Sexual Offences Bill [Lords]

House of Commons, 3 November 2003.

New Clause 2 — Penalties For Keeping A Brothel

Paul Goggins (Labour, Wythenshawe and Sale East)

I beg to move, That the clause be read a Second time.

Michael Martin (Speaker, Glasgow Springburn)

With this it will be convenient to discuss the following: amendment No. 142, in clause 48, page 28, line 14, leave out

'against a person under 16 is liable'.

Amendment No. 143, in clause 48, page 28, line 16, leave out subsections (5) and (6).

Government amendment No. 47.

Amendment No. 186, in clause 57, page 30, line 38, at end insert—

'(c) a person who has been subject to trafficking into the UK for sexual exploitation shall be granted the opportunity of remaining in safe accommodation in the UK for a period of up to 6 months.'.

Government amendment No. 48.

Amendment No. 49, in clause 59, page 31, line 22, leave out from 'he' to 'done' in line 24 and insert

'believes that another person is likely to do something to or in respect of B, after B's departure but in any part of the world, which if'.

Amendment No. 138, in schedule 2, page 80, line 17, leave out '48' and insert '49'.

Amendment No. 139, in schedule 2, page 80, line 27, at end insert—

'(e) an offence under section 48 where the victim of the offence was under 18 at the time of the offence.'.

Amendment No. 140, in schedule 3, page 84, line 39, leave out '16' and insert '18'.

Amendment No. 141, in clause 86, page 45, line 17, after 'Kingdom', insert 'for any period'.

Amendment No. 135, in clause 115, page 63, line 2, after '16', insert 'or 18'.

Amendment No. 136, in clause 115, page 63, line 3, after '16', insert 'or 18'.

Amendment No. 137, in clause 116, page 63, line 26, after '15', insert '29,'.

Government amendments Nos. 74, 134 and 114.

Paul Goggins (Labour, Wythenshawe and Sale East)

This first group covers the areas of sexual exploitation and trafficking. New clause 2 raises the maximum penalty available for the offence of keeping a brothel at paragraph 33 of schedule 2 to the Sexual Offences Act 1956 from three months imprisonment, or six months for a second or subsequent offence, to seven years imprisonment. That brings it into line with our exploitation of prostitution offences in clauses 53 and 54, adding to the ability of the police to tackle the serious sexual exploitation of adults involved in prostitution.

Chris Bryant (Labour, Rhondda)

I wholly agree with what my hon. Friend is saying, but in the provision there is an assumption that we all know what a brothel is, and I am sure that he is aware that that is somewhat uncertain in law. Indeed, under section 6 of the Sexual Offences Act 1967 a brothel would include anywhere to which people resorted for the purpose of lewd homosexual practices. I wonder whether my hon. Friend intends at any point to reform the law so that it is a bit clearer on precisely what a brothel is.

Paul Goggins (Labour, Wythenshawe and Sale East)

My right hon. Friend the Home Secretary has already announced a review of prostitution and one of the issues that that review may consider is a definition, but my hon. has raised the matter with me privately as well as on the Floor of the House. He has some concerns that the proprietors of commercial gay saunas, for example, may be caught by the new clause. I make it absolutely clear that we intend at Lords consideration of Commons amendments to restrict the use of the seven-year penalty to those cases that involve prostitution. I hope that that offers my hon. Friend some assurance.

In formulating our offences in this area, we were keen to ensure that the law is focused on genuinely exploitative behaviour. It was for that reason that the sexual offences review recommended the repeal of the offence of "man living on the earnings of prostitution" in section 30 of the Sexual Offences Act 1956, and why we created the offences in clauses 53 and 54. In Committee, the Minister for Citizenship and Immigration underlined that these offences were designed to tackle the problems of on-street pimps who exploit prostitutes in their control.

The offences are also designed to tackle those who cause, incite or control the prostitution of others in any circumstances, whether that is on-street prostitution or off-street in brothels or in any other place. However, it has come to our attention that the police were not confident that the prosecution would always be able to make out the element of "control" in our new offences where the owner of a brothel, or multiple brothels, might be exploiting several prostitutes at their premises—and making a considerable amount of money out of it—but putting himself at a distance from the actual running of the premises.

We have said throughout consideration of the Bill that the issue of brothels is outside the scope of this Bill and should be looked at in the wider context of the review of prostitution that I have mentioned. Having discussed the matter with the police, we feel that the best way to tackle this possible difficulty is to raise the penalty for the offence of keeping a brothel in section 33 of the 1956 Act to give the police another offence with a substantial penalty effectively to target those who exploit the prostitution of others in this way.

Dominic Grieve (Conservative, Beaconsfield)

The Under-Secretary will agree that there is a clear distinction between living off earnings and controlling activities. It might have been possible to make section 30 gender-neutral with a reference to "any person" who lives off the earnings of a prostitute, irrespective of whether that was a man or a woman. Was there any particular reason why the Government did not adopt that course?

Paul Goggins (Labour, Wythenshawe and Sale East)

We did not adopt that course because quite innocent third parties could be caught technically by the offence of living off the earnings of prostitution—for example, somebody earning an income from prostitution and using the money to help send a daughter to college or to help a member of the family in some other way. That is one of the reasons why we felt it important to move on. We will look at the area in greater detail in considering the legislation on prostitution.

Subsection (b) of new clause 2 and the other Government amendments in this group—Nos. 74, 134 and 114—are merely consequential and minor drafting amendments as a result of new clause 2, and simply ensure that references elsewhere in this Bill and other legislation relating to section 33 of the 1956 Act are up to date.

The purpose of Government amendments Nos. 47, 48 and 49 to the trafficking offences in clauses 57 to 59 is to ensure that the offences can be used effectively to prosecute all those who arrange or facilitate the process of trafficking, believing that someone else is going to commit a sexual offence against the victim. As drafted, the offences require a higher threshold of criminality, namely, that the defendant must intend to facilitate the third person's commission of an offence against the victim. We have been persuaded that it would be very difficult in many cases to prove this intention, with the result that many of those who take part in this horrendous trade, fully aware of what will happen to the victim at the end of the process, could be beyond the reach of the criminal law.

As the House is aware, the Nationality, Immigration and Asylum Act 2002 introduced new offences of trafficking for the purposes of controlling someone in prostitution. These made it an offence for a person to arrange or facilitate the arrival, travel within the UK once arrived, or departure from the UK of another person, when either he intended to exercise control over that person's prostitution or he believed that another person was likely to do so. That is a lower threshold than the offences currently in the Bill and, on reflection, we have concluded that the lower threshold is the correct one.

We are striving to ensure that different levels of involvement in prostitution and exploitation are reflected in a range of different offences with appropriate penalties and I urge the House to accept the Government amendments.

Amendment No. 186, tabled by the Liberal Democrats, would add a statutory requirement that all victims of trafficking as defined by the Bill be given the opportunity of remaining in safe accommodation in the United Kingdom for up to six months. I sympathise with the sentiments behind the amendment, but we believe that the application of a blanket period of leave for those who claim to have been the victims of trafficking for the purpose of sexual exploitation would not be appropriate.

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

The intention of the amendment is to give an opportunity for a period of up to six months; there is nothing "blanket" about it. The Minister for Citizenship and Immigration said in Committee that each case should be considered individually, and our amendment makes provision for that.

Paul Goggins (Labour, Wythenshawe and Sale East)

I agree that each case must be considered on its individual merits, and I can offer the hon. Lady the assurance that no action will be taken by the immigration service while a case is being assessed. However, it is important that we do not have any blanket provisions, and we must always watch for potential abuse of a system which, although designed to help vulnerable people, could be exploited by others.

Sandra Gidley (Liberal Democrat, Romsey)

I am disappointed that the Minister is being so dismissive, because there are other countries that, despite having an immigration problem, seem to be able to distinguish between illegal immigration and trafficking. The two are different, and we are in danger of lumping trafficking in with all the other forms of immigration. None of us would be happy to go down that road.

Paul Goggins (Labour, Wythenshawe and Sale East)

I assure the hon. Lady that I am far from being dismissive, and perhaps if she listens to my further comments she will be more reassured.

We need a strong focus on victims of trafficking and we are committed to ensuring that they are treated properly. We discussed this matter at length in Committee, and as we said then, a six-month pilot project offering support and, where necessary, accommodation to women who have been trafficked into the United Kingdom for sexual exploitation was launched in London on 10 March. It has now been extended to the end of the year to allow more time for evaluation. The project is managed on behalf of the Home Office by Eaves Housing for Women, a voluntary organisation with long experience of assisting women deemed to be vulnerable as a result of homelessness, drug or alcohol dependency, mental health issues or domestic violence, and which is well able to deal with these very vulnerable women.

Women will be permitted to remain here on temporary admission while they are on the project, but they will be expected to return to their own countries in due course. In this context, I should point out that a voluntary assisted returns programme has been developed by the immigration and nationality directorate, and the project will be managed jointly by the immigration service and a specialist non-governmental organisation.

Hilton Dawson (Labour, Lancaster and Wyre)

Does my hon. Friend agree that, notwithstanding the appalling circumstances suffered by adults who are trafficked into this country for sexual exploitation, the position is particularly difficult with regard to children? Does he agree that although work is being done, a great deal more needs to be done throughout the country to assist those children and ensure that protective legislation such as the Children Act 1989 takes precedence over immigration and asylum legislation?

Paul Goggins (Labour, Wythenshawe and Sale East)

My hon. Friend is a great champion of children and children's rights, and I am sure that we shall hear more from him as the debate proceeds. I can confirm that there is a great deal of work already taking place in social services departments, the police and many other agencies, which all treat such issues very seriously and want to give children the kind of protection and support that my hon. Friend has mentioned.

The pilot scheme to which I referred is supported by the advisory group on the victims of trafficking, which includes representation from the Home Office, the immigration service, the police, social services and non-governmental organisations. The project is being evaluated by the Home Office research development statistics unit, and a report is expected in the spring of next year.

Evan Harris (Liberal Democrat, Oxford West and Abingdon)

Does the Minister believe that the fight against trafficking for sexual exploitation is being won, and if—despite the efforts being made—he does not, does he recognise that one problem is the unwillingness of victims to come forward, for fear of reprisals in this country and in their country of origin? Does he therefore feel that it might be more sensible to give them the reassurance of a guaranteed safe house? It would be easier to do that than to rely on their knowing whether or not a pilot scheme is being extended, worthy though such schemes may be.

Paul Goggins (Labour, Wythenshawe and Sale East)

Initially, we have to see how well the project works, and as I said it is being evaluated to establish the strengths of this approach. It would be a very bold politician who said that we are winning the battle against trafficking, but this Government have made it absolutely clear that we are determined to fight that battle. Of course, part of that is the need to provide support, counselling and various services for the women who get caught up in this dreadful trade, but we will evaluate the project and develop the resulting practice in due course. I hope that I have reassured Members on both sides of the House that we are taking appropriate action and that the amendment is therefore not necessary.

I come briefly to amendments Nos. 140, 142 and 143, which are in the name of my hon. Friend the Member for Lancaster and Wyre (Mr. Dawson) and others. Existing criminal law relating to prostitution focuses only on the activities of prostitutes themselves, or on those who exploit them, such as their pimps. Although it is currently unlawful to engage in sexual activity with a child aged under 16, we are for the first time making it an offence specifically to buy the sexual services of a child. As drafted, the offence carries three bands of penalties, depending on the age of the child-victim and the type of sexual service paid for. For penetrative sexual activity involving a child under 13, an offender could face life imprisonment and would have to comply with the notification requirements of part 2. 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 maximum penalty of 14 years. Again, that reflects the seriousness of the crime. A conviction or caution received for such an offence would require an adult offender to comply with the notification requirements of part 2.

For any type of sexual services bought from a child aged 16 or 17, an offender faces a maximum of seven years in prison and is not required to comply with the notification requirements. In effect, amendments Nos. 142 and 143 would increase that penalty to a maximum of 14 years, and amendment No. 140 would put such offenders on the sex offenders register. I continue to agree that the sexual exploitation of children up to the age of 18 through prostitution should be a concern of the criminal law; however, I cannot support these amendments. I do not believe it proportionate to have the same maximum penalty for the offence once the child is aged 16 or 17—which, in the end, is above the age of consent—and nor should such offenders become subject to the notification requirements. Likewise, we cannot justify putting people on the sex offenders register if they have paid for sexual activity with 16 or 17-year-olds. I have no doubt that such activity is exploitative and should be a criminal offence, but I am not convinced that offenders of this kind pose such a risk that they should automatically be subject to the notification requirements. Of course, it is possible for the courts to make a sexual offences prevention order on such offenders if they believe that the order is necessary to protect the public from serious sexual harm. Such an order would oblige the offender to comply with the notification requirements.

Amendments Nos. 135 to 137—also in the name of my hon. Friend the Member for Lancaster and Wyre and others—would extend the definition of "qualifying offender", for the purposes of foreign travel orders, to include offenders with a previous conviction for the offence of paying for the sexual services of a child aged 16 or 17. The amendments would also enable the court to make a foreign travel order, where it is satisfied that it is necessary to prevent the offender from committing a sexual offence against someone aged 16 or 17 overseas.

Those issues were discussed in Committee and I can assure the House that I have given them very serious consideration. I categorically agree that sex tourism is wrong. I cannot imagine that anyone in the House would not view as despicable the sexual exploitation of vulnerable young men, women and children in some of the poorest parts of our world. I can assure the House that the Government are committed to working with non-governmental organisations, other Governments and international organisations to combat this evil.

John Bercow (Conservative, Buckingham)

I entirely understand the rationale for the Minister's differentiation between those who are under 16 and those who are over it, although inevitably it will be a matter of some controversy. However, would the Minister at least acknowledge, if it is the case, that resources have entered his thinking? There is no embarrassment or shame about that, but was it not a relevant factor in determining the conclusion that the Minister appears to have reached?

Paul Goggins (Labour, Wythenshawe and Sale East)

I can say categorically that resources have not remotely entered my consideration of the matter. The key factor is the age difference: a 16 or 17-year-old is above the age of consent and, although a degree of criminality about the activity remains, a degree of proportionality is required. Having 16 as the age of consent is an issue to which I am sure we will return later in our deliberations today.

The foreign travel order has been crafted specifically as a response to one particularly abhorrent part of sex tourism—UK paedophiles travelling abroad to sexually exploit young children under 16. We all know that young children are particularly vulnerable to sex tourism because paedophiles do not face the same threat of detection, prosecution and sentencing that they would in the UK, and the opportunities to abuse children are far greater in some countries than here. I believe that the issue of paedophile sex tourism is so serious and so despicable that it warrants a particularly rigorous response.

I am concerned that the amendments, however well intentioned, will not work. To take out a foreign travel order, it needs to be established that the offender intends to commit the equivalent of a schedule 3 offence abroad. Obviously, for children aged under 16, any sexual activity is covered, because any sexual activity with a child is a serious sexual offence. However, 16 and 17-year-olds can consent to most sexual activity.

Sandra Gidley (Liberal Democrat, Romsey)

In some countries the age of consent is completely different, so should we not err on the side of caution and use 18 rather than 16 as a benchmark? Eighteen is the age of consent in some countries around the world, so would not greater consistency help to reinforce the message that something might be right in this country, but wrong in another? Is there not a danger of condoning it?

Paul Goggins (Labour, Wythenshawe and Sale East)

At one level the age of consent is an arbitrary figure. The hon. Lady is right to point out that it is different in different countries, but it is interesting that some people press me to use 18 as the age of consent in some respects, but in others they press me to make dispensation in certain circumstances for a lower age of consent. Having 16 as the age of consent in this country is well established, well understood and well supported by the people of this country, and it is important to stick to it and ensure that our laws reflect it.

To return to my speech, it will be difficult to ascertain, for the purposes of the foreign travel order, whether an offender intends to travel abroad to commit a sexual offence or to engage in consensual sexual activity with a person over the age of consent. I agree that we need to tackle sex tourism where the victims are aged 16 or over and there is a great deal of practical work on which my colleagues in the Foreign and Commonwealth Office and the Department for International Development are giving a lead in this area, and we are reflecting on what else we can do in support. However, the foreign travel order has been crafted specifically to protect those under 16 and it simply will not work if we try to extend it to cover those aged under 18. Similar arguments apply to amendments Nos. 138 and 139.

Amendment No. 141, also tabled by my hon. Friend the Member for Lancaster and Wyre, seeks to change the foreign travel notification requirements so that a registered sex offender would be required to notify the police of any intended period of foreign travel. The House will be aware that the foreign travel of registered sex offenders has attracted much debate during the passage of this Bill through Parliament. Indeed, as a result of considerable debate in the Lords and a consultation with interested parties, Lord Falconer announced the Government's intention to reduce from eight to three days the period for which a registered sex offender can travel abroad without notifying the police. We maintain that it is not necessary to reduce that period further.

We have consulted with key organisations on the issue of the foreign travel notification requirements, including the major charities working on the issue and the law enforcement agencies. The consultation looked at whether sex offenders should be required to notify all foreign travel, but it concluded that that would add little in terms of increased public protection from sex tourists. I should make it clear that the overriding purpose of notification requirements is to monitor the whereabouts of registered offenders, not to prevent travel abroad. The burden that such a requirement would place on offenders would be disproportionate to the minimal benefit that it would bring to public protection. Therefore, I believe that when the secondary legislation is made on this issue, we should set the period at three days.

