol and various forces, was remarkably close and very effective.

In the case of Luke Sadowski, whose name I keep mispronouncing, if there had been a not guilty plea, the main people involved in the prosecution would have been Americans, and the case would have involved American law enforcement. We are working together very closely, and the clause will help us to stay ahead. I think that the hon. Lady will find that her fears are unfounded.

Sandra Gidley (Liberal Democrat, Romsey)

I thank the hon. Gentleman for his intervention, and for shedding some light on the subject. I will also be interested in the Minister's clarification.

I touched earlier on a point that did not involve the internet, and I do not intend to repeat my arguments. On another point, we have heard that much abuse of children is committed by children. The clause does nothing, on the face of it, to provide a defence or safeguard in a situation in which a 17-year-old is grooming someone younger. I am not clear on what would happen in such circumstances, because clause 17 cannot be used—we would almost have to wait for an offence to happen before we could act. I hope that the Minister will reassure me that that is not the case.

Paul Goggins (Labour, Wythenshawe and Sale East)

Most of my responses are to the hon. Member for Romsey, but first I join in the remarks that the hon. Member for Mole Valley made about the taskforce and the sub-group. He has been involved with them for far longer than I have, but like him I very much appreciate their contribution.

In relation to the hon. Lady's question about the Sentencing Guidelines Council, which I was not able to answer, the council will consider producing sentencing guidelines for all the offences in the Bill, including the one that we are debating. I hope that that reassures her.

On the hon. Lady's four scenarios of A and B, which I more or less followed, the answer is yes to all of them. Communication can take place anywhere in the world and the meeting can take place anywhere in the world, but part of the travel to the meeting must take place in England or Wales. We must always consider what is within and outwith our jurisdiction. Given the scale of the internet and its capacity to communicate across the globe, we have struck a fair balance.

Question put and agreed to.

Clause 17 ordered to stand part of the Bill.

Clause 18 - Abuse of position of trust: sexual activity with a child

Vera Baird (Labour, Redcar)

I am puzzled by clause 18, which does a similar thing to clauses 19, 20 and 21. Clause 18(1)(e) provides that a person commits an offence if

''B is under 18 and A does not reasonably believe that B is 18 or over''.

More or less the same phrase is contained in clauses 10 to 13:

''B is under 16 and A does not reasonably believe that B is 16 or over''.

However, in clauses 18 to 21, there is an extra bit. Clause 18(3) states:

''Where in proceedings for an offence under this section it is proved that the other person was under 18, the defendant is to be taken not to have reasonably believed that that person was 18 or over unless sufficient evidence is adduced to raise an issue as to whether he reasonably believed it.''

I am puzzled as to the special circumstances that require for this group of clauses an extra provision that is not required for the earlier group. I think that

clause 18(3) embodies the usual position, whereby unless an issue is raised about whether a person reasonably believes someone to be over age, the Crown must prove all of it. However, perhaps the subsection is intended to alter the burden of proof.

Dominic Grieve (Conservative, Beaconsfield)

As we are raising this matter, now might be a good moment to bring up subsection (1)(e)(ii)—I have flagged it up later in an amendment.

The second possibility under clause 18 is that ''B is under 13''. I have no objection to that, but it will effectively duplicate what already exists. Such action, irrespective of whether a person is in a position of trust, is already made a criminal offence. I wonder whether we are doing a good service to the criminal law by having the offence and identifying a person as under 13 when it is difficult to see what that adds to the other offences earlier in the Bill. Perhaps the Under-Secretary can enlighten us as to the Government's reasoning. Later in the Bill, there is another example, which I have sought to highlight by amending my deletion of part 2. It would be useful if the hon. Gentleman could help us.

Vera Baird (Labour, Redcar)

May I raise another point? The hon. Member for Beaconsfield is right that only under clause 18 and thereafter is the person in a position of trust vis-à-vis the youngster. However, the sentence seems to be substantially less, which puzzles me.

Paul Goggins (Labour, Wythenshawe and Sale East)

This is helping to keep me on my toes after lunch.

In clause 18 and subsequent clauses, we are re-enacting in its entirety the existing abuse of trust offence, which came into force in January 2001, under the Sexual Offences (Amendment) Act 2000. It is clear that Committee members appreciate that it is important that we now consolidate that in this legislation.

On the belief about age question, I say to my hon. and learned Friend the Member for Redcar that that evidential burden is placed on the defendant here because adults in a position of trust should be expected to know the age of the child: anyone who is in a position of trust with regard to a child should know precisely how old that child is. We regard that as a fundamental responsibility.

I suspect that the hon. Member for Beaconsfield was making a slightly different point. He has promised that we will address it later, and I hope that I will be able to respond to it more fully then.

Question put and agreed to.

Clause 18 ordered to stand part of the Bill.

Roger Gale (Conservative, North Thanet)

Before we proceed, it is clear that at some point in its discussion of this collection of clauses, the Committee is likely to want to debate the overall issue of position of trust. I am fairly relaxed about that, but I would prefer to do so only once. I will leave that to the good will and intelligence of the Committee to sort out; its members can decide when they wish to instigate that debate, at which time I am sure that the Minister will be willing to respond to it. I do not want the Committee to become bogged down five times in what is basically the same debate.

Clause 19 ordered to stand part of the Bill.

Clause 20 - Abuse of position of trust: sexual activity in the presence of a child

Dominic Grieve (Conservative, Beaconsfield)

I beg to move amendment No. 202, in

clause 20, page 9, line 10, leave out

'for the purpose of obtaining sexual gratification'.

Roger Gale (Conservative, North Thanet)

With this it will be convenient to discuss the following:

Amendment No. 204, in

clause 34, page 17, line 33, leave out

'for the purpose of obtaining sexual gratification'.

Amendment No. 205, in

clause 38, page 19, line 26, leave out

'for the purpose of obtaining sexual gratification'.

Amendment No. 206, in

clause 42, page 21, line 36, leave out

'for the purpose of obtaining sexual gratification'.

Dominic Grieve (Conservative, Beaconsfield)

These amendments address the same point: although amendments Nos. 204, 205 and 206 relate to later clauses, they are worded in the same way as amendment No. 202, so it is correct that they have all been grouped together.

I will illustrate the point by discussing clause 20. Amendment No. 202 would delete the words,

''for the purpose of obtaining sexual gratification''.

I wish to make it clear that I do not object to this clause in principle, but I invite the Committee to read it with those words deleted:

''A person aged 18 or over (A) commits an offence if—

(a) he intentionally engages in an activity,

(b) the activity is sexual,

(c) . . . he engages in it in the presence of another person (B), knowing or believing that B is aware, or intending that B should be aware, that he is engaging in it,

(d) A is in a position of trust in relation to B,

(e) where subsection (2) applies, A knows or could reasonably be expected to know of the circumstances by virtue of which he is in a position of trust in relation to B''.

It goes on, but I need not read any further.

My question is simple: what is the purpose of introducing the following words as a preface to subsection (1)(c):

''for the purpose of gaining sexual gratification''?

The activity already has to be sexual within the terms of clause 79, which we have considered, so what does that phrase add? A sexual activity would have to be very unusual to be performed not for the purpose of sexual gratification, although I am aware that permutations of human behaviour are almost endless.

That phrase requires something further to be proved that is not otherwise necessary. Why do we require that to be proved? There is an argument that the words,

''for the purpose of gaining sexual gratification''

duplicate the meaning of the words,

''the activity is sexual''.

That is why I want to delete the first of those phrases. If the Under-Secretary can provide me with a good reason why it should remain, I will withdraw the amendment. However, he may conclude that those words are unnecessary in this context—and that that is the case in the other clauses as well.

Paul Goggins (Labour, Wythenshawe and Sale East)

I shall try to respond briefly to the hon. Gentleman's challenge by giving him an example. A teacher sets out on a day trip with a number of the children at the school where he works, and this is an occasion when the spouses and partners of the staff are invited too—on the face of it, an enjoyable day out. The teacher's partner travels with the teacher and during the course of the day they kiss each other in a very sexual way: they have a passionate kiss in front of the 15-year-old children who are under the care of the teacher. The teacher knows that the children are watching, but he does not engage in the kiss to get sexual gratification from the fact that he knows that they are watching; it is a sexual kiss with his partner that is part of their relationship.

I would argue that that is an inappropriate way to behave; it is probably unprofessional, and no doubt such behaviour would be dealt with by the school authorities. However, that is very different from a situation in which the teacher stays behind after class with three pupils to give them extra tuition and starts to masturbate, knowing that the pupils are watching him. That would be for the purpose of sexual gratification.

We want to be clear. We want to capture an offence in which the fact that children are present and watching the sexual activity gives rise to the offender's sexual gratification. We do not want to cover any other sexual activity that may be going on. I hope that that practical example will demonstrate why in our view it is important that the ''sexual gratification'' wording remains.

Dominic Grieve (Conservative, Beaconsfield)

I have to say that when I read the clause and the other clauses it had not occurred to me that the use of the words ''sexual gratification'' was designed to narrow the scope of the definition that ''the activity is sexual''. I had not understood that at all. I had interpreted ''sexual gratification'' as anything that gives a person sexual pleasure. Engaging in passionate kissing in the back of a coach can give someone as much sexual pleasure as sexual intercourse, although it may be of a different nature. That was why I felt that the definition was strange.

I do not know whether the words ''sexual gratification'' are defined in the Bill; I confess that I have not seen, and have no recollection of, such a definition. If there is such a definition, that would support what the Under-Secretary has just said. Otherwise, if the words:

''for the purpose of obtaining sexual gratification''

are given their ordinary English meaning, my interpretation—although his and that of his officials may be different—would not lead me to think that there was a distinction made, for instance, between passionate kissing and masturbation. That is something that the Government ought to consider.

