Sexual Offences Bill [Lords]

Public Bill Committee, 18 September 2003.

Standing Committee B

Clause 47 - Indecent photographs of persons aged 16 or 17

Sandra Gidley (Liberal Democrat, Romsey)

I beg to move amendment No. 231, in

clause 47, page 24, line 7, leave out subsection (3).

Win Griffiths (Labour, Bridgend)

With this it will be convenient to discuss the following:

Government amendment No. 91.

Amendment No. 232, in

clause 47, page 24, line 22, leave out subsection (4).

Sandra Gidley (Liberal Democrat, Romsey)

The amendment was tabled because of concern about the exception when a child aged 16 or over consents to the activity in question. Clearly, the Government share that concern, and their amendment reassures me greatly.

The age of consent for sexual activity is 16, but we are discussing a little more than sexual activity in situations in which a photograph could be taken. Although the clause states that photographs should not be widely distributed, such matters would be difficult to police. As soon as a picture has been put on the internet, a 16 or 17-year-old might bitterly regret the decision to consent. I would not like to have some of the decisions that I made at that age to be with me for the rest of my life—[Laughter.] Nothing very interesting, I assure the Committee.

Subsections (3) and (4) refer to

''a child aged 16 or over''.

The intention behind the Bill is to protect children, but subsections (3) and (4) ensure that it fails to protect all children. I very much welcome the Government amendment, even though it contains a marriage exception and I would prefer such provisions to be left out of the Bill. The amendment does not relate only to a marriage in the traditional sense, but to an ''enduring family relationship''. That is a welcome step forward and the phrase should be used in a couple of other clauses that refer to marriage exceptions. Perhaps the Government will examine those clauses to see if their wording could be made more relevant to Britain today—a matter that was raised by my hon. Friend the Member for Mid-Dorset and North Poole (Mrs. Brooke).

The exceptions in the proposed new section 1A to the Protection of Children Act 1978 will leave the police in their current position when faced with a case of rape. They would have to argue and prove—or disprove—consent. Even if they are married, 16 or 17-year-olds should not be put in that position.

Dominic Grieve (Conservative, Beaconsfield)

I have great sympathy with the amendment tabled by the hon. Member for Romsey (Sandra Gidley). When I read Government amendment No. 91, which as she rightly said goes a long way towards meeting our concerns and is therefore to be welcomed, it struck me that we are complicating matters. Perhaps it is worth going back to first principles.

We accept the principle that the age of consent is 16, and that people can marry at that age. At the same time, we accept that 18 is the right cut-off point in laws pertaining to the family or to the protection of minors. I therefore do not find anything philosophically wrong in providing restrictions on what is permissible with a child under 18, even though I may be perfectly content and comfortable with the idea that 16 is the age of consent. Those two things are very different. It is possible to be married to somebody without feeling that it is right to take indecent photographs of him or her.

During our previous discussion of the marriage exception, I have tended towards the view of the hon. Lady—although I would not press the matter to a Division. Why are we providing an exception at all? If we think that it is right to protect those under 18 from having indecent photographs taken of them, and from the consequences that flow from that—for example, pictures might be put on the internet and never removed—why are we getting so anxious about providing exceptions? I will be interested to hear the Minister's response.

I understand the concept of privacy of marriage, and that a 17 year old who is lawfully married might want to have indecent photographs taken. On the whole, I think that taking indecent photographs of people is undesirable; presumably the Minister does too, or we would not have clause 47. If we agree that it is an undesirable activity, but we accept that adults over the age of 18 must be allowed to do it if they want to, why are we so concerned about allowing an exception for that two-year period?

Subject to that, Government amendment |No. 91, which we will hear about in more detail later, is perfectly sensible. It tries to weave its way through the problem. The thing that worries me about the amendment is the phrase, ''enduring family relationship''. How long is a piece of string? Is a relationship enduring after a girl has been with her boyfriend or lived with him for two weeks, or six months, or nine months? Once again, we will have to ask the courts to disentangle that issue. Although I fully understand the intention behind the phrase, it worries me that we will end up with problems in deciding what an enduring family relationship is. I wait to hear from the Minister. I hope that we have a dialogue on the issue.

Welcome as the Government amendment is, I wonder, like the hon. Member for Romsey, whether we are making our lives excessively complicated. Why do we not just say, ''No indecent photographs of children under 18, irrespective of the circumstances''? It does not seem to me that the infringement of privacy and the rights of the individual would be so great that that would be improper.

Beverley Hughes (Labour, Stretford and Urmston)

I could answer that last question very simply: the hon. Gentleman may think that we are making heavy weather of the clause and making things excessively complicated, but that is because life itself is complicated. We are trying to weave a way through—a phrase that he used—the competing imperatives with which we are grappling. We are trying to find satisfactory protection from exploitation for people under 18, while acknowledging that over-16s can consent to sexual activity and can marry. We want to accommodate the competing imperatives of protecting the privacy of a marital or enduring relationship and of ensuring the maximum protection for children and young people.

Amendments Nos. 231 and 232 would remove completely the exceptions provided in subsections (3) and (4), which permit the taking, making and possession of an indecent photograph of a child over 16 with the consent of that child; they also include its distribution to the child. The amendments do not replace those exceptions. The hon. Member for Romsey believes that no exceptions are appropriate—she has made that clear. We believe that some limited exceptions are appropriate, but we accept that the current drafting of the clause is flawed, which is why we have tabled Government amendment No. 91.

Clause 47 raises the bar on indecent photographs and pseudo-photographs of children—by inserting new provisions into the Protection of Children Act 1978 and the Criminal Justice Act 1988—to include those depicting children aged 16 and 17. That is in line with our international obligations to ensure that there is protection for children up to 18 from exploitation through pornography. We think that it is right to exclude from the offences those persons who are living in an enduring family relationship with or who are married to the child of that age who is depicted in the photograph.

The wording of the clause as it is drafted does not achieve that objective. It has become clear—after debate and consideration—that it might allow a person who is not in such a relationship to take or possess an indecent photograph of a child, albeit with the child's consent. It is also defective in that it does not protect a person who possesses an indecent photograph of his 16 or 17-year-old partner, unless he took that photograph. That is why we tabled Government amendment No. 91, which makes the establishment of the relationship the core—the central feature—of the exception.

I shall get to the point raised by the hon. Member for Beaconsfield (Mr. Grieve) in a moment. I am confident that the amendment will allow persons in a marriage or other enduring relationship to take, make, possess, or show to each other indecent photographs of one another, if they wish to, without fear of prosecution. I have checked with officials to ensure that that does not allow a loophole for anybody else to be involved in any other way. The exception will cover a person who can prove that he was living as a partner in an enduring family relationship with or married to the child aged 16 or over in the photograph. In no case

may any person other than the child or the partner be in the photograph, nor may it be distributed to any person outside that relationship—and no other person may involved in the taking or making of the photograph.

Dominic Grieve (Conservative, Beaconsfield)

Does that mean that somebody who had an enduring family relationship with a 16-year-old that lasted a year before breaking up and who took pornographic photographs of her during that time could keep those photographs for the rest of his life, as long as he kept them in his wallet?

Beverley Hughes (Labour, Stretford and Urmston)

It will mean that. However, if he shows those photographs to anybody else, or distributes them in any way, he will be committing an offence. The caveat to that is the consent of the child.

John Randall (Conservative, Uxbridge)

Perhaps I should know this, but when the Minister says that no one else can be involved, does that mean that sending the photographs to the chemist or developers counts as other people seeing them? Should I know the answer to that legal point?

Beverley Hughes (Labour, Stretford and Urmston)

I should know the answer. We are not changing the position under current legislation whereby such persons would not be liable. I understand that such persons would not be liable for developing the photographs. If there was a criminal offence, it would pertain to the people involved in the activity.

John Randall (Conservative, Uxbridge)

I am querying what would happen if the photographs were viewed by somebody else, albeit in a technical sense—bearing in mind that we are talking about photographs of children under 18, rather than adults.

Beverley Hughes (Labour, Stretford and Urmston)

We are talking about activities being investigated by the police or Crown Prosecution Service that involve people who have taken part in a meaningful way in the production of photographs or pseudo-photographs without the consent of the child. A person who developed photographs could technically be liable, as is the case now, but it is unlikely that they would be prosecuted if they had simply developed the photographs. The focus of the police investigation and prosecution would be on the people who had perpetrated what was regarded as the core of the offence.

Dominic Grieve (Conservative, Beaconsfield)

I am sorry but I am going to take the Minister of State back to the other point. She said that the person has to consent, but the person has to consent to the taking of the photographs at the time when they were taken. Six months later, when the so-called enduring family relationship has come to an end, that person might be unhappy about those photographs still being in circulation, but there is no criminal sanction in those circumstances with regard to the retention of the photographs in someone's wallet for the rest of his life.

Beverley Hughes (Labour, Stretford and Urmston)

That may well be the case, but that person would have other forms of redress, as the hon. Gentleman knows. However, if originally there was consent, that would not come within the province of this criminal offence.

Government amendment No. 91 makes the relationship that I have been talking about the central feature of the exception. I am confident that the amendment will allow persons in a marriage or other enduring relationship to make, take, possess or show pictures of each other to each other but will not allow anybody else to be involved in the commission of those activities.

The exception will cover a person who can prove that he was living as a partner in an enduring family relationship with the child, or that he was married to the child. Having proved the marriage or other relationship, there is an evidential burden on the defendant to raise an issue in relation to the child's consent to the taking, making or possession of the picture, and his reasonable belief in that consent. In relation to the showing or distribution offence, the defendant is covered by the exception, unless it is proved that the photograph was shown to anyone other than the child.

There is not a marriage exception in the Protection of Children Act 1978. Until this Bill is enacted, only children up to the age of 16 will be protected under that Act. When considering what exceptions are appropriate for the offences now that we are raising the age of the child to 18, we have decided that the marriage exception should apply equally to lawfully contracted foreign marriages that are also recognised as valid under the laws of England and Wales. There was a considerable debate on Tuesday in relation to the marriage exception, which applies to child sex offences: as a result of that, we need to re-examine this position. A level of protection from exploitation for young people is appropriate. That is why I cannot accept the Liberal Democrat amendments.

The hon. Member for Beaconsfield raised the question of how we define enduring family relationships. He is right that the courts must be left to make that decision in the light of individual circumstances. If he is suggesting that we should try to define that in the Bill, most hon. Members would sensibly recoil from that. However, the fact that it is difficult to define that in the Bill is not in itself a valid argument for not allowing in law the courts to take a view that two people have an enduring relationship that, in their circumstances, is tantamount to marriage and that should therefore be regarded as equivalent to marriage in the context of the exception that we are proposing.

John Randall (Conservative, Uxbridge)

My only question for the Minister of State is on the last point about enduring family relationships. I offer a layman's point of view. We have been discussing some things that we can set out and let the courts decide on, but we have been saying that other things are too difficult for a court and they give too much leeway to the lawyers to argue. It might be possible to apply the phrase ''enduring family relationship'' to people over 18, but what about if it is applied to somebody of 16 and two months? It would be very difficult, either way, to prove that it is enduring.

Beverley Hughes (Labour, Stretford and Urmston)

I agree, and I am sure that that would be the view taken by those deciding whether to

prosecute and by the court when considering the circumstances of such a case.

Dominic Grieve (Conservative, Beaconsfield)

I am grateful to the Minister and I am extremely sympathetic to the Government's difficulties in trying to steer a course that reconciles the rights of individuals in their private lives with public protection of children. The Government introduced the clause because they thought that there were compelling reasons why protection against the dissemination and taking of photographs should be extended beyond the age of 16 to 18. That is the rationale, otherwise the law would be left as it stands. People, whether they are married or not, may be in need of protection.

I worry about the phrase ''enduring family relationship''. I cannot remember the statistics on marriage, but I seem to recollect that the rate of break-up of relationships relates in part to the age when the relationship was first entered into: the younger the age of the partners at the start of a relationship, the higher the rate of break-up tends to be. That does not apply universally and I can think of a number of childhood sweethearts who married and lived happily ever after, but there is some evidence that relationships that start at a young age often do not endure. The Minister accepted that, although civil proceedings could subsequently be taken to protect the person who originally consented to the photographs being taken but who was no longer happy about it, another person may remain in possession of the photographs.

The Minister said that we can approach the matter when we return to the famous marriage exception. The Government are looking at that, but unless the marriage exception to sexual intercourse generally is changed, a foreigner who comes to this country to live with his 13-year-old bride could take pornographic photographs of that 13-year-old bride and come within the exception provided in the clause.

There are two ways of approaching that problem—one is to get rid of the marriage exception—but it highlights a substantial loophole in the Bill. I do not know what the Committee's view is or what the Minister proposes to do if the matter is pressed to a Division, but I would prefer to go away and think about the problem, as we have done previously in the Committee. There is a general feeling of unease in the Committee about the provision. I accept that people have rights to privacy and to respect for their married life. It is rational to argue that if two 17-year-olds are married and want to take pornographic photographs of each other, that is a matter for them. However, the Government accept that 18 is the age at which they would prefer such decisions to be made and I wonder whether we are not making life too complicated. Why do we not just say: no indecent photographs under 18, full stop?

The Minister has not wholly satisfied me of the civil liberties and philosophical reasons for not specifying the age of 18. I am sure that some great debate took place in the Home Office, but the Minister has not persuaded me. Such matters are peripheral to people's private lives and if intimate relationships founder because the state prohibits the taking of pornographic photographs, the sooner they founder the better. In the circumstances, the Bill should just say 18.

Sandra Gidley (Liberal Democrat, Romsey)

I, too, think that there is a strong case for saying that this decision can be taken only by an adult, whether they are married or not. This may seem a light-hearted suggestion, but I just want to make the point that 16 and 17-year-olds need parental permission to get married. Should we be considering parental permission for such photos? I really do not know.

We are trying to protect children, even though they are married. Many agencies regard 16 and 17-year-olds as children. There are long-term effects when relationships break down and a partner is aware that the other partner has such material available and is not quite sure how they will use it. That is worrying.

I recently became aware of a case of homophobic bullying over the internet. It involved superimposing a person's face over somebody else's body to make a composite picture. I wondered what would happen if pictures were distributed in that amended form, having been taken within a marriage or enduring relationship at an age of 16 or 17. I am concerned that, if a relationship breaks up and somebody wants to make mischief, there are many creative ways in which to do that. I am not wholly convinced that the provisions give the sort of lifelong protection that we seek for somebody of that age.

I will not push the amendment to a vote. We will rethink the matter for Report stage. However, I am not entirely sure that the Government amendment does all that could be done.

Beverley Hughes (Labour, Stretford and Urmston)

In her example, the hon. Lady was talking about pseudo-photographs. The exception would not apply to those. In any case, the consent that we discussed earlier can be withdrawn. It must be continuing consent. So, those kinds of photographs are not covered by the exception, and, in any case, consent would be required.

Sandra Gidley (Liberal Democrat, Romsey)

I thank the Minister for that clarification. I will withdraw the amendment. I am not convinced that the Government have got things completely right and we may wish to revisit the matter on Report.

Dominic Grieve (Conservative, Beaconsfield)

Another thing that we ought to think about has just crossed my mind. One way or another, we are potentially sanctioning the bringing into circulation—admittedly at this stage just for private use—of pornographic photographs of young boys or girls. If subsequently, at the age of 18, consent were given, those photographs could easily go into general circulation. We are worried about the problem of child pornography, but we are providing a loophole for its production, because, as I understand it, its circulation can postdate by many years the date on which it was originally produced.

Sandra Gidley (Liberal Democrat, Romsey)

The hon. Gentleman raises a good point. There are also well publicised situations involving people who are perhaps not within relationships. If people become famous, photographs can be used retrospectively. The hon. Gentleman makes an excellent point about providing a loophole for pictures of young children. Not all 16-year-olds look 16, 17 or 18. There are some very young-looking 16-year-olds whose photographs could be used titillate

those who have a taste for such things. I am not sure that that is something that we should encourage. However, at this stage, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Amendment made: No. 91, in

clause 47, page 24, leave out lines 8 to 27 and insert—

'''1A Marriage and other relationships

(1) This section applies where, in proceedings for an offence under section 1(1)(a) of taking or making an indecent photograph of a child, or for an offence under section 1(1)(b) or (c) relating to an indecent photograph of a child, the defendant proves—

(a) that at the time of the offence charged, he was married to the child, or

(b) that the photograph was of the child aged 16 or over, and that at the time of the offence charged, the child and he lived together as partners in an enduring family relationship.

(2) Subsections (5) and (6) also apply where, in proceedings for an offence under section 1(1)(b) or (c) relating to an indecent photograph of a child, the defendant proves—

(a) that at the time when he obtained the photograph, he was married to the child, or

(b) that the photograph was of the child aged 16 or over, and that at the time when he obtained it the child and he lived together as partners in an enduring family relationship.

(3) This section applies whether the photograph showed the child alone or with the defendant, but not if it showed any other person.

(4) In the case of an offence under section 1(1)(a), if sufficient evidence is adduced to raise an issue as to whether the child consented to the photograph being taken or made, or as to whether the defendant reasonably believed that the child so consented, the defendant is not guilty of the offence unless it is proved that the child did not so consent and that the defendant did not reasonably believe that the child so consented.

(5) In the case of an offence under section 1(1)(b), the defendant is not guilty of the offence unless it is proved that the showing or distributing was to a person other than the child.

(6) In the case of an offence under section 1(1)(c), if sufficient evidence is adduced to raise an issue both—

(a) as to whether the child consented to the photograph being in the defendant's possession, or as to whether the defendant reasonably believed that the child so consented, and

(b) as to whether the defendant had the photograph in his possession with a view to its being distributed or shown to anyone other than the child,

the defendant is not guilty of the offence unless it is proved either that the child did not so consent and that the defendant did not reasonably believe that the child so consented, or that the defendant had the photograph in his possession with a view to its being distributed or shown to a person other than the child.''

( ) After section 160 of the Criminal Justice Act 1988 (c.33) (possession of indecent photograph of child) insert—

''160A Marriage and other relationships

(1) This section applies where, in proceedings for an offence under section 160 relating to an indecent photograph of a child, the defendant proves—

(a) that at the time of the offence charged, he was married to the child, or

(b) that the photograph was of the child aged 16 or over, and that at the time of the offence charged, the child and he lived together as partners in an enduring family relationship.

(2) This section also applies where, in proceedings for an offence under section 160 relating to an indecent photograph of a child, the defendant proves—

(a) that at the time when he obtained the photograph, he was married to the child, or

(b) that the photograph was of the child aged 16 or over, and that at the time when he obtained it the child and he lived together as partners in an enduring family relationship.

(3) This section applies whether the photograph showed the child alone or with the defendant, but not if it showed any other person.