I hope that what I have said in response to this group of amendments has gone some way to convince hon. Members that in these respects the Bill should remain as drafted.

Dominic Grieve (Conservative, Beaconsfield)

I listened with great interest to what the Minister had to say about new clause 2, and it certainly appears to be an improvement on the previous position, when the Government relied on clause 54. They have now responded to the representations of the police. However, without being unsympathetic to what the Minister is trying to achieve, I raised briefly in an intervention an issue that the House should consider.

Previously, under section 30 of the Sexual Offences Act 1956, it was an offence to live off the earnings of a prostitute. The offence did not require any control to be exercised over the prostitution. The person concerned simply had to know that the person off whose earnings he was living was a prostitute and that he was benefiting from prostitution. It therefore had the effect of catching people who might be far removed from the control of a brothel or individual prostitutes, but who knew what was going on and tolerated the situation to their advantage. I accept that the clause could potentially catch a prostitute's child who, for example, was receiving private education as a result of his mother's activities, but I suspect that such prosecutions rarely happened in reality.

The Minister started by relying on clause 54, which requires the intentional control of a prostitute's activities for gain. Control clearly implies a close connection between the person concerned and the activities of the prostitute, and the clause is principally aimed at pimping. The Minister will know that the police raised anxieties about that because they felt that in many cases it might be desirable that a prosecution could be brought against someone who was not in control of prostitution but was nevertheless intimately involved in the exploitation of the woman—or, indeed, man—concerned and was living off the earnings. That was the reason for the Government's reliance on section 33 of the Sexual Offences Act 1956 on managing or keeping a brothel, the penalty for which will be raised to a much more serious level.

I am certainly not going to stand in the way of what the Government are trying to do here. It goes some way towards meeting the concerns of the police, but it is worth noting that the Government have not gone as far as the police clearly would have wished. It will hereafter be impossible to prosecute somebody who may be living off the earnings of a prostitute—possibly, or even probably, someone well known to the police for using those earnings to engage in other criminal activities and who will now be beyond the reach of the law. I assume—this is the point on which I seek reassurance—that the Government have carefully considered that matter and are satisfied that they are willing to tolerate such a situation.

Rather than repealing section 30 of the Sexual Offences Act 1956, in view of what the police have said, the alternative approach would be to try to reform or to change it so as to enable it still to catch an adult knowingly living off the proceeds of prostitution but not, as the Minister desires, a child or other dependant. I do not agree with the Minister that there was no halfway house for Parliament if we wanted to respond to police concern. I should be grateful to hear whether he is satisfied—above all, whether the police have said they are satisfied—with what the Government propose. The Government's alternative is to rethink the repeal of section 30, considering whether some new offence could be brought in that would hit those who knowingly live off the earnings of a prostitute, an activity that the vast majority of people in this country consider improper.

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

I shall discuss amendment No. 186 and leave the others tabled by the Liberal Democrats to my hon. Friend the Member for Romsey (Sandra Gidley). We tabled that amendment after much thought. In particular, we paid attention to the debate in Committee, and I shall quote what the Minister for Citizenship and Immigration said, with which I totally agree:

"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."—[Official Report, Standing Committee B, 18 September 2003; c. 283.]

It is difficult to disagree with that, which is why the amendment carefully refers to "opportunity" and "up to 6 months".

As my hon. Friend the Member for Oxford, West and Abingdon (Dr. Harris) said in Committee, it is crucial not to confuse the separate issues of trafficking and illegal immigration. It would be harsh if a set of people who are already badly treated were to have that treatment compounded by not being treated with enough sympathy. There is a great deal of evidence that a period for reflection of up to six months would encourage more witnesses to give evidence against exploiters. They are the people we want to punish—not the victims, but those who run the dreadful trade in exploitation of women.

I have some difficulty with the fact that the Government will not give a little more on that point, although I am pleased by some of what has been said and by the pilot project. Even so, it is only a pilot, and a lot more is needed. Many organisations will be disappointed by the Government's response today. For example, the international order of Soroptimists has placed a call for a period of reflection of up to six months at the top of the agenda for its conference in Ireland later this year. It is a major issue, and a lot of people feel some empathy on it. I call on the Government to share in that feeling: at the end of the day, we want to give something back to those women who have suffered so greatly by giving some assurance that if they want a period of reflection in safe accommodation, this country—a relatively affluent one—can provide it. After all, it is people in this country who provide the demand for the services of the women who have been so harshly traded. In spite of what the Minister has said, I hope that he will consider further the principles behind the amendment.

Hilton Dawson (Labour, Lancaster and Wyre)

I am responsible for nine amendments in the group and I am grateful for the support of hon. Members on both sides of the House. I speak to them in the knowledge that this is a fine Bill that contains excellent principles. It is momentous and will last for many years. I suspect that the House will not revisit the matter for a considerable period, so it is doubly—indeed, trebly—vital that we get the Bill absolutely right, and take every opportunity to ensure that it works well.

My right hon. and hon. Friends are to be congratulated on their work on clause 48, which will introduce, for the first time, swingeing penalties against people who abuse children through prostitution. I commend the provisions concerning those who pay for the sexual services of a child. In particular, I commend the Bill's definition of a child: the United Nations definition of someone under the age of 18, which is set out in the Children Act 1989. That is preferable to the confusing definitions used in various elements of criminal and youth justice legislation.

The Government have provided a strong statement that paying for the sexual services of a child is child abuse, and severe penalties are laid down for adults who indulge themselves in that disgraceful practice. For crimes involving children aged under 13, there is the possibility of a sentence of life imprisonment, and people abusing children under 16 may end up with a sentence of 14 years. Someone who abuses children aged 16 and 17 may end up with a sentence of up to seven years. Those are severe punishments.

The distinction, which the Government have already explained and which was, I think, supported by the hon. Member for Buckingham (Mr. Bercow), who is no longer in his place, was based on the age of consent. I cannot see the sense or purpose of that distinction. As a wholehearted supporter of an equalised age of consent at 16, I cannot see its application in the case of some of the most vulnerable children—those who are abused through prostitution. I do not believe for an instant that a child who gets involved in that dreadful world, who is abused in such foul ways, has given any form of consent whatever to that involvement.

The reality of prostitution for children aged over 16 is probably that the abuse started much earlier. They probably became involved in prostitution before the age of 16, and are involved because they are being abused, controlled, manipulated and deceived. They are being forced into a life that can only be to their grotesque and gross detriment. The House is right to recognise that children need to be protected from people who would exploit them by paying for sexual services, but I do not understand why we need to make a distinction between children under 16 and children over 16.

I do not for a minute suggest that there should be a blanket response to people who are convicted of those awful offences or that everyone who abuses a child over the age of 16 should immediately get a 14-year sentence, but I firmly believe that, if we do not amend the Bill now, there will be occasions on which judges want to impose sentences that go beyond seven years on people who have abused children aged 16 or 17 to reflect the seriousness of the crime. I do not understand why we are not prepared to make that decision today.

The other amendments that I have tabled follow from my comments on clause 48 because I also seek to amend the clauses on foreign travel orders and the notifications required of sex offenders before they travel abroad. If we define children as people under the age of 18 in this country, we should extend that definition to children living across the world. If we want to protect children up to the age of 18 from sexual abuse and exploitation through prostitution in this country, we should extend that protection to children under the age of 18 in countries abroad. We should protect children who, in many cases, are made even more vulnerable to exploitation by sex tourists—paedophiles—from this country because of poverty, dislocation and the dreadful circumstances of many developing countries.

Again, I do not understand why we cannot extend foreign travel orders—bans on people travelling abroad—to people in this country who have been convicted of sexual offences against children over the age of 16. Extremely young children are employed in the sex industry abroad and their life is one of abuse and gross exploitation, so I do not understand why we should not try to do everything that we can to ensure that those children are properly protected up to the age of 18.

With regard to amendment No. 141, which relates to clause 86, we had a substantial discussion of such issues in Committee. Again, the Government are to be commended for reducing from eight days to three days the period for which convicted sex offenders can travel abroad without notifying the police. As has been made plain not just throughout our debates in Committee, but from our contacts with police officers during discussions on the Bill, we are dealing with devious but often highly intelligent and manipulative people who will work extremely hard to get round any legislation designed to prevent their wicked activities and appalling behaviour.

It makes no sense whatever to me to say that convicted sex offenders can leave this country for up to three days without notifying the police of where they are going. We all know how far people can travel in three days. Last week, there was an item on the BBC website about the prevalence of child prostitution on the German-Czech border. It reported that tens of thousands of Germans cross the border to abuse children and that children as young as eight have been seen negotiating about sex practices and prices. According to one commentator, the Czech Republic is becoming a discount market for sex with children. The author of a report, commissioned by UNICEF, I think, said that bus stops, petrol stations and rest areas near the German-Czech border have been converted into bazaars in which child prostitutes are bought and sold.

The legislation does not just have a loophole—if it allows people who are convicted of sexual offences against children to travel abroad for up to three days without having to report to police, it is a gaping hole. Such people could make many journeys to the German-Czech border within three days. They could have an entire weekend of paedophilia and sex tourism in that time. They could travel there on a budget airline to abuse children for three days. The loophole should be closed.

This is a fine Bill, and we have a good opportunity this afternoon to improve it. I for one think that we should discount the age of consent when we talk about the appalling abuse of children through prostitution. I could not care less about the burden on convicted sex offenders of having to tell the police if they are going to leave this country. We should take this opportunity to strengthen what is a good Bill, and make it an excellent Bill for the protection of children.

Sandra Gidley (Liberal Democrat, Romsey)

I will break my comments into two sections. First, I give a cautious welcome to new clause 2. I raised concerns in Committee, which, as the hon. Member for Beaconsfield (Mr. Grieve) rightly realised, were a result of a Metropolitan police briefing. The point of that was that the police have no difficulty whatever prosecuting the small criminals, but have difficulty prosecuting those in big business who effectively manage to erect a human firewall between themselves and the hard end—for want of a better phrase—of the organisation.

At that time, the Government rejected my amendment—which, I admit, was probably not approached in the right way—but made no real comment on the concerns that I raised. In a letter that the Minister wrote to us to explain the changes—he has just alluded to the same point—he said that the new clause was intended to try to address the concerns of the police. I struggle to understand, however, why simply using the penalty for keeping or managing a brothel will cope effectively with the key problem, which is not necessarily the management of the brothel but the barriers that can be put in the way of detection. Simply increasing the penalties may make it more likely that the police put some effort into the work, but the basic problem remains the same. I seek assurances from the Minister that the provision will be monitored to see whether it is effective. If, as he says, the laws on prostitution are to be examined and perhaps renewed, this would be a useful issue on which to start.

The second part of my comments relates to trafficking. I endorse the views expressed by my hon. Friend the Member for Mid-Dorset and North Poole (Mrs. Brooke), and Liberal Democrats have supported the amendments tabled by the hon. Member for Lancaster and Wyre (Mr. Dawson), who has just spoken with his customary zeal on the subject. No one can doubt his commitment to vulnerable young people.

I share some of the hon. Gentleman's concerns. The notification period has been reduced from eight days to three, and that is a welcome move in the right direction. However, I questioned the Home Secretary when he made a statement on the subject, and the Minister might be interested in the Home Secretary's reply. He said that he wondered whether such offenders

"should be allowed out of the country at all, but we will have to look at that.—[Official Report, 19 November 2002; Vol. 394, c. 515.]

The Home Secretary is not here to speak for himself, but his remarks are on the record. We are getting a little hung up about the practicalities of what is easily doable with regard to monitoring, but not thinking of the human effects of what we are allowing, which the hon. Member for Lancaster and Wyre powerfully described.

I am afraid that I am not much of a liberal on this issue. I firmly believe that someone who abuses children forfeits all rights to the freedom that might enable him to abuse children in the future. That involves the imposition of a simple child protection order and, throughout the Bill, there has been great consensus among all parties on trying to increase protection.

Meg Munn (Labour/Co-operative, Sheffield, Heeley)

Does the hon. Lady agree that part of the process of notification and understanding sex offenders' actions involves questioning what they are doing if they travel to certain destinations or often go abroad? That might lead to an investigation that might bring to light concerns that might not otherwise be recognised.

Sandra Gidley (Liberal Democrat, Romsey)

The hon. Lady has a point, but my fear is that such investigations might mean that we have in effect allowed abuse to take place. The fact that someone travels often to the Czech border or to one of the Asian countries may well sound alarm bells. However, a successful prosecution can follow an investigation only if that person has been allowed to offend again. That is why I have a difficulty with the new clause.

Three days would still allow quite a long time, and I understand that Interpol says that it can operate in two days. That would be a step in the right direction and I would welcome the Minister's comments on why 48 hours was not chosen. We live in an age of computers and technology and we are able to alert other police authorities as to what is going on. However, the policing infrastructure in some of the countries where abuse takes place is either corrupt or does not have the resources to deal with the problem. Such offenders are very cunning and know which countries to target so that they have the greatest chance of success.

Some time ago, I visited Cambodia where the age of consent presents a real problem. The Cambodian Government have raised the age of consent to 18, but 17 and 18-year-olds in that country look very young and might appeal to the sort of person who has a particular liking for sex with young children. However, the way in which we deal with that problem at the moment seems to be under a lesser offence because the age of the consent in this country is 16. I want reassurances that if people tried to visit regularly a country in which the age of consent was 18 to exploit the aspects of its society that I described, the problem could be dealt with.

Paul Goggins (Labour, Wythenshawe and Sale East)

I shall keep my remarks fairly brief because I outlined my views extensively earlier in the debate. I tell the hon. Member for Beaconsfield (Mr. Grieve) that although the police did not support the repeal of the offence of living off immoral earnings, we drafted the new clause to increase the penalty for keeping a brothel at their urgings. The Bill is an attempt to modernise the system and deal with modern circumstances and we want to avoid innocent parties being caught up by it. We need to achieve the right balance between addressing on-street pimping and capturing the more distant and vaguer figures—the Mr. Bigs, if you like—who often make a lot of money from their activities. I tell the hon. Member for Romsey (Sandra Gidley) that the police are confident that the Bill will enable them to track such people down and ensure that they are penalised, and I agree that the distant and shady characters are often those whom we really need to prosecute. I hope that that reassures the hon. Gentleman. His views and those of other hon. Members will be the sort of views that will be reflected on during the review of prostitution that I mentioned earlier.

Chris Bryant (Labour, Rhondda)

There is no definition of what constitutes a brothel in law, so we rely on judgments for definitions. In the case of Gorman v. Standen in 1964, Lord Parker said that a brothel was

"a house resorted to or used by more than one woman for the purposes of fornication".

Surely the question of whether one or several women are involved must form part of the debate that we will have during the review.

Paul Goggins (Labour, Wythenshawe and Sale East)

My hon. Friend points us in the direction of the debate that will no doubt ensue. I do not think that defining a brothel is among the many things that I must do this evening, so I shall pass on that, if he will forgive me.

As I tried to say earlier, I entirely understand the motivation of the hon. Member for Mid-Dorset and North Poole (Mrs. Brooke) in tabling amendment No. 186. I share her motivation and I was not trying to be negative about it in any of my remarks. I simply put the argument that given that we are trying appropriately to support the victims of trafficking as I outlined, it is not necessary to introduce time constraints. What matters is for individual decisions to suit a person's specific circumstances. We must evaluate the pilot to assess its success and decide how the work can be extended further. I underline the fact that helping and supporting the victims of trafficking is a high priority for the Government and I am sure that we share that commitment with the hon. Lady.

I am sure that the whole House, as it often does, will join me in paying tribute to the way in which my hon. Friend the Member for Lancaster and Wyre (Mr. Dawson) champions the rights and needs of children. However, we must have a degree of proportionality when considering his amendments, the offences that we are discussing and sentencing and foreign travel orders, so I urge him to reflect further. I am sorry that I have not been successful at persuading him of the need for a sense of balance. He acknowledges that the change from eight days to three days is sensible and positive. The time period of three days is balanced and although it will not be burdensome for either the police or individuals, it will give us the tighter protection that we clearly need. If there is evidence that children might be the potential subjects of attack from specific paedophiles or sex offenders, a foreign travel order is available to prevent such people from travelling abroad, so we have a further measure to prevent them from going abroad if there is evidence that they could pose a real threat.

My hon. Friend raised the interesting idea of to what extent anyone—16, 17 or, indeed, older—consents to sexual activity that is part of prostitution. Again, that will be considered in the review as part of the extent to which people have been subject to abuse, caught up in drugs or manipulated by others. It is questionable to what extent anyone freely consents to sexual activity within that wider context. There is a debate to be had on that, but it is probably for another day.

The hon. Member for Romsey quoted my right hon. Friend the Secretary of State in his usual robust form. When he makes such remarks, he speaks from the heart and guts, as we all do on such offences. We would probably all be harsher than the measures set out in the Bill, but it is our duty in Committee and on the Floor of the House to react not just with our heart and guts but with our heads, to create a sensible framework of law that will provide protection while being enforceable and workable. I urge hon. Members to support the Government amendments and not to press other amendments to a vote.

Question put and agreed to.

Clause read a Second time, and added to the Bill.

New Clause 3 — Service Courts

Harriet Harman (Labour, Camberwell and Peckham)

I beg to move, That the clause be read a Second time.