However, perhaps I am quite wrong and there is a well-established definition of which I am unaware.

Paul Goggins (Labour, Wythenshawe and Sale East)

We keep returning to the definition of the word ''sexual'' or, in this context, ''sexual gratification''. For the purposes of the amendment, the important point is that the ''sexual gratification'', however that is finally defined, is gained from engaging in the act in the presence of the child in relation to whom the adult has a position of trust. That is the key point.

Dominic Grieve (Conservative, Beaconsfield)

On that basis, a teacher and his partner could take a party of schoolchildren to some woodland and, knowing but not caring that the children were watching, they could decide to engage in full sexual intercourse under a tree. In those circumstances, am I to understand that, because the teacher would be able to say that the purpose of the act was not to obtain sexual gratification from the children watching him do it, he would be exculpated from the offence? I cannot believe that that is what the Under-Secretary intends. If that is not what he intends, I am still unpersuaded that the words:

''for the purpose of obtaining sexual gratification''

are necessary, because they only need to be there to qualify the ''activity'' being ''sexual''. I appreciate that the distinction is the degree of culpability, but if someone in the position of trust engages in inappropriate activity, why has he not committed an offence if the activity, although inappropriate, was not engaged in for the purpose of obtaining sexual gratification?

The difficulties faced by a jury in resolving such issues seem considerable. I question whether the provision is needed, but I leave the matter to the Minister. I shall not press the amendment to a Division, but I hope that the hon. Gentleman will think about it further. At present, I am not completely persuaded that that part of the clause is necessary, although I understand the motive behind it.

Paul Goggins (Labour, Wythenshawe and Sale East)

Behaviour such as full sexual intercourse taking place under a tree would be highly unprofessional and quite wrong. However, the hon. Gentleman asked me to say whether that act would be different from the act that I described. My immediate response is that the more outrageous the act, the more likely it is to be done in the knowledge that the children were watching and for sexual gratification purposes.

Dominic Grieve (Conservative, Beaconsfield)

Am I to understand that the sexual gratification is to be obtained from the act itself or from the fact that other people are watching it? The distinction will become extraordinary difficult for a jury to resolve. If the jury has to resolve that difficulty, a complicated question will be asked of it.

Paul Goggins (Labour, Wythenshawe and Sale East)

I do not think that a jury would have difficulty in drawing such a distinction. Clearly, such an act would be a sex offence. In trying to uncouple—pardon the pun—the two scenarios of whether it is engaging in the act or the fact that people are watching it that gives sexual gratification, I must say that such activity is all part of the same act of sexual

gratification. I am sure that a jury would judge it as such.

Dominic Grieve (Conservative, Beaconsfield)

I am grateful to the Minister. I shall go away and think about the matter. I should be grateful if any member of the Committee has any views on it, which we can discuss afterwards. I remain slightly puzzled by the double requirement. If the activity is sexual and done deliberately in the presence of children, that is what we want to criminalise. To tell a jury that it can convict only if it is satisfied that the purpose of the act is sexual gratification is a complicated feature that is difficult to understand, as is the purpose behind it. Surely the clause is designed to stop an activity that is deliberately carried out in an inappropriate fashion.

Annette Brooke (Liberal Democrat, Mid Dorset and North Poole)

I shall be grateful if the hon. Gentleman can deal with my query. There are two different tracks of argument. The two schoolteachers would know that their kiss was being observed, but would they have had an intention of that happening? I wonder whether the clause should state, ''knowing and intending that B should be aware''?

Dominic Grieve (Conservative, Beaconsfield)

The hon. Lady makes a good point. That could be an alternative approach. It would still remove that part of the clause which the amendment would remove. I am slightly sorry that I may have not got across my point. I may not even have a point, but I shall reflect on the matter. In the meantime, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Amendment made: No. 50, in

clause 20, page 9, line 10, leave out from 'it' to 'knowing' in line 11 and insert—

'(i) when another person (B) is present or is in a place from which A can be observed, and

(ii) '.—[Paul Goggins.]

Clause 20, as amended, ordered to stand part of the Bill.

Clause 21 - Abuse of position of trust: causing a child to watch a sexual act

Clause 23 - Positions of trust

Humfrey Malins (Conservative, Woking)

I beg to move amendment No. 145, in

clause 23, page 11, line 30, at end insert—

'( ) A shall have a defence if at the start of his work at the educational institution—

(a) A is under 21, and

(b) B is 16 or over, and

(c) the educational institution did not expressly draw his attention to section 23 of this Act prior to the start of any sexual relationship between A and B'.

In this clause we are dealing with positions of trust. Early on in Committee there was concern about schoolchildren—particularly head boys or girls, for example—who are just over 18 and in a position of trust as far as those just under 18 are concerned. That has been rectified, but there is still an issue that I would like to consider concerning line 30 in subsection (5). The amendment would provide an exemption in relation to two people, one of whom is being educated at a school, and one of whom is not.

The amendment would cover the case of a gap-year student. It relates to a most unlikely scenario, but we are considering unlikely scenarios to see what might happen if they arise. It is not unusual for a young man to leave school and return shortly afterwards as a gap-year student. I have in mind the school in Leatherhead in Surrey that my son has just left. He left in the summer term, and this term, one of his best friends, who left at the same time as he, has returned to assist with sports coaching for some months. He is not a pupil; in effect, it could be argued that, under the Bill, he is in a position of trust in relation to other pupils at the school.

Of course, the sixth form, lower and upper, of the school contains a number of girls whom the boy has known—indeed, he has been part of the education system with them. They were chums while he was in the sixth form. Let us take the example of a girl who was in the lower sixth when he was in the upper sixth. The boy leaves and comes back as a coach for a term or two of sport, and she moves into the upper sixth. The Minister will have got the point already. I want to know, first, whether that gap-year student is in a position of trust and, secondly, whether he will have committed an offence under any of the provisions that refer to breach of trust in relation to one of the girls in the sixth form, subject to their both being the relevant age.

My amendment would protect the boy because he is under 21 and she is over 16, notwithstanding that he is undoubtedly in a position of trust, because he would have a regular caring responsibility and so on for the young girls in the upper sixth. It is a probing amendment and I do not propose to press it to a Division, not least because our voting strength has gone down by 33.3 per cent. in the past few minutes, and if our numbers go down any further there will be just me. I think that our honourable Whip is coming to our rescue. There are various reasons why I will not press the amendment to a Division, but I would like to hear from the Under-Secretary about it.

Annette Brooke (Liberal Democrat, Mid Dorset and North Poole)

I understand the hon. Gentleman's point about the gap-year student, but when I first read the amendment I read it as applying to someone undertaking teacher training. A person who was doing teacher training at the normal age would fit into that category. It would be bad practice for anyone who was training to be a professional to be exempt on the grounds that they did not know. The onus must be on the professional institutions to ensure that that happens. Although I can understand the scenario as

described, anyone who volunteers, which is more or less what we are talking about, must come under the same provision. Although I appreciate that this is only a probing amendment, it attacks what we are trying to do in this clause.

Paul Goggins (Labour, Wythenshawe and Sale East)

I appreciate the spirit in which the hon. Member for Woking (Mr. Malins) moved the amendment. I say to him in the gentlest possible way, because I know that that is the style he prefers, that, even if the amendment were right, it is probably in the wrong place, because it is in the bit of the Bill that deals with a position of trust. It should probably refer to the part that deals with the offences. Even if it were in the appropriate place, however, there are some flaws in his proposing that the person is under 21 when he starts work at the establishment and that the young person is 16 or over. I suspect that the purpose behind the hon. Gentleman's drafting was that those should be the ages at which the sexual relationship began. It is possible, however, for someone to have started work at the establishment when they were 19 and at the age of 40 mount a defence using the hon. Gentleman's amendment.

I strongly believe that age is no defence—the position of trust is the important thing. Age cannot be a defence. I am sure that the Committee will be united on that, and that the hon. Member for Mid-Dorset and North Poole would echo it, too.

The hon. Lady raised the issue of what an organisation and the professional bodies associated with it should do to ensure that people are aware of this piece of legislation. That is important. Under existing arrangements it is not solely for employers to inform teachers about their professional and statutory responsibilities. The standards for qualified teacher status, which were set by my right hon. Friend the Secretary of State for Education and Skills, require candidates to demonstrate that they are aware of and should work within the statutory frameworks relating to teachers' responsibilities. The Teacher Training Agency issues new teachers with guidelines on the legal framework within which they will be practising. People who are already teachers should be in no doubt about their responsibilities.

The creation of this offence in the Sexual Offences (Amendment) Act 2002 was widely reported and debated in the media and extensively publicised throughout the teachers' unions. Such behaviour has always been regarded as unprofessional and teachers have been liable to disciplinary action. It is right that even if a defendant were able to prove that he was not, for some reason, aware of his obligations under the law, that should not allow him a defence against this offence. The amendment would, in effect, provide an unlimited ''get out of jail free'' card for young teachers, regardless of whether they knew that their behaviour was wrong or constituted an offence.

We all know that in England and Wales ignorance of the law is no excuse. We cannot make an exception to that widely accepted principle.

Humfrey Malins (Conservative, Woking)

Under my amendment, if the educational establishment had drawn the young gap-year student's attention to the section of the Act—or

not, as the case may be—he would not have a defence. Is there not a little bit of merit in my general thrust? I appreciate the point about the 40-year-old starting a relationship, but it is a bit different when the boy concerned might be 19 and a bit and the girl is 17 and three quarters.