(4) If sufficient evidence is adduced to raise an issue as to whether the child consented to the photograph being in the defendant's possession, or as to whether the defendant reasonably believed that the child so consented, the defendant is not guilty of the offence unless it is proved that the child did not so consent and that the defendant did not reasonably believe that the child so consented.'''.

—[Beverley Hughes.]

Paul Beresford (Conservative, Mole Valley)

I beg to move amendment No. 230, in

clause 47, page 24, line 27, at end insert—

'(5) Section 5 of the Protection of Children Act 1978 (c.37) shall be amended as follows—

(a) After subsection (6) shall be inserted—

''(6A) Where a person is convicted or cautioned in respect of an offence under section 1(1) of this Act, then any equipment that has been used to take, make, store or distribute indecent images of children shall be forfeited.

(6B) Section 14(1) of the Powers of Criminal Court (Sentencing) Act 2000 (c.6) shall not apply for the purposes of this section.

(6C) Where equipment has been the subject of forfeiture under section (6A) above, a person, other than the person convicted under section 1, shall be entitled to apply to the relevant magistrates' court for return of the equipment if—

(a) the equipment forfeited belonged not to the person convicted under section 1 but to the applicant, and

(b) the applicant did not have knowledge of the taking, making, storing or distributing of indecent images of children, nor could he be reasonably expected to have known.

(6D) The burden of proof for the purposes of section (6C) shall be on the applicant, and the standard of proof shall be the preponderence of probabilities.

(6E) Where the court is satisfied that the conditions set out in (6C) above are met, they may order the return of the equipment to the applicant so long as any indecent images that remain on the equipment can be permanently erased.''

(b) In the first line of subsection (7) the words '(2), (6) or (6A)' shall replace '(2) or (6)'.''.'.

You and the Committee, Mr. Griffiths, will be very aware from our discussions and the briefing that paedophiles collect all sorts of things. The Committee's predominant concern is pornographic photographs, prints, drawings and other images. In the past, those have been kept as hard copy, as we now call it, or on 8 mm film and videos. However, for the purposes of self-stimulation, distribution and membership of various paedophile groups, paedophiles are now using computers. They often store information on hard discs of computers, but, increasingly often we find that their computers do not have hard discs; they use floppy discs, storage pens, CD-ROMS, DVDs and, increasingly, remote storage. Crucially, stored material may be encrypted and the keys to the encryption, or at least some aspects of it, are probably on the computer.

The present situation is that if a paedophile is convicted, the police need to get a court order in respect of the equipment. To my regret, I find that that does not always happen—it should happen, but it is not automatic, and the police or the CPS may forget to ask. There is another aspect to my amendment. An individual who is cautioned can ask for the equipment

to be returned, as can those who have been pursued by court order and had equipment taken away. Generally, the police try not to give the equipment back. Frequently, the material on them can be deleted, but it is possible to retrieve material after a straightforward deletion. I understand that forms of overwriting can overcome that, but the police should not be put to that extra task. This may be apocryphal, but I understand that sometimes equipment ''suffers an accident''. Somewhere in the office a hard disc is broken or trodden on, a floppy disc is lost or a CD-ROM is broken or severely scratched and so on. However, many paedophiles are beginning to realise that they can ask for the stuff back. I suspect that the Committee would agree that forfeiture should be automatic.

A recent interesting case caused me to rethink my amendment to deal with a situation in which not all the equipment belongs to the convicted or cautioned individual. A House of Commons clerk had used House of Commons machinery. According to my original thoughts on the matter, in that case, the House of Commons would not have got its machinery back, which would be somewhat sad. I therefore added a bit to the amendment to allow an application for retrieval by the owner of the equipment, if the owner is not the perpetrator of the offence.

I shall not press the amendment. As I did not have a legal career before Parliament, putting amendments together can be rather difficult, particularly in my position, where the maximum number I can count to is about 32, for obvious reasons. I have to be somewhat careful. Even this morning, I found a potential flaw in the amendment. In a way, I have set the police an impossible task—increasingly, the computers that are being seized have no hard disc. They are booted with a floppy disc and put online to pick up material, particularly using servers that are in countries such as Nigeria, which is not very interested in the sort of stuff that is stored on computers. Such computers would be impossible to seize, so I probably should have included a provision in the amendment to specify any equipment taken by the police as part of their investigation, or some argument along that line.

However, I suspect that the Committee is au fait with what I am trying to do. I hope that Members will agree with the thrust of the amendment and that after a short discussion we can accept the intention and on Report have an amendment written by someone who is not from my professional background but who is legally qualified.

Dominic Grieve (Conservative, Beaconsfield)

I thank my hon. Friend for drafting the amendment. Viewed from a lawyer's perspective, it seems rather clearer than if it were the product of legal minds. It clearly shows its intention. It also strikes me as being very sensible, and I therefore hope that the Government will view it favourably.

Humfrey Malins (Conservative, Woking)

I simply reinforce what my hon. Friend the Member for Beaconsfield has said. I congratulate my hon. Friend the Member for Mole Valley (Sir Paul Beresford) on his outstanding work over the past few months, which has done the Committee a great service.

Beverley Hughes (Labour, Stretford and Urmston)

I sympathise with the idea behind the amendment. The hon. Member for Mole Valley knows from the time when I chaired the taskforce that I appreciate all his work not only on the Bill but in this area. I know the spirit in which he has tabled the amendment.

There is an issue about the possible return of computers—or, as the hon. Gentleman says, other kinds of equipment on which indecent photographs can be stored—to a person who has used them to commit an offence under the Protection of Children Act 1999. The hon. Gentleman acknowledged that we must consider several issues.

On one hand, I share the hon. Gentleman's concern that the existing legislative provisions for making an order are not always applied for or thought about. I have discussed the matter with officials, and we cannot say hand on heart that there is a robust mechanism that will always retain computers and equipment containing such material. On the other hand, we must work out several sets of issues. First, the hon. Gentleman mentioned the drafting of the amendment, which is a technical issue that we can take away. Secondly, as has been said, there are apparently problems with permanently removing material from the hard drive. Furthermore, such material is often stored not on the hard drive but on floppy discs. Thirdly, how can we deal with equipment that is owned by someone who has not committed the offence? We must work our way round those issues and think of ways to accommodate that problem both in its own right and in relation to the technical issues, which I have just outlined.

If the hon. Gentleman agrees not to press the amendment to a vote, I will certainly take away the spirit of his proposals to see whether we can return on Report with something that addresses the issues that I have outlined while assuring the Committee that a robust mechanism will be in place to ensure that equipment is not returned when we suspect that it contains such material.

Paul Beresford (Conservative, Mole Valley)

Police forces throughout the country will be grateful to hear the Minister's comments. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

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

Sandra Gidley (Liberal Democrat, Romsey)

I just want to explore the meaning of ''indecent''. Some have advocated the complete removal of the clause because they think it unworkable. I am not sure that I share that view. Some organisations, such as Liberty, have pointed out that it will be impossible to police the clause. The difficulty is establishing age. It has been suggested that a provocative picture of a teenage girl band—we all know that such things sadly exist—which is innocently aimed at teenage girls, could conceivably fall foul of the clause. I thought that somewhere in the Bill there might be a definition of what would be classified as indecent. I may have simply run out of patience and

got bored, but I could not find one anywhere. Can the Minister clarify where exactly the line between decency and indecency will be drawn?

Beverley Hughes (Labour, Stretford and Urmston)

The hon. Lady raises an interesting point. We all have our own definitions of what is decent and indecent, which may differ to some extent. I do not think that we can put a firm definition in legislation. The fact is that there is not a definition of indecent in this Bill or, as far as I am aware—I stand to be corrected—in any Bill. Rather, the definition of what is indecent is compiled over time in case law. I think that that is right because our ideas on what is decent and indecent change over time with social mores and cultural values. Our understanding of young people changes too. There is a compilation in case law, but no definition in the Bill.

Sandra Gidley (Liberal Democrat, Romsey)

In other Committees on which I have served, where there is vagueness such as this the Government have usually said that they will produce guidelines so that the judge knows what is going on and can direct a jury. We seem to have a complete absence of that here. Perhaps we could have a current set of guidelines to take account of what is thought in 2003. Is that not a workable suggestion for the Government?

Beverley Hughes (Labour, Stretford and Urmston)

The judges and courts will be very familiar with existing case law and will apply their knowledge of that to individual cases. That is the right way to go about it because our ideas about the definitions change with time. It would not be helpful or feasible to try to establish a definition of indecency in legislation. That is much better left to the evolutionary approach through case law.

The clause will change the definition of a child in respect of indecent photographs under the Protection of Children Act 1999. The age will be raised from under 16 to under 18. The clause offers a reasonable but limited defence to allow the private use of indecent photographs of a child over the age of consent who consents and who is in the circumstances about which we have talked.

Question put and agreed to

Clause 47, as amended, ordered to stand part of the Bill.

Clause 48 - Criminal investigations or proceedings

Dominic Grieve (Conservative, Beaconsfield)

I beg to move amendment No. 237, in

clause 48, page 25, line 5, leave out subsection (4).

Clause 48 provides, understandably, an exemption in relation to indecent photographs under clause 47 for ''Criminal investigations or proceedings''. I understand that to mean that if copies of an indecent photograph have to be made to be circulated in preparation for a trial, those engaged in that process are not thereby exposed to criminal penalties. It also applies to those who need to circulate such material because they are trying to catch someone or identify the person who has been photographed. That all makes eminent sense.

However I was slightly more curious about subsection (4). Separately from the other

authorisations, there is an authorisation here that can be

''given by the Director-General of the Security Service if it appears to him necessary for the exercise of any of the functions of the Service.''

The Security Service may well get involved, for example, in an investigation into the trafficking of underage children for sexual purposes, in which case the photographs will have to be circulated. The small query that emerged in my mind was whether that would give a blanket permission to the Security Service to take photographs of a Ruritanian chargé d'affaires having sex with a 13-year-old for the purposes of inducing him to co-operate with the Security Service thereafter. Although I know that these are subjects over which delicate veils are drawn, I wonder whether, before we gave a statutory sanction to such activities, we might hear from the Minister what is actually involved.

Humfrey Malins (Conservative, Woking)

Following on from my hon. Friend's comments, will the Minister explain whether the authorisation give by the director general is to be given specifically—that is to say that the decision making would involve only the director general—or is it wider, meaning that other members of the security services will be able to provide an authorisation under delegated powers from the director general himself? That is my first point. We have come across a parallel in other legislation where someone with a title is given authority, and it is important to clear up whether it is that individual person who has to make the decision and give the authority, or whether that person can delegate to others in his or her organisation. How wide is the prospect of authorisation being given?

Secondly, because of the slightly unusual circumstances, does the Minister think that there is any merit in the proposition that in the case of the director general giving authorisation, he or she should first seek permission from a High Court judge, or is she entirely happy with the provision as it stands? I join my hon. Friend in probing in relation to the amendment.

Beverley Hughes (Labour, Stretford and Urmston)

I understand the spirit of the probing questions and hope that I can respond to Opposition Members. The effect of their amendment would be to prevent the director general of the Security Service alone, in the list of people to whom we are proposing to give authorisation powers, from giving that authorisation. That would presumably mean that the security services would have to seek authorisation in the list and would receive that only for the purposes listed.

In relation to the question of the hon. Member for Beaconsfield, I would say two things. First, the security services have a remit in relation to crime anyway. They do not simply deal with intelligence and security, as the hon. Gentleman is aware. It is important, therefore, that they are able to give authorisations to their personnel, as other services would. There is not a neat split between criminal activity and organised terrorist activity that is core to the remit of the security services.

To give an example that we have talked about a fair bit, investigations into al-Qaeda took place to determine how such organisations communicate. It may be believed that some information pertaining to national security has been encrypted into a photograph or an image. It would be important for the security services to be able to draw down that image to decode and deconstruct the information that was in the photograph. Use of such images via the internet is one of the mechanisms that we know organisations use to communicate with their members in a secret way. That is a tangible example of why the security services need to be able to give permission to their staff to draw down certain images when they think that information is contained within.

The important point is that all the people listed in the clause—including the director general—are accountable for the way in which the authorisation will operate in their organisations. That is the key point. It may be that a particular individual at second tier may see the detail of the request to make a decision but the director general will be personally accountable. There is, therefore, no reason to make the director general of the Security Service go to a High Court judge, when we accept that other people included in the clause can be accountable in that way in law for the decisions that they make when they authorise their staff to draw down such material.

I hope that that answer satisfies the hon. Gentlemen. We are not yet satisfied with the drafting of clause 48. The numbers of people who might, with justification, seek authorisation is actually greater than we initially thought as we worked through the clause. Therefore, the clause may be too widely drawn and the system may become overloaded. We are negotiating with the police services and others and we shall table our own amendment on Report. For absolute clarification, we expect to continue to allow the Security Service to ''make'' such images in pursuit of its functions as the clause states.

Dominic Grieve (Conservative, Beaconsfield)

I suspect that I have got as much information as I am likely to. I am partly reassured by what the Minister of State has told me. Having noted that that is why we are putting the Bill on the statute book in that form, I look forward to seeing the revised list. I accept that all sorts of people may require such authorisations, and we will give the matter further scrutiny.

John Randall (Conservative, Uxbridge)

I wondered whether my hon. Friend had received a satisfactory answer to the Ruritanian question because I did not think that we did.

Dominic Grieve (Conservative, Beaconsfield)

I must say that I did not think that I got a satisfactory answer to the Ruritanian question, and the Minister may acknowledge that. I have a funny feeling that I will not get a satisfactory answer. On that basis, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 48 ordered to stand part of the Bill.

Clause 49 - Paying for sexual services of a child

Hilton Dawson (Labour, Lancaster and Wyre)

I beg to move amendment No. 9, in

clause 49, page 26, line 26, leave out

'against a person under 16'.

Win Griffiths (Labour, Bridgend)

With this it will be convenient to discuss the following:

Amendment No. 10, in

clause 49, page 26, line 28, leave out subsections (5) and (6).

Hilton Dawson (Labour, Lancaster and Wyre)

The amendments are designed to ensure that the judiciary have the power to hand down a maximum sentence of 14 years in any case where a person is convicted of paying for sex with a child, and to remove the upper limit of seven years where the child is aged 16 or over. I am grateful to Liberal Democrat Members for supporting the amendments.

The Government are worthy of enormous praise for the introduction of clauses 49 to 53. For the first time, the range of offences related to the abuse of children through prostitution and pornography are properly laid out in law. The clauses acknowledge that all children up to the age of 18 are victims of those dreadful forms of abuse. The fact that they are in the Bill is a great credit to the Government, as they are some of its most important elements.

Clause 49 could be improved, and I am extremely grateful to a range of child care organisations for supporting the amendments. They are supported by Barnardo's, Childline, The Children's Society, End Child Prostitution, Child Pornography and the Trafficking of Children for Sexual Purposes, the National Children's Bureau, the National Society for the Prevention of Cruelty to Children, NCH and UNICEF UK. The amendments ask the Government to reconsider the age distinctions that relate to sentencing, to ensure that the circumstances of each case can be taken into proper consideration. At the moment the clause proposes that, for cases involving under-16s, the maximum sentence should be imprisonment for 14 years, and for under-13s, it should be life; that is entirely in accordance with the principles set out elsewhere in the Bill. However, for 16 and 17-year-olds, the proposed maximum sentence is seven years. The amendments would ensure that the court had at its disposal a maximum sentence of up to 14 years imprisonment in all cases involving children over 13.

The offence of paying for sex with a child is based on the recommendations in ''Setting the Boundaries'', a major review of sex offences which sets out clearly that the law needs to make it plain that young people under 18 should not sell, or be sold for, sex. Quite properly, the review uses the United Nations convention on the rights of the child's definition of ''child'' as anyone under 18. Article 19 of that convention states that all children should be protected from violence and abuse.

By making distinctions in the maximum sentence on the basis of age, the clause implies that, in all cases, the gravity of the offence and the effects on the child are

less if the child is over 16, whatever the evidence of the circumstances in which that crime was committed. The lower maximum sentence for 16 and 17-year-olds, and for 17-year-olds in Northern Ireland, implies that the fact that the child is old enough to consent to sexual intercourse is relevant to the offences, and that the child can give informed consent to involvement in prostitution.

All research would suggest that the reality for children is that prostitution has nothing to do with consent and the age of consent. The experiences of children abused through prostitution demonstrate that a high level of control and coercion by adults is involved. That means that any distinctions in the law made on the basis of the concept of consent to sexual intercourse outside the context of prostitution are irrelevant.

I have before me a book called, ''More than one chance! Young people involved in prostitution speak out''—an interesting and worthy document, which I recommend to the Committee. There is a relevant quote from a woman called Frances, who says:

''There's nothing nice, nothing empowering, nothing glamorous about prostitution, it destroys you, it destroys your soul, it's an awful way of life. I've met lots and lots of women while I worked as a prostitute and since I've left prostitution . . . never once have I met a confident, happy, contented hooker, I've just met very devastated and damaged people and drug-addicted people. And people get out and can rebuild their lives, you know, and be happy, but when you're in it it's a very sad and lonely world.''

That woman was 32, but she had been working as a prostitute since the age of 14. We should all acknowledge that the age of consent is completely irrelevant to that sad and lonely world, which would destroy the soul of someone aged 16 or 17 just as effectively as that of someone aged 14 or 15.

The charities say that because of their work with children and young people abused through prostitution they know that the control and coercion imposed on 16 and 17-year-olds most often commences at a much younger age. Young people at that age are conditioned into a lifestyle of sexual exploitation, with the result that they are not able to make informed choices, whether they are 14, 15, 16 or 17 years old. By making payment for sex with a child under 18 an offence, the clause recognises that there is a complex range of factors behind children's involvement in prostitution.

We know the risk factors: the prevalence of disruption in early life, experiences of family breakdown and conflict and of physical and sexual abuse, the trauma of being looked after and the experiences that led to that, the targeting of care institutions by adult male abusers, the experiences of children and young people who run away or are forced to leave home or substitute care, and drug use. Vulnerability at whatever age—14, 15, 16 or 17—is identified and targeted by abusers and the risk factors that we have identified apply to all children abused through prostitution, irrespective of whether they have reached the age at which they are legally deemed able to give consent to sexual activity in more normal circumstances.

In making it an offence to pay for sex with a child under 18, the Bill should follow through its rationale by ensuring that the provisions on sentencing recognise the reality of the abuse that children suffer through prostitution and recognise that 16 and 17-year-olds have no more ability to make informed choices about their involvement in prostitution than younger children aged 13 to 15.

In accordance with the fact that much is truly excellent in the Bill, we should support the amendments and ensure that we protect all children in every way that we can from all the harm caused by that dreadful form of abuse.