Michael Lord (Deputy Speaker, Central Suffolk and North Ipswich)

With this it will be convenient to discuss Government amendments Nos. 82, 37, 53, 52, 63 to 66, 68, 69, 111, 67, 87, 88, 124, 125, 89, 90, 126, 91 to 95, 127 to 131, 96, 97, 70 to 72, 98, 132, 99, 73, 100 to 104, 54 to 56, 133, 105, 57 to 60, 76, 77, 112, 78 to 80, 113, 115, 81, 106 to 108, 62, 109 and 110.

Harriet Harman (Labour, Camberwell and Peckham)

The amendments are minor, drafting and technical.

New clause 3 deals with the powers of service courts—that is, courts martial. It will ensure that references in part 2 to court orders, convictions, findings, offences and proceedings apply to those matters in the context of service courts as well as civilian courts. It makes it clear, for example, that if a person is convicted of a serious sexual offence before a court martial, that person will be subject to the notification requirements. It will also enable service courts to impose sexual offences prevention orders at the time of sentencing in the same way as civilian courts.

Courts martial have jurisdiction to try all offences committed outside the UK, including the most serious, when committed by service personnel, their dependants or other civilians who are subject to service law overseas, such as Ministry of Defence officials posted abroad who are accompanying Her Majesty's forces. If an offender is sentenced to imprisonment by a court martial, he will be sent to a UK civilian prison to serve his sentence in the normal way. If a service court, by which I mean a court martial or a standing civilian court, is satisfied that the test set out in clause 104(l)(b) is met—namely, that a sexual offences prevention order is necessary for the purposes of protecting the public in the UK from serious sexual harm—we consider it appropriate for that court to be able to impose such an order in the same way as a civilian court. The new clause gives a service court the power to impose a sexual offences prevention order only on conviction or sentence, not following an application by the police, as the latter power is not necessary or appropriate in relation to service courts.

On amendment No. 69, schedule 3 contains the sentencing thresholds at which the notification requirements under part 2 are triggered. For some offences, the thresholds include the imposition of a community sentence of at least 12 months. Service courts do not generally have the power to impose community sentences, but they can impose a punishment called service detention. That is considered a lesser punishment than imprisonment, although it deprives the service offender of his liberty, pay and other privileges. However, its purpose is rehabilitative, with the offender undergoing a period of corrective training and then usually resuming his or her career in the armed forces. It can be used in similar circumstances to those in which community sentences are applied in civilian courts.

Taking account of different provisions for sentence calculation, it is estimated that a sentence of 112 days' service detention is equivalent to a 12-month community sentence. The amendment adds 112 days' service detention to the thresholds as an alternative to 12 months' community sentence. That will ensure that offenders who would be subject to notification requirements if sentenced in a civilian court will not escape that because of the different sentencing powers of service courts.

Amendments Nos. 54, 55, 56, 58 and 68 are to clarify drafting or to ensure that appropriate service legislation is referred to. Amendments Nos. 57 and 59 deal with schedule 5A of the Army and Air Force Act 1955 and equivalent naval provisions, which empower standing civilian courts overseas, when punishing civilians who are subject to service law, to award absolute or conditional discharges and community supervision orders. Paragraph 5(1) of that schedule deems such sentences not to amount to convictions. Amendment No. 57 is a drafting amendment to reflect the provisions in paragraph 5(1). Amendment No. 59 applies part 2 to community supervision orders so that an order imposed by a service court will trigger the notification requirements in appropriate cases.

Amendment No. 52 to clause 67 limits the offence of exposing the genitals to the situation where a person intends that someone will see them and be caused alarm or distress.

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

I welcome the amendment. The naturists on Studland beach will be able to enjoy their time so much more. Obviously, they do not intend to cause offence but they have great concerns when they are aware that there are walkers on the beach who do not know that they are there. I am sure that naturists all over the country will welcome the amendment.

Harriet Harman (Labour, Camberwell and Peckham)

I shall be glad if anybody welcomes any Government amendment this evening, but I have to say to naturists, on Studland beach or anywhere else, that they will be subject to the law. If they intend, by exposing their genitalia, to cause alarm or distress, a file will be sent to the Crown Prosecution Service, who will consider the sufficiency of the evidence and whether it is in the public interest to prosecute. Nevertheless, I welcome the hon. Lady's remarks.

As the hon. Lady knows from her involvement in the proceedings, a number of amendments were made in Committee, including the removal of recklessness, which reassured naturists that they would not be caught by the offence. However, it was clear from the debate in Committee and from the correspondence that we have received that naturists were still worried about this offence. We undertook to look at the clause again, and the amendment is our response. Hopefully, genuine naturist activity, whatever that might mean, does not include the intention to cause alarm or distress, so I hope that now that we have dropped knowledge from the offence and left only intention, naturists will be reassured.

Dominic Grieve (Conservative, Beaconsfield)

I can be very brief. All the Government amendments are acceptable. There is only one that I need positively to welcome because it does more than tidy up the provisions, and that is the amendment on which the Solicitor-General has just touched. That reassures naturists by removing knowledge from the offence, leaving intention. The right hon. and learned Lady will remember the debates in Committee. Clearly this is not a blanket dispensation to naturists to practise naturism wherever they choose. They will have to continue to exercise restraint and show due consideration for other people.

The point that is successfully met by the amendment, which I welcome, is the need to get rid of a situation in which a naturist goes to a remote beach where they legitimately do not expect, and certainly do not intend, anyone to be in any way insulted or distressed, but nevertheless are constantly aware that somebody might turn up unexpectedly. The amendment strikes the right balance, and I hope that it will allow naturists to practise naturism discreetly, freeing them from fear that they might be unfairly prosecuted while ensuring that there is still a robust framework to ensure that the situation is not abused.

Harriet Harman (Labour, Camberwell and Peckham)

I associate myself with the hon. Gentleman's points.

Question put and agreed to.

Clause read a Second time, and added to the Bill.

New Clause 4 — Anonymity Of Suspects And Defendants In Certain Cases (No.2)

Dominic Grieve (Conservative, Beaconsfield)

I beg to move, That the clause be read a Second time.

This issue took up a considerable amount of time in Committee, and we need to consider it further before the Bill returns to another place. As the House will be aware, the Bill came from the Lords with an amendment, made against the Government's wishes, that would have ensured anonymity for those alleged to have committed rape and other offences right up to conviction and throughout the trial process. That was debated in Committee, where the Government argued forcefully that such a blanket prohibition on reporting might interfere with the interests of justice after charge and during the trial process, and that victims might not come forward if, while the police were attempting to identify other potential victims, they did not know that somebody had been charged with an offence. I fully accept the Government's second argument that anonymity went against the general principle that the trial process should take place in public, with the public being made aware of the identity of the person on trial.

New clause 4 does not seek to reopen that wider issue. However, a narrower issue received consideration in Committee—the publicity attached to those being investigated for sex offences prior to their being charged. Examples, some of them very recent, were given of individuals who had been subjected to great media scrutiny, adverse publicity, investigation and inquiry into their background, which was reproduced in the press, but who at the end of the day were not charged with anything at all. There has been a great deal of public disquiet about this issue, and one way of dealing with it would be to impose a prohibition on publicity, broadcasting or publication that identified the person under investigation once an allegation had been made to the police.

As the Under-Secretary of State is aware, the purpose of new clause 4 is to facilitate that debate and impose such a prohibition. I apologise to the House because, as currently drafted, new clause 4 does not meet that objective. I felt that new clause 1, which the Liberal Democrats tabled, was flawed, and did my best to correct it by drafting new clause 4. However, the reference to schedule 3 to the Sex Offenders Act 1997 is erroneous—it should be to schedule 3 to the Bill. However, I do not think that the Minister was misled, and I believe that he fully understands the thrust and purpose of the new clause.

New clause 4 would prohibit broadcasting or publication identifying a suspect or defendant and would make such activity a criminal offence for the author or broadcaster if it

"took place with their consent".

The provision would also impose penalties on newspapers, their publishers and owners for such publication or broadcasting. Punishment would be a fine or six months' imprisonment or, on conviction on indictment, two years' imprisonment or an unlimited fine.

David Marshall (Labour, Glasgow Shettleston)

Many hon. Members may agree with what the hon. Gentleman is trying to do, but how could the new clause be enforced in respect of overseas publications and the internet? In high-profile cases, the word on who is involved gets around rapidly. If the new clause cannot be enforced, why discuss it?

Dominic Grieve (Conservative, Beaconsfield)

The hon. Gentleman is right that there is a limit on the territoriality of the jurisdiction of the courts of England and Wales. It is therefore always possible to publish abroad material that cannot be published here. If someone published such material on the internet and it came into this country, however, they could be arrested and prosecuted if they subsequently happened to visit this country. I shall return to the issue of the internet in a moment, because it is important.

Douglas Hogg (Conservative, Sleaford and North Hykeham)

My hon. Friend will know that publishing can be defined quite widely and could extend to the vendors of newspapers. Will he confirm that the new clause is not intended to catch small shops that sell newspapers?

Dominic Grieve (Conservative, Beaconsfield)

I understand my right hon. and learned Friend's point. Proposed subsection (2)(b) makes it clear that the intention is not to catch the vendor, since it refers

"in the case of a publication in a newspaper or periodical"

to

"any proprietor, editor and publisher of such newspaper or periodical".

Let me make the point clear—this is a difficult area of legislation, but that is not to say that we should not consider it. I am conscious that the new clause may contain a number of flaws, some of which I shall return to in a moment. I can already see some other areas that may need to be examined, but that is not to say that we do not need to consider this area. A serious situation is developing, and it will get worse.

Michael Weir (Scottish National Party, Angus)

I have a lot of sympathy with what the hon. Gentleman is saying, but there may be a fundamental difficulty with subsection (1), which states that

"Where an allegation has been made that a person has committed an offence",

they cannot be identified prior to their being charged. It strikes me that in a case in which the authorities were looking for someone who could be in any part of the UK—Scotland, England or wherever—a complete ban on identification could lead to difficulties in catching them before they committed further crimes.

Dominic Grieve (Conservative, Beaconsfield)

I entirely agree with the hon. Gentleman, and I was about to deal with precisely that matter. I accept that there are two areas in which one might consider it perfectly proper for a public allegation to be made. First, it would be proper where, for whatever reason, a serious allegation of a sexual offence was made against an individual, but for reasons that no one could understand, the authorities appeared to refuse to act upon it. I fully appreciate that there would be sound public policy reasons why a newspaper might want to publicise the allegation if it considered that the police were failing to take action. I accept that that matter would touch on the right to freedom of speech and freedom of expression.

Secondly—the hon. Member for Angus (Mr. Weir) was right to raise this point—there might be a circumstance in which publicity was necessary to arrest somebody for a serious offence. Again, he makes a good point.

Douglas Hogg (Conservative, Sleaford and North Hykeham)

There is also a third situation: a person against whom an allegation has been made might want publicity, if only to establish an alibi that he might otherwise have some difficulty in establishing. He might want to identify people who saw him in a particular place. The new clause contains no defence of the consent of the person against whom the allegation has been made.

Dominic Grieve (Conservative, Beaconsfield)

I am most grateful to my right hon. and learned Friend for that additional example. That precise area was considered in Committee. The view that I expressed there—I continue to hold it—is that if a saving clause were introduced to allow a person to waive that right, I would not object to it.

The debate highlights the fact that we are considering a complex area. The issue before the House this afternoon is what message we should send back to the other place, which widely amended the legislation in the first place, about our attitude to the issue both in its totality and in particular in relation to anonymity before charge.

I refer the House to comments in a newspaper today by the outgoing Director of Public Prosecutions, Sir David Calvert-Smith, on matters of great importance. When the issue was raised with him of the coverage of recent rape allegations made against premiership footballers, and allegations made against the television presenter John Leslie, he said:

"I think there is a huge problem. As a prosecutor, I would be very happy to see the media exercise greater restraint, however interesting it may be"

to their readers. He went on:

"Even if they are not technically breaking the law, they are either making it more difficult or actually impossible to bring offenders to justice. The clamour to reduce trial by jury will grow the more publicity gets out of hand, because it will be said you cannot trust a jury to try these cases so they must be tried by a judge alone who will not be overly impressed by pre-trial publicity."

The issue is not just about the protection of the individual in terms of the adverse publicity that he receives through the process. My anxiety, which the House must consider, is that we may get to a stage where a person against whom there may be very strong evidence that certainly merits going to trial and may lead to his conviction, ends up having the trial process discontinued because the level of adverse publicity that he received when he was investigated by the police was so bad that no fair trial was possible. What is clear from the remarks of Sir David Calvert-Smith is that he is intensely anxious about the current trends and the way in which pre-charge publicity is developing.

Of course, one of the issues is the use of the internet, where one sees, if I may put it this way, a circular process by which the media start by not saying very much but are egged on by the fact that the information soon starts to appear on the internet. The barriers break down and the adverse publicity and identification of individuals start to follow.

I am mindful of the fact that the Government have indicated—and I dare say the Minister will indicate again this afternoon—that they are seeking to arrive at a measure of agreement with the media to try to curb the excesses that have undoubtedly taken place. I entirely welcome that, and I say that to the Minister now. It is possible that it may provide a way forward but, clearly, it will not entirely provide a way forward, because it will still be possible for individuals to put all sorts of information on the internet. Although I am mindful of the fact that that may be done from abroad, the reality is that persons who take such interest in these matters are likely to be nationals and that, if they engage in such activity abroad, they are likely to come back here. If there were penalties for such behaviour, some of the mischief that we are seeking to deal with could be curbed, although I accept that it may not be possible to eradicate it entirely.

Paul Beresford (Conservative, Mole Valley)

My hon. Friend will be aware that many of the western nations that are among the main sources of the internet and internet data are watching the Bill with considerable interest. If we got the right approach in the Bill, along the lines that my hon. Friend is referring to, there would be some reaction among the other nations, and therefore a thinning of the sources of such placing of material on the internet.

Dominic Grieve (Conservative, Beaconsfield)

I am grateful to my hon. Friend. If this country shows the lead, it may be helpful in encouraging others to follow.

Vera Baird (Labour, Redcar)

The hon. Gentleman is making some excellent points, which it is in the public interest to raise, and I readily accept that. Of course, the points that he makes about adverse publicity pre-charge apply to all offences, not just to sexual offences. Would not his arguments be better applied in some different quarter and not specifically to the Bill? He knows that I have real concerns about stigmatising complainants in sexual offences cases alone as we are likely not to get convictions. Is not that the unfortunate consequence of what he is advocating, when what he should be doing is looking at the problem in the round?

Dominic Grieve (Conservative, Beaconsfield)

The hon. and learned Lady makes an extremely good point. It would probably be a good thing if the Under-Secretary indicated that the Government were minded to propose legislation across all offences. There is a clear argument that those accused of serious offences other than sex offences ought perhaps to enjoy the same protection; I emphasise that this is not about protecting the defendant, but about protecting the administration of justice. If this process continues, there will come a time when the principles under which justice has been administered in this country will become difficult to maintain because of the amount of prejudicial material circulated pre-trial. That causes me real anxiety. The hon. and learned Lady is right and her suggestion would be a way of approaching the matter.

However, this is a sexual offences bill, and it provides us with an opportunity—one that I fear we will not get again for a considerable period—to consider this particular issue. I am also bound to say, and the hon. and learned Lady may agree, that in reality this type of problem seems to arise particularly in relation to allegations of sexual misconduct—not solely, but the examples that we have seen in the last decade centre upon it. That is partly because allegations of sexual misconduct and impropriety justifiably excite a great deal of public opprobrium, as well as a degree of public prurience and interest. We cannot argue that we should abandon the scrutiny of sex offences just because we ought to be considering the matter in its totality.

I am a believer in incremental legislation. If the House sends a signal over this matter, the Government may well start to heed that signal in the wider context. It will be unfortunate if that does not happen. My fear is that we will simply carry on as we have done, but with a deteriorating situation—partly because of the sheer number of opportunities that exist to disseminate widely information that may turn out be prejudicial to a subsequent trial.

David Heath (Liberal Democrat, Somerton and Frome)

I agree that the provision should apply more widely. The hon. Gentleman will be aware of the evidence from the editor of one of the tabloids to the Select Committee on Culture, Media and Sport, in which she made it plain that it was common practice to pay police officers for information about the point of arrest. Does he agree that, irrespective of the virtues of the current proposal, it should be an absolute disciplinary offence to advise the press about the point of arrest and that, where money changes hands, it should be a corrupt act and punishable as such?

Dominic Grieve (Conservative, Beaconsfield)

The hon. Gentleman is right. There is no doubt that the police ought to be investigating allegations and it is part of their code of conduct that they should do so confidentially unless they have to go to the public for a specific reason—for instance, when there is a suspect who they really must get hold of. Otherwise, it is part of their duty not to publicise the case before charge. Yet we know that that is happening routinely. Parliamentary answers show that police officers have been disciplined on numerous occasions for having carried out this act, and I fear that that is only the tip of the iceberg.

That this process should exist is deeply corrupting to the police, because there is clear evidence to suggest that it is done in return for cash. The media are participating and it is for their benefit that it takes place. The public interest does not appear to be considered one jot. This is why I am so anxious that self-regulation—for which we might wish in an ideal world—will prove to be completely impossible to achieve. If it is impossible to achieve, we must look further.