Paul Goggins (Labour, Wythenshawe and Sale East)

I respond in the spirit in which the hon. Gentleman asked the question. The establishments—the training organisations, the professional bodies that represent people in that profession—have a responsibility to ensure that every teacher, whether new or current, is well aware of their responsibilities. I am trying to reassure the Committee that that already happens. Ignorance cannot be an excuse in the law, and, in any event, there should not be any ignorance because all the bodies involved instruct members of the profession to know fully their liabilities and responsibilities. I hope that I have satisfied the hon. Gentleman that his concerns are taken on board in the Bill, and I hope that he will consider withdrawing his amendment.

Humfrey Malins (Conservative, Woking)

The hon. Gentleman has responded helpfully as always, and in just the sort of tone that is guaranteed to result in a withdrawal of the amendment. I do not blame myself for having raised the issue, but I am grateful to him. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Paul Goggins (Labour, Wythenshawe and Sale East)

I beg to move amendment No. 207, in

clause 23, page 11, line 30, at end insert—

'() This subsection applies if A is appointed to be the guardian of B under Article 159 or 160 of the Children (Northern Ireland) Order 1995 (S.I. 1995/755 (N.I. 2)).'.

Roger Gale (Conservative, North Thanet)

With this it will be convenient to discuss Government amendments Nos. 208 to 212.

Paul Goggins (Labour, Wythenshawe and Sale East)

I do not want to detain the Committee unduly. We have explored some of the wider issues related to abuse of trust. The purpose of the Government amendments is to widen the scope of the abuse of trust offences to include additional categories of persons who regularly look after children in the community on an individual basis or who, during the course of performing their functions, regularly have unsupervised contact with children.

By means of amendments Nos. 207 to 209, those persons will now include: children's guardians in family court proceedings; children and family reporters involved in family court proceedings affecting children's welfare; persons who supervise children pursuant to a care order, supervision order or educational supervision order; children's guardians in relation to adoption proceedings; and children's guardian ad litem in private law Children Act 1989 proceedings and in cases determining wardships. Some of those additional categories, in particular children's guardians and those who supervise children pursuant to a care order, supervision order or educational supervision order, are being added in order to honour an undertaking given when the offences were debated in another place. In conjunction with other

Departments, we have identified some additional categories for inclusion.

Hilton Dawson (Labour, Lancaster and Wyre)

My hon. Friend seems to have missed out children who are accommodated under section 20 of the Children Act 1989. Is that a deliberate omission?

Paul Goggins (Labour, Wythenshawe and Sale East)

With his great experience, my hon. Friend makes an interesting observation that we may return to on Report. We want to ensure that all eventualities are covered in the Bill. I hope that he is satisfied with that assurance.

The categories of persons that we have identified can all play important roles in a child's life, and they have sufficient power and influence to justify inclusion within the scope of the offences. I trust that hon. Members agree, and I can advise them that the consideration of including additional categories is ongoing. With hon. Members' forbearance, we will return to the matter on Report. Amendments Nos. 207, 208 and 209 define the terms care order, supervision order and educational supervision order for the purposes of the offences.

Amendment agreed to.

Amendments made: No. 208, in

clause 23, page 11, line 33, at end insert—

'() This subsection applies if A, as a person who is to report to the court under section 7 of the Children Act 1989 (c.41) or Article 4 of the Children (Northern Ireland) Order 1995 (S.I. 1995/755 (N.I. 2)) on matters relating to the welfare of B, regularly has unsupervised contact with B alone (whether face to face or by any other means).'.

No. 209, in

clause 23, page 11, line 39, at end insert—

'() This subsection applies if—

(a) B is subject to a care order, a supervision order or an education supervision order, and

(b) in the exercise of functions conferred by virtue of the order on an authorised person or the authority designated by the order, A looks after B on an individual basis.

() This subsection applies if A—

(a) is an officer of the Service appointed for B under section 41(1) of the Children Act 1989 (c.41),

(b) is appointed a children's guardian of B under rule 6 or rule 18 of the Adoption Rules 1984 (S.I. 1984/265), or

(c) is appointed to be the guardian ad litem of B under rule 9.5 of the Family Proceedings Rules 1991 (S.I.1991/1247) or under Article 60(1) of the Children (Northern Ireland) Order 1995 (S.I. 1995/755 (N.I. 2)),

and, in that capacity, regularly has unsupervised contact with B alone (whether face to face or by any other means).'.—[Paul Goggins.]

Clause 23, as amended, ordered to stand part of the Bill.

Clause 24 - Positions of trust: interpretation

Sandra Gidley (Liberal Democrat, Romsey)

I beg to move amendment No. 187, in

clause 24, page 12, line 3, leave out 'regularly'.

Roger Gale (Conservative, North Thanet)

With this it will be convenient to discuss the following amendments:

No. 150, in

clause 24, page 12, line 7, leave out 'regularly'.

No. 151, in

clause 24, page 12, line 8, leave out 'regularly'.

No. 197, in

clause 44, page 22, line 39, leave out 'regular'.

No. 198, in

clause 44, page 23, line 3, leave out 'regular'.

No. 199, in

clause 44, page 23, line 8, leave out 'regular'.

Sandra Gidley (Liberal Democrat, Romsey)

This is a simple set of amendments to try to close what I, and others, regard as a potential loophole in the law. Clause 24, which refers to interpretation of positions of trust, states that

''a person looks after persons under 18 if he is regularly involved in caring for, training, supervising or being in sole charge of such persons.''

It is the word ''regularly'' that is causing great concern. In some cases, an adult might be in a position of trust where the contact with the child is limited—a supply teacher or a bank worker, for example—but it only takes one or two contacts to abuse a child. It is wrong that such an adult—who knows perfectly well that they are in what anyone would regard as a position of trust—could exploit this facet of the Bill.

If the amendments are accepted and references to regularity are removed, the position will be much tighter because anyone who seeks to abuse a vulnerable child could decide that this law would make it too difficult for them to stay in one care home because it makes their position there untenable. They would be unable to carry on doing what they are already doing.

That person can put themselves in the hands of an agency or another organisation that enables them to abuse at a number of homes in an area. That situation is difficult: a fellow care worker may have suspicions, but the next day the abuser might be working in a different home, and it takes a while to build up a pattern of suspicion. Very often these people are in different homes or settings or educational establishments, so it is not easy to get together and to raise concerns. We are creating the potential for someone to commit abuse on a wide scale just because they are not having regular contact with a specific individual.

The ''position of trust'' definition also applies to anyone who works with children in schools in a way that could be regarded as regular, such as a peripatetic music teacher. What criteria are used to define what is regular in this context? The Government should think about these amendments carefully. Are they satisfied that they are not creating the loophole that I have described?

The issue was discussed at great length in the House of Lords, where an attempt was made to amend the Bill in this way. It failed. I do not know whether the Government have reflected on the matter since then. We all agree that the aim of the Bill is to protect the vulnerable, and we could achieve that in a better way in this instance.

Humfrey Malins (Conservative, Woking)

I shall speak to amendments Nos. 150 and 151, which were drafted by my hon. Friend the Member for Beaconsfield. They would leave out the word ''regularly''.

I want to reinforce what the hon. Member for Romsey said. It would be helpful to get from the Under-Secretary—via his officials—a full definition of what is meant by the word ''regularly''. There are so many nuances in our language—in phrases such as ''from time to time'', ''frequently'' and ''regularly''.

In teaching and allied worlds in particular, there are many people who are undoubtedly in a position of trust but who may not be regularly in that position. I have in mind a few different examples of that. What about the person who runs a holiday camp for one week in the summer, where the children are dropped off by their parents and given sporting and other help and generally advised and looked after? Such holiday and sports camps are for one week a year, and then it is end of story. Is that regular? The peripatetic teacher was also a good example. However, what happens with the other teacher—the person who has control, is in a position of trust and who, once a month, drops in to a school? I suppose that such contact must be regarded as regular—or is it once every two months or once every three months? If I were on a jury, I should not want to decide such matters without knowing what the Government mean by ''regularly''.

Paul Goggins (Labour, Wythenshawe and Sale East)

I have been given helpful advice, which goes to the heart of the question, ''What does regular mean; how is it defined?'' which was asked by the hon. Members for Romsey and for Woking. Whether regular contact applies in particular circumstances is for the courts to decide. It is not one-off contact. It must have a pattern and be consistent. We have tried to draft the clause widely to capture several relationships that could be defined as regular. Clearly, a full-time class teacher or a member of staff in a children's home is in regular contact with the child. However, the peripatetic teacher who takes a music class once a week, about whom we have already heard, is also in regular contact with the child. The physiotherapist who gives treatment to a child one day a week has a regular relationship with the child.

Sandra Gidley (Liberal Democrat, Romsey)

The hon. Gentleman mentions the peripatetic teacher who teaches once a week. I accept that that would be caught under the definition of ''regular''. What about supply teachers? There are always occasions when a school must go to the C list for someone to look after a class in the knowledge that the teacher is not very good, although not necessarily for the reasons under discussion. Teachers will go into a school on a one-off basis.

Paul Goggins (Labour, Wythenshawe and Sale East)

I am grateful to the hon. Lady for raising that point. Her question has two answers. First, the supply teacher who takes over from the regular classroom teacher and has the regular contact with the child could be said to have a relationship that reoccurs regularly. Secondly, a supply teacher may teach children in a school, which has a sixth form. There may be a 17-year-old in the school who does not meet the teacher in the school and is never taught by him. We would not want to capture that teacher under

the clause, because there is no regular contact by definition of the child being at that school and the teacher being a supply teacher at the school.

The hon. Lady is looking quizzical, so perhaps I have not persuaded her of my argument. I repeat that the supply teacher who takes over the full-blown, regular relationship with the pupil in the class is clearly caught under the Bill. As for the teacher who goes to the school as a supply teacher and who never comes across the 17-year-old with whom he may take up a sexual relationship, that is a different relationship. There is no regularity in such contact.