Sandra Gidley (Liberal Democrat, Romsey)

I do not propose to repeat at length the arguments put by the hon. Member for Lancaster and Wyre (Mr. Dawson), which we Liberal Democrats agree with wholeheartedly. I just want to voice my concern that in the other place the Government, responding to similar concerns, placed great weight on the age of consent as a factor. I support the hon. Gentleman when he says that consent often should not be a factor in such cases because prostitution and child pornography are both coercive in nature and not something that 16 or 17-year-olds, or anyone of any age, indulge in if they have any choice. Sometimes people do such things because they think that they have no choice; they have no money, or they may have left home. It is all about coercion.

The emphasis on the age of consent, and the fact that age must be proved, is of concern because the onus is on the prosecution to establish the offender's belief in the age of the child. There are concerns that that could result in fewer prosecutions or in the passing of more lenient sentences, because of the difficulty of establishing age. So we support the amendments, which clarify that the Bill is really about protecting children of all ages and that includes those between the ages of 16 and 18.

Dominic Grieve (Conservative, Beaconsfield)

I have great sympathy with the amendment moved by the hon. Member for Lancaster and Wyre. Clearly, prostitution is undesirable in relation to those of any age. If it involves those under 18, it is a very serious matter. I am in favour of his amendment. It seems to me that if one got rid of the two-tier system of sentences of seven and 14 years, it would still leave a measure of discretion to the court. The younger the child, the heavier the sentence is likely to be.

Against that, I can also see the Government's approach to the matter. Given that we have certain rules for those over 16, and those under 16, in relation to general sexual behaviour, making a distinction regarding the maximum sentence to reflect that is a perfectly correct approach, which is found in all sorts of statutes and criminal offences. That said, I have sympathy with what the hon. Gentleman is seeking to do, which would send out a powerful message.

It would be interesting to hear from the Minister whether there are examples of circumstances where she is satisfied that in the case of an activity with a child of 17 there is no possibility whatever that a court would wish to impose a sentence of imprisonment of more

than seven years. I suspect that the Minister will say that the Government have thought about that and cannot think of such an example under current sentencing tariffs. As I say, we could simply leave the matter to the court's discretion.

Hilton Dawson (Labour, Lancaster and Wyre)

I was much persuaded by the hon. Gentleman's arguments during the previous debate on indecent photographs. I do not understand why he is slightly demurring over these amendments, which I should have thought are based on the same principle—that of recognising that children are children under 18, and ensuring that they are protected. In this case, it is a matter of a worse form of abuse.

Dominic Grieve (Conservative, Beaconsfield)

I appreciate the hon. Gentleman's point, but there is a distinction. In one case, I was dealing with the question of what should or should not be criminal. We are now dealing with the way in which we reflect or mark our disapproval of conduct through the sentence imposed. The act is still criminal. There is a distinction to be made between those two concepts.

I am grateful to the hon. Gentleman for his comments in relation to what I said earlier. I am sympathetic to the intention behind his amendment, but it is also right to say that it is undesirable to have on the statute book draconian penalties relating to criminal offences that are never imposed in reality. There should be something in the tariff that reflects what is likely to be imposed by the court; otherwise, as I am sure the hon. Gentleman will understand, there would be no point in Parliament putting upper limits on tariffs at all.

We could, if we wanted, remove all upper limits on tariff sentences and tell judges to do whatever they like. A burglar or someone stealing in a particularly serious case could be sent to prison for life. We could remove all tariffs if Parliament wished to do so. Historically, we have tended to impose upper limits, and those limits are supposed to mark what we consider to be the most serious type of offence in relation to the category of criminality that we are considering. The difference between the categories of seven and 14 years is that prostitution with a child under 16 is deemed to be more serious because that child cannot consent to sexual intercourse at all. That is the distinction.

The hon. Gentleman's amendment could easily be accepted if the Government wanted it, and I shall be interested to hear from the Minister the reasons for making this particular distinction.

Beverley Hughes (Labour, Stretford and Urmston)

As we have heard, clause 49 introduces a new offence, and I am grateful for the recognition by my hon. Friend the Member for Lancaster and Wyre of the importance of introducing a new offence, criminalising paying for the sexual services of a child. Existing criminal law as it relates to prostitution focuses only on the activities of the prostitutes themselves, or those who exploit them, such as their pimps. Although it is currently unlawful to engage in sexual activity with a child under 16, we are for the first time making it a criminal offence specifically to buy the sexual services of a child. We must focus on that point in this debate, which is specifically about the purchase of the sexual services of

a child. Other offences in the Bill, which we have debated, make sexual activity with a child a criminal act in its own right.

As my hon. Friend said, the amendment's purpose is to remove the distinctions by age on the proposed penalties for the offence. As it is drafted, the offence carries three bands of penalties, depending on the age of the child victim and the type of sexual service that was paid for. For penetrative sexual activity involving a child under 13, an offender could face life imprisonment. For non-penetrative sex with a child under 13, or any type of sex with a child aged 13 to 16, the offence carries a heavy maximum penalty of 14 years. For any type of sexual services bought from a child aged 16 or 17, an offender faces a maximum of seven years in prison.

I would say first to my hon. Friend that an amendment saying, for example, that there should simply be a maximum penalty for all those different circumstances such as life imprisonment or 14 years has not been tabled today. Members of the Committee, including my hon. Friend, have implicitly accepted the point raised by the hon. Member for Beaconsfield, which is that we have a well-established practice of setting down maximum sentences when we are criminalising certain behaviour to take into account different circumstances in different scenarios, and what we think the upper limit of what courts are likely to impose would be. My hon. Friend has implicitly accepted that the gradation of sentencing in relation to those offences to reflect the varying vulnerability of children, the nature of the sexual activity and the particular circumstances is both reasonable and proportionate, which is why there are three gradations. My hon. Friend is not arguing against the distinctions at the upper limits.

Secondly, the fact that three grades of sentencing are proposed does not mean that the activity is any less serious in one situation or another. We are criminalising the activity because it is a wholly serious matter whenever someone pays for the sexual services of anyone under 18. However, the maximum sentences imposed should reflect not lesser seriousness but the different circumstances in relation to the vulnerability of children.

Thirdly, I point out to my hon. Friend the Member for Lancaster and Wyre that a seven-year sentence is still, by anyone's standards, a significant maximum sentence for a court to be able to impose. In part, a seven-year sentence for offences relating to young people aged 16 or 17 reflects—I take his point that in some circumstances such young people are very vulnerable—the fact that they are over the legal age of consent to sexual activity. It is therefore appropriate that that particular factor is part of the reason why the maximum penalty is focused on paying for the sexual services of a child as opposed to the circumstances, age and vulnerability of the child, which is certainly the focus of the other two groups.

I say to my hon. Friend that the argument is difficult. I understand his point and there could be a legitimate reason for saying, ''Let's have no gradations

whatsoever. Let's simply have life imprisonment, and we'll let the courts decide.'' We have not often taken that route when legislating. It is a valid approach to say that we should reflect different circumstances in the different maximum tariffs that we want courts to be able to impose. That largely reflects what we think that courts will want to do. We do not envisage it as very likely that a court will want to impose a sentence of more than seven years in a situation involving a young person of 16 or 17.

This is a matter of judgment. I am not saying that my hon. Friend's argument is not valid, but in using gradations of sentencing we are following a well established tradition, which we feel has validity to distinguish in law, in this new offence of paying for the sexual services of a child, children of different ages and different vulnerabilities with different maximum sentences.

Hilton Dawson (Labour, Lancaster and Wyre)

I am grateful to my hon. Friend for her reply, but I am quite disappointed by it. I accepted when I first spoke that the Government were maintaining the very important distinction that there has been throughout the Bill between under-13s and those aged 13 and over. I accept entirely that there is an important gradation of sentencing for those who abuse children in those particular age groups.

However, my hon. Friend has not convinced me in any way at all that abuse through prostitution has any link with the age of consent of 16. All the experience of young people who have been involved in prostitution, and all the work that has been undertaken with young people who have been subjected to that appalling abuse, says nothing about the age of consent or about ordinary, normal relationships undertaken by young people over the age of 16. This is one of the most appalling, coercive, damaging forms of child abuse that there can be and it is, quite honestly, a great shame that despite accepting the United Nations convention definition that a child is someone under the age of 18 and the definition laid down in our Children Act 1989 that a child is anyone under the age of 18, the Government seek to draw what I regard as a spurious distinction between under-16s and those aged 16 and over.

I have not attempted to argue that we should have mandatory sentences, or the opportunity for sentences of life imprisonment, for people convicted of such offences against children aged 13 and over, but I cannot believe it right for the Committee to rule out the possibility that a court might want to sentence someone convicted of the abuse of someone aged 16 to more than seven years imprisonment. We make a mistake by not allowing that possibility. Decisions must be taken on individual circumstances. I am not seeking to argue that everyone convicted of this appalling offence should immediately receive a sentence of 14 years, but we are wrong to rule out the possibility of a court wanting to do that, with the major point of sentencing being to protect the public and other young people from someone who has abused children in that way.

I have fully acknowledged that we owe a huge debt of gratitude to the Government for introducing clause 49 and the other clauses associated with it. It is fine

legislation indeed, and it would be a shame if it were not carried through to the fullest possible extent. I shall withdraw the amendment, but with real regret. I hope that my hon. Friend will spend time to reflect on the issue and think again about the clause. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 49 ordered to stand part of the Bill.

Clause 50 - Causing or inciting child prostitution or pornography

Dominic Grieve (Conservative, Beaconsfield)

I beg to move amendment No. 238, in

clause 50, page 26, line 43, leave out subparagraph (ii).

This is a simple query, which goes back to something that I raised earlier. The Government have unfolded a panoply of offences in the Bill, and I make no criticism of that. However, there is a great deal of duplication.

In the case of a child under the age of 13, causing or inciting child prostitution or pornography will be punishable by 14 years imprisonment. However, in terms of prostitution, the offence is identical to causing or inciting a child under 13 to engage in sexual activity under clause 9, the maximum penalty for which is life imprisonment—I am assuming that both would involve penetrative sexual contact, and prostitution normally would. I accept that pornography might be slightly different, but that still involves sexual activity so it would still be punishable by 14 years imprisonment even if it involved only sexual touching.

Prosecutors will be faced with an array of options and, although I accept that in some cases options can be useful, I wonder whether the range that we are providing sends out mixed messages. On the face of it, encouraging a child under 13 to engage in prostitution is causing or inciting a child under 13 to engage in sexual activity, which is apparently a more serious offence. Will there be guidelines on how prosecutors should approach that? In this part of the Bill, there is a tendency to provide for those under 13 an offence where an offence already exists because of the absolute prohibition on sexual activity earlier in the Bill. I should be grateful if the Minister would explain her reasons.

Humfrey Malins (Conservative, Woking)

My hon. Friend hits on an interesting point. I have compared clause 9 with clause 50. Under clause 50, the offence of causing a person to become a prostitute is potentially much more serious because we are talking about an ongoing horrible activity, whereas under clause 9 it is a one-off offence.

Dominic Grieve (Conservative, Beaconsfield)

My hon. Friend makes a very good point. That is precisely why I think that we are in danger of causing a muddle. The Minister may be able to provide some cogent explanations as to why it has been felt that the under-13s need to be catered for under these clauses. Clause 50 is a classic example of duplication: there is already a substantial measure of protection provided by the general prohibitions on sexual activity.

Stephen Hesford (Labour, Wirral West)

In terms of the hon. Gentleman's practice at the Bar—he will have watched the sentencing process on many occasions—if we get this wrong, does that not throw the dilemma to the courts? There might be offences of roughly comparable natures. For example, there might be a maximum of 14 years imprisonment for one thing, and an arguably similar offence might have a maximum of seven years. In terms of the relative merits of those offences, would it not be a rough guesstimate to say that the courts would view one as half as serious as the other?

Dominic Grieve (Conservative, Beaconsfield)

The hon. Gentleman makes a good point. When drafting an indictment in the Crown court, it is quite common for there to be a serious offence that requires specific ingredients of proof and a lesser offence that has different ingredients.

I turn to the features of clauses 9 and 50. To leave pornography to one side, with regard to inciting prostitution involving a child under 13, it seems to me that the ingredients will be identical except for one addition: in clause 50, it must be shown that the sexual activity was part of prostitution. In those circumstances, it is unlikely that both offences would be on an indictment. It is likely that there would be an either/or situation in which the prosecution must decide which to pick; and there is always the risk that at the end of the trial the judge might say, ''I can't understand why the prosecution decided to proceed with an offence that is only punishable by 14 years imprisonment because if they had proceeded with the other case I would have dished out life imprisonment.'' If that were to happen, there would be a big public outcry and lots of criticism of the prosecutor—I do not know whether that would be well founded.

I do not see these two offences as alternatives that could be put on a single indictment. To do that would be sloppy practice; if someone tried it, the judge might raise an eyebrow. The prosecutor will therefore have to make the choice—and it will have to be the right one.

This is why I get a bit worried about this plethora of options, all of which are punishing and criminalising what seem to me, in this case, to be virtually identical activities—although I accept that things might be slightly different in the case of pornography.

Beverley Hughes (Labour, Stretford and Urmston)

It is my understanding that this debate covers similar ground to a debate on Tuesday about amendment No. 203 on familial child sex offences. I was not present then, but I have been informed about that discussion. For the sake of clarity, if the hon. Gentleman is rehearsing that today, I will try to reply on that basis. However, the amendment would not exclude children under 13 from the province of this offence; it would simply raise the possibility of a defence of reasonable belief with regard to age. If I can take it from the hon. Gentleman that that is a technicality that I can ignore in replying to this debate, I will do so.

I assure the hon. Gentleman that in cases where there is evidence that a child has engaged in sexual activity, we would expect the offences in clause 9 to frame the charges. Guidelines will be produced for the Crown Prosecution Service on charging issues relating

to the Bill in general, and we intend it to include that specific guidance. However, if it were uncertain whether sex has taken place, it would be appropriate and necessary to be able to lay a charge under clause 50, as long as the other circumstances of the offence fitted with the prostitution or pornography requirement.

Dominic Grieve (Conservative, Beaconsfield)

That may be a problem with clause 9. However, that clause does not require sexual activity to have taken place, because the offence can either be causing it—in which case it must have taken place—or just inciting it. I fully understand the Minister's argument about whether it has happened, but in fact in clause 9 we are providing a high level of criminalisation—including, potentially, life imprisonment—for the incitement to that activity.

Beverley Hughes (Labour, Stretford and Urmston)

Yes, the hon. Gentleman is right; the incitement element of clause 9 has a substantial overlap with the provisions in clause 50. However, although the guidance will stress that we expect clause 9 to be used whenever possible, we did not want to rule out, at this stage, the possibility that there might be circumstances in which clause 50 would be appropriate or desirable. If actual sexual activity or inciting sexual activity with a child occurs in the context of a child prostitution racket or gang, it might be important, given that we have put the new offences on the statute book, to bring such additional charges on the defendant.

We are making an important statement in bringing forward the new offences, and it did not seem right to rule out at the outset the possibility of bringing an offence against a defendant in relation to prostitution or pornography involving a child under 13, even though I agree with the hon. Gentleman that in most instances clause 9 would provide an appropriate charge. I hope that, in that spirit, the hon. Gentleman will accept that we would not want to circumscribe clause 50 at this stage. I would rather leave it as it is. I accept the hon. Gentleman's main point, which is that there is a substantial overlap, but I would prefer to leave the flexibility with the prosecutors and the courts.

Dominic Grieve (Conservative, Beaconsfield)

I am grateful to the Minister for clarifying the matter, and I shall certainly not press the amendment. I shall just say—perhaps before Report the Minister will mull it over with her officials, not just in relation to this clause but in relation to others, too—that this is a blunderbuss Bill. That may be a good thing, but I have a concern. Perhaps I should not listen to the judiciary too much, but they have a slight tendency to say that a surfeit of possibilities is not necessarily conducive to establishing good legal practice. Quite apart from anything else, of course, it results in a multiplicity of sentencing.

A sentencing regime may start to grow up in relation to one offence and, although really the facts are virtually identical to those in another offence, a divergence in sentencing may start to show, precisely because there are too many options. It might be better to concentrate on one option and get diversity within that, rather than having judges look in the wrong

section of Thomas on sentencing, and look at sentencing for one offence and not the other. Those are practical points, but simplicity is the handmaid of justice, and we are creating quite a complicated framework in which one can be punished by a variety of routes. I raise the general question of whether that is desirable.

It may well be that close examination of each clause will mean that one can be satisfied that the offence could be proved in a slightly different way, in which case I withdraw my objections. However, in many cases it seems that the clause is pure duplication, and there are potential downsides to that. Although I appreciate that the Minister wants to send out a clear signal about the disapproval of activities identified on statute, people will have to work with the statute; it is not just a statement of Parliament's intention.

It is important that statute is simple and straightforward, and that people understand the basic ground rules and are not constantly saying, ''Goodness me, this is an offence that I haven't come across. Now, are the ingredients different from those for another offence?'' Those extra layers of complication are not always helpful in getting the desired result. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 50 ordered to stand part of the Bill.

Clause 51 - Controlling a child prostitute or

Sandra Gidley (Liberal Democrat, Romsey)

I beg to move amendment No. 233, in

clause 51, page 27, line 8, after 'intentionally', insert 'or knowingly'.

Win Griffiths (Labour, Bridgend)

With this it will be convenient to discuss the following:

Amendment No. 234, in

clause 52, page 27, line 22, after 'intentionally', insert 'or knowingly'.

Amendment No. 235, in

clause 54, page 28, line 4, after 'intentionally', insert 'or knowingly'.

Amendment No. 236, in

clause 55, page 28, line 14, after 'intentionally', insert 'or knowingly'.

Sandra Gidley (Liberal Democrat, Romsey)

The amendments are intended to probe clause 51 and other relevant clauses to find out whether they might be strengthened by changing the words ''intentionally controlling'' to ''intentionally or knowingly controlling''. I admit to having tabled the amendments after reading the Metropolitan police's comment that prostitution and pornography were big businesses and that, although the police had no problem in prosecuting the small guys, often, at the bigger business end of the market, particularly in prostitution, there was a human firewall between the pimp and the enterprise.

Under current legislation, the police are asked to prove three things. First, they must prove that prostitution, or the activity in question, is taking place, which is generally relatively easy to prove.

Secondly, they must prove that the principal knew about it. Thirdly, they need to prove that that person gained financially. The latter is also relatively easy to prove, with a bit of work. However, the depth of the investigation almost invariably focuses on the second point—knowledge of what was going on. The police think that at the moment, as the law stands, they have a fighting chance of proving what is going on, but they are aware of various investigations in which they would have had great difficulty proving a case using the words ''intentionally controlling'', as is proposed in the Bill.