Vera Baird (Labour, Redcar)

The hon. Gentleman dealt with one aspect of my point, in that as we are discussing the Sexual Offences Bill and nothing else, we cannot look more widely now, but he did not deal with the other aspect of it, and I now invite him to do so. If one confines anonymity for defendants to sexual offences, as he proposes, there is a real danger of stigmatising complainants in cases involving sexual offences as likely to be liars, and not to be believed.

Dominic Grieve (Conservative, Beaconsfield)

The hon. and learned Lady raised that point powerfully in Committee, when she said, as I recollect, that she was concerned about the prospect of anonymity being granted to a defendant throughout the trial process because the underlying implication appeared to be that because the allegation was of a sexual nature, it was more likely to be disbelieved.

That point had more force in relation to the trial process, but I do not consider that it has force in relation to the investigatory process. As I have said, I am sympathetic to the idea of legislating, if necessary, to cover all criminal offences, which would get rid of the problem that the hon. and learned Lady has identified. In the meantime, however, the level of publicity that we have seen in the press means that there is no doubt that that particular problem has crystallised around sexual offences.

Applying pragmatic principles, therefore, it seems to me that we should address that matter in this Bill. Of course, I have no way of knowing what will happen when the Bill goes back to those in another place, but they originally amended the Bill to extend anonymity throughout the trial process, and if we do not address the issue before charge, they may choose to do so again.

Considering carefully what has taken place, and applying the general principle that this House should consider carefully what the other place does and come back with its own opinion, it seems to me that the greatest force in what was done there applied to the pre-trial period. The Minister has said several times that he accepts that there is a problem with the pre-charge period, and I think that this House can do something about that.

I accepted at the outset that, for technical reasons, it will not be possible to do that by using the very words of my new clause—but there is a principle here. I think that it is possible to take on board the point made by my right hon. and learned Friend the Member for Sleaford and North Hykeham (Mr. Hogg) about his anxieties concerning any change, and to perfect the new clause so as to ensure that it still allows for publicity when required, and that the change will not be detrimental to the defendant if he legitimately requires publicity—for instance, to provide himself with an alibi—yet at the same time to send out the message that a practice that is becoming all too common in this country is simply unacceptable.

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

It should come as no surprise that we support the principle in the new clause, because we led on a similar new clause in Committee, when the hon. Member for Beaconsfield (Mr. Grieve) and his colleagues were pursuing a slightly different line. We do not therefore have much sympathy for any errors that may have been inadvertently transcribed from our new clause to this one.

More seriously, this is an important matter and we wholeheartedly support the principles behind the new clause. We had a good discussion in Committee and examined the main issues that we are addressing now. We clearly made the point that of course it would be possible to amend the general principles so that in certain circumstances reporting restrictions could be lifted. We appreciate that there may be urgent reasons for catching a suspect who is a potential danger to the public. Equally, as has been mentioned, sometimes a person might want to waive the right to anonymity because it was in their interests to do so. Those two aspects could be taken on board through a properly drafted amendment.

We also need to address the question of why we are considering just sexual offences, rather than all cases; in fact, we need anonymity pre-charge for all cases. However, the Bill provides an opportunity to start the process, and there is an argument for doing so as long as we include all sexual offences. I agreed with the hon. and learned Member for Redcar (Vera Baird) when we discussed the issue of rape alone. In the case of certain sexual offences, there have been dramatic instances of whole careers being destroyed. If we wait for the right time—when there is room in the Government's timetable—for the issue to be considered fully and legislated on, many people will suffer. We have an opportunity to help today. The point has been strongly made that under the current provisions the guilty party might not be convicted because a fair trial will be impossible. So there are various good reasons why we should start the process now.

As I pointed out in Committee, I am following a line that the Home Affairs Committee took not just with the Bill, but during its investigation of abuse in children's homes. In both respects, it strongly recommended anonymity up to the point of charge. In the light of some powerful debates on the Floor of the House and in Westminster Hall, it seems that the trawling of cases of potential abuse in children's homes may have caught the innocent, whose lives have been damaged as a consequence of their names being published. That is something that we cannot undo.

Vera Baird (Labour, Redcar)

I am very alarmed by what the hon. Lady says. If she is moving towards preventing the police, when they have a couple of complaints from children, from trying to locate other potential complainants, I would be extremely concerned. There have been many rightly brought convictions in which the press have played a powerful role in promoting, in the interests of justice, the allegations made in the interests of looking for others. The hon. Lady is in danger of calling into question too readily an entire tranche of police prosecution, and mixing that up with the issue before us.

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

I thank the hon. and learned Lady for that intervention; I thought it right to refer to that issue. Of course, if an application were made for reporting restrictions to be lifted, the case would be put before someone who makes a judgment; the matter would not be dealt with in an uncontrolled way. In such circumstances, there would be an evidence-based reason for making public the particular names.

Andrew Turner (Conservative, Isle of Wight)

Will the hon. Lady give way?

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

If I may, I shall move on.

We are particularly concerned about information coming from the police and its subsequent publication by the media. We welcome the fact that the Minister is having discussions on the latter issue, but we have no confidence whatsoever that any voluntary agreement that is reached will necessarily be upheld in high-profile cases. Of course, there have been many recent such cases, that of Matthew Kelly being one that we might consider briefly. His arrest, after a pantomime performance, was well publicised. Indeed, an enormous amount of publicity was generated, including headlines such as, "Matthew Kelly held over child sex." He was accused of sexually attacking boys and all sorts of things, but at the end of the day the police took no further action. That shows the power of the media: they sell papers on the basis of such stories, so will a voluntary agreement ever be enough?

The discussions going on with the police are doubly welcome because there are processes available on the basis of which the police can take strong action. If police officers are found guilty of providing information to the press during the pre-charge process, the Liberal Democrats feel that the strongest action should be taken against them. Of all the points that I have raised, I should like to emphasise that it is right to consider the principle of anonymity at the pre-charge stage.

Douglas Hogg (Conservative, Sleaford and North Hykeham)

I shall be brief. I approach the matter with considerable caution for four reasons. First, I am reluctant to make a distinction between sexual and non-sexual offences. I recognise, of course, that the House has previously made that distinction, but I am very cautious indeed about it. In my view, the distinction is not well made.

Secondly, as argued earlier, it is frequently the case that the police know who they want to interview and the only way in which they are likely to get that individual is by providing a description in the press that is sufficient to identify him. Of course, the proposal of my hon. Friend the Member for Beaconsfield (Mr. Grieve) stands in the way of that.

Thirdly, a further and related problem applies particularly to sexual offences alleged to have been committed some time previously. Quite often other complainants come forward to allege that the person against whom the allegations were made committed the same offence against them perhaps 10 or 15 years previously. If the course of action identified by my hon. Friend the Member for Beaconsfield carries the House, that particular problem will become substantial and I should not have thought that the House would want it to be a consequence of the legislation.

Fourthly—and I touched on a further point in an earlier intervention—from time to time, perhaps not very frequently, a person against whom an allegation has been made will want to gain publicity in order to assert that he or she is not the person in respect of whom certain rumours are current. I do not read football publicity very much, but I have a feeling that a footballer did just that about three weeks ago. He sought out publicity to say that he was not the footballer in respect of whom allegations had been made.

I also want to make the point that I am rather cautious about anonymity post-charge and during a trial—a point that has been ventilated in the debate. I know of a recent case in the east midlands where a witness came forward during a murder trial to assert that he had seen somebody else at a particular place at the critical moment. That evidence was, in the end, discredited, but it is not wholly unusual for witnesses to come forward as a result of evidence given in a publicised case where the defendant has been identified.

Simon Hughes (Liberal Democrat, North Southwark and Bermondsey)

rose—

Douglas Hogg (Conservative, Sleaford and North Hykeham)

I want to conclude this part of my speech and then I shall give way to the hon. Gentleman.

All that makes me rather cautious about the approach proposed by my hon. Friend the Member for Beaconsfield. Of course it is right to debate the matter and an important issue is at stake, but I am sceptical about my hon. Friend's particular approach.

Simon Hughes (Liberal Democrat, North Southwark and Bermondsey)

Does the right hon. and learned Gentleman accept that one of the answers to the valid criticisms that he makes is that there is a significant time lapse between trial and charge, and that other people can come forward, bring evidence or make complaints. It is not as though that opportunity is lost. In many cases where there has been a pattern of offences, there may be more than one trial governing offences over a long period. What the right hon. and learned Gentleman says is a concern, but need not be a complete objection.

Douglas Hogg (Conservative, Sleaford and North Hykeham)

I am not trying to say that the arguments that I advance constitute, collectively or individually, a complete objection, because we should debate this issue. It is a proper issue to address, but I am cautious about it. I have a strong feeling that there are more objections to this approach than right hon. and hon. Members have fully identified at this stage. I suspect that we will not put the matter to a vote tonight and we will have further opportunities to debate it, so I wish to do no more at this stage than express tentative doubts.

Simon Hughes (Liberal Democrat, North Southwark and Bermondsey)

I understand those doubts, but how would the right hon. and learned Gentleman deal with the mischief caused by so much publicity about possible charges which, in many cases, prevents a fair trial?

Douglas Hogg (Conservative, Sleaford and North Hykeham)

I agree that that is a problem. Indeed, as the hon. and learned Member for Redcar (Vera Baird) said, that is not only a problem in cases of sexual offences, but extends to all criminal cases. I would continue attempts to reach a voluntary agreement. Failing that, I would give serious consideration to enlarging the categories of case in which the Attorney-General may apply for an injunction.

I do not pretend that I have come to a concluded view. I do not know—the outgoing Director of Public Prosecutions did not tell us—how many cases have been voided as a result of pre-trial publicity. I suspect that the number is relatively small, partly because of the long gap between charges being laid and trial, which the hon. Gentleman himself mentioned. I have tried abuse of trial arguments in cases that have received pre-trial publicity. I have managed to have the venue of trials changed. But I cannot recall having a case voided as a result. It happens less often than we fear, but I accept that it may happen.

The injunction process may be the right approach to address the issue, but that may be more suitable for debate on another day. I am cautious about the approach recommended by my hon. Friend the Member for Beaconsfield, but I am sure that he is right to identify it as an issue to be addressed.

Vera Baird (Labour, Redcar)

This issue was discussed extensively in Committee and few new matters have been raised, so I shall direct my attention to the point made by the hon. Member for Beaconsfield (Mr. Grieve) that the category of sexual offences is as good a place as any to start. In fact, it is a bad place to start. As a lawyer, he will know that one cannot separate sexual offences from their history.

How we attempt to solve this problem is not only of academic interest, because it is not so long ago that we had anonymity for defendants in sexual offence cases only. It lasted for only a short time and was introduced in the teeth of the Heilbron recommendations. It was widely seen as a slight on complainants in sexual offence cases, because it seemed to suggest that they could be so little relied on that the defendant was expected to be acquitted and was therefore given extra protection that no other offence merited. At that time in our history, it was not even an offence for a man to rape his wife, and women rape complainants were considered so unreliable that they had to be corroborated or else there could be no conviction. That history has resonance for women today and we must not revisit it by adopting the hon. Gentleman's proposals.

The issue is not only one of history. The current conviction rate in rape trials is some 5.7 per cent., which is hopeless, especially given that it is generally thought that only 10 per cent. of those who are raped complain formally. The conviction rate for the bulk of offending is very low. The police, the Crown Prosecution Service and even judges, to some extent, have done a good deal to try to rectify that. They have tried to give complainants confidence that they will be supported, that every piece of evidence that can be looked for will be looked for, and that there is a real chance of obtaining a conviction when complainants go to court with a true allegation. To what extent will all that effort be undermined if we announce from this Chamber that Parliament thinks that rape complainants are unlikely to get convictions and that defendants should therefore be given a very special protection?

Andrew Turner (Conservative, Isle of Wight)

I appreciate that the hon. and learned Lady speaks from experience, but will she address a point that I have not yet heard anyone deal with? There are those whose professional lives depend on their not being faced with such allegations. A head teacher in my constituency appears to have committed suicide after being suspended when an allegation was made by one child. I cannot tell whether that head teacher was guilty—no one will ever know—but there are arguments beyond that which the hon. and learned Lady is making.

Vera Baird (Labour, Redcar)

The hon. Gentleman, even if he cites an example that I assume has to do with a sexual offence, simply makes once again the point in favour of the need for an adequate balance of protection for anyone against whom a nasty allegation is made. For example, surely he does not think that Mrs. West did not suffer from bad publicity, or that if, by some strange quirk of fate, she had never been prosecuted, she would not have suffered much assassination of her character when she was freed. The danger that he raises goes across the board and is not confined to sexual offences.

Julie Kirkbride (Conservative, Bromsgrove)

There is something slightly different about sexual offences. In the case of Mr. and Mrs. West, there were dead bodies and disappeared girls who had to be accounted for. There was extra evidence suggesting that a criminal offence had taken place. In the case to which my hon. Friend the Member for Isle of Wight (Mr. Turner) referred, an allegation was made by a child, perhaps for vexatious reasons. Yet the man involved has died. He may have been guilty; we do not know. There is something different about sex, and the motives involved may be different.

Vera Baird (Labour, Redcar)

The hon. Lady made the same point in Committee; I thought it interesting but inconclusive then, and I do now. Is she saying that, because there tends to be physical evidence in some kinds of case and not in others, those cases in which there is not usually any physical evidence should have the protection of anonymity for defendants? She would find that a hard test to apply: the element of evidence differs widely in case after case. Frequently, evidence is available to be looked for and found by the police in child sex allegations and rape allegations. Sometimes, because the police share the tendency to think it unlikely that a conviction will follow, they do not look for that evidence with the vehemence with which they would look for evidence in other cases. The new clause would add to that tendency by saying that even we in Parliament do not think it worth their putting a great deal of effort into pursuing such evidence because the conviction rate is so low that we think that people must be protected against its ever being known that they have been charged.

The Minister and his colleagues have sought a voluntary agreement to try to stop leaks and to make it a serious disciplinary offence for police officers in particular to be involved with leaks. That is the right—indeed, the only—way to proceed.

Paul Goggins (Labour, Wythenshawe and Sale East)

We have had an excellent debate, as we did in Committee. I had spotted the technical point made by the hon. Member for Beaconsfield (Mr. Grieve), and I am glad that it did not prevent our being able to debate such an important matter. As my hon. and learned Friend the Member for Redcar (Vera Baird) said, it involves the public interest, and it is right that the House should debate that.

This issue takes us to the heart of the balance between living in an open and free society and the need to protect individuals. Some, of course, would argue that anonymity should be provided throughout the whole judicial process. As the hon. Member for Beaconsfield pointed out, that idea was built into an amendment that we rejected in Committee. There is considerable evidence to show that benefits come from openness after a charge has been made, and I am pleased that debate on the issue seems now to focus on the pre-charge period of the process. That is a step forward, because it means that we share some common ground. In most cases, individuals should be able to expect anonymity up to the point of charge. There are exceptions to that rule, such as serious cases in which the police may need to warn the public that a particularly dangerous person is on the loose so that people may be on the lookout. We all know that people who are wrongly accused—people who are merely under investigation—can lose a great deal in terms of their standing and reputation, in their jobs and in their own personal feelings and self-confidence. Given that there is some common ground between us, the central question is whether we take the legislative route or continue to pursue self-regulation.

We, as legislators, and the hon. Member for Beaconsfield, as the mover of new clause 4, must deal with another question: why anonymity should relate only to sexual offences. Clearly, other serious offences would not be covered, including murder, serious fraud or even the case of a sex offender who was accused of grievous bodily harm as well as rape. Anonymity cannot relate automatically to sexual offending; that would be a very dangerous move.

My right hon. Friend the Home Secretary made it clear on Second Reading that we were determined to continue towards self-regulation rather than taking the legislative route. We adhered to that position in Committee, and we adhere to it today. Ministers and officials have been in discussion with the police and the media about their respective systems of self-regulation in this area. Guidelines from the Association of Chief Police Officers already make it clear that information that is in the hands of the police is confidential. It is not to be used for personal benefit or given to third parties. It is absolutely implicit in the guidelines that fairness and impartiality are essential in all dealings with the public.

Douglas Hogg (Conservative, Sleaford and North Hykeham)

Might it not be helpful to remind ACPO that an officer who sells a bit of information is committing a criminal offence?

Paul Goggins (Labour, Wythenshawe and Sale East)

Indeed. The right hon. and learned Gentleman is right to point out that that is a criminal offence. Disclosure of information on a suspect is clearly a serious matter, and it is almost certainly a breach of the ACPO code. It already leads to disciplinary action, and I can confirm that 61 cases were substantiated last year. ACPO is considering how to strengthen the guidelines.

David Heath (Liberal Democrat, Somerton and Frome)

The Minister touches on a point that I have already raised in an intervention. I have seen footage of police raids carried out with an accompanying camera and heard the chief constable applauding that fact and seeing it as an advertisement for his force that the footage shows people being carried away in handcuffs. That cannot be right, and ACPO needs to address the issue much more seriously.

Paul Goggins (Labour, Wythenshawe and Sale East)

There are instances in which that sort of thing happens because it is in the public interest. Clearly, no money changes hands in those cases, and that is the point. As the right hon. and learned Member for Sleaford and North Hykeham (Mr. Hogg) said, that would be a criminal offence, which would not be the case with the circumstances outlined by the hon. Member for Somerton and Frome (Mr. Heath).