Sandra Gidley (Liberal Democrat, Romsey)

The hon. Gentleman defeats his own argument. He said that there was no contact at the school between the 17-year-old and the supply teacher and that it was a later contact. Clearly, that relationship would not want to be brought under the remit of the Bill. Will he confirm that that was his argument?

Paul Goggins (Labour, Wythenshawe and Sale East)

What I can confirm concerns the 17-year-old who is in a sexual relationship with a supply teacher who came to the school on a one-off basis. I did not say that the teacher ''did not meet the child'' in the course of carrying out his duties; I said, ''may not have met the child''. We do not wish to capture such a person under the provisions. We want to capture the supply teacher in a classroom who has regular contact with the child, even for a short time. That is a different relationship. As with all things in the Bill, a line must be drawn and we believe that we have struck the right balance.

Sandra Gidley (Liberal Democrat, Romsey)

I am disappointed to hear the hon. Gentleman say that the right balance has been struck. He spent much time talking about schools, but the clause applies to more vulnerable children, perhaps with a learning disability, where the situation is much less clear. Unless there were some big falling-out and a vexatious complaint, the relationship that he described between a 17-year-old and a supply teacher would be very unlikely to result in a complaint against the teacher, because it involved a consensual act.

The matter becomes more difficult if people who less easily understand the boundaries of a sexual act are involved, and we shall come on to clauses on that issue later. Such people may not understand some of the ramifications. For those cases where care workers or therapists go to an institution occasionally, there is a real question of vulnerability that must be addressed. We must find a way to protect people in such situations.

I am very disappointed that the Under-Secretary will not give way on any aspect of this debate. I shall not press the matter to a vote, but it is very likely that we will want to revisit it on Report. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Amendments made: No. 210, in

clause 24, page 12, line 23, at end insert—

' ''care order'' has—

in relation to England and Wales, the same meaning as in the Children Act 1989 (c.41), and

in relation to Northern Ireland, the same meaning as in the Children (Northern Ireland) Order 1995 (S.I. 1995/755 (N.I. 2));'.

No. 211, in

clause 24, page 12, line 34, at end insert—

' ''education supervision order'' has—

in relation to England and Wales, the meaning given by section 36 of the Children Act 1989 (c.41), and

in relation to Northern Ireland, the meaning given by Article 49(1) of the Children (Northern Ireland) Order 1995 (S.I. 1995/755 (N.I. 2));'.

No. 212, in

clause 24, page 13, line 8, at end insert—

' ''supervision order'' has—

in relation to England and Wales, the meaning given by section 31(11) of the Children Act 1989 (c.41), and

in relation to Northern Ireland, the meaning given by Article 49(1) of the Children (Northern Ireland) Order 1995 (S.I. 1995/755 (N.I. 2));'.—[Paul Goggins.]

Clause 24, as amended, ordered to stand part of the Bill.

Clause 25 - Sections 18 to 21: marriage exception

Vera Baird (Labour, Redcar)

I wish to raise the same point about the marriage exemption that was raised this morning. In effect, the debate has already taken place under clause 16 about similar kinds of activity. The additional factor in clauses 18 to 21 is that the person is in a position of trust—that, if anything, makes the position worse—but there is no reason why, if what is outlawed against a child in clauses 18 to 21 is child abuse, there should be any permission for it through a foreign marriage.

I accept that the further distinction is that one can only commit the offences discussed this morning with a person who is under 16, whereas these can be committed by a person in a position of trust even against a person who is over 16—in other words, against a person who could lawfully marry in the UK. Therefore, the mischief is not as complete.

None the less, all the offences to be committed by a person in a position of trust can be committed against a person under 16, who we would all say ought not to be able to consent to any of them, or to be relieved of the opportunity of refusing to consent, by being married. I respectfully suggest that, if the Solicitor-General is prepared generally to review the marriage exception, she should consider clause 25 as well.

Harriet Harman (Labour, Camberwell and Peckham)

The points that my hon. and learned Friend makes follow on from the well-made points in the earlier debate. It goes without saying that reviewing the marriage exception in the context in which we discussed it this morning and the response that I gave then would apply similarly to the abuse of trust. The question is whether we have drawn the balance right, with the right age, the right sort of activity and the right defence. Obviously, the abuse of trust issue would have

to come into our consideration of and consultation on that point.

Annette Brooke (Liberal Democrat, Mid Dorset and North Poole)

I thank the Solicitor-General for that. I believe that many of the points that we discussed this morning apply to this clause. It occurred to me that the marriage exemption is almost discriminatory, given that some relationships in the 16-to-18 age range would be allowed but others would be disallowed; for example, if people had chosen to live together or were of the same sex. I wonder whether discrimination is involved.

Harriet Harman (Labour, Camberwell and Peckham)

If the hon. Lady's point is that there is discrimination in relation to the marriage exemption, she is right. It is discriminatory—it discriminates between those from a different country who had a lawful marriage there and came to this country, and those from this country. That is the whole point of the marriage exemption. It is available to foreign nationals but not to those domiciled here who have a lawful marriage according to the laws of this country. I hope that we will not go back into the marriage exemption.

Roger Gale (Conservative, North Thanet)

Order. I can say distinctly that we will not go back into the marriage exemption.

Annette Brooke (Liberal Democrat, Mid Dorset and North Poole)

My additional point was about covering the age range of 16 to 18. I thought that that was another point on top of what we discussed this morning. I am not advocating the point of view at all but I think that, in the wider sense, the marriage exemption is discriminatory.

Harriet Harman (Labour, Camberwell and Peckham)

We will consider the hon. Lady's points, and perhaps we will have the opportunity to discuss them with her further when we reflect on the issues to reconsider between now and Report.

Question put and agreed to.

Clause 25 ordered to stand part of the Bill.

Clause 26 - Sections 18 to 21: sexual relationships which pre-date position of trust

Sandra Gidley (Liberal Democrat, Romsey)

I beg to move amendment No. 188, in

clause 26, page 13, line 29, at end insert

'and that the relationship commenced before the defendant was aware that he would be in a position of trust.'.

I tabled the amendment to clarify what would happen in certain situations. It occurred to me that someone who was keen to have a relationship with a person could quite easily make sure that they were in employment that would facilitate meeting that individual and prolonging a relationship. The first part of the relationship may have been conducted under some sort of duress. I fully admit that that is a slightly obtuse point.

What protections are in place to ensure that the defendant who is accused of abusing the position of trust; or rather how easy will it be to make the defence that he did not know that the position of trust would—I apologise, I am tying myself in knots. I knew

precisely what I meant when I drafted the amendment. [Laughter.] It has been a long haul since then. The point is that we do not want people manoeuvring themselves into positions proactively. We are learning that people are very cunning. I drafted the amendment after the briefing from the paedophile unit, when I assumed that everyone was out to do terrible things, and that everything in the world was a conspiracy, and it occurred to me that the clause might have a loophole.

Paul Goggins (Labour, Wythenshawe and Sale East)

When the hon. Lady was arguing forcefully and persuasively earlier, she failed to persuade me. Now that she is at her most obtuse, to use her word, she has come up with an argument that has some merit, although she may not believe it. [Laughter.] The amendment was probably drafted in haste following the presentation, and clearly there are some difficulties with its present form. I would want to take a further look at it.

The point is that abuse of trust offences are based on the principle that the person can use that position of trust to manipulate a young person into a sexual relationship. If the sexual relationship is entered into before the relationship of trust exists, the fact that the defendant knows that he will be in a position of trust in relation to the child at some point in future is irrelevant. However, there is an argument that, where the child is also aware that a relationship of trust will arise between them, that might influence their choice over the sexual activity. A practical example, which is always worth citing, is where the child knows that the person concerned will be their personal tutor at school for the whole of the next academic year. That could put the child in an extremely awkward position and influence their decision to agree to have a sexual relationship. I recognise that the amendment was tabled from a genuine concern to get the matter right, to protect people and to ensure that people are not exploited and that vulnerability is protected. I urge the hon. Lady to withdraw the amendment but I shall give further consideration to the matter, so that we get the drafting of the legislation as near perfect as possible.

Sandra Gidley (Liberal Democrat, Romsey)

The Under-Secretary is quite right to say that the amendment was drafted in a hurry. I am happy to withdraw it, reassured that I occasionally have flashes of something with which he can find sympathy. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 26 ordered to stand part of the Bill.

Clause 27 ordered to stand part of the Bill.

Clause 28 - Inciting a child family member to engage in sexual activity

Humfrey Malins (Conservative, Woking)

I beg to move amendment No. 203, in

clause 28, page 14, line 31, leave out sub-paragraph (ii).

It is at moments such as this that I miss my hon. Friend the Member for Beaconsfield because, as I rise to move the amendment, which he drafted with such care, I look into the innermost recesses of my mind to ask myself what he had in mind when drafting it. I am

quite clearly of the view that while I was out of the Room making a phone call a little earlier this afternoon a similar point cropped up and that my hon. Friend advanced his argument then. One of my hopes is that my hon. Friend, with his normal courtesy, told the Solicitor-General a day or two ago exactly what his argument on this amendment was going to be. That will enable her when she responds to my moving of the amendment to tell me what my hon. Friend intended.

My instinct is to say this. I think that my hon. Friend and I seek in this amendment, which concerns a child being under 13, to make the point that we must examine clause 28, clause 18 and clause 11. The word ''duplication'' comes to mind. I am looking desperately at the Solicitor-General to see if that is the point, and I think that it is. In any event, that is how I propose to lay my argument out. I also think that there is a sentencing issue here, to which the hon. and learned Member for Redcar alluded earlier. That is an important point, which I hope that the Solicitor-General will address at length when she answers. There seems to be duplication here. Is not this point already covered in clause 11?