The police cite a number of loopholes. For example, Operation Rapel described John Murray-Smith as probably the biggest brothel owner in London. He never went near the industry and took no part in running or organising things. His bank account showed that he was gaining financially, so it was relatively easy to prove that he was involved in prostitution. However, proving that he had knowledge of what was going on was protracted work for the police, requiring several months of covert operations. It was eventually established that he must have known about what was taking place over the many months during which he was investigated. The police maintain, however, that it would have been impossible to prove that he was intentionally controlling prostitution, because he set up the system to ensure that he was far removed from the business end.

There are other possible loopholes, such as the pimp who drops his girl off in a red-light district and waits at home for her to bring back the money. He may say, ''Yes, I knew she was working as a prostitute and giving me money, but she wanted to do it. It is not my intention that she did it.'' A brothel owner who advertises his premises for massage and takes a huge percentage of the earnings—

Humfrey Malins (Conservative, Woking)

I am following the hon. Lady's argument with interest. She, like the rest of us, seeks to improve the position. Is she troubled about the word ''controls'', or about the word ''intentionally''? Will she develop a bit further the proposition that the phrase ''intentionally or knowingly controls'' is wider and more likely to cope with the dilemma she mentioned earlier than the current wording?

Sandra Gidley (Liberal Democrat, Romsey)

There is a problem with just using the word ''intentionally''—the police say that it would be difficult to prove intent.

It is easier to prove that someone did something ''knowingly'', particularly if money is going into their bank account as a result of certain activities. For example, a brothel owner who is ostensibly running a massage parlour could use the argument, ''Well, you know it's not my intent that they behave as prostitutes. So what if they give extras for the cash?'' In reality, he knows very well what is going on and is reaping the rewards. The amendments would establish whether the Government are happy that prosecutions can be made in such circumstances.

Beverley Hughes (Labour, Stretford and Urmston)

Adding ''knowingly'' to the provisions on the offences would add little to the mens rea and interpretation of what is in the mind of

the defendant. It is difficult to understand how someone, for example, can knowingly control, incite or cause the prostitution of another person without intentionally doing so. There is no point in adding ''knowingly'' to the clause; its meaning is encompassed by ''intentionally''.

The purpose of the offences is to tackle the exploitive aspects of the sex industry. They replace existing legislation, such as section 31 of the Sex Offences Act 1956, which deals with a woman exercising control over a prostitute. I mentioned that because the section uses ''knowingly'', not ''intentionally'', which is probably why the hon. Lady tabled the amendment. It makes sense in the context of the offence of knowingly living on the earnings of a prostitute, because someone could be living with a prostitute and conceivably not know how she is earning money. The purpose of adding ''knowingly'' in that context is to make sure that the prosecution has to prove that the defendant both knows that the woman is a prostitute and that he is living wholly or in part on her earnings. The term ''knowingly'' makes much less sense in the context of the new offences under the Bill. In any event, it is difficult to envisage what the term is intended to cover that is not covered by ''intentionally''.

Work is under way on a consultation paper examining issues relating to prostitution, the public nuisance that it causes and the organised criminality and drug abuse with which it is associated. The Home Secretary announced the paper in the summer and it is likely that it will also consider legislation associated with the difficult area of prostitution. We hope to consider those issues in great depth when undertaking such work. I mention the paper because the hon. Member for Romsey referred to prosecuting people who organise prostitution, but who distance themselves from it—the big boys, as they are described. Brothel-related activities were not considered in ''Setting the Boundaries'', because they are prostitution-related issues, and thus outside the scope of the Bill. They will therefore have to wait until we have a clearer picture of some of the complex issues surrounding that subject as a result of the review.

We resist the amendment for two reasons, the first of which is that ''knowingly'' is encompassed by ''intentionally''. Secondly, the broader issues raised by the hon. Lady about making sure that we can reach those who are controlling prostitution activity in a big way are outside the scope of the Bill, but will be part of the review that has now commenced. If that reassures the hon. Lady, I invite her to withdraw the amendment.

Sandra Gidley (Liberal Democrat, Romsey)

I said at the beginning that the amendments were tabled to ascertain whether the concerns of the Metropolitan police were realistic. The police have to deal with such things in practice, so I was quite taken by their arguments. However, I understand the point about the wider aspects of prostitution, and that there will be further legislation. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 51 ordered to stand part of the Bill.

Clause 52 ordered to stand part of the Bill.

Clause 53 - Sections 50 to 52: interpretation

Sandra Gidley (Liberal Democrat, Romsey)

I seek clarification on the interpretation clause. The definition of ''prostitute'' does not pose any problems, but the definition of ''pornography'' gives rise to certain questions in my mind. The Bill seems to deal solely with images. There is a certain amount of written material that clearly describes child pornography and could put ideas into somebody's head, if they were minded to read it. I am particularly mindful of some of the more sadistic child pornography. Will the Minister clarify whether there is any way in which we could tighten up on the sort of written material that promotes the very activities that the Bill seeks to reduce?

Beverley Hughes (Labour, Stretford and Urmston)

I am not quite sure what the hon. Lady is referring to, but if she would like to elaborate outside the Committee, I am certainly willing to consider whether we need to firm up on that. I thought that she was going to return to the definition of ''indecent'', which is part and parcel of subsection (1).

Paul Beresford (Conservative, Mole Valley)

I back the thought of the hon. Member for Romsey, who has queried the clause. I raised the matter on Second Reading. It is well known that many paedophiles have written material of a nature that would shock most, if not all, of the people on the Committee. Paedophiles use such material to stimulate themselves and others and they spread it. I accept that that is an exceptionally difficult area in which to apply the law and I suspect that the Minister will have extreme difficulty in dealing with it. That was the response before.

Beverley Hughes (Labour, Stretford and Urmston)

We also have to remember that we are discussing images. That is the point that the hon. Member for Romsey makes when she asks whether we need to go beyond images. We define pornography as images. Other legislation makes indecent or obscene written text a prosecutable offence. We have covered those different situations in existing law and, in the definition of pornography in the Bill, for the specific situation in which the real image of a child has been made into pornography. That is the distinction. I am happy to check with officials to ensure that the existing legislation, primarily the Obscene Publications Act 1959, covers the situation that she has raised.

Dominic Grieve (Conservative, Beaconsfield)

The 1959 Act covers the situations raised by the hon. Member for Romsey, but it is archaic. I do not know how many prosecutions for written text there have been under the 1959 Act in the past 12 months, but the Minister will find that it is a statute that, in that context, has fallen into disuse. Perhaps the Minister will tell me about a bold Government, who are going to grasp that particular

nettle, and produce an obscene publications Bill for the 21st century.

Beverley Hughes (Labour, Stretford and Urmston)

No, I certainly was not going to say that. I gave the hon. Member for Romsey a commitment to consider, within the scope of the Bill, and taking account of the point just made, whether there is anything further that we can do to address the situation that she identified. I do not think that there will be, but I will consider that point for her.

Question put and agreed to.

Clause 53, as amended, ordered to stand part of the Bill.

Clauses 54 to 57 ordered to stand part of the Bill.

Schedule 1 - Extension of gender-specific

Win Griffiths (Labour, Bridgend)

With this it will be convenient to discuss the following:

New clause 3—Prostitution by children and young persons—

No. NC3, to move the following Clause:—

'In section 1(1) of the Street Offences Act 1959 (c.57) (which makes it an offence for a common prostitute to loiter or solicit for the purpose of prostitution) before ''to loiter'' insert ''aged 18 or over''.'.

Beverley Hughes (Labour, Stretford and Urmston)

The new offences in clauses 49 to 56 to tackle prostitution and child pornography replace existing legislation, but they do not replace all existing prostitution legislation. The provisions relating to kerb crawling, loitering and soliciting for prostitution, among others, remain on the statute book. That is because of the point that I made in response to the hon. Member for Romsey. Primarily, the area of prostitution, rather than the exploitation of people through prostitution, was outside of the remit of the sexual offences review, which recommended a further review of matters relating to prostitution. The Home Secretary announced that review earlier this year.

Clause 57 rectifies one of the fundamental flaws in existing legislation—the fact that it is gender-specific. Most existing prostitution legislation is framed in terms of men committing offences against female prostitutes. However, male and female prostitutes can be exploited both by someone of their own sex and by someone of the opposite sex. The law is outdated, and clause 57 introduces and brings into effect schedule 1 to make the legislation gender neutral. I do not propose to go through all the details. Schedule 1 lists all the legislation to which clause 57 applies.

While I am on my feet, perhaps I could deal with proposed new clause 3. It would amend the offence of loitering or soliciting for the purposes of prostitution in section 1(1) of the Street Offences Act 1959. That is outside the scope of the Bill, but we believe that it should be taken up in the review that I have outlined. Therefore, I ask my hon. Friend the Member for Lancaster and Wyre not to press the new clause, but I

will be happy to make some more points when he has spoken to it.

Hilton Dawson (Labour, Lancaster and Wyre)

I take to heart my hon. Friend's views and I am pleased with her comments.

I have discussed new clause 3 with the Children's Rights Alliance for England following the assurance given by my right hon. Friend the Home Secretary on Second Reading that children who find themselves engaged in prostitution are now decriminalised. The alliance believes that such an amendment is required to the Street Offences Act 1959 to put the cap on the problem. I am grateful for the work that my hon. Friend will continue to undertake on the matter.

Question put and agreed to.

Schedule 1 agreed to.

Clause 58 - Trafficking into the UK for

Hilton Dawson (Labour, Lancaster and Wyre)

I beg to move amendment No. 12, in

clause 58, page 29, line 12, at end add—

'(3) A person guilty of an offence against a person aged under 18 under this section is liable on conviction on indictment, to imprisonment for a term not exceeding 14 years.'.

Win Griffiths (Labour, Bridgend)

With this it will be convenient to discuss the following:

Amendment No. 222, in

clause 58, page 29, line 12, at end add—

'(3) A person guilty of an offence against a person under 18 under this section is liable on conviction on indictment to imprisonment for a term not exceeding 14 years.'.

Amendment No. 13, in

clause 59, page 29, line 27, at end add—

'(3) A person guilty of an offence against a person aged under 18 under this section is liable on conviction on indictment, to imprisonment for a term not exceeding 14 years.'.

Amendment No. 14, in

clause 60, page 29, line 42, at end add—

'(3) A person guilty of an offence against a person aged under 18 under this section is liable on conviction on indictment, to imprisonment for a term not exceeding 14 years.'.

Hilton Dawson (Labour, Lancaster and Wyre)

I am grateful for the Committee's support for these amendments. Above all, I am grateful to the Minister and the Government for the clauses as drafted and the historic commitment to combat the trafficking of people into and out of the United Kingdom for sexual purposes. I firmly believe that there is a long way further to go, but it is outside the scope of the Bill to deal with trafficking for purposes of domestic servitude, which is a huge issue. It is also outside the scope of the Bill, but well within that of the excellent Green Paper on children's services that was published last week, to deal with the fact that we do not have an appropriate response to the needs of children who are trafficked into this country.

The clause is important and deals well with an appalling practice. However, it could be strengthened markedly in relation to children with the addition of the words in amendments Nos. 12, 13 and 14, which

would cover children who are trafficked into this country. I do not seek in any way to minimise the abuse that is heaped on adults who are trafficked into this country, but children require special special consideration. Children who are trafficked into this country could be further protected if the people who engage in this wicked crime were subject to a much longer sentence than the summary jurisdiction that would leave them facing only a six-month sentence. I do not want to go around the houses again on the length of sentences given, but it is important to emphasise the seriousness of the offence by ensuring that people who are convicted of it face a substantial period of imprisonment, during which time they will be unable to carry out further offences.

Humfrey Malins (Conservative, Woking)

I support what the hon. Gentleman has said. He has argued the case very well and will know that our amendment No. 222 is almost identical. He alluded to other forms of trafficking that are outside the scope of the Bill, but trafficking itself is a very nasty offence. May I venture a few thoughts about its gravity? The hon. Member for Walthamstow (Mr. Gerrard) and I are familiar with the world of asylum. We know about the awful offences of trafficking that are carried out by gangs for reward in that connection, and we abhor that offence. We also know about trafficking for the purposes of prostitution and regard that as a very unpleasant offence indeed.

Trafficking for the purposes of prostitution is, perhaps, more serious, in that there is a position of domination over the person being trafficked. We grade the offences in our mind. We regard all forms of trafficking as appalling, but we might regard trafficking for prostitution as a harsher, nastier business than trafficking per se for the purposes of seeking asylum or settlement. I make those points only to illustrate that there are levels of gravity.

Neil Gerrard (Labour, Walthamstow)

I understand the point that the hon. Gentleman is making. I believe that he is talking about the effects on the person who is brought into the country, because that surely is the distinction. In many cases of asylum or illegal immigration, it would actually be better to use the term smuggling, because the person who is being brought in knows full well what is happening. In a sense, it is a commercial transaction: the person who is brought into the country pays their money and that is the end of the business. One may not want to make so great a distinction as to the gravity of the offence as far as the trafficker is concerned, but there certainly is a distinction to be made about the person who is brought into the country.

Humfrey Malins (Conservative, Woking)

The hon. Gentleman, with his vast experience, makes a good point. What I am coming to—rather laboriously, perhaps—is that trafficking for purposes of prostitution involves humiliation and degradation for the person being trafficked, but it is much, much worse in our minds if the person being trafficked is a child. To take a robust view—I mean this gently—we are not as aghast that grown-ups are trafficked for the purposes of prostitution as we are that children are trafficked for that purpose. There is a

distinction. Both offences are horrible, but the trafficking of children is absolutely appalling.

That is why it is fair to recognise the very special protection required for children by saying—I think that the hon. Member for Lancaster and Wyre has done us a service—that if a trafficking offence relates to someone under 18, it should only be triable on indictment. I can think of no circumstances at all in which such an offence would merit being tried summarily: that is, with a maximum punishment of a six-month sentence. When one is sentenced to six months in prison by a magistrates court, one does six weeks. I cannot think of a situation in which such a low level of punishment would fit such a grievous offence. I hope that the Minister will take that point on board and come back to us on Report if she thinks that there is a particular need for a particular punishment for offences relating to a child.

Beverley Hughes (Labour, Stretford and Urmston)

I do not think that there is anything between Government and Opposition in the Committee in terms of our attitude to people who perpetrate these offences and in terms of the intention behind the provisions in the Bill, which extend the definition of trafficking to activities within the United Kingdom for the first time. We share the abhorrence and want to put in place legislation that will help to bear down on people who conduct that traffic in children and adults—the latter are largely, but not exclusively, women.

We framed the provision to allow for summary trial because it is often in the nature of trafficking, organised as it is, to involve a long chain of people. Some will be distant from the actual activity, organising it; some will be the key operational people doing the trafficking. Others may, along the line, play a tiny part: they may accommodate a person for a night and give them food and drink, for example.

Hon. Members may say to me, ''Even in such a case, if a child is involved, we should be using the full force of the law and making a statement in the legislation.'' There is a valid argument in that, which I will consider. However, the summary trial provision was included to allow for the fact that there could be some people with a very peripheral involvement for whom it would arguably not be necessary to clog up the Crown court with a full trial and indictment.

Dominic Grieve (Conservative, Beaconsfield)

What the hon. Lady says about clogging up the Crown court on the face of it is true, but equally, with an either-way offence, magistrates courts are clogged up: with, for example, plea before venue or arguments about where the case should go. So that takes more time; if the offence is indictable only, off it goes to the Crown court. Although I accept her point about clogging up the Crown court, other courts are clogged up by the procedural issues of either-way offences. In reality, it is almost inevitable that a case involving a child would be sent to the Crown court in any event.

Beverley Hughes (Labour, Stretford and Urmston)

Certainly I agree; that is the other side of either-way offences and all the cases would

start in the magistrates court. I take the hon. Gentleman's point. That was our reasoning; there is nothing between us in terms of our intent. I am happy to inquire further into whether we want to stick with that provision or whether there is an argument for accepting the spirit of the amendment. On that basis, I ask my hon. Friend the Member for Lancaster and Wyre to allow us time to do that and to withdraw the amendment.

Hilton Dawson (Labour, Lancaster and Wyre)

I am extremely grateful to my hon. Friend. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Sandra Gidley (Liberal Democrat, Romsey)

I beg to move amendment No. 182, in

clause 58, page 29, line 12, at end insert—

'( ) a person who has been subject to trafficking into the UK for sexual exploitation shall be granted humanitarian protection.'.

The amendment seeks to clarify the Government's intentions on the treatment of victims of trafficking and how that relates to the successful prosecution of trafficking offences. I could happily argue that any humanitarian protection provided should not be conditional on someone dishing the dirt on the trafficker. I raised that issue on Second Reading, and I was grateful for the Minister's reply.

I have been advised that there is a pilot scheme based in London, which caters for approximately 25 women at a time on a rolling basis. Although that is welcome, in the face of the scale of the problem it is a drop in the ocean. If we were writing a school report, we would say, ''Could do better''.

Earlier this year, I visited Italy and I was struck by the variety of humanitarian projects based around the country. They have sprung up to respond to needs. Some are local authority-based, several are organised by non-governmental organisations and a certain amount have central Government funding. There was an argument going on over there because there was a strong feeling that provision of help, aid and shelter could not be conditional on compliance.

I was also struck by the ability there to differentiate trafficking from all the other immigration and asylum issues, which are top of the political agenda in much the same way as they are here. Trafficking is regarded as separate and the public seem to understand its definition. Perhaps that could be worked on here. It is wrong to return women to their country of origin without providing them a means of escape from the circles that they were in, or from the people whose influence they were under and who suggested the trafficking. Very often, the women are victims because they feel that they have no other way. Often, we do not help the situation one little bit.

If we are talking about situations where help and protection is conditional on helping the police, a period of four weeks does not seem to be long enough. Any woman or child who fears traffickers might need longer before they feel comfortable and secure enough to be able to help the police in any inquiry. The amendment's aim is to find out more about the Government's intention. How will the pilot be evaluated? I would be happy if that information were

given to me in a letter. Perhaps we could consider greater provision in future. In the global scale of things, that would play a big part in reducing the problems that we face.

Neil Gerrard (Labour, Walthamstow)

I welcome this part of the Bill. I am glad that the Government have taken up the issue of trafficking. We signed the convention in 2000 that said that we would do something about trafficking, and I am pleased that it appears in the Bill. In some ways, I would have preferred it to be in a criminal justice Bill, as that would have allowed us to deal with trafficking for labour. There is no doubt that that happens to a significant extent, and I hope that we will return to it in future legislation. I understand why a Bill dealing with sexual offences cannot cover it, but I hope we do not forget that aspect of trafficking.