Discussions are also ongoing with senior media representatives. They are taking place in a positive atmosphere, although, like our debate tonight, they reflect the complexity arising from the fact that the media are not confined to our islands but are truly international—we live in the age of the internet. It is clearly a complex area, but the Government still believe that the self-regulation route is preferable and that it can help us to achieve our objectives.

Sandra Gidley (Liberal Democrat, Romsey)

The Minister says that self-regulation is preferable, but he has almost conceded that it is practically unworkable because of the internet and so forth. If in the long term the all-too-familiar examples continue to appear on the front pages of the media, will he review that route? On occasion, people's lives are ruined by the publicity that is generated. There will be a time when a story is so big that one of the tabloid newspapers—or even a broadsheet newspaper—will not be able to resist paying for an exclusive.

Paul Goggins (Labour, Wythenshawe and Sale East)

I have not conceded that that route is not possible. Indeed, I am involved in some of the discussions on it with the firm intention that they can be concluded positively. That is the spirit in which I am working, notwithstanding the fact that we live in the age of the internet and face many challenges.

Simon Hughes (Liberal Democrat, North Southwark and Bermondsey)

I realise that my point comes on top of other pressure from the Opposition Benches, but as the Minister cannot yet tell us that he has delivered an agreement with the chief police officers and the media, will he tell us whether he expects to deliver much tighter, agreed guidelines before the legislation reaches the statute book? Will those be published, and will breaches be punished under criminal law if the media or the police breach the rules?

Paul Goggins (Labour, Wythenshawe and Sale East)

It is important to make the point that I shall not be the one who delivers. It will be the police and the media who deliver, and they understand the issue. They know that we are debating it in the House today, and they know that the pressure is building. Both are looking at their internal guidelines to see whether they can be strengthened in a way that helps us to achieve a solution that is short of the legislative route.

Andrew Turner (Conservative, Isle of Wight)

Will the Minister address an issue that he has not addressed so far? If the new clause becomes law, it will cover publicity of the reasons for suspensions, such as the suspension of head teachers. What is the Minister's equivalent process in his case for rejecting the new clause?

Paul Goggins (Labour, Wythenshawe and Sale East)

I shall reflect on the hon. Gentleman's point. Indeed, I was reflecting on his earlier point about the circumstances of the constituent to whom he referred, and the place of professional people who are suspended when such information comes into the public domain. We obviously need to safeguard against those connections. Again, I believe that such a safeguard can be achieved within the voluntary route.

I conclude by saying that, in a very good speech, the hon. Member for Beaconsfield conceded that the voluntary route may deliver the sort of solution that we all seek. He said that it might prove to be a possible way forward. He then speculated about the message that we are sending from this House to the other place. I hope that he will share that message, which is to ask those in the other place not to pre-empt the possibility that the voluntary route may work by trying to force the statutory route upon us. He concedes that the voluntary route may be possible. Let us see if it can be made to work.

We should send a united message to the other place: we want to see whether that route can work, rather than jump to the legislative solution too soon. In that spirit, I hope that, even at this stage, the hon. Gentleman will agree to withdraw the new clause and send that united message to the other place.

Dominic Grieve (Conservative, Beaconsfield)

The Minister tempts me, and I put on record, as I have on many occasions, that my pleasure in the passage of the Bill has been the degree of consensus that we have been able to achieve and the rational debate that has taken place as a result. In that sense, it has been a remarkable piece of legislation to see through Committee, so I am sorry that I shall have to disappoint the Minister on this occasion.

As always happens with legislation, the problem is that we are running out of time. The Minister wants the legislation on the statute book by the end of the Session, which I support, but we have to send a message about the remaining areas of concern to us. This is the second reading of a new clause and, in the absence of concrete proposals from the Minister on self-regulation, the House ought to be very concerned about what I see as a deteriorating situation. I am mindful of what has been said and of the point that we make a distinction for sex offences if we go down this road. Having said that, it is noteworthy that this is the very point that the past Director of Public Prosecutions said should be of great concern. He has highlighted the fact that the current contempt of court provisions are not sufficient to meet that concern. In those circumstances, it is right that the House should pronounce on the principles in the new clause.

New Clause 5 — Disqualification

Paul Beresford (Conservative, Mole Valley)

I beg to move, That the clause be read a Second time.

Alan Haselhurst (Deputy Speaker, Saffron Walden)

With this it will be convenient to consider the following amendments: Government amendment No. 8.

Amendment No. 146, in clause 28, leave out subsection (b).

Paul Beresford (Conservative, Mole Valley)

I am afraid that this is the second occasion in a row on which a flawed amendment has been tabled.

As the Minister is aware, I first raised this matter in Committee—[Interruption.]

Alan Haselhurst (Deputy Speaker, Saffron Walden)

Order. I am sorry to interrupt the hon. Gentleman. Could hon. Members who are not staying for this debate please leave the Chamber, as their conversations are causing disturbance?

Paul Beresford (Conservative, Mole Valley)

The reference in the new clause to

"sections 6 to 17 inclusive",

which is clearly not appropriate, should read "clauses 5 to 14 inclusive".

The reason why I raise this issue again is that, as the law stands, paedophiles convicted of sexual activities against children must be banned from working with children as part of that conviction. The simple problem is that, in the courts, the Crown Prosecution Service, or the court, on at least one occasion—I have not checked whether there are others—has simply forgotten. I want to press the Government to consider making that ban automatic.

The issue was brought to my attention by the recent case of Luke Sadowski, an individual who attempted, through the internet—initially in relation to the United States, then back in this country—to purchase a young child for sex. Fortunately, as he arrived for what he thought was the collection of his purchase, he met policemen. He arrived with an imitation firearm, and was taken to court after the usual procedures. During those procedures, his accommodation was inspected, and it was alarmingly clear from the equipment that was there, and from the attitude picked up from the information available there, that this young man was an appallingly dangerous individual to children. To make matters even worse, he was a trainee teacher. The case went to court, he pleaded guilty, but the court forgot to impose the ban. That is the difficulty.

When I raised the issue in Committee, the Minister said that he would reflect on it. The purpose of placing this slightly disturbed new clause on today's agenda is therefore to give the Minister an opportunity to tell us his thoughts on how to overcome this problem, so that future Luke Sadowskis will be automatically banned from working with children.

Two amendments are to be considered with the new clause, one from the Government and one tabled by my hon. Friend the Member for Beaconsfield (Mr. Grieve), who will pick up from my comments.

Dominic Grieve (Conservative, Beaconsfield)

I welcome my hon. Friend's new clause, and I hope that the Government will be able to respond positively in the spirit in which it was moved.

It is clear that a serious problem exists in this area, and I shall not repeat the point that has been raised by my hon. Friend. We know of one case in which the court was unable to do what it should have done. On top of that, it was not even able to correct its mistake subsequently. That must raise the question of whether an automatic provision should be introduced, if that is what is desirable. In those circumstances, of course, that automatic provision could be rebuttable by the person raising it in court. In that sense, the new clause is extremely simple—it was complex to draft, but its intent is simple. As this is not a hypothetical matter, and an example of this problem has arisen, I hope that the Government are able to respond positively to his proposal

I was slightly surprised that amendment No. 146, which was tabled by me and my hon. Friends, was grouped with other amendments under the heading "Protection of under 16 year olds", because, in fact, that it not what it is about, as the Minister is probably aware. It is about whether sexual activity between cousins aged between 16 and 18 should be allowed to take place if they are living under the same roof. This point was raised in Committee, and it bears repetition. The Government, understandably, have wished to provide a substantial measure of protection for those who are in the care of others. As I understand it—the Minister will correct me if I have any of this wrong—the intention behind clauses 26 to 28 is to ensure that when somebody is in a family group, the protection to prevent sexual activity between the carer and the person cared for should extend up to the age of 18. That is a principle with which I have absolutely no disagreement whatever.

In addition, the Government wish to impose certain blanket prohibitions in relation to those who may not be caring for others but are in a close familial relationship—the obvious one, even if it is not within the prohibited degrees of sexual intercourse within family relationships, is that of a stepfather and a stepson. I have no disagreement with that either. Included in the definitions of family relationships in clause 28, however, under subsection (3), is the following:

"The relation of A to B is within this subsection if A and B live or have lived in the same household, or A is or has been regularly involved in caring for, training, supervising or being in sole charge of B, and . . . A and B are cousins".

I interpret that as meaning that even if there is no caring relationship between the two individuals, if A and B are cousins and living in the same household, sexual relations between them are prohibited between the ages of 16 and 18, even though they are perfectly permissible in our general law. If I think only of Members of this House, I am aware of at least one of my colleagues on the Conservative Benches who is the son of first cousins who are married to each other. This provision has therefore puzzled me somewhat.

If the Government's purpose is, for understandable reasons, to prevent, for example, a first cousin aged 28 having sexual relations with another cousin who is aged 17, I fully endorse that principle when there may be a caring connection between the two. However, that can be provided for elsewhere in this subsection. What the Government have done is to provide a blanket prohibition in relation to two first cousins who may meet under the same roof at the age of 17 starting a sexual relationship, when in any other context it would be perfectly permissible. It is a small matter that may affect very few people, but I remain troubled by the inclusion of the provision in the Bill in this way. I do not see the sense of it.

Surely the purpose behind the Minister's intent in these clauses is to ensure that those in a caring relationship do not get involved in a sexual relationship with those aged under 18. I wholly applaud that, but the provision cannot be designed to catch two 17-year-olds who happen to live together in the same household when, in any other context, their commencing a sexual relationship would be completely permissible. Even at this late stage, I hope that the Minister will take these points on board.

Paul Goggins (Labour, Wythenshawe and Sale East)

I thank the hon. Member for Mole Valley (Sir Paul Beresford) for all that he has done in Committee and more widely as an active member of the taskforce for child protection on the internet. He rightly said that I said that I would reflect on the points that he made in Committee. I have reflected on them and, sadly from his point of view, I have concluded that I cannot accept his new clause. I hope that he will understand the reasons for that and feel comfortable about withdrawing it.

It is common ground between us that Luke Sadowski should have been disqualified. There appears to have been an error in the court procedure, but it is worth pointing out that the Department for Education and Skills operates list 99, which disqualifies teachers and trainee teachers from being able to work with children. I also confirm that the criminal records are checked for anyone who applies to become a teacher or trainee teacher.

I have raised the issue at the heart of the hon. Gentleman's concern with the Crown Prosecution Service and the Judicial Studies Board, and they have made a commitment to me that they will reissue guidance to prosecutors and improve the training of the judiciary to cover this deeply regrettable lapse, which should not have happened.

The hon. Gentleman accepts that we cannot have a completely automatic system of disqualification. His amendment refers to the fact that there would be certain penalty thresholds and it would enable someone to appeal against disqualification. Even if disqualification were automatic, the court would still need to state that openly in court to clarify that an offender had received one of the qualifying sentences and to ensure that the offender knew that he was disqualified. That would enable him to appeal if he wished to exercise that right. Furthermore, it would only be an offence to apply for a job working with children if the offender knew that he had been disqualified. It would therefore be essential for that to be made known in court. I hope that the hon. Gentleman understands that the answer is to ensure that court procedures work properly, as they should have done in the case of Luke Sadowski and as they must do in future.

We must ensure that disqualification happens automatically even if, in law, it is not automatic. I give the hon. Gentleman the clear undertaking that I will follow up his concerns—they are also my concerns—to ensure that disqualification is applied in all the appropriate circumstances.

Government amendment No. 8 will raise the maximum penalty for the offence of "Meeting a child following sexual grooming etc."—as clause 16 is headed—from seven to 10 years' imprisonment. This follows a positive and convincing debate in Committee in which strong arguments were advanced for raising the penalty to enable appropriate sentences to be passed in the most serious cases.

Dominic Grieve (Conservative, Beaconsfield)

I realise that I failed to welcome what the Government have done. I do so wholeheartedly, and I am grateful to the Minister for taking on board the representations that have been made.

Paul Goggins (Labour, Wythenshawe and Sale East)

I am grateful to the hon. Gentleman. In a sense, this amendment exemplifies the spirit in which we conducted the Committee stage. A great deal of consensus emerged.

A situation could arise in which a paedophile with many previous and serious convictions had repeatedly communicated with a number of children on the internet and in which there was clear evidence that he intended to commit perhaps a violent sex offence against one or more of them. He might set off to meet one of these children for this purpose, but the police might intervene to protect the child. We would all be clearly relieved that the offence of carrying out the sexual assault on the child did not take place but, in such cases, a maximum sentence of seven years' imprisonment may not be adequate. The proposed new maximum penalty of 10 years brings the offence in clause 16 into line with the preparatory offences in clauses 61 to 63 that also carry 10-year maximum penalties.

The hon. Gentleman spoke to amendment No. 146, and I remind the House that the child familial sex offences are primarily designed to protect children up to the age of 18 within the family environment where they are particularly vulnerable to sexual abuse and exploitation. Because of the balance of power within the family unit and the close and trusting relationships that exist within it, the family can create particular opportunities for exploitation and abuse.

A great deal of thought was given to the scope of this offence and the familial relationships that should be covered. It is clear that the most important factors are the proximity of the relationship and the balance of power that exists between the abuser and his victim, and these issues can extend beyond the immediate blood relatives of a child.

The definition of the family unit also needs to be drawn widely to reflect the fairly loose structure of the modern family and the sometimes transitory nature of familial relationships. Cousins have always been included in the scope of these offences and this view was generally supported in another place. The only issue raised for discussion in Committee there was the definition of the term "cousin" and the wish that this should be restricted to first cousins. That is the effect of the definition in clause 28(5)(b). I hope that the hon. Gentleman will be reassured on that point.

We believe that it is right to include cousins within the scope of these offences in circumstances where they live, or have lived, in the same household as the child or if they are, or have been, regularly involved in caring for, training or supervising the child. In such circumstances, when one cousin is so closely involved in the life of another, there will clearly be the opportunity for exploitative behaviour to take place and for an unsuitable relationship to develop. The hon. Gentleman asked for the reasons for our approach, and I have outlined why I cannot accept his amendment. I ask him not to press it.

Paul Beresford (Conservative, Mole Valley)

This has been an unusual Bill, and it was particularly so in Committee. The Committee kept to the timetable because we had a genuine interest in targeting our discussions on certain issues. The same thing has happened this evening. The Government have shifted their position in the other place and here in response to the pressures put on them, and this group of amendments is an example of that.

Amendment No. 146 pressed for the response that we had asked for in Committee. I think that my hon. Friend the Member for Beaconsfield (Mr. Grieve) will be satisfied that we have at least received some response.

We certainly support Government amendment No. 8. The Minister was pressed by both sides in Committee and we give him his considerable due for responding in the correct way even if he did not respond in quite the way that we would have liked.

New clause 5 was tabled to make sure that the Government were aware of the slips in court procedures that might allow a convicted and vicious paedophile to be let loose on children. The Minister has taken our points on board and clearly acted upon them. His face in Committee suggested that he would be helpful, and he has been this evening. I therefore beg to seek leave to withdraw the motion.

Motion and clause, by leave, withdrawn.

New Clause 7 — Encryption (No. 2)

Paul Beresford (Conservative, Mole Valley)

I beg to move, That the clause be read a Second time.

Alan Haselhurst (Deputy Speaker, Saffron Walden)

With this it will be convenient to discuss the following: new clause 8—Encryption (No.3)—

'1. After section 53 of the Regulation of Investigatory Powers Act 2000 there shall be inserted—

"53A Subsequent failure to comply with a notice where protected data likely to be indecent images

(1) Where the first and second conditions below are satisfied, section 53 of this Act shall apply as if the penalties were—

(a) on conviction on indictment, to imprisonment for a term not exceeding seven years or to a fine, or to both;

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

and the offence shall be treated as a relevant offence for the purposes of Part II of the Sexual Offences Act 2003.

(2) This first condition is—

(a) a person has been previously convicted of an offence contrary to section 53 of this Act, and

(b) that person has been previously convicted of an offence contrary to section 1 of the Protection of Children Act 1978 or section 160 of the Criminal Justice Act 1988.

(2) The second condition is a further notice has been issued under section 49 of this Act.".'.

Amendment No. 190, in page 26, line 16 [Clause 46], 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 preponderance 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)".'.

Government amendments Nos. 83 and 84.

Paul Beresford (Conservative, Mole Valley)

New clauses 7 and 8 and amendment No. 190 are the result of what happened in Committee, where I raised the issue of encryption because I was beginning to become aware of the difficulties that it involves. Encryption is already recognised as a problem under part II of the Regulation of Investigatory Powers Act 2000—RIPA, for short—under which the maximum sentence for failing to produce a code to obtain access to encrypted material is two years.

Anyone with an interest in the activities of paedophiles knows that they collect volumes of pictures and videos of children being sexually abused, and that they film themselves. Such things are quite horrendous and it would be inappropriate for me to continue talking about them as it is not yet 8 pm. Paedophiles use such material for self-stimulation, to join paedophile groups and as a means to purchase photos, drawings and films, which are frequently kept digitally on computers, remote servers, floppy discs, CD-ROMs, storage pens and digital versatile discs. If a person is convicted of possessing such material, the sentence is usually considerably more than two years, and if the material becomes available to the police, the individual runs the risk of being prosecuted for other offences. An individual who is pressed to reveal the encryption code for such material is most unlikely to do so because if he failed to do so he could only be sentenced to two years under RIPA, and would not be put on the sex offenders list.