I hope that I have outlined the arguments satisfactorily.

Harriet Harman (Labour, Camberwell and Peckham)

The hon. Gentleman has told us what he thinks that the hon. Member for Beaconsfield would have said had he been here to move the amendment. I rise to say what I think that my hon. Friend the Under-Secretary would have said in response to the amendment were he responding to it.

I think that the hon. Gentleman has got to the right point, and perhaps I can reassure him on it. We have potential benevolent duplication here, but it is for a purpose. Amendment No. 203 would remove the specific reference to those aged under 13 from the offence in clause 28 of inciting a family member to engage in sexual activity. However, since the offence applies to all children aged under 18 unless the defendant reasonably believes that the child is 18 or over, the amendment has the effect of making the reasonable belief in age provisions apply to the under-13s as well as to those aged 13 or over but under 18.

The offences in clauses 27 and 28 are designed to protect children in familial and quasi-familial settings. It is sadly clear that much sexual abuse against children is instigated in such settings, where children should be at their safest.

Our debate on clauses 6 to 9 highlighted the Government's policy intention to afford maximum protection to those aged under 13. The offences in clauses 6 to 9 make no provision for reasonable mistaken belief in age, although they could involve sexual activity with a child not known to the offender. That is defensible because, despite the fact that some children can look older than they are, maximum protection should be afforded to children under 13, however old they may look.

There are two reasons why the argument against providing a mistaken belief in age defence is even stronger in respect of clause 28. First, the clauses cover abuse in familial settings in which it is easier to establish the actual age of the child involved before engaging in sexual activity. Secondly, the offence applies to children aged up to 18. It is hard to mistake a child aged 12 or under for one aged 18 or over; the age gap is simply too great.

If the purpose of the amendment is completely to remove children under 13 from the offence in clause 28, I would like to explain why such children are included in these clauses, although we would generally expect an offence under clauses 6 to 9 to be charged where the child victim is under 13. We included the under-13s in the offences in clauses 27 and 28 to close a potential loophole—not the one spotted by the hon. Member for Woking—albeit one that would rarely arise.

The loophole would arise in the course of a trial for an offence under clause 28 against a child believed to be 13, when it became clear that she was in fact 12. The defendant could not be convicted of a clause 27 or 28 offence if they applied only to children aged 13 or over, but he would be liable for an offence under clauses 6 to 9. Because some of those offences have higher penalties, the judge might not allow the indictment to be changed because the offender would not have had an opportunity fully to prepare his case in answer to the more serious charge. He might then have to be acquitted, even if the evidence had established that he had engaged in sexual intercourse below the age of consent.

Extending the offences at clauses 27 and 28 obviates that problem. For those reasons, the clause is right as drafted, and I ask the Committee to resist the amendments.

Humfrey Malins (Conservative, Woking)

That was a comprehensive reply. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 28 ordered to stand part of the Bill.

Clause 29 - Family relationships

Harriet Harman (Labour, Camberwell and Peckham)

I beg to move amendment No. 109, in

clause 29, page 15, line 13, leave out from beginning to second 'or'.

Roger Gale (Conservative, North Thanet)

With this it will be convenient to take Government amendment No. 110.

No. 152, in

clause 29, page 15, line 19, leave out subsection (b).

Government amendment No. 111.

Harriet Harman (Labour, Camberwell and Peckham)

I know that we are not allowed to use visual aids in Committee, but I have one because the matter is complicated. We are examining a matrix of who is or is not allowed to have sex with which family members at what age. We need to identify the changes that the Bill makes and compare the new position of the law with the old position.

I will explain the Government amendments and why we will resist amendment No. 152, tabled by the hon. Member for Beaconsfield, in relation to cousins. The child familial sex offences are primarily designed to protect children up to the age of 18 within the family environment, where they are particularly vulnerable to sexual abuse and exploitation. Because of the balance of power within the family unit and the close and trusting relationships that exist within it, the family can create opportunities for exploitation and abuse. A great deal of thought was given to the scope of the offence and the familial relationships that should be covered. It is clear that the most important factors are the proximity of the relationship and the balance of power that exists between the abuser and his victim. Those attributes extend beyond a child's immediate blood relatives.

The definition of a family unit also needs to be drawn widely to reflect the fairly loose structure of the modern family and the sometimes transitory nature of familial relationships. Thus the definition of a familial relationship in clause 29 extends beyond the immediate blood relatives of the child covered in subsection (2) and falling within the scope of the offence simply by virtue of that relationship.

Subsection (3) deals with more distant family members who are or who have been part of the child's household, or who are or have at any time held a position of trust in relation to the child. The automatic inclusion within the sphere of criminality is contained in subsection (2), whereas in subsection (3) it is conditional not only on them being in one of the categories in paragraphs (a) to (d), but on them having lived in the same household or regularly been involved in caring for, training, or supervising—

Sitting suspended for a Division in the House.

On resuming—

Harriet Harman (Labour, Camberwell and Peckham)

Thus, the definition of familial relationship in clause 29 extends beyond the immediate blood relatives of the child covered in subsection (2), who fall within the scope of the offence simply by virtue of that relationship. Subsection (3) covers more distant family members who are or have been part of the child's household, or who hold or have at any time held a position of trust in relation to the child.

Subsection (4) goes wider and covers those who live in the same household as the child and are regularly involved in caring for, training or supervising the child, or are in sole charge of the child. Such sexual relationships might be justifiable once adulthood is reached, but are within the scope of the offences in order to protect children from being manipulated or coerced into unsuitable sexual relationships before they become adult. Thus, a lodger who lives as part of a child's household and babysits for that child would be prohibited from engaging in any form of physical sexual activity with that child.

At present, persons who are or have been the step-parent of a child fall within the scope of subsection (2)

and are automatically prohibited from sexual activity with that child until he or she reaches the age of 18. We now believe that they should only fall within the scope of subsection (3), which refers not to absolute prohibition but conditional, only if they live or have lived in the same household as the child, or they are or have been regularly involved in caring for, training, supervising or being in sole charge of the child.

The reason for that proposed change is that anyone who is or has been the partner of a child's parent falls within the scope of subsection (3). The definition of a partner in the Bill—this is consistent with the definition used elsewhere in legislation—is someone who lives in an enduring family relationship with another person. A partner is in the same position in relation to his partner's child as a step-parent—that is, there is no co-sanguinity.

Step-parents and partners of parents may not necessarily live in the same household as their step-child, or have any role in their upbringing. For example, they might have no co-sanguinity and no role in their upbringing. For example, where a teenager acquires two step-parents after the remarriage of divorced parents, and the step-parent or partner-of-parent relationship results from marriage or partnership with one of the child's parents, the relationship with the parent is not, in the normal course of events, entered into to create a relationship with the child. On further consideration, we can see no reason to treat the two categories—step-parent and parent's partner—differently. Nor do we believe that those should be grouped in the same category as adults who have a blood, or adoptive or fostering, relationship with a child and have taken a positive step to create a parent-child relationship.

Amendments Nos. 109, 110 and 111 make it clear that a step-parent, whether by marriage or partnership, will only fall within the scope of the abuse of trust offences if he lives or has lived in the same household as the child, or is or has been regularly involved in caring for, training, supervising, or being in sole charge of the child.

Amendment No. 152, which was tabled by the hon. Member for Beaconsfield, would remove cousins from subsection (3) and take them outside the scope of the offence. Cousins have always been included in the scope of such offences, although they are not currently included in the Bill. That was generally supported in another place. They are being moved from where they are at the moment to fall under the scope of the offence.

Humfrey Malins (Conservative, Woking)

The Solicitor-General is being helpful. I think that I am correct in saying—perhaps she will confirm this—that we are dealing principally with first cousins, rather than distant cousins.

Harriet Harman (Labour, Camberwell and Peckham)

That is right. I think that the hon. Gentleman is referring to subsection (5)(b), which says:

'' 'cousin' means the child of an aunt or uncle.''

We are not talking about second or third cousins once removed, but about people who are the child of an aunt or uncle who have lived in the same household, or

are regularly involved in caring. I hope that that reassures the hon. Gentleman.

We believe that it is right to include cousins in the scope of the offences if they live or have lived in the same household as the child, or if they are or have been regularly involved in caring for, training, or supervising the child. We are getting to the relationship between two people, as well as the question of co-sanguinity. Where one cousin is so closely involved in the life of another, there will clearly be the opportunity for exploitative behaviour to take place and for an unsuitable relationship to develop. It would be wrong to exclude them from the scope of the offences. For that reason we do not accept the amendment. I hope that hon. Members will support the Government amendments.

Amendment agreed to.

Amendments made:

No. 110, in

clause 29, page 15, line 18, leave out

'partner of the other's parent'

and insert 'other's stepparent'.

No. 111, in

clause 29, page 15, line 40, at beginning insert

' ''stepparent'' includes a parent's partner and'.—[The Solicitor-General.]

Clause 29, as amended, ordered to stand part of the Bill.

Clauses 30 and 31 ordered to stand part of the Bill.

Clause 65 - Sex with an adult relative: penetration

Humfrey Malins (Conservative, Woking)

I beg to move amendment No. 153, in

clause 65, page 31, line 37, at end add

'uncle, aunt, nephew or niece'.

Roger Gale (Conservative, North Thanet)

With this it will be convenient to discuss the following:

Amendment No. 154, in

clause 66, page 32, line 17, at end add

'uncle, aunt, nephew or niece'.

Humfrey Malins (Conservative, Woking)

Both amendments would add the same wording—

''uncle, aunt, nephew or niece''—

to two separate, successive clauses. Clause 65 deals with the ways in which A may be related to B—the amendment sets out some of the more obvious ones. It occurred to my hon. Friend the Member for Beaconsfield and me that it would be appropriate to add uncle, aunt, nephew and niece. It would be helpful to know whether there was a particular reason why they have not been added.