Unquestionably, trafficking is becoming highly organised. The amendments raise the issue of how we deal with those organisations. A key part of that is that the people who have been trafficked should be treated as victims rather than criminals.

As I said on Second Reading, there is a surprising lack of hard evidence about the scale of trafficking, and who is involved in it.

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

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

Standing Committee B

Clause 58 - Trafficking into the UK for sexual exploitation

Neil Gerrard (Labour, Walthamstow)

This morning, I made clear my welcome for the trafficking clauses and the amendment tabled by the hon. Member for Romsey (Sandra Gidley). While I accept that it may not be possible in each case to grant humanitarian protection under the law, we support the intent of the amendment.

There is no question but that trafficking for prostitution has become an extremely profitable activity. It is now estimated that it is as profitable as drug dealing and we are all well aware of the vast sums that are made from that. In 2000, the police undertook a research project. When they checked on 50 flats in Soho, they found 148 women, nearly all of whom were from outside the United Kingdom—in fact, 125 of them were from the Balkans. That so many of the women were from one relatively small region is a clear sign of how organised the trafficking is and how well prepared the gangs involved are.

If we are to get to the people who run the gangs, it is vital that we persuade some of the women who have been trafficked to give evidence against them. They will not do so if they are frightened about what will happen to them, especially if they think that they will be sent back to where they came from, which is obviously where the gangsters are operating. The Home Office has undertaken work on the issue. It has funded a pilot study to provide safe houses, and I hope that that study will be expanded. My hon. Friend the Member for Northampton, North (Ms Keeble) cannot attend the beginning of our proceedings this afternoon, but she has asked me to mention Project Paladin, which the Home Office has been operating at Heathrow. She is extremely impressed by it and is trying to track down what happened to the children who were brought into the United Kingdom.

The key to the problem is to ensure that we treat people who are victims as victims, even if they are adult and even if, in some cases, they knew that they were not coming to this country legally, but did not know what they were being brought here to do, how

they would be treated when they arrived and that, in essence, they would become slaves.

Although the Minister might not accept the amendment, I hope that we shall receive a positive response to the issues with which it deals. If we are to crack the business, it is critical to persuade some of those who have been trafficked—the victims—that they will receive support and protection if they give evidence that leads us to the people who are responsible for such an extremely nasty but profitable trade.

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

I thank the Under-Secretary for his letter detailing the humanitarian aid that is already available. On Second Reading, several hon. Members spoke about the need for a six-month period of reflection. Evidence shows that, in countries in which that is available, there are more effective prosecutions. I understand that giving people a temporary residence permit might be outside asylum channels, and that the Government might well be nervous about that. However, such nervousness has to be balanced against the need to crack down on this terrible crime.

I had the privilege of visiting Moldova with UNICEF. I went to a refuge where returnees were being looked after for a few weeks. It was incredibly distressing to see some of the ladies and their great needs right across the board, including their need for medical and mental care. It was horrendous to see the state in which the women had been returned. As with any problem, we have a duty to tackle it from all ends. As the demand comes from our country, we have a big responsibility to play our part in tackling the crime. We can play our full role by permitting such ladies to stay longer, so that they are not tempted straight back into the profession or driven underground by the threats that are undoubtedly made, and so that there can be effective prosecutions.

I was told in Moldova that it was more helpful, in terms of giving support, if trafficked ladies were repatriated, as opposed to deported. The charities made that point strongly, and I now place that point on the record. Obviously, repatriation at least gives people a chance to go into the sort of refuge that I visited. Sadly, although the refuge was carrying out some tremendous work, it could do so only for a few weeks. When I was there, the children and adults were kept together, but that will be remedied.

I was told that it was quite likely that 90 per cent. of those returnee women would go back into the cycle again. We have a responsibility, given our relatively affluent position, to some sender countries to see what we can do to break the cycle. I have a further request that we consider a six-month period of reflection.

Beverley Hughes (Labour, Stretford and Urmston)

I accept the points made at the beginning of the debate. The hon. Member for Romsey talked about humanitarian protection but did not define that. However, she says she wants to stimulate wider debate on the issue and find out what is being done, and I fully accept that.

I also fully agree that victims of trafficking should be protected and treated appropriately, particularly

while their cases are going through court—they can feel very vulnerable then—when we are determining their future with them, and when we are considering the provision of services to support them. Hon. Members will know as a result of the correspondence to which they referred that a great deal is going on; it was all set out in the White Paper in February last year.

Our objective was to take a four-pronged approach, covering: the creation of appropriate offences in legislation; enforcement; victim protection; and international co-operation to enable us to get back down the chain and disrupt the organised criminals trafficking people into the country. Obviously, only the first of those requires legislation, which is why we acted as quickly as we could to get offences covering trafficking on to the statute book, first in the Nationality, Immigration and Asylum Act 2002, and then in this Bill. The other provisions, including those for victim protection and enforcement, do not need legislative provision, and much has already happened.

The hon. Member for Mid-Dorset and North Poole (Mrs. Brooke) mentioned the provision of an automatic reflection period for victims of trafficking, and arrangements for returning people to their countries. I have been to the project and talked to some of the women supported by the Home Office-funded scheme, and it is an erroneous assumption that everybody who has been trafficked in and subjected to sexual exploitation wants to stay here. Many of them have children back in their own country, and many say that, as a result of their experiences, this is the last place that they want to stay. It depends very much on individual circumstances and what individuals—mainly women—say.

The pilot project provides a period of time to enable women, in the first phase of our contact with them, to make an informed decision on whether to co-operate with the police. There are different considerations in relation to children, who will not be returned to their country of origin unless robust arrangements are in place for their safety.

We have consistently rejected the idea of a statutory reflection period for victims, partly because that would be inflexible and not necessarily based on the details of the case, which can vary. We must balance the issues presented by victims with some of the wider issues about successfully detecting and prosecuting people who are plying this terrible trade. That is the only sustainable way to prevent other people from being trafficked in future. A statutory reflection period risks becoming a perverse incentive for people to come in via people smugglers and claim to be the victims of people traffickers—I am grateful to my hon. Friend the Member for Walthamstow (Mr. Gerrard) for making that distinction earlier. That makes it much more difficult to identify, help and protect those people who really are the victims of traffickers. We must ensure that we do not build in an incentive for people to use that route, which gives protection to people who come in illegally and who might stay here.

In addition to the physical protection and support going on under the pilot project, we have produced

what is referred to as a toolkit for practitioners, although that term does not do it justice. It is a comprehensive attempt to bring together the best practice that is continually evolving, and to disseminate it to immigration officers, the police and other agencies to help them to identify and to work with victims in an appropriate and sensitive way. Such awareness-raising is important.

Early on in the pilot, we discovered that it is difficult getting enough referrals, even for places that we have provided, partly because women find it difficult to disclose. There were stories from women about being taken to sexual health clinics by their controllers, who would sit outside the consulting room door until the woman came out. Some women were able to disclose in the end, but only after a great deal of work and courage on their part. The ability of victims to feel safe in disclosing, so that referrals can be made is therefore important. It is also important that practitioners are available in all those places—or outlets, if you like—where victims might be allowed to go, so that they can pick up when something is wrong and provide the opportunity for disclosure. Raising awareness is critical to helping people to identify issues.

I am pleased that my hon. Friend the Member for Walthamstow mentioned Project Paladin. Immigration and Metropolitan police work jointly at key principal entry points to identify children at risk. Unfortunately, relatively significant numbers of children come into this country unaccompanied. That is a serious worry. The child protection pilot project was launched in March at Heathrow and involves one child protection officer working closely with immigration officers to disseminate child protection expertise in all kinds of ways, and not just in dealing with a child effectively once there is serious cause for concern. For instance, the ordinary immigration interview with a child is conducted in a way that is sensitive to the age-related needs of the child and to lines of inquiry that might be pursued to examine the possibility of there being a child protection issue.

Sally Keeble (Labour, Northampton North)

I spent a day at Heathrow looking at the workings of that project. I was extremely impressed. The information that it provides—not only about children being trafficked for sexual exploitation—will be incredibly important. Will the Minister of State ensure that the findings are implemented across the child care system, so that other Departments can also reap the benefits of this important work?

Beverley Hughes (Labour, Stretford and Urmston)

Yes, I can assure my hon. Friend of that. That is why we are proceeding as we are. The pilot is still being evaluated, but we want to apply the lessons of it nationally and to ensure that it takes place everywhere it is needed.

Intake teams have also been piloted at Dover as joint initiatives between the immigration service and social services. They will be extended to other ports, and to the Croydon and Solihull asylum screening units. Kent police have seconded a trained child protection officer to the joint immigration service

and police debriefing team based at Dover, and it is hoped that there will shortly be two permanent officers.

A lot is happening in respect of both adults and children. I hope that I have demonstrated that we take the trafficking of people, and especially of children, as seriously as do many hon. Members.

Hilton Dawson (Labour, Lancaster and Wyre)

It is good to hear that there is such progress at ports. I hope that that will be developed in future. However, is there not a serious gap in terms of the services that we are able to offer to young people who have been trafficked? We have seen alarming statistics about children who have left the safe house project in West Sussex: I presume that they have gone straight back into the hands of traffickers. Can we not do more?

Beverley Hughes (Labour, Stretford and Urmston)

My hon. Friend makes another important point. Views have been expressed about the closure of that safe house. There is a range of opinions among child care workers and immigration and police officers about the advisability of putting together in one place children who have experienced trafficking and/or sexual exploitation. One opinion is that when young people have been trafficked from a foreign country and speak a different language, and that is overlaid by the terrible experience of being subjected to enforced sexual exploitation, that increases the level of complexity of dealing with them above even the norm for sexually abused children in this country. On the other hand, there is a view that putting such children together makes them easily identifiable and allows the traffickers who brought them in to the country to keep their hooks into them and to get control of them. As my hon. Friend knows, a number of children absconded or were persuaded to leave that safe house. There is a fear that, at least in some of those cases, they left as a result of contact being made because their location was very visible and became known.

Sandra Gidley (Liberal Democrat, Romsey)

I took part in an Adjournment debate on this subject a few months ago, and it is my recollection that that safe house was set up because Sussex social workers became aware that children were disappearing. At that stage, it was felt that it would be better for them to be kept in one place where the social workers could keep an eye on them and monitor the situation. What precautions are being taken to ensure that the children are dispersed and that we do not revert to the previous situation in which the children—usually Nigerian, I think—were trafficked, if memory serves, to Italy? I think that we are going round in circles.

Beverley Hughes (Labour, Stretford and Urmston)

That just reflects the nature of the children's situation when they are trafficked into the country and the hold that the traffickers can have over them. It is difficult always to cut through that control and to stop the traffickers persuading children to come back. Some children were lost from that project. An important lesson to learn from it is that child care practitioners need the additional knowledge and expertise that dealing with those young people demands. One advantage of the safe house was that it allowed the people working there to develop best practice and that special expertise. It is important that, as we help local authorities to deal with the matter, we

continue to disseminate that learning and the extra skills that those people acquired.

My hon. Friend the Member for Walthamstow said that we had to be strong on all fronts if we were to crack the problem. It is important that we protect victims and get them to help us so that we use the information they provide to prosecute traffickers when we can, and disrupt their activities when we cannot. Perhaps in that way we can prevent those who may not yet have been trafficked from being trafficked by the same people in future. We have to balance those two important objectives continually.

Neil Gerrard (Labour, Walthamstow)

Other hon. Members and I mentioned that the legislation does not include trafficking for labour, which is a serious problem. I appreciate that there may be difficulties in including that in the Sexual Offences Bill, but will my hon. Friend say whether the Home Office is looking at that issue and whether we should try to address the problem in other legislation?

Roger Gale (Conservative, North Thanet)

Order. That would fall outside the scope of the Bill, but I am prepared to allow the Minister of State to respond briefly, if she wishes.

Beverley Hughes (Labour, Stretford and Urmston)

That point is outside the scope of the Bill, but I assure my hon. Friend that we are actively considering the issue. As soon as there is legislative opportunity, it will be included.

Sandra Gidley (Liberal Democrat, Romsey)

Clearly, we did not go far enough with our amendments. I apologise for tabling an amendment that did not clarify exactly what we meant by humanitarian aid. The purpose of the amendment was to help us to consider what was going on and plans for the future.

My hon. Friend the Member for Mid-Dorset and North Poole mentioned the period of reflection. Clearly, we would not make people stay for six months if they did not want to stay; that would be ridiculous. Experience from other countries shows that where there is a period of reflection, a great number of women choose to return in that period, perhaps having had the chance to get treatment or to sort out things back home. As the Minister rightly said, for many of the women in question, the United Kingdom is not home. They are here under duress and are forced to send money home, not always of their own free will.

I was a little concerned when the Minister started talking about loopholes and incentives and whether we could be creating a route for illegal immigrants. I become concerned when I hear that sort of argument used as an excuse for not providing humanitarian aid. The United Kingdom has signed up to the optional protocol to the UN convention against transnational organised crime to prevent, suppress and punish trafficking in persons, especially women and children. Article 6 states:

''Each State Party shall consider implementing measures to provide for the physical, psychological and social recovery of victims of trafficking''—

I admit that ''consider'' is a weasel word. Although I welcome the steps the Government have taken, I am aware that they have not ratified the Palermo protocol. They cannot, for example, say that they are fully complying with article 6. We might wish to revisit that

in more detail on Report, when there is a bit more meat on the bones.

The Minister mentioned outreach work. I referred earlier to my visit to Italy. There are projects in Rome in which people working with sex workers hand out cards in different languages to try to make people aware that there are places they can go if they are victims. There is also a helpline—interestingly, I was told that often clients who felt sorry for the people working as prostitutes phoned that line and alerted the authorities to something that was going on. Perhaps we could consider that in future.

I am only partially reassured. Nevertheless, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

The Chairman, Being of the opinion that the principle of the clause and any matters arising thereon had been adequately discussed in the course of debate on the amendments proposed thereto, forthwith put the Question, pursuant to Standing Orders Nos. 68 and 89, That the clause, as amended, stand part of the Bill.

Question agreed to.

Clause 58, as amended, ordered to stand part of the Bill.

Clause 59 - Trafficking within the UK

Clause 60 - Trafficking out of the UK

Clause 61 - Sections 58 to 60: interpretation and jurisdiction

Neil Gerrard (Labour, Walthamstow)

I shall be brief. I may not have read the clause correctly. It defines relevant offences and who is caught under the provisions of clauses 58 to 60. Subsection (2) makes it clear that the offences in those clauses would apply to anything that was done in the UK, and to certain acts that were committed outside it. It is quite clear that offences such as arranging or facilitating travel within or out of the UK could be committed by someone outside the UK.

If I understand subsections (2) and (3) correctly, when taken together they imply that if something is done

''outside the United Kingdom, by a body incorporated under the law of a part of the United Kingdom or by an individual to whom subsection (3) applies''—

subsection (3) applies only to British citizens and nationals, and so forth—it would be difficult to do anything directly in respect of a foreign national who arranges and facilitates trafficking from outside the UK. If a person who previously did something outside the UK entered the UK, would what they had done outside the UK constitute an offence even if they did not do anything in the UK? Is there a loophole?

Humfrey Malins (Conservative, Woking)

Clause 61(3) refers to various categories of people. Will the Minister consider clause 73(2), which includes as possible defendants a slightly different category of person? Someone who is resident in the United Kingdom is an offender under that clause, but not under clause 61(3).

Beverley Hughes (Labour, Stretford and Urmston)

To respond to the question of my hon. Friend the Member for Walthamstow, clause 61(2) and (3), which applies to international trafficking, means that we can prosecute a British person listed under subsection (3), or an organisation listed under subsection (2)(b), who carries out such activity in any country, whether or not there is an equivalent trafficking offence in that country. If a foreign national commits an offence in the United Kingdom, we can prosecute that person. However, we cannot prosecute a foreign national who commits an offence in another part of the world. As for clause 73, a resident is covered because there is a requirement for dual criminality in such cases. There is no such requirement in relation to the trafficking offences, which is partly why we have drafted such a provision under clause 61.

Neil Gerrard (Labour, Walthamstow)

Obviously, I understand the problems of trying to prosecute someone in another country. He would not be within our jurisdiction. I am worried about a foreign national in another country who has been acting in a way that would constitute an offence under the Bill and who is involved in trafficking. Let us suppose that that person enters the United Kingdom and, although he does not commit offences under the Bill while is here, we know that he had been involved in such offences in the past. I can imagine the potential for headlines in the press if such an event occurred and we were unable to touch that person when he arrived here.

Beverley Hughes (Labour, Stretford and Urmston)

If we did not have evidence that that person came into country, continued his activities and had connections with people here, which he probably would have in the circumstances described by my hon. Friend, we could not prosecute him. However, because of the strong networks in which such people are involved, if that person had been involved extensively in trafficking elsewhere in the world, it is highly likely that he would be entering this country for a similar purpose. Given the strict limits of the hypothetical situation highlighted by my hon. Friend, it would not be possible to prosecute the person unless we had the appropriate evidence. If another country asked us to extradite him for the activities he had carried out there, we could do so.

Question put and agreed to.

Clause 61 ordered to stand part of the Bill.

Clauses 62 to 64 ordered to stand part of the Bill.

Clause 67 - Sexual activity in a public lavatory

Paul Goggins (Labour, Wythenshawe and Sale East)

I beg to move amendment No. 118, in

clause 67, page 32, line 32, leave out 'public lavatory' and insert

'lavatory to which the public or a section of the public has or is permitted to have access, whether on payment or otherwise,'.

Roger Gale (Conservative, North Thanet)

With this it will be convenient to discuss the following:

Amendment No. 227, in

clause 67, page 32, line 33, leave out paragraph (b).

Government amendments Nos. 119 and 120.

Amendment No. 228, in

clause 67, page 32, line 35, leave out subsection (2).

Government amendments Nos. 121 and 122.

Amendment No. 229, in

clause 67, page 33, line 6, leave out paragraph (b).

Paul Goggins (Labour, Wythenshawe and Sale East)

We come now to the famous, or infamous, clause 67, which covers the offence of sexual activity in a public lavatory. When the issue was debated in the other House, the Government were defeated and clause 67 was inserted into the Bill.

The Government had a choice. We could have returned here with an amendment that would have knocked the clause out of the Bill. We have chosen not to do that. The Government amendments in this group are designed to make clause 67 workable and to remove the option of trial on indictment and the maximum penalty of two years imprisonment attached to it.