The Home Office and the police have told me that they try to break the encryption, which can be done in various ways and by several agencies, including national agencies. An expert who works for the Home Office and the police told me that 80 per cent. of codes have been broken so far, which means that 20 per cent. have not been broken. However, I have some doubt about the figure of 80 per cent. because information that I have received from the police shows that materials that are sent for code breaking often do not return and, if they do, there is only a 50:50 chance that the code will be broken. De-encryption also costs a lot of money and takes a long time.

I spoke to an expert from the private sector about this matter. He smiled quietly and pointed out that the technology has reached the stage of using 128-bit encryption, which is effectively impossible to break. There are now programmes to achieve 256-bit encryption and, even more worryingly, they are available to download for free from the internet. Although the programmes are slightly complicated, they are rapidly becoming easier to use.

The new clauses would provide that if individuals who had been convicted of sex offences against children failed to give an encryption code, they would face a sentence considerably lengthier than the current two-year sentence under RIPA. I would hope that the threat of a potential seven-year sentence would inspire such individuals to save the police and de-encryption individuals and groups a lot of time and money by coming forward with information, although I appreciate that one would not expect 100 per cent. of people to react to that.

The Minister listened with interest to the debate on encryption in Committee and we heard soothing noises and were told that the Government would come back to it, which is why I have tabled two new clauses. I hope that he is positive about choosing one of them and although I suspect that I am being more hopeful than anything, one can but hope that he will react in such a way.

Amendment No. 190 is quite simple and its provisions were discussed in Committee. When the police take information technology equipment from individuals who are charged with sexual offences against children, they use it to assist their investigation of the crime. Details of the data are often used in the court case. In practice, the police generally keep the equipment, often even if the owner is cautioned rather than convicted. That happens because returning the equipment to the individual would go against natural justice. It would be rather like giving lollies back to a child, if that is not bad phraseology, because it would give individuals the opportunity to return to their activities. As any IT technician knows, even if attempts are made to erase data, it is quite possible for erased data to be restored. If the data are encrypted, the police have no surety that they are destroying the material or clearing the discs.

I am sure that hon. Members are aware that accidents happen: hard discs can get dropped and, as the Minister said to me one evening, there is nothing like the effect of a sledgehammer. However, an individual could technically ask the police to return the equipment, which they must do under the current law. I have tabled amendment No. 190 because I hope that the Government will accept that the police need the law to go a little further so that such equipment would be confiscated after caution or conviction.

Dominic Grieve (Conservative, Beaconsfield)

I shall not take up the House's time at length, save to say that I entirely support the new clauses tabled by my hon. Friend the Member for Mole Valley (Sir Paul Beresford). New clause 8 relates to the extent to which individuals might try to hide behind encryption given that the sentence for non-co-operation is so much shorter than the sentence that would be received if the full offence were disclosed when the material was found, which will cause the House anxiety. Even if the Minister cannot accept the new clauses, I hope that he will give us a positive response and say that the issue will be considered. Given the growth of internet use, and especially the use of the internet for paedophile pornography, the problem is serious and it will grow unless the Government do something to solve it. The only way to do that is to ensure that people who do not co-operate by providing encryption keys in such cases are not given an advantage. I appreciate that the new clauses might pose some problems but the police usually know when they are investigating child pornography and paedophiles. In such circumstances, it is not beyond the wit of the House to construct an amendment to address that.

Amendment No. 190 also relates to a real worry. I am especially troubled by the fact that I have been told—I am sure my hon. Friend has too—that it is almost always possible for a person with technical expertise to retrieve deleted material from a hard drive. Given that many who are interested in child pornography have expertise in the field of computers, there would be a risk that if we handed back equipment, the information remaining after the deletion process could be misused. I hope the Minister will look favourably on the amendment.

Sandra Gidley (Liberal Democrat, Romsey)

I rise briefly to support the new clauses and amendment tabled by the hon. Member for Mole Valley (Sir Paul Beresford), although I do not think anything would be gained by prolonging the debate on them. However, I also want to make a point that was mentioned in Committee relating to Government amendments Nos. 83 and 84. We are clear about the situation regarding photographs, pseudo-photographs and images, but the Bill does not cover written material that describes paedophilia or other aspects of sexual behaviour that we might find distasteful.

I do not think that the Minister for Citizenship and Immigration understood what I was talking about in Committee. That reassures me greatly because it probably means that she has led a sheltered life. Fairly foul material exists that graphically describes sexual acts in a way that is probably best not described. That material could encourage anyone with an interest in child sex or child exploitation to go over the edge and try it for themselves. Have the Government considered dealing with such material? If so, why is there nothing in the Bill to that effect? If not, perhaps they could think about it because it has been overlooked.

Paul Goggins (Labour, Wythenshawe and Sale East)

Government amendments Nos. 83 and 84 will create a limited defence to a charge of making an indecent photograph or pseudo-photograph of a child under section 1(1)(a) of the Protection of Children Act 1978 when it is done for one of the specified purposes: for the detection, investigation or prevention of crime; for criminal proceedings; or by those who carry out the functions of the security service or GCHQ. That defence replaces the authorisation scheme.

I remind the House of the purpose of clause 47. There is no statutory defence to making indecent photographs of children. In the normal course of an investigation, the police and others, such as Internet Watch Foundation staff and systems administrators, need to access internet sites where they believe they will find indecent photographs. Their work will involve them in downloading and thus making the indecent photographs. After discussions with the police and representatives of the industry, the authorisation scheme that we originally drew up has been shown to be unduly burdensome to the police and subject to delays owing to the potential number of applications for such authorisation.

The amendment creates a limited defence for specified purposes. A person shown to have made an indecent photograph or pseudo-photograph of a child will have to prove, on the balance of probabilities, that it was necessary for him to do so for one of the specified purposes. That represents the right balance, allowing those who need to act to do so while preserving a very significant obstacle to misuse by paedophiles. We acknowledge that companies wishing to assist the police may require further reassurance that their actions will be viewed as complying with the defence, so as to avoid the risk of lengthy investigation and possible prosecution. We intend that the defence will be backed up by a clear code of practice involving the Crown Prosecution Service, the police, the Internet Watch Foundation and the industry in general, setting out in sufficient detail the way in which such judgments will be made. Such a code is best made on a non-statutory basis as it will need to be adjusted swiftly to reflect changes in technology and investigative techniques.

Dominic Grieve (Conservative, Beaconsfield)

I welcome Government amendments Nos. 83 and 84, which reflect the concerns of internet service providers. They are a great improvement. The industry remains anxious about some matters. I am convinced that the code will alleviate that anxiety, but it needs to be drawn up after good consultations with the industry, which needs to be reassured that it will be able to copy and make images for the purpose of helping in the investigation of crime.

Paul Goggins (Labour, Wythenshawe and Sale East)

I am grateful for the hon. Gentleman's support. If the authorisation system is overly burdensome it will not be enough simply to have the defence that we propose without the wider context of the code and the support that that will afford. Clearly the code will need to give people who do that job the confidence to act. As I said several times in Committee, none of us would wish to do their job. So I commend amendments Nos. 83 and 84 to the House.

Again, I have to disappoint the hon. Member for Mole Valley (Sir Paul Beresford) by telling him that I resist amendment No. 190, on forfeiture. It has been introduced following an admittedly brief debate in Committee. My hon. Friend the Minister for Citizenship and Immigration acknowledged that there is an issue to be addressed and agreed that we would consider the position to see whether we could introduce our own proposals. Although I cannot accept the hon. Gentleman's proposals as they stand, I regret that so far we have been unable to resolve all the issues ourselves. However, I assure him and the House that we will continue to work on that problem and will introduce proposals at the earliest opportunity. As the hon. Gentleman rightly explained, I own up to belonging to the sledgehammer tendency. I hope that it gives him some comfort that that is my starting point.

The hon. Gentleman rightly identified that the provisions set out in sections 4 and 5 of the Protection of Children Act 1978, which deal with the forfeiture of indecent photographs, do not state specifically how to deal with the equipment that is used to create, handle or store the data concerned. In attempting to ensure that the equipment is not returned, however, the amendment would create difficulties in some circumstances. For example, if the permanent erasure of the indecent images is not completed to the satisfaction of the court, the equipment could not be returned, even to third parties, possibly causing a substantial loss. Similarly, the amendment would not allow for the fact that valuable data belonging to an innocent third party might be held on a computer owned by the offender and lost to its owner. That could include business accounts and other important data relating to an innocent third party's affairs.

Such issues need consideration and discussion. We have begun that process, but it is not yet complete. We have also identified that further work is needed to close a gap, which the amendment would not do, between the provisions in the 1978 Act and the general forfeiture provision set out in section 143 of the Powers of Criminal Courts (Sentencing) Act 2000. I remain deeply grateful to the hon. Gentleman for his work on the subject. I assure him that we will work hard to resolve all the problems and to introduce proposals to fill the gaps at the earliest opportunity. I regret, however, that we are not at that stage yet and ask for his forbearance.

The objective of new clause 7 is to make an offender contemplate an extended term of imprisonment for failing to disclose electronic information that he has protected. I welcome the link to part III of the Regulation of Investigatory Powers Act 2000. When implemented, the RIPA regime will provide a power to compel the disclosure of protected information, subject to statutory safeguards and oversight. I have to resist the new clause, however. On a technical level, it refers to an offence under section 7 of the 1978 Act rather than section 1, which would be more appropriate. More importantly, however, it does not clearly make the link between the conduct involving indecent images of children and the conduct, in the same investigation, of failing to disclose protected data when required to do so under RIPA. It simply refers to a "subsequent" conviction for a section 53 offence, which could relate to an entirely separate incident from the one in which the indecent photographs were found and could take place many years after the conviction, even when the person had been entirely rehabilitated.

The key consideration must be that the offence of failing to disclose protected information relates directly to the offence involving indecent images. In practice, the conviction for failing to disclose might precede or be simultaneous to the conviction for the indecent photographs offence. I appreciate that the hon. Gentleman may regard my comments as more smooth words, but I am sympathetic to what the amendment attempts to do. As in Committee, I undertake to consider introducing our own proposals, initially in the context of consulting on the implementation of part III of RIPA.

I have to resist new clause 8 for the same reasons as new clause 7, although I understand the concerns that drive the hon. Gentleman to table such amendments. Quite simply, an offence of failing to comply with a RIPA requirement to disclose protected information or the means to access that information cannot be treated as a sexual offence simply because it is a repeat offence and the offender has a previous conviction for a sexual offence.

I hope that those warm words have offered the hon. Gentleman some reassurance. I give him my pledge that I will continue to work very hard on the matter, and I look forward to working with him on the taskforce and in other forums. However, I ask him not to press his new clause and amendments.

Paul Beresford (Conservative, Mole Valley)

It is going to be an evening of warm words and pledges, but in the circumstances I cannot but accept those offered by the Minister.

Certainly Government amendments Nos. 83 and 84 are welcome. I neglected to say earlier that not only has there been close co-operation in Committee, which seems to be duplicated this evening, but the internet taskforce, which the Minister chairs, and its offshoots have a huge number of experts in various areas, and it may be that the amendments were derived from those experts.

I am sorry that amendment No. 190 is not acceptable, but I am certainly relieved that the sledgehammer tendency will continue and that there is a possibility of Government proposals on this matter. The same applies to the two new clauses.

We have rattled cages again this evening, and the Government have accepted that they need to look into these matters. On those grounds, I beg to ask leave to withdraw the motion.

Motion and clause, by leave, withdrawn.

New Clause 9 — Sections 17 To 20: Exemption for Same Sex Relationships

Evan Harris (Liberal Democrat, Oxford West and Abingdon)

I beg to move, That the clause be read a Second time.

Alan Haselhurst (Deputy Speaker, Saffron Walden)

With this it will be convenient to discuss the following: Government amendments Nos. 118 and 10 to 12.

Amendment No. 185, in page 14, line 14 [Clause 25], at end insert

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

Amendment No. 181, in page 14, line 17 [Clause 25], leave out subsection (3) and insert—

'(3) Subsection (1) does not apply if (A) could have predicted that he would eventually assume a position of trust.'.

Government amendment No. 21.

Amendment No. 148, in page 17, line 10 [Clause 31], after 'disorder', insert 'or learning disability'.

Amendment No. 149, in page 17, line 12 [Clause 31], after 'disorder', insert 'or learning disability'.

Government amendments Nos. 22 and 25.

Amendment No. 150, in page 17, line 35 [Clause 32], after 'disorder', insert 'or learning disability'.

Amendment No. 151, in page 17, line 37 [Clause 32], after 'disorder', insert 'or learning disability'.

Government amendments Nos. 26 and 29.

Amendment No. 152, in page 18, line 20 [Clause 33], after 'disorder', insert 'or learning disability'.

Amendment No. 153, in page 18, line 22 [Clause 33], after 'disorder', insert 'or learning disability'.

Government amendments Nos. 30 and 31.

Amendment No. 154, in page 18, line 39 [Clause 34], after 'disorder', insert 'or learning disability'.

Amendment No. 155, in page 18, line 41 [Clause 34], after 'disorder', insert 'or learning disability'.

Government amendment No. 32.

Amendment No. 156, in page 19, line 19 [Clause 35], after 'disorder', insert 'or learning disability'.

Amendment No. 157, in page 19, line 21 [Clause 35], after 'disorder', insert 'or learning disability'.

Amendment No. 158, in page 19, line 39 [Clause 36], after 'disorder', insert 'or learning disability'.

Amendment No. 159, in page 19, line 41 [Clause 36], after 'disorder', insert 'or learning disability'.

Amendment No. 160, in page 20, line 22 [Clause 37], after 'disorder', insert 'or learning disability'.

Amendment No. 161, in page 20, line 24 [Clause 37], after 'disorder', insert 'or learning disability'.

Amendment No. 162, in page 20, line 40 [Clause 38], after 'disorder', insert 'or learning disability'.

Amendment No. 163, in page 20, line 42 [Clause 38], after 'disorder', insert 'or learning disability'.

Amendment No. 164, in page 21, line 8 [Clause 39], after 'disorder', insert 'or learning disability'.

Amendment No. 165, in page 21, line 10 [Clause 39], after 'disorder', insert 'or learning disability'.

Amendment No. 188, in page 21, line 11 [Clause 39], at end insert—

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

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

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

(c) the education is necessary to protect B from possible abuse or harm, and

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

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

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

Amendment No. 166, in page 21, line 13 [Clause 39], after 'disorder', insert 'or learning disability'.

Amendment No. 167, in page 21, line 15 [Clause 39], after 'disorder', insert 'or learning disability'.

Amendment No. 168, in page 21, line 36 [Clause 40], after 'disorder', insert 'or learning disability'.

Amendment No. 169, in page 21, line 38 [Clause 40], after 'disorder', insert 'or learning disability'.

Amendment No. 189, in page 21, line 39 [Clause 40], at end insert—

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

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

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

(c) the education is necessary to protect B from possible abuse or harm, and

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

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

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

Amendment No. 170, in page 21, line 41 [Clause 40], after 'disorder', insert 'or learning disability'.

Amendment No. 171, in page 21, line 43 [Clause 40], after 'disorder', insert 'or learning disability'.

Amendment No. 172, in page 22, line 26 [Clause 41], after 'disorder', insert 'or learning disability'.

Amendment No. 173, in page 22, line 28 [Clause 41], after 'disorder', insert 'or learning disability'.

Amendment No. 174, in page 22, line 31 [Clause 41], after 'disorder', insert 'or learning disability'.

Amendment No. 175, in page 22, line 33 [Clause 41], after 'disorder', insert 'or learning disability'.

Amendment No. 176, in page 23, line 1 [Clause 42], after 'disorder', insert 'or learning disability'.

Amendment No. 177, in page 23, line 3 [Clause 42], after 'disorder', insert 'or learning disability'.

Amendment No. 178, in page 23, line 6 [Clause 42], after 'disorder', insert 'or learning disability'.

Amendment No. 179, in page 23, line 8 [Clause 42], after 'disorder', insert 'or learning disability'.

Amendment No. 180, in page 23, line 34 [Clause 43], after 'disorder', insert 'or learning disability'.

Evan Harris (Liberal Democrat, Oxford West and Abingdon)

I do not intend to detain the House long, partly because the drafting of the new clause is flawed, as hon. Members will have seen. First, it does not state that it should apply only to same-sex couples, and secondly, as currently drafted it would appear to be covered by the exemption provided in clause 25 for relationships that pre-date the position of trust. I hope that by clearly setting out those flaws I save hon. Members the time and trouble of repeating them.

I think that what I seek to achieve has been communicated to Ministers by officials. In the situation where acts take place where B is older than 16, the same defence should exist for homosexuals as for heterosexuals. I support the Government amendments in this group which restrict the marriage exemption to cases in which B is over 16, and in any event it is more convenient to consider this issue in that context, given that the age of consent is 16 for both heterosexuals and homosexuals.

The marriage exemption in this part of the Bill is very narrow because of the exemption in clause 25, and I accept that. It covers only those areas where a position of trust pre-dates sexual activity, where there is no pre-marital sexual activity and where marriage takes place where there is a position of trust and is followed by sexual activity that, without the marriage exemption, would not be exempt, as Ministers clearly believe it ought to be. Clearly there needs to be a marriage exemption for those circumstances.