The Solicitor-General has mentioned co-sanguinity—a principle with which we are all familiar. The question for the Government is why are aunts and uncles not deemed to be in the same position as half-brothers and half-sisters on the basis of co-sanguinity? That is an important question and I

would be grateful if the Solicitor-General let me know whether she thinks that we have hit upon an interesting point.

Harriet Harman (Labour, Camberwell and Peckham)

As ever, the hon. Members who have tabled those amendments have hit upon an interesting point. I shall like to explain why the Bill is drafted as it is; perhaps they will feel that the explanation is acceptable.

Amendments Nos. 133 and 154 would have the effect of including the relationships between uncles and aunts with their nephews and nieces within the scope of the sex with an adult relative offences in clauses 65 and 66. They would prohibit—in the same way that clauses 65 and 66 prohibit mother, father, sister, brother, half-sister and half-brother relationships—a relationship with not only the child in that relationship of aunt, uncle, nephew or niece, but a relationship with an adult. It is currently prohibited for an aunt or uncle to have a sexual relationship with their nephew or niece up until the age of 18; thereafter, when it becomes an adult offence, it is not prohibited.

As I understand the amendment, it is based on the fact that the degree of co-sanguinity—oh, it says consanguinity, perhaps I have been using the wrong term—between such relatives is the same. The hon. Gentleman said that the degree of consanguinity is 25 per cent., which is the same as that between half siblings who fall within the scope of the offences. I am also aware that aunts and uncles and nephews and nieces are prohibited from marriage for that reason. At the moment, an aunt and uncle can have sex with a nephew or niece, but they cannot marry. The original incest offences in the Sexual Offences Act 1956, on which the offences are based, were founded equally on fears of genetic abnormalities in children born of a close blood union and on the public distaste for sexual relationships between such close blood relatives.

Although consensual sexual activity between adult family members may not be harmful to society as a whole, an adult's right to exercise sexual autonomy in their private life is not absolute. We believe that, even in modern times, society has the right to impose certain standards on behaviour, where they are intended to protect people within the family from abuse. In the interests of not interfering unnecessarily in the rights of adults to engage in consensual activity, we have decided to continue to restrict the family members covered by those offences to those already covered by the existing incest offences. However, in line with the general approach that we have taken in the Bill, we have gender-neutralised the offences. Clearly, the arguments about genetic abnormalities in offspring do not apply in relation to same-sex relationships.

In light of the fact that we class all forms of penetration—not only penile penetration of the vagina and anus, but penile penetration of the mouth—as the most serious level of sexual activity throughout the Bill, we have widened the scope of the offences to cover all forms of sexual penetration, and we have not restricted them to intercourse.

Although the argument about genetic abnormalities is therefore still valid, it is not the sole justification for the offences, and we need to be certain that it is right to extend their scope. The fact that close family members may be groomed from a young age into agreeing to sexual activity with a family member once they are 18 is one justification for creating the offence, and I realise that such a situation could exist between aunts and uncles and their nephews and nieces. I also understand that some people might find sexual relationships between aunts and uncles and their nephews and nieces unpalatable and capable of undermining the family unit. Nevertheless, and bearing in mind that the responses to the consultation document, ''Setting the Boundaries'', did not indicate a public appetite for widening the scope of the offence, I am not convinced that it is right to criminalise any further relationships.

However, I have to confess that, prompted by the amendments, we have given further anxious consideration to the matter. At the very least, hon. Members have exposed an anomaly. The question is whether we want to add more people to those who are not allowed to engage in adult sexual relationships with each other. Someone who does not want to widen the criminal law so that it scoops more adults into an offence when they have sexual relationships would be opposed to this amendment. However, someone who wants consistency between those of the same levels of consanguinity would be in favour of it. This is another matter that was raised here rather than in another place, and that was not identified by outside organisations.

I ask the Committee to reject the amendment. We could sweep more people into such offences for the sake of consistency by constantly widening the Bill's ambit, but we do not want to widen it too much. However, we also do not want the Bill to have inconsistencies. Therefore, I argue for the clause to remain as it is, but I also offer a commitment to hold further discussions by Report.

Humfrey Malins (Conservative, Woking)

When my family asks me later tonight what I have done today to serve my country, I shall be able to say that the Solicitor-General said that I exposed an anomaly. That is enough for anyone in one day. That the Minister said that she will take a further look at this is very satisfying. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 65 ordered to stand part of the Bill.

Clause 66 ordered to stand part of the Bill.

Clause 32 - Sexual activity with a person with a mental disorder or learning disability

Sandra Gidley (Liberal Democrat, Romsey)

I beg to move amendment No. 189, in

clause 32, page 16, line 20, leave out 'refuse' and insert 'consent'.

Roger Gale (Conservative, North Thanet)

With this it will be convenient to discuss the following:

Amendment No. 190, in

clause 32, page 16, line 25, leave out 'refuse' and insert 'consent'.

Amendment No. 191, in

clause 33, page 17, line 7, leave out 'refuse' and insert 'consent'.

Amendment No. 192, in

clause 33, page 17, line 12, leave out 'refuse' and insert 'consent'.

Amendment No. 193, in

clause 34, page 17, line 36, leave out 'refuse' and insert 'consent'.

Amendment No. 194, in

clause 34, page 17, line 41, leave out 'refuse' and insert 'consent'.

Amendment No. 195, in

clause 35, page 18, line 11, leave out 'refuse' and insert 'consent'.

Amendment No. 196, in

clause 35, page 18, line 16, leave out 'refuse' and insert 'consent'.

Sandra Gidley (Liberal Democrat, Romsey)

These amendments have been tabled in a spirit of clarification. There are concerns among those who work with people with mental disorders or learning disabilities that the law uses different terminology for people who fall into those categories than it does in its discussion of rape in the early clauses. There is a strong feeling that there is not parity of esteem between the two phrases that are used. The rape clauses have the phrase ''B does not consent'', but these later clauses have,

''B is unable to refuse''.

Part of the reason for tabling the amendments is to probe the Government's thinking. Why is the term ''unable to refuse'' used, when we could have a similarity throughout the Bill by using the term ''unable to consent''? This is a fundamental point. There are people who think that the Bill as currently drafted is discriminatory to some extent. I urge the Minister to try to explain, because we do not want to have to return to this matter on Report.

Another problem is that the Bill is unclear about when someone is able or unable to consent. We have talked about the capacity to consent being pivotal, so that is a considerable concern. We need further clarification. The proposed definition of ''unable to refuse'' is quite loosely worded and may lead to inappropriate prosecutions. The other concern is that the current definition risks people with learning disabilities being seen as never able to consent to sexual activity. I am sure that we all acknowledge that people with learning disabilities are perfectly capable of entering into a sexual relationship. The emphasis of the wording is completely wrong.

It is clear that there is an attempt to protect people with learning disabilities, and that is welcome. The amendment is intended to probe whether we have chosen the best way to do that. The new offences of rape, assault and sexual assault all use the term ''consent'' and it would be helpful if the Government stated clearly why that term was not used in the context of people with learning disabilities.

Harriet Harman (Labour, Camberwell and Peckham)

As the hon. Lady reminds us, clauses 32 to 35 are designed to protect the most vulnerable of those with mental disorders—those who lack the capacity to consent to sexual activity. Although many people with a mental disorder are

fully able to consent to sexual activity, there are some, for example those with a profound learning disability, who are unable to give their informed consent. The law has hitherto failed to provide adequate redress for vulnerable people who have been targeted by predatory individuals. The clauses, together with clauses 36 to 46, are intended to remedy the problem by providing a strong legal framework to provide better protection. They are set out very clearly.

Amendments Nos. 189 to 196 seek to change the wording in the clauses from ''unable to refuse'' to ''unable to consent'' to sexual touching. Capacity to consent is defined in clauses 32 to 35 as ''unable to refuse'' rather than ''unable to consent'' because if the latter were used, it would refer to the definition of consent in clause 75 and that would be circular because that clause refers to the capacity to choose. The idea is that everything is set out in these clauses so that when people read them they know what they mean, rather than having to go to clause 75. Anybody reading the clauses would know what they were aiming for and would not have to dive for different clauses in the Bill to read about consenting.

In any event, the only change would be presentational, because there is nothing between the two phrases in terms of meaning. We have chosen a different phrase so that the clauses are self-contained and do not get tangled up with the definition in clause 75. For those reasons, I resist the amendments.

Sandra Gidley (Liberal Democrat, Romsey)

I think that I understand the Solicitor-General's points, but I suspect that there are many people who would prefer the Bill not to differentiate in that way. When researching the area, I came across a court case—I cannot remember the name of the judge—involving a young girl who had a learning disability. The ruling was, I think, that she was unable to refuse because of her animal instinct. My concern relates to ''unable to refuse'' and the animal instinct that was referred to by the judge—I do not agree with his views. I am concerned that there will be an opportunity for a judge in a similar situation to use the same excuse. If we changed the wording, that idea might not be used in future.

Harriet Harman (Labour, Camberwell and Peckham)

May I assist the hon. Lady? Under the definition used, that should not be a problem because the clause states that a person is:

''unable to refuse if—

(a) he lacks the capacity to choose . . . or

(b) he is unable to communicate''

that choice. The phrase ''unable to refuse'' is therefore clearly defined, which should reassure the hon. Lady.

Sandra Gidley (Liberal Democrat, Romsey)

That is reassuring. We do not want to repeat the mistakes of the past.

I am still disappointed that the people to whom the clause will apply seem to be being treated in a way that diminishes the sentence. I know that that is not the intention, but that is how several people have interpreted the clause. However, I will not pursue the amendments any further at this stage.