Clause 67 has a long and complex history, and I do not intend to go through it this afternoon. However, I shall make one thing clear: the Government's policy on sexual activity in public lavatories is that we are against it, lest there be any doubt about that. Toilets are built for other purposes, and those who want to use them for those purposes should be free to do so without having to witness sexual behaviour that ought properly to take place in private. It is unacceptable, whoever is engaging in it and whatever their sexual orientation. That has always been, and remains, the Government's policy. Section 5 of the Public Order Act 1986 and the common law offence of outraging public decency are capable of covering this behaviour where it causes harassment, alarm, distress or offence. We listened to those who argued that it was important that the law sent out a specific message that sexual activity in public toilets is illegal.

Chris Bryant (Labour, Rhondda)

In which case, why is it not illegal to have sex in the park immediately outside a public toilet? That does not make sense.

Paul Goggins (Labour, Wythenshawe and Sale East)

There is a long and complex history to this clause. The difficulty in going down the route that my hon. Friend tempts me with is that there may

then be some doubt as to whether the Government think that sexual activity in a public lavatory is not okay. We do not think that it is okay. We have therefore decided to send out a clear signal. The Government already have a strategy that would deal with sexual activity in a public toilet, but through this clause we are adding a further offence and further powers, so that there is no doubt that sexual activity in a public lavatory is not acceptable.

The offence in the Public Order Act 1986, as well the common law offence of outraging public decency, will remain in force. As my hon. Friend the Member for Rhondda (Mr. Bryant) and other Committee members know, an amendment to the Criminal Justice Bill makes the latter offence triable either way. That amendment makes the offence more flexible and thus more usable in practice. I ask for your forbearance, Mr. Gale, and for the patience of Committee members as I try to put the jigsaw back together again by referring to the various Government amendments before us.

Amendment No. 118 removes the reference to ''public lavatory'' in subsection (1)(a) and inserts the full definition of public lavatory in that subsection. Amendment No. 121 deletes the definition in subsection (3) because it is clearer to have it in subsection (1)—the definition remains absolutely the same. Government amendment No. 119 substitutes the words in subsection (1)(b) that an offence is committed if a person engages in ''activity within subsection (2)'' for ''an activity''. Paragraph (c) specifies that it is a sexual activity. That paves the way to deleting subsection (2), which specifies the sexual acts covered by the clause.

Subsection (2) is the crux of why we consider the current clause 67 unworkable. It would be difficult to prove that any one of the specified sexual activities had actually taken place when the activity took place behind a close cubicle door.

Humfrey Malins (Conservative, Woking)

Perhaps the hon. Gentleman agrees that, in addition, there is a number of other sexual activities not mentioned that might be equally abhorrent.

Paul Goggins (Labour, Wythenshawe and Sale East)

Indeed, the hon. Gentleman is right.

Government amendment No. 120 deletes subsection (2), which specifies the activities covered by the clause, and replaces it with a new definition of sexual activity. It is important to emphasise that that definition differs from the general definition under clause 79 because it excludes activity that a reasonable person would think was sexual only if they knew the purpose of the person engaging in it. It therefore captures only explicitly sexual activity, excluding any behaviour that is ambiguous in its nature and circumstances.

We believe that removing the reference to specified sexual acts will help considerably in making the clause more workable in practice, because it will make it possible to conclude that sexual activity is taking place from what can be heard, as well as from what can be seen, and from surrounding behaviour. Moreover, it will require proof that sexual activity of some kind is taking place but does not require a person to say which of a list of specified acts is involved.

Government amendment No. 121 deletes the subsection that defines ''public lavatory'', as Government amendment No. 118 has made that unnecessary. Government amendment No. 122 would specify that the maximum fine on summary conviction was level 5 on the standard scale, rather than the statutory maximum fine. That is a matter of drafting to make the Bill consistent with other legislation and is not a significant change.

Government amendment No. 122 would remove the possibility of trial on indictment and the maximum prison sentence of two years that flows from it. Although we believe that sexual activity in public toilets is wrong, we are not persuaded that it merits being dealt with at the Crown court or that a maximum sentence of two years is proportionate to the behaviour involved.

Where the behaviour is such as to constitute outraging public decency, an unlimited prison sentence is available, subject to that not being disproportionate to the behaviour engaged in. We take the view that a maximum penalty of six months imprisonment and/or a fine is the appropriate maximum sentence.

I commend the amendments to the Committee as the sensible way forward, making the clause workable but also making it absolutely clear that we are against sexual activity in public toilets.

Stephen Hesford (Labour, Wirral West)

Can my hon. Friend the Under-Secretary describe any behaviour that would come under the term of outraging public decency, and so require a larger maximum penalty, which would not ordinarily be caught by the offence in the clause?

Paul Goggins (Labour, Wythenshawe and Sale East)

I simply invite my hon. Friend to imagine a set of sexual activities, some of which are more serious and outrageous than others. Indeed, the more outrageous, the more likely it will be captured by the offence of outraging public decency. Activities of a less outrageous, less serious nature might be more appropriately dealt with under the clause.

I think that I should sit down and let those who wish to contribute to the debate do so.

Dominic Grieve (Conservative, Beaconsfield)

May I say how much I welcome the approach that the Government have taken on this subject? There was a lot of public comment and, dare I say, hot air when the amendment was tabled in the Lords, and the fact that the Government were prepared to consider the matter, rather than simply come to Committee asking us to delete the clause—as appeared would be the case at one stage—is greatly to their credit.

The way in which the Government have approached the matter is correct; that is, they are simplifying what the other place sought to do. I have no difficulty with the simplification, or with the removal of subsection (2). Indeed, I also believe that the Under-Secretary is right that the offence should be summary only, as plenty of other offences are available. The message that we need to send out is that sexual activity in public lavatories is unacceptable,

irrespective of whether it is behind the cubicle door, because that is not the purpose for which public lavatories were provided. I think that a summary offence is sufficient to get that message across.

Our amendments are probing amendments and, as the Under-Secretary may have noticed, they move in the same direction as his, although they do not do so as well as his. Our amendments include making the offence summary only and deleting subsection (2), which we thought took a rather convoluted approach to the matter.

There is one aspect of what has been done that I still find slightly more difficult. That might be because I did not understand the Under-Secretary's brief explanation of amendment No. 120. It supplies a definition:

''For the purposes of this section, an activity is sexual if a reasonable person would, in all the circumstances but regardless of any person's purpose, consider it to be sexual.''

From that, I assume that, if a person can explain that although it might have appeared to be sexual the purpose was otherwise, he would be acquitted—or would that have to be disregarded? The amendment is curiously worded. Although I was totally satisfied by the Under-Secretary's explanation, I then looked again at the amendment and I found it difficult to match what he had said with what I was reading.

Provided that the Under-Secretary can reassure me on that, and I hope that he can, I wish simply to reiterate that I greatly welcome the Government's approach and I will not oppose their amendments.

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

I, too, think that the amendments would improve the Bill. The Liberal Democrats in the other place found that they could not support the measure, and wanted the entire issue to be dealt with as a public order offence. We are happy to have discussions about the way forward, but I think that everybody is clear that sexual activity in public toilets is unacceptable. They are for the community, and they must be available at all times to everybody, including children. That is very important.

It was kind of the Under-Secretary to hold a meeting with my hon. Friends the Members for Romsey and for Southwark, North and Bermondsey (Simon Hughes) and I. We asked for the matter to be incorporated into the Criminal Justice Bill as a public order offence. The Under-Secretary explained that that option had been explored, but that it was not possible. We accept that, but we still feel that the way to deal with this issue is through separate legislation as a public order offence. We appreciate that that would take time, and that now that the issue has been raised there is at least some wisdom in proceeding with the Bill until something better can be put in place. Will the Under-Secretary consider the introduction of future legislation to put the offence into a better context as a public order offence? I would be happy for him to write to me about that.

Because we believe that the problem should be dealt with in this way, we wonder whether the amendments should have included the words ''causing harassment, alarm and distress''. We understand that that would be

a test in a public offence case. If we accept the clause at this stage, it is as a step towards a better way of tackling the problem.

I have been concerned about the interpretation of the word ''sexual'' in this context. I do not want to embarrass the Under-Secretary, but it would be helpful if he placed on the record where there are some dividing lines. This question was raised with me: ''Does sexual in this context include a chaste kiss?'' I presume that it does not.

Paul Beresford (Conservative, Mole Valley)

Chased around the room!

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

I assume that the drawbridge—as it were—comes up if there is stronger kissing. However, there are greetings and affectionate touches that are not necessarily sexual. We must be clear about that. We do not always match being affectionate with a sexual move. I ask the Under-Secretary to contemplate that.

Amended, the clause will be a massive improvement on what we were faced with in the first instance, so we will not oppose the amendments. However, I place on record that we do not regard it as the permanent solution to the issue that we are considering.

Chris Bryant (Labour, Rhondda)

Along with all hon. Members, I do not defend sex in public lavatories. No part of the community has argued that case from the moment when it was determined that the Bill should contain a clause making explicit the prohibition of sex in public toilets. I do not think that anyone argued that it was legitimate for people to engage in sex in public toilets, even during the hefty debates in the House of Lords.

However, the clause is unnecessary and discriminatory. Curiously enough, it is worth bearing in mind that the clause is the only remaining specific legislation relating to homosexual acts. Although the clause itself does not refer to homosexual acts, most hon. Members would accept that it is included because homosexual men engage in sex in public toilets. The cottaging phenomenon was referred to at considerable length in the House of Lords debate, which has given us much of the wording in the clause.

Dominic Grieve (Conservative, Beaconsfield)

In my view, that that is not why the clause is included. I remember an instance from my time as a barrister—I alluded to it on Second Reading—of activities in the public lavatory of a court in this country, where a girl wished to give her boyfriend a good time before he was sent down for two years. I remember the disturbance that was caused and what resulted from it. I assure the hon. Gentleman that the clause is not aimed at homosexual practices. It is aimed at any sexual activity in a public lavatory, whatever form that may take, between people of either gender.

Chris Bryant (Labour, Rhondda)

I am absolutely certain that the hon. Gentleman has no desire to use the clause to target homosexuals. The truth of the matter is, however, that if it were not for the practices that were referred to in the House of Lords, which were all to do with homosexual cottaging, the clause would not have got on to the front page of the Daily Mail and back into the Bill.

Although I hate to do it, one can discuss the long-term provenance of the clause starting in 1533, when Henry VIII made it explicit for the first time in British law that buggery should be illegal. The law was changed in 1630, when the Earl of Castlehaven was convicted of buggery, despite none having occurred, merely because there was evidence of emission. In other words, sex between two men has been illegal since 1630.

The major change that resulted in the current version of the clause happened when the Criminal Law Amendment Act 1885 was being dealt with by the House. At the very last moment, Labouchere tabled an amendment, which is known nowadays by many people as the Labouchere amendment. It said:

''Any male person who, in public or private, commits, or is a party to the commission of, or procures, or attempts to procure the commission by any male person of, any act of gross indecency shall be guilty of misdemeanour, and being convicted shall be liable at the discretion of the Court to be imprisoned for any term not exceeding two years, with or without hard labour.''

That was inserted into a Bill that was solely about the rights of young women and the abuse thereof. None the less, it was agreed late one night. It became known as the blackmailer's charter, because for the first time British law contained the phrase:

''Any male person who, in public or private''.

In Victorian society it was felt that people could make up any event that might or might not have happened. Indeed, there was a raft of prosecutions under that clause, the most notable being Oscar Wilde's being sentenced to two years hard labour in 1895.

Many hon. Members will be saying to themselves, ''Of course, the clause refers to the offence of gross indecency, which we are getting rid of''. That is certainly one of the provisions that will be repealed under the Bill. However, section 12 of the Sexual Offences Act 1956—the buggery clause, which was amended in 1994—set out for the first time an explicit reference to sex in public toilets. It is a direct translation of the original Labouchere amendment into the 1956 Act. The legislation was amended in 1994 to allow buggery in private, but privacy was determined solely to mean when not more than two people were involved and when the buggery was not taking place in a public lavatory. Section 13 of the 1956 Act continued the other half of the Labouchere amendment on gross indecency between men, whether in public or private.

That was changed under section 1 of the Sexual Offences Act 1967, whereby a consenting act between two men in private was allowed. That provision was introduced by Leo Abse and supported by the then Labour Government. Subsequently, the age of consent was changed from 21 to 18, and it is now 16. The 1967 Act incorporated sections 12 and 13 of the 1956 Act and made it explicit that, for an act to be in private, it had to involve no more than two people and could not take place in a public lavatory. The provenance of the clause under discussion is the desire to maintain that legislation, relating as it does to the 1885 Labouchere clause.

The clause is discriminatory. While I have enormous respect for the Government in light of all

the changes that they are proposing and for their attempt to make the Bill not discriminatory, what makes it discriminatory is that the majority of public toilets in this country are unisex. That means that the public lavatories on the street are places that may be used by two men or two women at the same time. I have searched in vain to find cases in which two women have been prosecuted for having sex in a public toilet. There are a few instances of sex in public toilets being prosecuted under other legislation, but usually the prosecution comes under the Public Order Act 1986.

My second point is that the clause is wholly unnecessary. The Public Order Act can deal perfectly well with each case of sex in a public lavatory. There is no need for specific legislation to bar sex inside a public lavatory.

Julie Kirkbride (Conservative, Bromsgrove)

I am grateful to the hon. Gentleman for giving way. I hope that he will forgive me for saying that he is being a little over-sensitive in his historical description and with regard to what he rightly points out is discrimination against homosexual people. He asked what the difference was between doing it in a lavatory and doing it in the park. While it is clearly obvious to everyone when people are having sex in a park, it is not quite so obvious in a semi-private place, such as a public lavatory. We want public lavatories to be semi-private; otherwise, we would not want to do our business in them. It must be made clear that the Public Order Act should still apply to such places and that people should not be having sex in them.

Chris Bryant (Labour, Rhondda)

The hon. Lady has given the game away by pointing out that a public lavatory is semi-private, whereas someone engaging in sex in a public place is likely to cause more alarm and distress. For example, I have just moved house, but until April I lived in a house at the top of a country lane in the Rhondda. Most nights when I came home, two or three cars would be parked outside my front gate. The area was widely known as lovers' lane. Such activity did not cause me much offence and I did not do anything about it, but it could have caused offence to others if they had lived in that house and such behaviour was troublesome to them.

Those in the second Chamber made the same point about sex in public toilets when they referred to the element of distress that is caused not by the nature of the sex, but by the fact that it takes place. Again, people parked outside my house, or those making love in St. James's park by the bandstand or—as I understand happened before my time at the House—in the showers at the House of Commons a few years ago would be subject to the Criminal Justice and Public Order Act 1994. I believe that we should use that Act for cases of sex in public toilets, rather than have a specific clause in the Bill.

Dominic Grieve (Conservative, Beaconsfield)

The hon. Gentleman knows the distinction between the Public Order Act and the clause: the Act requires an element of proof about the

disturbance to public order and the clause represents a blanket prohibition. What is wrong with a blanket prohibition on sex in public lavatories if the Committee considers that they are not places where people should engage in sexual activity? That is the issue and that is what troubled those in the other place. Once we have put this legislation into the shape that the Government propose, nobody on the Committee should have difficulty with the principle underlying the clause.

Chris Bryant (Labour, Rhondda)

I regularly go home on the No. 38 bus and I do not particularly like seeing people having sex at the top of that bus late at night. However, I do not think that we should pass a clause saying that there should be no sex at the top of the No. 38 bus.

Julie Kirkbride (Conservative, Bromsgrove)

That would be covered by the Public Order Act.

Chris Bryant (Labour, Rhondda)

It would, so there is no need to have a specific clause in the Bill outlawing sex in public toilets.

Stephen Hesford (Labour, Wirral West)

Regardless of gender, if the clause were passed and citizens took the law at face value and did not engage in sexual activity in a public lavatory, there would be no discrimination against anybody.

Chris Bryant (Labour, Rhondda)

My hon. Friend has caught me unawares with his argument. I am not sure what he means or intends by it, so I confess that I am somewhat lost.

Julie Kirkbride (Conservative, Bromsgrove)

He is right.

Chris Bryant (Labour, Rhondda)

The hon. Lady says that my hon. Friend is right.

Stephen Hesford (Labour, Wirral West)

If people abided by the law and did not have sex in a public lavatory, the clause would not discriminate against anybody.

Chris Bryant (Labour, Rhondda)

Indeed, but there is no need for the Bill to include an unnecessary clause when the offence in question is already covered elsewhere. The only element of the clause that is distinctive, as the hon. Member for Beaconsfield (Mr. Grieve) pointed out, is the fact that the offence in question would be happening in a public lavatory. My question is merely whether having sex in a public lavatory is worse per se than having sex immediately outside a public lavatory, in a public shower, in swimming baths or anywhere else.

Dominic Grieve (Conservative, Beaconsfield)

The hon. Gentleman has missed the point. What troubled those in the other place was that it would be possible to have sexual activity in a public lavatory, in a cubicle and therefore not visibly, that could escape the scope of the Public Order Act in certain circumstances. It was their anxiety about that and the fact that they considered it extremely undesirable that public lavatories should be used for sexual activity, whether behind the cubicle door or anywhere else, that led them to propose the clause. On that I agree with those in the other place. I got the impression that most Committee members, including perhaps the hon. Gentleman, also accepted that that was correct as a principle.

Chris Bryant (Labour, Rhondda)

There are large numbers of places where I do not wish people to have sex. For instance, people might have sex behind trees in St. James's park,

but I do not believe that that means that we should have an explicit clause outlawing sex behind trees in public parks.

Julie Kirkbride (Conservative, Bromsgrove)

Will the hon. Gentleman give way?

Chris Bryant (Labour, Rhondda)

I will happily give way, but I think that I ought to make some progress.

Julie Kirkbride (Conservative, Bromsgrove)

Further to the point made my hon. Friend the Member for Beaconsfield, if the provision were not in the Bill there could be circumstances in which lawyers could argue using existing provisions that sex in a public lavatory with the door closed would be sex in a private place and therefore okay. That does not equate with the hon. Gentleman's argument about being behind a tree or up a lamp post.

Chris Bryant (Labour, Rhondda)

It does, actually, because people who had sex behind trees have used precisely those provisions to try to prove that they were having sex in privacy. The only category in the law to which that does not apply is public lavatories, which is why the clause is wrong. One further point is that by including a clause explicitly on this issue, we invite and encourage the police to waste a great deal of their time, which could be spent in other ways.

I shall deal specifically with the amendments. This may seem odd to hon. Members, and I know that I am already testing their patience, but the definition of a public lavatory is still rather nebulous. Would all the lavatories in this building be counted as public lavatories? Would a public lavatory in a hotel be counted as a public lavatory? Would a toilet in a hotel room be counted as a public lavatory?