I seek to argue, through the new clause, that the same exemption, albeit narrow, should be available for homosexuals. Ideally, there would be a clause equivalent to that providing the heterosexual marriage exemption. My approach was to recognise that where B is 16 or 17, parental consent for the marriage would be needed, so clearly there could also be parental consent for a relationship that post-dates the position of trust in a same-sex relationship. That is why I have set out in the new clause the same consents that apply for 16 and 17-year-olds in the Marriage Act 1949, as amended.

I made a similar proposal during the passage of the Sexual Offences (Amendment) Bill a number of years ago. That amendment was not accepted in both Houses of Parliament because at that point there was no likelihood of civil partnerships being just around the corner. At that time it was the intention of Liberal Democrat Members, but not, perhaps, of the Government, to ensure that equality between people of different sexualities was as complete as possible, and a clause such as this would have been necessary.

The Government have started a consultation on civil partnerships for same-sex couples in which people would be able to register their relationship. If those civil partnerships apply, as the Government intend, only to same-sex couples, they will provide an opportunity for an equivalent exemption in these narrow circumstances. The consultation does not explicitly refer to this issue, and I seek to give the Solicitor-General an opportunity to explain the Government's position on providing equality here, to state whether there will be an equivalent exemption for relationships that are committed, just like marriages, but post-date a position of trust, and to say whether civil partnerships would be the way forward.

I hope that the Solicitor-General will be able to provide some reassurance that, despite the tendency that we have seen in other debates for marriage to be set aside, there is an ability to ensure that the same defences apply to same-sex couples as to opposite-sex couples above the age of consent, which is the same for both. To be honest, even if the right hon. and learned Lady cannot provide that reassurance, I do not intend to press the new clause, but I hope that I am not enabling her to sell the pass, because there is some interest in the Government's intentions for equality in criminal law in the context of civil partnerships. Many people inside and outside the House will be interested to hear what she has to say.

Sandra Gidley (Liberal Democrat, Romsey)

I want first to talk about amendments Nos. 181 and 185, which repeat the slightly flawed attempt that I made in Committee to try to reassure myself that there are no loopholes in clause 25. I shall try to explain the case a little more clearly than I did in Committee, by relating a number of scenarios to which the clause may relate.

I apologise in advance for not being gender-neutral, but it gets very complicated when one is talking about A and B. The first possibility that occurred to me was that of a 16-year-old girl in a developing relationship with a young teacher. The teacher decides to move and obtain a teaching post at the sixth-form college to which the girl has applied. If the relationship was sexual before the girl goes to college, the Bill does not criminalise the couple. People have an opinion as to whether teachers should be in such relationships with students, but this is not the place to get into a moral and ethical argument. If the relationship was not sexual before the girl goes to college, the Bill criminalises the relationship if it then becomes sexual.

That seems rather perverse because most relationships are on a continuum, and there will come a point in any relationship at which it may become sexual. It seems fairly arbitrary to decide that if that point comes after the girl in question attends sixth-form college, there is suddenly something wrong with that. The clause could have another effect because, in practice, the girl could come under considerable pressure. The chap could legitimately argue, "Come on, if we don't have sex now we can't for the next two years." If the girl was wavering, that could affect her decision—[Interruption.] Members are laughing, but there is a serious point—something that puts young people under pressure to have sex when they do not want to is not necessarily a good thing, particularly given the high rate of STD infection. The Bill is therefore flawed in its current form. The defendant may also insist that the sexual relationship commenced before the position of trust arose, while the accuser states that that is not the case. That scenario is much more likely to arise if there is potential to excuse the offence by backdating the sexual intimacy.

Finally, there may be cases in which, because of a learning disability or suchlike, a young person is targeted by an authority figure and befriended or even groomed. The relationship is not initially sexual—it is merely friendly—but when the circumstances change and contact between the two becomes more regular an abuser could press for sexual relations. An outsider might find it difficult to establish exactly when the relationship became sexual, but the reality might be that a form of grooming had taken place before the abuser manoeuvred himself into a position of sexual opportunity. In Committee, the Minister urged me to withdraw my amendment, but promised further consideration of the matter. However, I am not aware of any such consideration, so I would be grateful for clarification of the clause, which is not perfect in its current form.

A number of my amendments try to reinstate the phrase "or learning disability" throughout the Bill. Instead of simply referring to someone "with a mental disorder", we would use the phrase "a person with a mental disorder or learning disability". I do not intend to repeat at great length the arguments that we had in Committee, but the crux of the matter is that the Government apparently consider that anybody with a learning disability is automatically regarded as having a mental disorder. Organisations such as Mencap have worked long and hard to establish learning disability as a separate entity and they regard the Government's thinking as offensive and belittling.

The Government's approach is inconsistent. The Youth Justice and Criminal Evidence Act 1999 makes separate provision for people with a mental disorder and people with a learning disability. Section 16 states that special measures apply to witnesses with a mental disorder, as defined in the Mental Health Act 1983, and, separately, to witnesses with a

"significant impairment of intelligence and social functioning".

It is therefore possible for legislation to use different terminology to describe people with a mental disorder and people with learning disabilities.

Page 21 of the explanatory notes to the draft Mental Incapacity Bill states:

"This could cover a range of problems such as psychiatric illness, learning disability, dementia . . . ".

A clear distinction is therefore made between psychiatric illness and learning disability.

In a briefing with the Minister and her advisers before Report, I asked which part of the Department of Health dealt with the issue raised in amendments Nos. 188 and 189, which are backed by Sense. I was told it was the part that dealt with learning disability, so other people appear to think that there is a distinction to be made. It would be helpful to establish a definition of learning disability and use it throughout the Sexual Offences Bill. If there are any changes to such a definition in the Mental Incapacity Bill, the Sexual Offences Bill could be changed retrospectively.

Finally, amendments Nos. 188 and 189 are backed by Sense and apply to people who are deaf and blind and may need sex education either because they are displaying inappropriate behaviour, perhaps in public, or are self-harming. That problem was raised on Second Reading and in Committee. The Minister has claimed that the charities involved did not agree on the way forward. There was also an understandable reluctance to include a loophole in the Bill. As a result, Sense arranged a meeting with the other charities concerned to try to reach a consensus. Unfortunately, I could not make that meeting because I could not find a parking space at a Hampshire station, but I understand that there is now consensus. The amendments tabled by the Liberal Democrats therefore have the support of those other organisations.

The amendments suggest that the following factors all need to be taken into account when providing an exemption. The touching must be for the purposes of sex education, and the recipient must have profound multiple disabilities. The education must be deemed necessary because of a problem of abuse or harm—in other words, it is fundamentally about providing protection. It should also be clear that there is no alternative. If there is another way of delivering such education, it should have a priority. The education should be carried out by qualified staff who have received training, and a decision must be made by a multidisciplinary team whose members are familiar with the person who will be receiving treatment—we cannot put such decisions in the hands of one person alone.

That is a stringent set of criteria and I challenge the Minister to come up with a loophole. If the Government are still minded to reject the amendments, I should like to know how they are going to deal with the issue. They have conceded that there is a problem and, having done so, they have a duty to act. I would therefore welcome an explanation of the way in which the problem will be dealt with in future.

While noting the slight flaw that my hon. Friend the Member for Oxford, West and Abingdon (Dr. Harris) noted in one of his amendments—

Evan Harris (Liberal Democrat, Oxford West and Abingdon)

It was a major flaw.

Sandra Gidley (Liberal Democrat, Romsey)

I was trying to be charitable to my hon. Friend. Given the fact that the equality and civil partnership issue is rising rapidly up the political agenda, it would be useful to know the Government's thinking on the matter.

Meg Munn (Labour/Co-operative, Sheffield, Heeley)

I should like to speak briefly to the amendments that raise the use of the term "learning disability" and ask the Minister to respond. I, too, have spoken to at least one organisation that works with learning-disabled adults and believes that not using the term "learning-disabled" in the Bill would be a matter of great regret. I should like to focus on genuine difficulties of definition and echo what the hon. Member for Romsey (Sandra Gidley) said about the term "mental disorder", which does not include learning-disabled people. Its use to describe people with a learning disability can be considered offensive, but we must reflect on whether people would consider themselves to be covered by the Bill if the term is not included.

I may be wrong, but I understand that the term "mental disorder" is defined in the Mental Health Act 1983 and relates to the term "mental impairment". I studied the legislation as a former practitioner, and my understanding is that mental impairment refers to something over and above a learning disability. It is generally taken to mean a state of arrested or incomplete development of mind that includes significant impairment of intelligence and social functioning, and is associated with abnormally aggressive or seriously irresponsible conduct on the part of the person concerned. If that is the case, using only the definition of mental disorder has serious implications for people with learning disabilities. I want the legislation to be introduced as soon as possible. It is enormously important and takes forward the current position of learning-disabled adults, who are some of the most vulnerable people around. Rightly, we are struggling to get the legislation right, and the inclusion of the term would help.

Harriet Harman (Labour, Camberwell and Peckham)

Further to undertakings made in Committee, we have tabled Government amendment No. 118 to bring further categories of adults within the scope of the abuse of trust offences. Perhaps I can explain it before I deal with the issues raised by the amendments moved by the hon. Member for Romsey (Sandra Gidley), which I shall get to in due course.

Connexions personal advisers are already covered in clause 22(7) by virtue of the fact that they fulfil their duties under section 114 of the Learning and Skills Act 2000. Such persons can also fulfil those duties under sections 8 to 10 of the Employment and Training Act 1973. It is clearly necessary to refer to both Acts to avoid a loophole that would enable a defendant to claim that he did not fall within the scope of those offences, and Government amendment No. 118 achieves that purpose.

Government amendment No. 118 also brings within the scope of the Bill those who have unsupervised contact with children in the context of their duties under sections 20 or 21 of the Children Act 1989 and equivalent legislation in Northern Ireland. Such persons arrange accommodation for children who, for whatever reason, are not being looked after by those who have parental responsibility, and check that their welfare is being looked after once such accommodation has been found. They include local authority staff such as social workers and family centre staff who visit the accommodation in which a child has been placed to oversee the child's welfare. The amendment also fulfils an undertaking given by my noble Friend Baroness Scotland to Baroness Blatch when the Bill was debated in another place.

Government amendments Nos. 10 and 11 remove the requirement that unsupervised contact between children and those who fall within the scope of the offences by virtue of their employment as children and family reporters, children's guardians and guardians ad litem must take place with the child alone. We have become concerned that the requirement for the contact to take place while the child is alone would create a loophole in the legislation that would apply where, for example, another person is present and that person has no role in supervising the defendant. For example, we would not want the presence of the complainant's younger sibling to allow the defendant to claim that a meeting did not take place with the child alone and that he does not therefore fall within the scope of the abuse of trust offences.

We are satisfied that the requirement for the defendant to have unsupervised contact with the child is sufficient to bring him within the scope of these offences. It will be for the courts to decide, on the individual facts of each case, whether the defendant's contact with the child was unsupervised. In practice, the addition of the word "alone" adds little but creates a potential loophole, and I hope that hon. Members will support our decision to remove it from the statute.

Government amendment No. 12 amends the definition

"looks after on an individual basis"

in clause 23 by replacing the words

"has unsupervised contact with B alone"

with

"has unsupervised contact with B".

That addresses the same potential loophole identified in the previous two amendments, whereby a person could argue that they fell outside the scope of the offence because, for example, a younger sibling was always present at the meetings with the complainant.

Amendments Nos. 181 and 185 were tabled by the hon. Members for Mid-Dorset and North Poole (Mrs. Brooke), for Romsey and for Winchester (Mr. Oaten). Amendment No. 181 would amend clause 26 by removing subsection (3), which includes a reverse burden of proof ensuring that it is for the defendant to prove that a pre-existing relationship existed. We can see no justification for removing that requirement because the evidence is within the particular knowledge of the defendant and the fact of a pre-existing relationship is a true exception to the offence. A legal burden of proof on the defendant is therefore justified and proportionate in those circumstances.

Amendments Nos. 181 and 185 would restrict the pre-existing sexual relationship defence in clause 25 so that it would not apply if the defendant were aware at the inception of the relationship that he would be in a position of trust or that he could have predicted that he would eventually assume a position of trust. That relates to the example raised by the hon. Member for Romsey. There are various drafting difficulties in the amendments. For example, the terms "predicted" and "eventually assume" are, as I am sure she is aware, too vague to be included in statute. What criteria would be used to determine whether the defendant could have predicted something, and what exactly is meant by "eventually"?

I also note that the amendments do not require knowledge that a position of trust would arise specifically between the defendant and the child concerned. Nor do they require knowledge on the part of the child of the potential future position of trust. The hon. Lady mentioned that point in her example, but it does not feature in the amendment. The defendant's knowledge, or rather prediction, of that alone is not sufficient to create a situation in which a position of trust could be used to enter into an exploitative relationship.

There are two points on which there is certainty: when the sexual relationship started and when the position of trust started. The hon. Lady was right to remind us that there is sometimes a continuum in such matters. However, the law must try to be as certain as possible. The two certainties are when the sexual relationship started and when the position of trust started, and I think that is probably the best we can do.

Leaving those specific points aside, I do not believe that alleged knowledge of a potential future position of trust that would arise between the parties, whether that information is known only to the defendant or to both parties, is sufficient to bring that relationship within the scope of the offences, which is the point that we are discussing. Not only would it be extremely difficult to draft such a requirement with sufficient clarity, as is evidenced by the hon. Lady's attempts, but it would not be right in principle to do so. The purpose of the abuse of trust offences is to protect young people over the age of consent from being manipulated into an exploitative relationship because of the imbalance of power that exists in a relationship of trust. Until that relationship of trust has been formed, I do not see how such a causal link can be made.

The amendments have been tabled out of genuine concern for child protection, but where two persons who are over the age of consent have willingly entered into a sexual relationship before a relationship of trust exists between them, I cannot see that it would be right to bring the relationship within the scope of the criminal law. Where such a pre-existing sexual relationship is subsequently continued after a relationship of trust has been formed between the parties, the matter may fall to be regulated by professional guidelines and employment codes of conduct, but I continue to believe that it would be unreasonable to bring such a relationship within the scope of the criminal law. For those reasons, we cannot accept the amendments.

Although new clause 9 seeks to create a new defence on the basis that a same-sex relationship existed prior to the onset of the position of trust, which is unnecessary because such a defence already exists in clause 25, I understand that the real intention of the hon. Member for Oxford, West and Abingdon (Dr. Harris) is to create a same-sex relationship exception that would mirror the marriage exception at clause 24. I agree with the sentiments that he expressed, but he has put the civil partnership cart before the horse. None the less, his point has been well flagged up.

I appreciate the efforts made in the new clause to ensure that the exception would apply only where the relationship had the approval and consent of those who have parental responsibility for the child concerned. However, I remain concerned that such provisions would not create the same level of reassurance as a marriage contract or indeed a civil partnership.

As I have explained, the Government have been involved in the consideration of proposals relating to a civil partnership registration scheme and intend to introduce legislation as soon as parliamentary time allows. Instructions are already in place to ensure that, if such a scheme is introduced, sexual offences legislation will be amended by that legislation to provide an equivalent to the marriage defence for persons who have entered into a registered civil partnership. I hope that that meets the point that the hon. Gentleman has done the House a favour in raising, and that that can be flagged forward into the civil partnership Bill. In the circumstances, I consider that new clause 9 is unnecessary and I hope that he will agree to withdraw the motion.

I turn to the mental disorder clauses 31 to 34, which give specific protection to those with a mental disorder who lack the capacity to consent. The amendments seek to loosen but not sever the causal link between the mental disorder and inability to refuse in subsection (1)(c).

Someone who has a severe mental impairment may not have the capacity to consent, and that can be seen to result entirely from the severity of their mental impairment. There is a direct causal link. However, there are others with a mental disorder who also would not pass a test of capacity. Their lack of capacity may result in part from circumstances other than the fact of having a mental disorder but which relate to their mental disorder: for example, someone taking medication for a mental disorder, or who has spent all their lives in an institutional environment and become perhaps very compliant with requests that staff make of them but who may have had no opportunity to become aware of what sexual activity entails, or may not know that there is a choice to be made when it comes to engaging in sexual activity. They have a mental disorder, they lack the capacity to consent, they are equally vulnerable and they need our protection. However, their mental disorder may have combined with their environment in producing someone who lacks the capacity to consent.

We are concerned that a strict causal link would call into question the applicability of the clauses to such persons, and lead to challenges as to the link between the mental disorder and the capacity to consent, which, in many cases, may be very difficult to prove. Consequential amendments are included to subsection (1)(d), which deals with the mens rea of the offender. It is for those reasons that I am proposing the amendments.

I turn to amendments Nos. 188 and 189, which reintroduce a change allowing the provision of hands-on sex education, such as teaching a person with profound and multiple disabilities to masturbate, or getting them to masturbate themselves, in strictly limited circumstances—the hon. Member for Romsey set those out—where there is no alternative way that sex education can be provided. In Committee, we made it clear that we were aware of certain differences among the learning disability charities as to the legitimacy of sex education that involved any form of sexual touching. My hon. Friend the Minister met with Sense. He spoke to it about those differences and suggested that it should meet with the charities that had reservations to see if together they could achieve some consensus on the issue.

I understand that Sense met the other charities on 2 October and that a level of agreement was reached. As the hon. Member for Romsey said, there is a consensus in the voluntary sector. Since then, the proposals have been under consideration by the Department of Health, which in turn is having discussions with Sense. We can say that there is now, as a result of the discussions that were initiated by my hon. Friend the Minister in response to the hon. Lady's amendments, consensus in the voluntary sector. We are not quite there yet in terms of consensus between the Government and the voluntary sector. The process is ongoing, so I do not believe that we are yet in a position to decide whether a sex education exception should be legislated for and, if so, precisely what form it should take.