Amendment, by leave, withdrawn.

Harriet Harman (Labour, Camberwell and Peckham)

I beg to move amendment No. 52, in

clause 32, page 16, line 20, leave out 'or learning disability'.

Roger Gale (Conservative, North Thanet)

With this it will be convenient to discuss Government amendments Nos. 53 to 55, 57 and 58, 60 to 65, 67 and 68, 70 to 79, 81 to 84, 86 to 90 and 104 to 106.

Harriet Harman (Labour, Camberwell and Peckham)

May I make it clear that the amendments in no way affect the scope of the protection afforded by the clauses to which they apply? We are talking about drafting and terminology, not substance. That is not to say that drafting and terminology are not important, but I want to reassure hon. Members on the nature of the amendments.

The definition of a mental disorder contained in the Mental Health Act 1983, which has been adopted in the Bill, includes those with learning disabilities. I am aware that the Government amendments are controversial. The reason why we are tabling them is because if we include a separate reference, as has hitherto existed in the Bill, to learning disability—that is, to state, ''mental disorder or learning disability''—it could be taken to imply that learning disability is not a mental disorder, but something separate and not automatically included, for the purpose of this Bill or any other legislation, under the definition of mental disorder. That could lead to challenges to the legitimacy of detention of persons.

Sandra Gidley (Liberal Democrat, Romsey)

I may not have been paying full attention, but am I to assume from what the Solicitor-General has just said that anybody with a learning disability is automatically regarded as having a mental disorder? I would not have thought that that was the case.

Harriet Harman (Labour, Camberwell and Peckham)

The hon. Lady has immediately hit on the controversial nature of the discussion. Elsewhere in legislation, mental disorder is defined as including learning disability. That is controversial, and discussions are going on in relation to other legislation about whether that should be changed.

Annette Brooke (Liberal Democrat, Mid Dorset and North Poole)

I wonder whether the Solicitor-General can say how the Youth Justice and Criminal Evidence Act 1999, which uses the two terms, fits with what she is saying.

Harriet Harman (Labour, Camberwell and Peckham)

I will have to check that. The argument that I am making is that we do not want to include in the Bill something that appears to be inconsistent with how definitions are read in other legislation. There might be an anomaly elsewhere, but we do not necessarily want to add to that.

If a person with a learning disability has committed an offence, provisions in the Mental Health Act 1983 enable detention in hospital as an alternative to imprisonment. That is because people with learning disabilities are included under the definition of those with a mental disorder. It is vital for the well-being of the individual and for the protection of the public at large that challenges to the interpretation of mental disorder as including those with a learning disability are not encouraged by leaving the issue unclear in the Bill.

On the other hand, I am aware that at least some of the learning disability charities object to the implication that learning disability is a mental disorder and I understand why. Since the days when the definition of mental disorder was generally understood to include learning disability, people, arguments and ideas have moved on. I sympathise with that view, but this Bill is not the right place in which to make the change because it might then affect other legislation.

A new approach to defining those with such conditions is being considered in the draft Mental Health Bill and the draft Mental Incapacity Bill. This is an important debate and terminology is important. I am not saying that the discussion should not take place here and that someone else should discuss it. It is important, but the change should be made in those Bills and if it is made, the Bill before us can be amended to ensure that it is consistent. I believe that the draft Mental Health Bill and the draft Mental Incapacity Bill are the right place for that discussion and it is taking place. We are trying to bring the Bill before us back to the status quo, while recognising that the status quo is under discussion.

In the meantime, the Government believe that it is right that the line taken in the Mental Health Act 1983 should be followed. I commend the amendments to the Committee for the reasons that I have given.

Sandra Gidley (Liberal Democrat, Romsey)

I thank the Solicitor-General for her explanation, but I sometimes worry that in trying to tie up all the ends in a way that affects the community at large the matter may not have been thought through. Notwithstanding what she said about people with learning disabilities previously being able to be treated in hospital rather than in jail, there are some wider implications. I am reminded that many people have lobbied long and hard for some years to put into the public's perception the idea that people with learning disabilities do not necessarily have mental health problems. The two often go together, but not always and some people have learning disabilities with no mental health problem. There is a feeling that to go down the track that the Solicitor-General is advocating is to return to the days of describing people as being mentally defective. That is how strongly people feel about the matter.

I take the Solicitor-General's point that the debate will take place next year, but we have the precedent of the Youth Justice and Criminal Evidence Act 1999. I should have thought it preferable at the moment to retain the existing term and to leave the arguments for another time. The amendments are attracting quite a lot of heat and it is important to ensure that other measures in the Bill are right.

There is a strong feeling among organisations such as Turning Point and Mencap about the concept of learning disability and it would be helpful to continue using that in legislation. To move in the direction that the Government are advocating is to take public perception back light years. I understand the technical argument that the Solicitor-General is making, but

there is a wider, societal argument that, sadly, the Government seem to be ignoring.

Amendment agreed to.

Amendment made: No. 53, in

clause 32, page 16, line 23, leave out 'or learning disability'.—[The Solicitor-General.]

Harriet Harman (Labour, Camberwell and Peckham)

I beg to move amendment No. 112, in

clause 32, page 16, line 28, leave out 'possible' and insert 'reasonably foreseeable'.

Roger Gale (Conservative, North Thanet)

With this we may discuss Government amendment No. 113.

Harriet Harman (Labour, Camberwell and Peckham)

Clauses 32 to 35 are designed to protect the most vulnerable among those with a mental disorder: those who lack the capacity to consent to sexual activity.

Although many people with a mental disorder will be able to consent to such activity, there will be some, such as those with a profound learning disability, who will be unable to give their informed consent. Such vulnerable people have been specifically targeted for sexual abuse by predatory individuals, and the law has hitherto failed to provide adequate redress. The clauses, together with clauses 36 to 46, are intended to remedy the situation by providing a strong legal framework to provide better protection.

Government amendments Nos. 112 and 113 seek to refine the definition of a lack of capacity to choose in the clauses by replacing the phrase,

''sufficient understanding of the . . . possible consequences of the sexual activity''

with

''sufficient understanding of the . . . reasonably foreseeable consequences of the sexual activity''.

That was proposed in another place. As a result of that debate, we undertook to consider the definition further. The amendments are supported by many of the organisations working to assist people with learning disabilities, and we have drawn on their expertise and on that of learning-disabled individuals who have raised the matter with us, in concluding that the amendments are the right way forward. We have accepted the concerns of those organisations that

''a sufficient understanding of the . . . possible consequences''

was too broadly defined and might require a greater understanding of the consequences of sexual activity—all the possible consequences—than might be found in many of the population at large.

We suggest that it is reasonable for the definition to cover understanding of the ''reasonably foreseeable'' consequences, such as that sexual intercourse could lead to pregnancy or carry certain health risks, but not of the emotional or all the other possible consequences of sexual activity, which, after all, many young adults without a mental disorder or learning disability might not understand. It is essential that the balance between protecting the vulnerable against abuse and respecting their human rights should be achieved. We believe that that more limited test brings us closer to that goal.

Amendment agreed to.

Question proposed, That the clause, as amended, stand part of the Bill.

Humfrey Malins (Conservative, Woking)

I wonder whether the Solicitor-General might consider—not now but before Report—whether there are any circumstances under the clause, to which subsection (4) would not apply, in which there could be a not-so-serious offence for which magistrates' powers of sentencing would be sufficient. There is no provision under subsection (3) for magistrates to have sentencing powers, but there might be the occasional case in which the magistrates' powers would be sufficient, so the matter need not be made indictable. I hope that the Solicitor-General will allow that point to be absorbed and respond to it in due course, perhaps by letter.

Harriet Harman (Labour, Camberwell and Peckham)

I think that I can respond to the point by reference to amendments Nos. 114 and 115, which make the mode of trial either way. Perhaps the hon. Gentleman can support the arguments in those amendments.

Mr. Malins indicated assent.

Question put and agreed to.

Clause 32, as amended, ordered to stand part of the Bill.

Clause 33 - Causing or inciting a person with a mental disorder or learning disability to engage in sexual activity

Clause 34 - Engaging in sexual activity in the presence of a person with a mental disorder or learning disability

Harriet Harman (Labour, Camberwell and Peckham)

I beg to move amendment No. 114, in

clause 34, page 18, line 1, after 'liable', insert '—

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

(b) '.

Roger Gale (Conservative, North Thanet)

With this it will be convenient to take Government amendment No. 115.

Harriet Harman (Labour, Camberwell and Peckham)

I might have misheard the hon. Member for Woking earlier. Clause 32 involves penetration, so it would not necessarily be appropriate for the offence to be triable either way.

We are now considering amendments Nos. 114 and 115. They would address a disparity between clause 34, which covers engaging in sexual activity in the presence of a person with a mental disorder, and clause 35, which covers causing a person with a mental disorder to watch a sexual act and the equivalent child sex offences under clauses 12 and 13. The offences under clauses 12 and 13 are triable either way, whereas those under clauses 34 and 35 are triable on indictment only. We believe that the same flexibility about mode of trial should be applied to each of the clauses.

The offences potentially catch a wide range of behaviour. For example, clause 34 could catch someone engaging in sado-masochistic sex in the presence of a mentally disordered adult who lacks the capacity to consent. Clause 35 could cover someone forcing such a person to look at a video of a person engaged in a sexual activity with an animal. Such cases are likely to need to be dealt with at the Crown court. However, the sexual activity in the presence of the person or depicted in an image may be a couple sexually caressing each other. Although the deviancy and potential harm is in the fact that this activity is shown to the person for the defendant's own sexual gratification, behaviour at that end of the spectrum might be capable of being dealt with at the magistrates court. We believe therefore that we have got it right in the child sex offences clauses and that the same flexibility about the mode of trial should be extended to clauses 34 and 35.