As the Under-Secretary has pointed out, and as everyone accepts, it is wholly wrong that imprisonment for up to two years should be the result of somebody being convicted of the offence in the clause. It seems curious to me to imprison anybody for any length of time for this kind of activity, and I have a question for the Under-Secretary about how it all relates to the sex offenders register. My reading of schedule 3, which refers to clause 81, is that the offence would not lead to registration on the sex offenders register, but I would like that clarified.

Neil Gerrard (Labour, Walthamstow)

I want to return to a point that my hon. Friend made about police time. That aspect of the clause concerns me. I recall a conversation two or three years ago with a senior police officer at the Metropolitan police. He told me that when he first became a police officer, he was required to spend an inordinate amount of his time in the ceilings of various public lavatories and found that a demeaning experience. I see some potential problems with certain police forces.

Chris Bryant (Labour, Rhondda)

I am grateful to my hon. Friend, and can only agree with his point, which suggests why clause 67 is, to put it mildly, unfortunate.

As I read it, the Government amendment to change subsection (2) would remove the requirement for there to be two people involved. It might be, for instance, that masturbation would then fall within the clause. Can the Under-Secretary clarify that? We also need to return to the issue that was raised by the hon. Member

for Mid-Dorset and North Poole about whether kissing counts as sexual activity.

I am pleased that the Government have chosen to table amendments. I wish that they had tabled an amendment for the full deletion of the clause, but I understand why they have not. Along with the Under-Secretary and all other Committee members, I do not want the message from this House to be that we want people to have the right to have sex in public lavatories. However, there is no point in including unnecessary and discriminatory clauses.

Paul Goggins (Labour, Wythenshawe and Sale East)

My pile of notes has multiplied in the past few minutes. I appreciate my hon. Friend's powerful speech. I shall deal with some of the points that he raised in detail. He has given us a flavour of the atmosphere that must have prevailed in the other House when this issue was debated.

I apologise to all Committee members, but in particular to the hon. Member for Beaconsfield, for rushing through my explanation of the matter that he raised. The activity must appear to be sexual from the nature and circumstances alone, and therefore not from the person's purpose. In this case, that is irrelevant: there may be behaviour that is somewhat ambiguous—touching oneself or another person in a certain way—but we are trying to catch the most explicit kinds of sexual activity. If there is more serious sexual activity, that more ambiguous behaviour will need to come into play. That is why it occurs elsewhere in the wider definition of ''sexual''. However, in this clause, the definition is as I have outlined.

The hon. Member for Mid-Dorset and North Poole asked whether there will be further legislation. We currently have no intention of introducing any. We believe that our provisions are sufficient. On outraging public decency, I remind her that our amendment to the Criminal Justice Bill remains, so that power will be available. Therefore, we have almost a continuum of powers and offences.

The hon. Lady asked about chaste kissing in toilets—which is an interesting concept. I think that my hon. Friend the Member for Rhondda also raised that question. The magistrates dealing with that case—if such a case were to be prosecuted—would have to look at the evidence and decide whether a reasonable person would consider a kiss of that kind to be sexual.

I turn to the speech of my hon. Friend the Member for Rhondda. The passion in his speech is understandable. He said that the legislation is discriminatory: I disagree. However, he gave the Committee a history lesson that explained why some people might feel strongly about this issue. My sense of history on this question does not go back as far as the 16th century: it goes back to the 1960s. I am a Manchester Member of Parliament, and I have lived in that city all my life. I remember the toilets around the centre of Manchester that everybody—including the police—knew were the places where gay people had to go if they wanted to engage in sexual activity, and I remember that those people were hounded. That is the history of the sense of discrimination that surrounds this question.

However, I want to point out to my hon. Friend that less than a mile from those toilets in Manchester there is now a gay village. We also have Gay Pride once a year. The whole atmosphere in relation to discrimination against gay people has changed. This clause reflects that change to some degree. I understand the sense of history, but I believe that we are moving on, in particular in relation to this matter.

Since the introduction of the Human Rights Act 1998, the police and the Crown Prosecution Service must apply—in all laws—human rights legislation. I say to those who fear that police officers might abuse their power if this clause were to be included in the Bill that they cannot do that. The legislation is clear: they cannot operate in that discriminatory way.

My hon. Friend raised the question of whether sex in the park next door to the toilets would be illegal, and he subsequently referred to the No. 39 bus—I think that that was the number—which he travels home on. Where such activity would cause harassment, alarm, distress or outrage, it would be covered under existing legislation. As the hon. Member for Beaconsfield pointed out, in relation to sexual activity in a toilet, the difficulty involves what is happening behind the closed cubicle door.

Sandra Gidley (Liberal Democrat, Romsey)

Earlier, the hon. Member for Rhondda sent me on an unfortunate train of thought. I remembered that several years ago I used to go camping frequently. I am unsure why we have this obsession with toilets, because I recall that there were communal shower blocks on some campsites where exactly the same sort of activity that is addressed in this clause could take place even today—the only difference being that it takes place in a shower cubicle, rather than a toilet cubicle. I do not understand why we are criminalising one and not the other, when the circumstances are incredibly similar.

Paul Goggins (Labour, Wythenshawe and Sale East)

I simply remake the point that if the activity is causing harassment, alarm, distress, or outrage, those engaging in it can be prosecuted under existing legislation. I am dealing with a specific difficulty and the fact that the clause is in the Bill. We must either knock it out or make it workable. We are proposing amendments that make it workable.

My hon. Friend the Member for Rhondda asked about registration. The answer is no, there will be no consequence in terms of registration. On the definition of the word ''public'', in relation to a public lavatory, he will know that MPs are part of the public, therefore the toilets to which he referred in this building are public. Toilets in and near the lobby of a hotel are public toilets, because the public are able to use them. We are trying to exclude toilets that are clearly private, for example in a person's home.

In answer to the question of whether the offence requires two people, no, it does not, and it never did. One person is covered by this measure.

Finally, as a local Member of Parliament as much as anything else, I have to say that the people who come to my surgery to raise issues of disquiet about public toilets do not mention sexual activity. However, they mention dirty needles, filth, the state of the toilets and the fact that they cannot get access to them when they need them. Public lavatories are for people to use and any encumbrance that prevents them from doing so, or which causes harm, must be deprecated and dealt with. In this instance it is being dealt with in the Bill.

Amendment agreed to.

Amendments made: No. 119, in

clause 67, page 32, line 33, leave out 'activity within subsection (2),' and insert 'an activity, and'.

No. 120, in

clause 67, page 32, line 35, leave out subsection (2) and insert—

'( ) For the purposes of this section, an activity is sexual if a reasonable person would, in all the circumstances but regardless of any person's purpose, consider it to be sexual.'.

No. 121, in

clause 67, page 33, line 1, leave out subsection (3).

No. 122, in

clause 67, page 33, line 5, leave out from 'exceeding' to end of line 7 and insert

'level 5 on the standard scale or both.'.—[Paul Goggins.]

Clause 67, as amended, ordered to stand part of the Bill.

Clause 68 - Exposure

Humfrey Malins (Conservative, Woking)

I beg to move amendment No. 216, in

clause 68, page 33, line 10, after 'genitals', insert 'in a public place'.

Roger Gale (Conservative, North Thanet)

With this it will be convenient to discuss the following:

Amendment No. 184, in

clause 68, page 33, line 11, leave out 'or' and insert 'and'.

Amendment No. 226, in

clause 68, page 33, line 16, leave out paragraph (b).

Humfrey Malins (Conservative, Woking)

I shall be brief. I do not wish to proceed further with amendment No. 216.

Amendment No. 226 would knock out the indictable nature of the offence. I wonder whether it would be more appropriate for this offence to be summary only. I cannot think of any cases in which it should be tried on indictment—they could all be covered summarily. I shall seek permission to withdraw No. 216 in a moment, but I should like the Minister to comment on why he thinks that the offences should sometimes be indictable.

Roger Gale (Conservative, North Thanet)

Before we start the debate I should point out to the hon. Gentleman that if he wishes to press amendment No. 226 to a vote, he will have to move it formally in due course.

Paul Goggins (Labour, Wythenshawe and Sale East)

I shall respond to this group of amendments in the spirit in which they were moved.

Amendment No. 216 would restrict the offence of exposure to public places. There may be examples where such an occurrence in a private place could be distressing. One thinks of a child having a friend to stay and an incident happens. I take it that the hon. Gentleman accepts that.

Dominic Grieve (Conservative, Beaconsfield)

The Minister will be aware that this is one of the clauses that caused naturists anxiety, and they have lobbied Members about it. I am satisfied that the protection afforded in paragraph (b), which says,

''he knows or intends that someone will see them and be caused alarm or distress'',

is sufficient to ensure that naturists will not be wrongly criminalised as a result of the clause. Is the Under-Secretary also satisfied about that?

Paul Goggins (Labour, Wythenshawe and Sale East)

I have looked at the matter in great detail and have replied to many letters on the subject, and I am completely satisfied that the clause will allay any fears that naturists have that they could somehow be captured by the legislation.

The hon. Member for Woking (Mr. Malins) made a point about summary-only offences. That is a familiar debate to the Committee. We will attempt to ensure consistency in the Bill, but I should just say that it is not true that the activity would always be of a less serious nature. There could be situations in which it was more serious. Because of that, we want to give maximum scope to courts, so that the prosecutor and court could make the appropriate decision. We want to leave that breadth so that it is open and available to them.

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

I realise that I cannot move an amendment, but I should like to refer to one, if that is satisfactory.

I have received many representations from naturists, probably because I am lucky enough to live close to a beautiful naturist beach in Studland. Quite a few people retire to the locality in which I live because of it. There are still enormous concerns about the Bill, and I hope that the Under-Secretary will put a few more words on record to give comfort to the naturists. I understand that there are at least 5 million naturists in this country, although it is difficult to know the total. We are addressing the concerns of a great number of people.

I attempted to table a simple amendment to raise an issue that relates to Studland beach. There is a nice walk, which starts with a ferry trip, from Poole to Swanage. That walk goes through the naturist beach, and as one approaches the beach, there is a sign that says that there are naturists ahead, and says how far the area extends. In fact, there are postcards of the sign; I meant to buy one, but they have sold out, so the beach is well known.

The point is that even on the acknowledged naturist sites it is absolutely clear that a naturist knows that someone will see them. I must say that some people, once they reach the naturist beach, find it difficult to cope with the situation. I have walked the beach for many years with my children and we enjoy doing so, but I have sometimes taken guests who have reacted;

there are no two ways about it. That is why I simply suggest the words, ''knows and intends''. I should be interested to hear a response to that suggestion.

In more general terms, we must take on board the fear that the Bill will be used to suppress naturism. Because the offences are in the Bill as we have defined them, there is a fear that landowners, and even local authorities, will take the easy way out and will not be prepared to offer facilities.

Stephen Hesford (Labour, Wirral West)

I have had no correspondence on the matter, perhaps because, unlike the hon. Lady, I do not have a naturist beach in my constituency. Is there any evidence from naturists that, under existing law—we have heard what existing law can contain and be aimed at—they have been suppressed and harassed, and that the Bill would reinforce that? Or is it suggested that there has been no harassment or suppression in the past, but that it might start now because of the Bill?

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

I think that the concern is that, with such a rightly high-profile Bill, which rightly has such an emphasis on children, people will be much more cautious about what they give permission for on their land. That is why there is worry that the clause could have an unintended consequence of suppressing naturism. We are aware that naturists wanted it to have a sexual gratification element, so that they were definitively excluded from it. In turn, the Home Affairs Committee considered the matter extensively and listened to the evidence, but did not decide that that was necessary. However, it certainly wanted to protect naturism and felt that it was undesirable to criminalise it. I should be grateful if the Under-Secretary would say why it is considered unnecessary to introduce a further qualification relating to sexual gratification or to whether the activity was designed wilfully to provoke another person into a state of fear, alarm and distress.

Furthermore, naturists have said that if, for example, one of their members accepted a caution on a beach—which he might do as a simple way out of a difficult situation, rather than arguing—if we follow that through and put the clause with clause 81(1)(d) and clause 83, there is a fear that it could lead to someone being placed on the sex offenders register. It is important for the Under-Secretary to allay such concerns and put his comments on the record. I reiterate that I have a good mailbag on the issue and the fears remain. However, there is much gratitude for what has already been done to improve the clause.

Roger Gale (Conservative, North Thanet)

Order. At the start of her remarks, the hon. Lady said that she could not move her amendment. There is a point of procedure whereby, when amendments are debated together, it is open to her to move her amendment formally at the end of the debate if she so chooses and to inform the Chair of her intentions.

John Randall (Conservative, Uxbridge)

The hon. Lady described a naturist beach. She said that there was a sign up about it. One of my innocent hobbies, which I share with the Government Whip, is birdwatching. The problem will probably apply to the next clause,

but if I were wandering along that beach with binoculars, would I be caught by the Bill?

Paul Goggins (Labour, Wythenshawe and Sale East)

At this point, I shall respond to the hon. Lady. The key point about naturists and the reason why I am confident that they will not be caught by the clause is that, unless a naturist intends to cause alarm to others, he will not be caught. The key point is the intention. We accept in good faith that it is not the intention of naturists to cause alarm or distress. I hope that I have reiterated my assurance to the Committee that I believe that naturists will not be affected by the Bill.

Dominic Grieve (Conservative, Beaconsfield)

The hon. Lady may have a point that the Under-Secretary has not quite answered. What about a naturist who occupies a beach in a public thoroughfare that is traditionally used by naturists? Clearly, he goes there intentionally to expose his genitals, but he knows that an individual walks along that beach who suffers great alarm and distress each time he sees the naturist. Does the naturist commit the offence because he knows that someone will see his genitals and be caused alarm or distress, but decides that, because the person is so unreasonable, he will go ahead with his activities? That ties in with the hon. Lady's amendment about whether the clause should read ''knows and intends'' as opposed to ''knows or intends''. The Under-Secretary did not answer that point.

Paul Goggins (Labour, Wythenshawe and Sale East)

We are back to the issue of whether the naturist ''intends''. In the scenario outlined by the hon. Gentleman, there is clearly no intention.

Dominic Grieve (Conservative, Beaconsfield)

This is critical, and the hon. Lady's point is good. No prosecution would ever lie, but it is technically possible to commit the offence without any intention at all if a person exposes their genitals in circumstances where they know that someone will see them and be caused alarm or distress. We come back to the question of how reasonable that alarm or distress may be. People could be walking backwards and forwards on a nearby public footpath, and the naturists who occupy the beach could be in a constant state of anxiety that all it needs is for someone to see them and say that they are alarmed or distressed and—hey presto—they have committed the offence.

Paul Goggins (Labour, Wythenshawe and Sale East)

The hon. Gentleman seems to have some enthusiasm for his argument. I shall respond to the question why we do not state knowledge as well as intention. It may allay the concerns of hon. Members, including those of the hon. Gentleman.

If we added the requirement of knowledge, it would mean that in every case of prosecution the witness would have to give evidence that they were caused alarm or distress. That would allow an escape route or get-out clause for a genuine offender because there would have to be a witness in the witness box demonstrating and giving evidence that the event had caused them distress. That would not be appropriate. I hope that offers some reassurance.

Chris Bryant (Labour, Rhondda)

I am grateful to my hon. Friend, who has made an important point, which tells against the hon. Lady. The only time that I have been to Studland bay was when I did a parachute jump out of the back of a Hercules aircraft and we landed there. Since I was dressed as a vicar at the time, naturists on the beach might well have thought that they were about to cause offence and alarm. Presumably, there is also the matter of someone lying asleep on a nudist beach who could not be thought to have any intention, but who might cause offence.

Paul Goggins (Labour, Wythenshawe and Sale East)

I simply make the point again that offence is certainly not their intention and it is certainly not done knowingly. I do not believe that the clause as drafted gives any room for concern, and the naturists going about their normal activities on the beautiful beach in the hon. Lady's constituency have nothing to worry about.

The hon. Lady raised the issue of sexual gratification and advanced the argument for why—

Sandra Gidley (Liberal Democrat, Romsey)

I am still not convinced by the hon. Gentleman, and I wonder whether he can answer this question. A person might have to walk along the beach at Studland or elsewhere regularly, but they might not like it and be distressed, and they could decide to bring a prosecution. The hon. Member for Beaconsfield is right: the person being prosecuted might have known that the other person was distressed, and that means—surely—that he is committing an offence. However, the nudist may not have intended to cause any great embarrassment or distress, so the problem is doing the watching rather than being watched.

Paul Goggins (Labour, Wythenshawe and Sale East)

I am in danger of disappearing down a plughole here, but I shall make a valiant attempt to respond.

In relation to knowledge, there must be alarm or distress. On proving intent, it does not need to be proved that there was distress. In the hon. Lady's question, it was clearly not the intention of the person she described to cause alarm or distress. Naturists do not need to fear that they will be caught by this clause.

John Randall (Conservative, Uxbridge)

I recently read about the naked rambler. I do not know whether he was trying to cause harm or distress, or whatever. My impression from the reports was that he was not, but that he caused it anyway.

Paul Goggins (Labour, Wythenshawe and Sale East)

Well, it is his intention that matters. As I recall, he intended to walk from Land's End to John O'Groats, not to cause alarm or distress, so he would not be covered by this piece of legislation.

Hilton Dawson (Labour, Lancaster and Wyre)

Did he wear boots?

Paul Goggins (Labour, Wythenshawe and Sale East)

Indeed, he wore a very sturdy pair of boots.

The reason why we did not see fit to include sexual gratification in this part of the Bill is that exposure can be part of an act of aggression, or loutishness. In such circumstances, there would be the intention of causing alarm or distress—and that should be covered. Such individuals would be missed out if there only had to be sexual gratification.

The hon. Member for Mid-Dorset and North Poole also asked about registration. Exposure can, in certain circumstances, be a serious, distressing offence, so it may be appropriate for there to be registration. Registration would apply if the victim were under 18, or if the offence were so serious that it warranted a prison sentence or a 12-month community penalty. Such penalties would signal that it was an extremely serious offence. For less serious offences there would not be registration.

Humfrey Malins (Conservative, Woking)

It has been a good debate—we may return to it on Report. I pause only to say that I am not entirely sure whether that is ever worth a trial on indictment. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

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

I do not wish to press my amendment to a vote, Mr. Gale.

Clause 68, as amended, ordered to stand part of the Bill.

Clause 69 ordered to stand part of the Bill.

Clause 70 - Voyeurism: interpretation

Dominic Grieve (Conservative, Beaconsfield)

I beg to move amendment No. 240, in

clause 70, page 34, line 3, after

'structure', insert 'or enclosed space'.

Dominic Grieve (Conservative, Beaconsfield)

My concern, which is, perhaps, the reverse of that expressed in the previous debate, is about the definitions clause on voyeurism. Clause 70(2) says:

''A person is doing a private act if the person is in a structure''.