Amendment agreed to.

Clause 34, as amended, ordered to stand part of the Bill.

Clause 35 - Causing a person with a mental disorder or learning disability to watch a sexual act

Clause 36 - Inducement, threat or deception to procure sexual activity with a person with a mental disorder or learning disability

Clause 37 - Causing a person with a mental disorder or learning disability to engage in or agree to sexual activity by inducement, threat or deception

Clause 38 - Engaging in sexual activity in the presence, procured by inducement, threat or deception, of a person with a mental disorder or learning disability

Clause 39 - Causing a person with a mental disorder or learning disability to watch a sexual act by inducement, threat or deception

Clause 40 - Care workers: sexual activity with a person with a mental disorder or learning disability

Sandra Gidley (Liberal Democrat, Romsey)

I beg to move amendment No. 185, in

clause 40, page 20, line 24, at end insert—

'( ) A person is not guilty of an offence under this section if—

(a) the touching was for the purpose of sex education, and

(b) B is a person with profound and multiple disabilities such that they require intensive and intimate support to understand and receive sex education, and

(c) there is no alternative means of delivering this sex education because of the nature of B's disability, and

(d) the education is carried out by qualified specialists or by staff who have received training to meet the specific needs of B, and

(e) the decision to provide such sex education has been recommended by a multidisciplinary agency.'.

Roger Gale (Conservative, North Thanet)

With this it will be convenient to discuss the following:

Amendment No. 146, in

clause 40, page 20, line 44, at end insert—

'(5) A person is not guilty of an offence under this section if—

(a) the touching was for the purpose of sex education;

(b) B is a person with profound or multiple disabilities such that he requires intensive and intimate support to understand or receive sex education;

(c) there is no alternative means of delivering this sex education because of B's disability and

(d) the education is carried out by qualified specialists or by staff who have received training to meet the specific needs of B'.

Amendment No. 186, in

clause 41, page 21, line 9, at end insert—

'( ) A person is not guilty of an offence under this section if:

(a) A's action was for the purpose of sex education and,

(b) B is a person with profound and multiple disabilities such that they require intensive and intimate support to understand and receive sex education, and

(c) there is no alternative means of delivering this sex education because of the nature of B's disability, and

(d) the education is carried out by qualified specialists or by staff who have received training to meet the specific needs of B, and

(e) the decision to provide such sex education has been recommended by a multidisciplinary agency.'.

Amendment No. 147, in

clause 41, page 21, line 30, at end insert—

'(5) A person is not guilty of an offence under this section if—

(a) the touching was for the purpose of sex education;

(b) B is a person with profound or multiple disabilities such that he requires intensive or intimate support to understand and receive sex education;

(c) there is no alternative means of delivering this sex education because of B's disability and

(d) the education is carried out by qualified specialists or by staff who have received training to meet the specific needs of B'.

Sandra Gidley (Liberal Democrat, Romsey)

I rise to speak to amendment No. 185. Amendment No. 186 is in a similar vein and amendments Nos. 146 and 147 have been tabled by Conservative Members to achieve much the same end in a slightly different way. This subject was raised briefly on Second Reading. The problem is that there are some occasions, most notably in the teaching of deaf-blind people, where there is no other way to provide sex education than by the use of touch. The concerns are that the Bill as drafted will effectively criminalise workers in that sector.

The amendment seeks to introduce a very limited exception to the provisions. The last thing that anyone on the Liberal Democrat Benches wants to do in introducing such an amendment is to create a loophole that others can exploit. The people in question are generally the congenitally deaf-blind: people born without sight or hearing. Many in that category never acquire formal language skills and their only way of learning about the world is through touch.

We might ask why those people need sex education and wonder whether we can leave it to nature. The sad reality is that some deaf-blind people, as a natural reaction, might want to masturbate but do not know that what they are doing needs to be done in private and not when others are present. I am told that there are ways of getting this information over by the use of touch but that will happen fairly rarely. There are also occasions when things are not quite so natural. People may insert objects inappropriately. I read of a case in which a young woman was using soaps and deodorants inappropriately. Clearly, there is a need in such a case to do something to intervene to prevent further self-harm. That activity has to be replaced by something less damaging to the individual.

In drafting the amendment, I have made it very clear that the only purpose of such a provision could be for education. The person receiving the treatment must fall under the definition of having profound and multiple disabilities. To try to add further safeguards, we have said that there must be some element of protecting the person from abuse or harm. If someone is not familiar with the ways of the world and someone inappropriate is touching them in a certain way, whether it be a family member or whoever, somehow, that information also has to be communicated—that such behaviour is not allowed with that particular person. We are clear that there can be no other way of delivering that information. If there were another way to deliver that training or education, that would have to be tried first.

In an attempt to close all the loopholes, it was thought that it should not be just one person making the decision to provide that training, because a person

could say, ''That is a job that I might quite like'', act accordingly, and perhaps try to deliver more training and education than was necessary. As a final safeguard, we included the provision that the decision to provide that sex education must be the decision of the multidisciplinary team. I toyed quite seriously with the idea that such education should be supervised but I was less easy with that. Just because someone cannot see or hear, it does not mean that things should not be carried out in as private a venue as possible.

That is the thinking behind the amendments. I hope that, if the Government do not accept them, I will at least be given some assurance that that sort of necessary education will be allowed to continue in some way, and I would like to hear how that will be achieved.

Humfrey Malins (Conservative, Woking)

I am grateful to Sense for the amendments that my hon. Friend the Member for Beaconsfield and I tabled. I have listened carefully to what the hon. Lady has said, and feel that it is important that the amendments have been tabled, so that the Government are aware of the issue and can respond as fully as possible. I do not think that I need say any more than that.

Harriet Harman (Labour, Camberwell and Peckham)

Amendments Nos. 146 and 147 and 185 and 186 seek to provide a defence for care workers who provide hands-on sex education, such as teaching a person to masturbate or getting them to masturbate themselves, in the strictly limited circumstances that the hon. Lady laid out—that is, where there is no alternative way that sex education can be provided. We understand the point of view of care workers who believe that a hands-on approach to sex education is an important part of the care that they provide.

We have considered the issues surrounding a sex-education exception carefully, and took a wide range of soundings from relevant organisations both when the Bill passed through another place and when considering this proposal. We have not found any consensus as to the legitimacy of such forms of sex education among the learning disability charities, even in the more limited circumstances proposed in the amendments. Some of them believe that it is never appropriate. This is a contentious subject.

Sandra Gidley (Liberal Democrat, Romsey)

I was talking about a very specific group of people. The charity Sense was mentioned; it is the group that is most closely involved. I argue that the other agencies with which the Solicitor-General consulted may not have direct experience of the problem. Can she elaborate on who was against the amendments, what their reasons were, and how they would provide the necessary help?

Harriet Harman (Labour, Camberwell and Peckham)

I understand that Respond and Voice UK, which are concerned with and advocates for that client group, are worried about whether, and in what circumstances, such education would be appropriate. It is because of the controversy surrounding the issue that there are no national guidelines.

Contrary to what may be implied in the amendments, there are no recognised qualifications

to cover such forms of sex education. People who are vulnerable by virtue of a mental disorder are targeted for sexual abuse by predatory individuals. Although the overwhelming majority of care workers are conscientious, a small minority have used their positions of trust to take advantage of the vulnerability of those in their care. We must not create a loophole through which the unscrupulous, whose behaviour was abusive, could claim to be providing sex education.

Sandra Gidley (Liberal Democrat, Romsey)

As I explained earlier, we have tried hard to avoid creating that loophole. Will the Solicitor-General explain how it might work?

Harriet Harman (Labour, Camberwell and Peckham)

I understand that there is not yet consensus around the amendment and having a legislative exemption in the Bill. Some would argue that that is properly a matter for prosecutorial discretion. I am not convinced that we have consensus or, if we do, whether the legislative answer is watertight enough, so that we do not undermine the protection that we are seeking to provide. For those reasons, I ask the Committee to resist the amendments.

My hon. Friend the Under-Secretary met Sense last night to discuss the relevant issues. Perhaps we can—as ever—find consensus, so that we all know what we are talking about, and all those involved in this important, difficult area of work are agreed about what is and is not appropriate and what is and is not necessary. If we can achieve consensus, or at least identify it, and identify the legislative amendment that would give effect to that consensus in the Bill, we will consider tabling it. We are not unsympathetic to the point that is being raised but we must be aware of the difficulties in this sector. Frankly, we must be guided by those involved on the front line in this difficult sector—the parents and care workers.

I ask the hon. Members for Romsey and for Woking not to press the amendments. This is another part of the Bill on which discussion will be ongoing. If we do not find consensus, or if we find consensus but no legislative expression for it in which we feel confident, we shall not be able to table amendments on Report. We shall certainly try to find consensus. My hon. Friend the Under-Secretary is already engaging in that process.

Sandra Gidley (Liberal Democrat, Romsey)

I thank the Solicitor-General for her response. I am still unconvinced that there are loopholes. I have yet to hear how such a loophole would be exploited. However, I take the point that there is no consensus in the sector. Despite what I have said, I, too, am concerned that we get it right and do not provide loopholes. I intend to discuss the matter with Respond and Voice UK, with a view, if the Government do not table further amendments on Report, to having another go at that stage. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Amendments made: No. 74, in

clause 40, page 20, line 26, leave out 'or learning disability'.

No. 75, in

clause 40, page 20, line 28, leave out 'or learning disability'.—[The Solicitor-General.]

Clause 40, as amended, ordered to stand part of the Bill.

The rest of the debate is in Hansard.