What is a structure? The Under-Secretary may be able to help us on that. When I read the word structure, giving it its ordinary meaning, I associate it with something that has a wall and a roof. I am concerned that this definition appears to sanction or allow voyeurism in circumstances in which privacy was provided by an enclosed space, and the voyeur, for whatever reason, decided to intrude on that enclosed space by, for example, making a hole in a partition or wall. To make the position clear we should include the words ''enclosed space'', which I would take to mean a garden, if it were surrounded by a high wall and could not be overlooked. The words ''enclosed space'' must be read in conjunction with what comes after them—

''in the circumstances, would reasonably be expected to provide privacy''.

Obviously, a garden wall surrounded by tower blocks could not reasonably be expected to provide privacy; however, a garden could be expected to do so if it were not overlooked, and if the only way that one could overlook it was by getting a tall ladder and climbing up it in order to peer in. We should think about extending the protection to that setting.

That point—to come back to our earlier debate—has relevance to naturists, who may wish to congregate in an area that is not a structure as I would interpret it. We should consider extending the protection to those doing private acts in enclosed spaces if, in the circumstances, the spaces could be reasonably expected to provide privacy. That is an extension of the definition of ''structure'' that would be proper.

The Under-Secretary may try to reassure me that ''structure'' would encompass an enclosed area but, using my ordinary understand of English, I do not think that it does; I think that a structure denotes something that has walls and a roof, although I accept that one might use the definition of a ruined structure that was roofless. The hon. Gentleman may be able to help me. I would like to provide the maximum protection to people in areas that they can reasonably consider private. Obviously, if a garden is surrounded by a fence that can be looked over by anyone who looks around, those in it should not have that protection.

However, considering the surrounding circumstances reasonably, if anyone wishing to peer in has to carry out what I would describe as a pretty abnormal activity, such as getting on a ladder, there should be a possibility of extending that definition. I accept, however, that if a structure requires a roof, there is the difficulty of people flying over by helicopter and things of that sort, and that might present a problem. However, before we agree to this laudable clause, I hope that we will take an opportunity to see whether the definition could sensibly be extended.

Paul Goggins (Labour, Wythenshawe and Sale East)

The hon. Gentleman raises an interesting question about how tightly we have defined ''structure''. We have intended ''structure'' to include

''a tent, vehicle or vessel or other temporary or movable structure''

as well as the more obvious places that the hon. Gentleman mentioned, including a house and a cubicle. That is because we want to restrict criminality for that offence to those who go to considerable lengths to spy on others who are engaged in private acts, rather than people who, to return to the point made by the hon. Member for Woking, just stumble across people while they are out and about.

The problem with the amendment is what ''enclosed space'' would mean. The amendment offers no definition of what that might be. Perhaps the hon. Gentleman will illuminate.

Dominic Grieve (Conservative, Beaconsfield)

I rather hoped that the clause was self-defining because of the useful words that follow. The clause would read an ''enclosed space which, in the circumstances, would reasonably be expected to provide privacy''.

Vera Baird (Labour, Redcar)

A place.

Dominic Grieve (Conservative, Beaconsfield)

I hear the hon. and learned Lady say ''a place'', and that was an alternative that I thought about. However, that worried me, because it raises the question of people saying, ''Well, it's a completely open area, but I never expected someone to come

across me.'' I am going to Scotland this weekend. If, when I am in the moors, I stumble at 1,100 m on a couple making love, I rather hope that I will not be regarded as a voyeur, because I suppose that they might reasonably have said that they reasonably expected the place to provide privacy and had not envisaged that I would turn up. That is why the idea of enclosure seemed reasonable to me.

Paul Goggins (Labour, Wythenshawe and Sale East)

The word ''enclosure'' is interesting, because it gives one the impression of a confined and defined space, but a football stadium could be described as an enclosed space—which would be an interesting definition in relation to this clause—as could a fenced-off field. We need a definition that is workable for the offence.

Dominic Grieve (Conservative, Beaconsfield)

Does not the caveat that follows—

''reasonably be expected to provide privacy''—

in fact provide that definition? A football stadium may be an enclosed space but, unless all the doors have been locked and bolted and everyone else excluded, no one could possibly say that it could reasonably be expected to provide privacy, and nor could a field that is surrounded merely by a low hedge or an open fence. On the other hand, if there was a walled garden with a door into it rather than a grille and that was not overlooked by any buildings or a natural feature that someone could stand on to peer in, it would be a voyeuristic activity to get a ladder and climb up in order to watch people engaging in private acts.

Paul Goggins (Labour, Wythenshawe and Sale East)

The hon. Gentleman makes a good point. [Interruption.]

Roger Gale (Conservative, North Thanet)

Order. Would the gentleman leave the Committee Room, please?

Paul Goggins (Labour, Wythenshawe and Sale East)

The Government's view is simply that the amendment would make the definition too wide. We want to remove possible areas of doubt. I have given the hon. Gentleman a couple of examples of where there could be doubt—although my examples might have been a bit extreme. There may be an area of confusion, and we do not want that to be the case. We do not want to describe someone's private home or those very confined spaces with which we are familiar: we want to extend the definition slightly, but we do not want to make it so broad that there would become considerable doubt in relation to it.

Vera Baird (Labour, Redcar)

I can see the problem that the hon. Member for Beaconsfield outlines, and I share his concern. Someone who accidentally stumbles over a person committing a private act will not be guilty of the offence as defined in clause 69(1), where they must have the purpose of obtaining sexual gratification as they observe the private act. If someone did that by accident, they would not have done it for that purpose.

I am concerned about the women's pond on Hampstead heath. It is fenced off and behind trees, but it is not in any sort of structure. Women frequently sunbathe and bathe naked there, and it is intended that only women should be present. That would not be covered by this definition of structure.

Paul Goggins (Labour, Wythenshawe and Sale East)

Notwithstanding the importance of providing a clear definition in relation to enclosed space, in keeping with the spirit of co-operation that has been a mark of our discussions over recent days we will reflect further on whether we might define this a little more broadly—not so broadly that it includes the football stadium, but so that it addresses some of the points raised by the hon. Member for Beaconsfield.

Chris Bryant (Labour, Rhondda)

I urge my hon. Friend not to go down the road that I think that my hon. and learned Friend the Member for Redcar (Vera Baird) has advocated, because the example that has been offered would not count as a private act in the context of the clause.

Paul Goggins (Labour, Wythenshawe and Sale East)

That is the dilemma that we face. How tightly or broadly do we define this? We want to err on the side of tightness because otherwise there would be too much confusion. However, I want to reflect on whether we have defined this a tad too tightly.

Dominic Grieve (Conservative, Beaconsfield)

I am grateful to the Under-Secretary for agreeing to think about this. The amendment was not meant to be particularly controversial: I was trying to ensure that the intention—which I fully understand—behind these clauses was met. The Under-Secretary has confirmed that ''a structure'' must have a roof and that it must be enclosed on all sides. I wonder whether the scope should be widened, because people are entitled to protection from voyeurs in other settings. The hon. and learned Lady referred to Hampstead heath. There are many other historic locations where traditionally it was permissible—even in Victorian times—for people to take off their clothes in single-sex company. Screens were provided, which could not reasonably be looked through unless someone made a determined attempt to do so. If it can be provided, there should be a measure of protection for such people, too.

While I appreciate the Under-Secretary's anxiety, I am much more comfortable with the fact that my proposal would not lead to the mischief that he is worried about. Indeed, given the other issues that are involved, I am even half persuaded by what the hon. and learned Lady said about the use of ''place''. However, I still want to think more carefully about that. I am grateful to the hon. Gentleman for agreeing to think through the matter further. Clearly, we have a common purpose in what we want to achieve, but words matter in such a setting. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Amendments made: No. 99, in

clause 70, page 34, line 10, leave out subsection (3).

No. 100, in

clause 70, page 34, leave out line 13.—[Paul Goggins.]

Clause 70, as amended, ordered to stand part of the Bill.

Clause 71 ordered to stand part of the Bill.

Clause 72 - Sexual penetration of a corpse

John Randall (Conservative, Uxbridge)

I know that sometimes members of the Committee wish that I would not speak, and I must say that, on this occasion, I wish that I did not have to speak. I shall not take long.

The Under-Secretary and other members of the Committee may have read in the newspapers sometime around Easter about an incident at Hillingdon hospital when a body of an elderly Muslim lady was discovered to be wrapped in bacon. Obviously, that caused much distress. Subsequent investigation by the police revealed incidence of a much wider abuse of people in that mortuary, which had been happening for many years. Photographs were seized as, I believe, were body parts. I think that the matter is still going through the courts, so I shall not comment on individual cases.

I discovered that there is no protection for dead bodies, as such. It was difficult for the CPS to come up with a crime that had been committed. I appreciate that I am providing a good opportunity for you to slap me down, Mr. Gale, as some offences were not of a sexual nature and I appreciate that the Bill is perhaps not the appropriate vehicle under which to discuss them. However, there is a serious problem. As we can imagine, the offence that was committed against the body to which I have referred caused as much distress to the relatives as sexual penetration of a corpse would cause.

Some matters that were seized may have been of a sexual nature. I note that the clause deals only with penetration of a corpse, and I do not think that mention of photographs or images being an offence is mentioned elsewhere in the Bill. I can understand the legalistic problems involved, because a dead body does not have rights. It does not belong to anyone.

Even within the confines of the clause, consideration must be given to those who work in a mortuary and have responsibility. We accept that such a job is not pleasant, but those people have responsibility and are placed in a position of trust. We must bear in mind the problems caused if that trust were abused. One of the problems in my constituency and the surrounding area was that lots of people had dead loved ones who had been in that mortuary for a short time. They are worried that something might have happened to their loved ones while in the mortuary.

Can the Under-Secretary and the Home Office consider such a matter to see whether relevant provisions may be included in the Bill? It is something that not only my constituents and I, but the CPS and the police, would like examined.

Roger Gale (Conservative, North Thanet)

Order. The hon. Gentleman described something that was clearly distressing and offensive. However, I, not being a parliamentary draftsman, am not entirely certain whether it actually falls within the purposes of the Bill. The Under-

Secretary may construe under connected purposes that it does, in which case he is welcome to reply.

Paul Goggins (Labour, Wythenshawe and Sale East)

I shall accept your invitation, Mr. Gale. Those of us who do not live near the hon. Gentleman's constituency none the less read the reports in the newspapers and can only share in the sense of distress that there must have been in the community.

Existing legislation covers the exhumation of dead bodies without lawful authority, but there is no other protection for the body of a person once they have died. There is currently no law covering the sexual penetration of a dead human body or part of a dead human body. I am sure that the hon. Gentleman and other members of the Committee will agree that that is a somewhat surprising omission from the criminal law, since it represents a violation of the respect that should be shown for human remains. When such behaviour comes to light, it is profoundly distressing for the family of the dead person. In Committee, we are introducing an important new offence, which I am sure will go some way to reassuring the hon. Gentleman's constituents.

Question put and agreed to.

Clause 72 ordered to stand part of the Bill.

Clause 73 - Offences outside the United Kingdom

Humfrey Malins (Conservative, Woking)

I beg to move amendment No. 214, in

clause 73, page 35, line 12, after first 'or', insert 'lawfully'.

As I see it, clause 73 indicates that if a certain category of person commits an offence abroad, they are, so to speak, guilty in this country and can be charged. Under clause 2, someone who is resident in the UK—even if they are not lawfully resident in the UK—could also be charged. I wonder whether that is a good idea in principle.

I can understand why a British citizen who commits an offence in this country should be charged and prosecuted. I can equally understand why a British citizen, or someone who is lawfully resident here, who commits an offence abroad can be charged in this country. If we are discussing charging someone who is unlawfully resident in this country with an offence committed abroad, issues such as taxpayers' money and wasting time come into play.

If someone who is unlawfully resident in this country has committed an offence abroad, it would be much simpler to use our natural powers to deal with them. If those who are here unlawfully were charged in this country with an offence committed abroad, they would go through the full panoply of legal aid, which would impose a cost on the taxpayer. I wonder whether it would be worth it. Does the Under-Secretary envisage that people who are resident in this country unlawfully would fall within the ambit of the clause?

Paul Goggins (Labour, Wythenshawe and Sale East)

In reading the hon. Gentleman's amendment, I was interested in the concept of an unlawful British citizen. One is either lawfully a British citizen or one is not.

Humfrey Malins (Conservative, Woking)

Subsection (2) states,

''or has since become, a British citizen or resident in the United Kingdom'',

so I did not assume that a resident in the United Kingdom meant a British citizen; I thought that it was a separate category.

Paul Goggins (Labour, Wythenshawe and Sale East)

But certainly. ''Resident in the United Kingdom'' refers to persons who are lawfully resident in the United Kingdom, but who are not British citizens. We are not seeking to prosecute someone who arrives in the UK, for child sex offences committed in a country that they have come from or travelled through. We must draw a line on jurisdiction.

Humfrey Malins (Conservative, Woking)

In that case, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 73 ordered to stand part of the Bill.

Schedule 2 - Sexual offences to which section 73 applies

Paul Goggins (Labour, Wythenshawe and Sale East)

I beg to move amendment No. 101, in

schedule 2, page 76, line 15, leave out '15 and'.

This is a minor drafting amendment. Paragraph 1 of schedule 2 lists the offences in England and Wales to which section 73 applies so that where one of the offences specified in paragraph 1 is committed in a foreign country with an equivalent offence, the offence may be tried in a domestic court. At present, sub-paragraph (a) refers to offences under clauses 6 to 15 and 17. The amendment simply makes that reference neater by changing it to offences under clauses 6 to 17. The amendment makes no change to the substance of the Bill.

Amendment agreed to.

Schedule 2, as amended, agreed to.

Clause 75 ordered to stand part of the Bill.

Clause 79 - ''Sexual''

Paul Goggins (Labour, Wythenshawe and Sale East)

I beg to move amendment No. 123, in

clause 79, page 37, line 33, after 'Part', insert '(except section 67)'.

Roger Gale (Conservative, North Thanet)

With this it will be convenient to take Government amendment No. 124.

Paul Goggins (Labour, Wythenshawe and Sale East)

Hon. Members may be aware that the way in which the definition of ''sexual'' in clause 79 is currently framed caused concern in the other place. It has already been a matter of some debate in this Committee. One of the noble Lords suggested that the clause's wording would be difficult for juries to understand, which could potentially involve their reaching the wrong decision on whether a particular act was sexual. There was also some confusion over the phrase ''(at least)'' in clause 79(1)(a). We do not want to interfere with the practical effect of clause 79 because we believe that it requires the jury to apply the right tests when deciding whether an activity was sexual. However, we have no wish to complicate matters for the jury and are happy to reword clause 79 in the interests of clarity.

Clause 79 provides a definition of ''sexual'' for the purpose of the offences in part 1 and is intended broadly to reflect the definition of ''indecent'' in the context of indecent assault in current case law. The jury are required to use three criteria in their assessment of whether an activity was sexual: whether an act is sexual by its own nature or is only ambiguously sexual by nature; the circumstances in which the act took place; and the purpose of any person in relation to the act. In short, the test covers all activity that a reasonable person would consider to be sexual. However, it rules out any activity that a reasonable person would never consider sexual by reason of its nature, such as removing a person's shoes. That ensures that we do not capture activity that no reasonable person would consider to be sexual, and may have been sexual only because the defendant happened to have a secret fetish not made known to the victim—in that example, a foot fetish.

At present the test in clause 79 works as follows. Its first part, in paragraph (a), covers any fundamentally sexual activity such as sexual intercourse or masturbation. In such cases, a reasonable person would be in no doubt, simply because of the nature of the act. Both the tests at paragraph (a)—that the nature of the act is sexual and that because of its nature a reasonable person would consider it sexual—would be met. As well as activity that is obviously sexual by nature, the clause also covers acts that may or may not be sexual depending on the circumstances and/or purposes of any person. For example, digital penetration of a woman's vagina by a doctor may be fundamental to diagnosis or treatment, but could also be wholly irrelevant and only carried out for the doctor's sexual gratification. The jury must therefore consider the circumstances and the doctor's purpose. Similarly, touching a person's thigh is by its nature possibly sexual, but the circumstances in which the touching takes place, and the reason for it, will determine whether it is in fact a sexual act.

As currently drafted, the whole of clause 79, including paragraphs (a) and (b), is relevant to all decisions on whether an act is sexual. Although the new version of clause 79 continues to apply the same tests, it clearly separates activity that is sexual by nature, and would be considered to be so by any reasonable person regardless of the circumstances in which it takes place or the purpose of any person in relation to it, from activity that is sexual only because of those circumstances or that purpose. That has exactly the same effect as the current test but will be easier for juries to understand. That should ensure that only activities that a reasonable person would consider to be sexual will fall within the scope of the offence in part 1.

Amendment No. 123 is technical and would disapply clause 79 from the offence of sexual activity in a public lavatory, which was debated earlier at clause 67. Hon. Members will recall that by virtue of amendment No. 120, clause 67 now incorporates its own definition of what constitutes sexual activity, which is appropriate to the kind of offending behaviour covered by that offence. I do not intend to speak any further to amendment No. 123, because we

discussed the relevant matters in detail in connection with amendment No. 120.

Dominic Grieve (Conservative, Beaconsfield)

I simply welcome the amendments. There was no doubt in my mind when I first read the Bill that the definition of the word ''sexual'' in clause 79 as it stood would be a potential disaster area in a jury trial. I just about understood what it meant, but those who represented strongly that it did not read easily and would be very difficult to explain to a jury were absolutely right. One has only to consider the definition in amendment No. 124 to see that it is much easier to understand.

Amendment agreed to.

Amendment made: No. 124, in

clause 79, page 37, line 34, leave out from 'if' to end of line 39 and insert

'a reasonable person would consider that—

(a) whatever its circumstances or any person's purpose in relation to it, it is because of its nature sexual, or

(b) because of its nature it may be sexual and because of its circumstances or the purpose of any person in relation to it (or both) it is sexual.'.—[Paul Goggins.]

Clause 79, as amended, ordered to stand part of the Bill.

Clause 80 - Part 1: general interpretation

Roger Gale (Conservative, North Thanet)

Order. Before we leave, I wish all Committee members a productive three weeks and, perhaps as importantly, remind them that, for the purposes of the House, Tuesday 14 October will be a Monday in terms of sitting times. Therefore the Committee will sit not at 10 minutes past 9, but at 10.30 am. I am pleased to be able to say that I will be in the Chair.

Further consideration adjourned.—[Mr. Heppell.]

Adjourned accordingly at twenty-three minutes to Five o'clock till Tuesday 14 October at half-past Ten o'clock.