Dominic Grieve (Conservative, Beaconsfield)

If that is the case, can that still be done if the Bill goes back to the House of Lords unamended? Will there not be a procedural difficulty if this part of the Bill has not been touched or handled in this House? There would be no scope for the Government to bring in such an amendment.

Harriet Harman (Labour, Camberwell and Peckham)

I think that this Bill would not be the legislative vehicle for that amendment, but the hon. Gentleman can rest assured that there are always more legislative opportunities, which he constructively engages in, trundling along, whether it be from the Home Office or the Department of Health.

I say absolutely genuinely that this is not a fobbing-off exercise. These are immensely difficult areas. We want to ensure that people with learning disabilities have as many rights and as full opportunities as they possibly can, but we also want to be very careful not to expose them inadvertently to sexual abuse. We must get it right. We are on our way there and have made a lot of progress, but we are not there yet. We are not in a position yet to decide.

I will not pretend that there are not significant areas of concern about such an exception, so I am not guaranteeing that there will be agreement between the voluntary sector and the Department of Health; I hope that there will be agreement but I am not guaranteeing it. We must be extremely careful not to open a loophole for abuse. However, the Government are committed to continue considering the issue and, if it is resolved in favour of an exception, to legislate when a suitable opportunity becomes available. For the reasons that I have given, I must resist the amendments.

I turn to amendments Nos. 148 to 180. My hon. Friend the Member for Sheffield, Heeley (Ms Munn) also participated in the debate on them. I understand the reasons and the strong feelings behind the amendments, as they were expressed in Committee. Again, as with civil partnerships registration and hands-on sex education, this is perhaps not the right Bill to have these discussions: while I sympathise with those views, I do not believe that the Bill is the right place to legislate on the issue.

A new approach to defining those who should be included in the new mental health Bill is being considered, and similar consideration is taking place in relation to the mental incapacity Bill. That is the context in which all these decisions should be made. We need to have consistency across the board. Primary mental health legislation is the place to have the discussion, and that is indeed taking place.

I reiterate that the amendments in no way affect the scope of the protection afforded by the clauses: we are not talking about changing that through the amendments. They cover that which we want to cover. We are talking about the language, and I do not say "only the language", because I understand very well that the language and how we define things is crucial. Mental disorder as defined in the Mental Health Act 1983, to which the Bill has been linked, includes those with learning disabilities. Therefore, the scope of the protection is assured. For those reasons, I must resist the amendments.

I acknowledge that there is a separate reference to those with learning disabilities in the Youth Justice and Criminal Evidence Act 1999 but just because there is an anomaly there, it does not mean that we should create loads more in the Bill. What we need to do is get it sorted, amend all previous legislation across the board and get it dealt with in the right context—primary legislation. That is the place we should do it. I do not want us to be out of line, not least because there are concerns about challenges to detention under the Mental Health Act 1983 that may arise out of the Youth Justice and Criminal Evidence Act terminology, so we want to be consistent in that respect.

Evan Harris (Liberal Democrat, Oxford West and Abingdon)

I am grateful to the Solicitor-General for her comments on new clause 9, particularly in respect—she went as far as she could—of the Government's intention that, should there be civil partnerships legislation, registered civil partnership should apply as marriage applies. Indeed, in that respect, it was encouraging to hear her say that she thought that that would be a more suitable vehicle than going just with the consent, as set out in the new clause. In the light of that, I beg to ask leave to withdraw the motion.

Motion and clause, by leave, withdrawn.

New Clause 10 — Sexual Activity in a Public Place

Evan Harris (Liberal Democrat, Oxford West and Abingdon)

I beg to move, That the clause be read a Second time.

Alan Haselhurst (Deputy Speaker, Saffron Walden)

With this it will be convenient to discuss the following: Government amendments Nos. 50 and 51.

Amendment No. 194, in page 34, line 18, leave out clause 66.

Amendment No. 147, in page 34, line 20 [Clause 66], after 'lavatory', insert 'or shower cubicle'.

Government amendments Nos. 85 and 86.

Evan Harris (Liberal Democrat, Oxford West and Abingdon)

This is an important debate because there are real problems with the drafting of clause 66, which amendment No. 194 would delete and new clause 10 would replace. It is important and habitual to set out that, like others who have spoken on the Bill, I am opposed to sexual acts in public and to sexual acts in lavatories. One need not labour the point that they are distasteful—to say the least—offensive, distressing and alarming to people. However, I should like to explain why the new clause is a better way of achieving what we are seeking. I shall then show how the Government's approach, unlike the new clause, fails to implement the recommendations of "Setting the Boundaries" or the intention behind the White Paper, and does not address concerns raised about the extent of the proposal.

The first problem with the clause is that it is too narrow in its geography because it relates only to public lavatories. My hon. Friends the Members for Mid-Dorset and North Poole (Mrs. Brooke) and for Romsey (Sandra Gidley) have also tabled an amendment to demonstrate that the clause is too narrow. A consequence of the narrowness of the clause is that the measure is indirectly discriminatory against men who have sex with men, including gay men but not just men who regard themselves as gay. That is what we are talking about in terms of public lavatories; men who have sex with men.

Dominic Grieve (Conservative, Beaconsfield)

I can assure the hon. Gentleman that if he read the Committee Hansard, he would see that that is not the case. The examples I cited there included the misuse of public lavatories in various buildings for the purposes of heterosexual activity. I can assure him that the proposal is gender neutral.

Evan Harris (Liberal Democrat, Oxford West and Abingdon)

As phrased, it is gender neutral but that is not its impact because of the frequency with which the offence takes place. I have read Hansard and am aware of the case that the hon. Gentleman adduced involving sex between a man and a woman in the toilets of a court. It was not clear whether they were lawyers or not. If we study the history of prosecutions of this sort of activity, we see that there were always more complaints, prosecutions and convictions against men. As a consequence of that indirect discrimination and the disproportionate impact on men who have sex with men, the Bill fails one test—to be non-discriminatory in its impact as well as its wording.

Sandra Gidley (Liberal Democrat, Romsey)

My hon. Friend is over-egging the pudding with regard to the proposal having too great an impact on men who have sex with men. The simple fact is that it is easier for men to go into a toilet together than it is for a man and a woman. It is a more common offence—not a greater or lesser offence—because it is easier. There is no sinister intent to criminalise gay men.

Evan Harris (Liberal Democrat, Oxford West and Abingdon)

My hon. Friend misunderstands my point. The clause does not deal with places where men and women have sex together in public, such as in parks, lover's lanes, on trains and on top of buses. [Interruption.] Hon. Members may be suggesting their own favourites. The clause is restricted to public lavatories, and my hon. Friend makes my point; that is where men go—wrongly, in my view—to have sex with other men, but it is not where men and women go to have sex in public together. That is self-evident and—as I said at the outset—the clause is too narrow in that it includes only public lavatories and does its best to exclude from the offence sex between men and women in public places. That is the key point. As a consequence, the clause fails to meet the test of the Bill—that it should be non-discriminatory—and may give cause for redress under the Human Rights Act because of that discrimination.

The second problem is that the clause as worded is discriminatory in its effect on gay men in their defences, compared with the equivalent defences that might be available to a heterosexual couple charged, as they would need to be, under public order legislation. Public order legislation deals with the need to avoid depraving public morals and with offending, alarming or distressing people, so clearly someone has to make a complaint and someone must be a victim of the offensive behaviour. The wording of clause 66 does not require that that offence, distress, alarm or fear be caused, so the defences available to people caught under it are fewer than those available to heterosexual people; or, indeed, people of the same sex caught in other places. That is unfair and unreasonable.

I believe that, as drafted, the clause would catch people who were not engaging in sexual activity. The clause defines an activity as sexual

"if a reasonable person would, in all the circumstances but regardless of any person's purpose"—

the purpose of the people concerned—

"consider it to be sexual."

If two men were seen leaving a toilet cubicle together, a court might consider it a reasonable assumption that they had engaged in sexual activity, which would be sufficient under the clause to convict, even if they were doing drugs or whatever. Surely we do not propose to enact a law that does that.

The proposal recreates a victimless crime. We have gone through decades of gross indecency and buggery laws, which—where there was consent—were victimless crimes. The clause would recreate that as there is no provision for anyone needing to be distressed or alarmed. The new clause proposes that it should be an offence if someone is distressed, alarmed or afeared by such action. The history of the victimless crime and its disproportionate effect on gay men was set out by the hon. Member for Rhondda (Mr. Bryant) earlier, and part of the reason for "Setting the Boundaries", the White Paper and the Bill was to get away from the time when victimless crimes, particularly those of which gay men are convicted, were commonplace.

Dominic Grieve (Conservative, Beaconsfield)

Does the hon. Gentleman not consider that if a public lavatory is regularly misused for sexual purposes, it ceases to be a victimless crime; not because people are not present when the activity happens, but because, as a result, the use of the lavatory for legitimate purposes becomes impossible?

Evan Harris (Liberal Democrat, Oxford West and Abingdon)

On that basis, the hon. Gentleman should support the new clause, which makes it clear that that would still be an offence in a public lavatory, because one could say that it would never be reasonable for someone to consider that such activity was not likely to distress or alarm anybody. I shall deal with that when I talk about the new clause in more detail. I am prepared to make common cause with the hon. Gentleman to make that an offence, but it is not right that the definition should apply exclusively to public lavatories.

Clause 66 reopens the possibility of entrapment. There is nothing to prevent entrapment; indeed, there is every likelihood that it will lead to an increase in convictions involving entrapment, when the police may go looking for someone willing to have sex, or to expose themselves for the purposes of sexual activity. The wording of the Bill means that the entrapper would not need to be distressed, alarmed or afeared—as someone who was "asking for it", and seeking to provoke the activity, would generally not be—so entrapment would reappear.

As well as entrapment by the police there would again be scope for blackmail to take place, even when no distress or alarm had been caused to anyone. It is the job of modern sexual offences law to avoid as far as possible allowing someone to provoke an offence for the purposes either of blackmail or of securing an easy conviction.

In contrast, the new clause covers more public places, without the drawback in the Government's first attempt, which caused difficulty because it was regarded as extending even to secluded garden areas, because they were outwith the dwelling that was initially excluded. The new clause makes it clear that the provision would also apply to behaviour in other public places that a person

"knows or ought to have known was likely to cause harassment, distress, alarm or offence to any other person",

and where the behaviour provokes a complaint and

"causes or has caused harassment, distress, alarm or offence to any other person."

The new clause would cover other areas. If it is the Government's intention to reclaim public lavatories for the use of the public without the distress referred to by the hon. Gentleman, I support that, but the provision should apply to commons, parks and heaths as well. The Government have failed to make it do that. We now have what may be a once-in-a-generation opportunity to tackle the issue, and I do not understand why the Government do not feel that parks, heaths and commons are not suitable for reclaiming.

The new clause requires a victim and a complaint, but the complainant could be a policeman. If two people were engaging in sexual activity in a public lavatory or other public place, a policeman could be the person who was offended. However, the wording of the new clause does not mean that anyone engaging in sexual activity in a very secluded place—such as a wood, or, indeed, their own back garden—would be liable to be convicted. That is appropriate, and strikes the right balance.

We have to remember the Bill's context, which was based on the Home Office report "Setting the Boundaries". The report's basic set of assumptions were that

"any application of the criminal law must be fair, necessary and proportionate";

that

"the criminal law should not discriminate unnecessarily between men and women nor between those of different sexual orientation";

and that

"the law should not intrude on consensual sexual behaviour between those over the age of consent without good cause".

In the summary of the report, section 0.21 says:

"We thought it important that the law should be able to deal with problems caused by inappropriate sexual behaviour in public places, including public toilets. We recommend:

a new public order offence to enable the law to deal with sexual behaviour that a person knew or should have known was likely to cause distress, alarm or offence to others in a public place."

That was the basis for recommendation 56, which says:

"A new public order offence should be created to deal with sexual behaviour that a person knew or should have known was likely to cause distress, alarm or offence to others in a public place."

Chapter 8 of the report goes into some detail about that, and paragraph 8.4.2 and 3 says:

"some public facilities are extensively used for sexual purposes, and the law needs to be able to deal with this problem as part of wider powers to deal with sexual activity in public places . . . The common law offence of outraging public decency includes 'all open lewdness, grossly scandalous behaviour, and whatever openly outrages decency or is offensive and disgusting"—

to someone, presumably—

"or injurious to public morals by tending to corrupt the mind and destroy the law of decency, morality and good order'".

Someone therefore has to have their morals depraved—although recent case law does not require that their morals be actually depraved, so long as they are in a position where that could take place.

Paragraph 8.4.4 points out that the Wolfenden committee argued that

"criminal law should apply to all sexual behaviour in public and not in particular to same sex behaviour."

Paragraph 8.4.6 says:

"The law should be able to tackle these public order/decency issues whether they relate to heterosexual or same sex activity. Finally, we thought it "unnecessary and disproportionate to prohibit all sexual activity in public."

This was a Home Office review, not necessarily the Government's own views, but the Government set out their view in the White Paper "Protecting the Public". I want the Government to accept that my new clause would bring them back to their original correct intention, because chapter 6.77 of that White Paper says:

"We will also be introducing a new public order offence, specifically targeted at specified sexual acts that take place in public. The new offence of Sexual behaviour in a public place will send out a strong signal of our intention to protect people from being unwilling witnesses"—

at that stage the Government thought that there had to be a witness—

"to overtly sexual behaviour that most people consider should take place in private. It will be in addition to, and not a replacement for, existing public order offences. However, it is not our intention to interfere in everyday behaviour in public that does not cause offence to the vast majority of people such as kissing or cuddling".

I hope that the Government will recognise that the new clause is more closely related to that intention than is the clause that was given to us by the House of Lords, even as amended in Committee.

On entrapment, a letter from Stonewall to the Minister dated 24 October states:

"It would be very regressive indeed if the result of this clause was a return to practices such as entrapment, particularly when there are far more pressing matters for the police to be dealing with".

Stonewall states clearly that it opposes sexual activity in public lavatories, but it recognises the danger of entrapment.

I would say that the complaints that we hear are about the use of public toilets exclusively by men having sex with men—almost to the exclusion of other people being able to use them at all—but it is not surprising that there should be more complaints about that, because the culture of gay men having sex, especially men who are married and therefore do not recognise themselves as gay, is a culture of furtive experiences.

Another reason why it is not surprising that there are more complaints about that activity is homophobia, and people's reaction to men kissing in public—and, indeed, on the television—which raises far more complaints than the sight of men and women of the same age, with the same degree of consent and the same depth of relationship, kissing. There is a differential acceptance of public displays of affection, and, therefore a different acceptance of public displays of sexual activity. That is wrong, because there should be no discrimination. People find homosexual acts offensive in a way that they do not find heterosexual acts offensive.

The very fact that disproportionate offence is caused by homosexual acts should warn us of the pitfalls of going down a path that leads to a predominantly gay-only offence. A low threshold for distress or alarm—or likely distress or alarm—may be appropriate under the new clause, but there is no threshold at all for distress, alarm, fear or offence under clause 66 as it stands.

Clause 66 is inadequate in many ways. For those of us who want a specific provision banning sexual activity in public places, but which is not directed only and specifically against gay men, the new clause is the way to go. If the Minister is willing, I am prepared to explore ways to tighten it further. For example, subsection (2) of the new clause, which provides for the defence of a person's having reasonable belief that they were unlikely to be causing offence, need not apply to a public lavatory. That might be a way to ensure that the unacceptability of sex in public lavatories is made clear. On that basis, I hope that the Minister and other Members recognise the merits of new clause 10.

Dominic Grieve (Conservative, Beaconsfield)

I am sorry that the hon. Member for Oxford, West and Abingdon (Dr. Harris) is dissatisfied with the way in which the Bill has been amended in relation to public lavatories. This matter took up quite a lot of time in Committee and has obviously done so in the House of Lords as well. I am grateful to the Government for accepting the Lords amendment, which they amended further themselves. We have arrived at a sensible outcome, and I am sorry that the hon. Gentleman is dissatisfied with it. The simple position is that public lavatories are not a proper place for sexual activity—full stop. It does not matter whether somebody notices what is going on or not; in reality, it is most unlikely that any prosecution will be brought unless somebody complains about the state the public lavatory has got into as a result of improper use. The hon. Gentleman should stop worrying about this matter and accept that the Bill as drafted is perfectly sensible.

I turn briefly to the Government amendments in this group, which I welcome. The Minister has taken on board all the points made in Committee, including that relating to uncles and nephews and the definition of prohibited relationships; I am extremely grateful for that. I particularly welcome the fact that, as a result of the debate in Committee, the word "structure" has been removed from clause 69 and replaced with "place". That sensible amendment will provide a greater degree of protection from the activities of voyeurs for those who are legitimately in an enclosed space, and have no reason to believe that they will be seen. I am grateful to the Minister for those amendments.

Sandra Gidley (Liberal Democrat, Romsey)

I rise to speak to amendment No. 147, which is a slightly tongue-in-cheek attempt to show that clause 66 as it stands is flawed. As my hon. Friend the Member for Oxford, West and Abingdon (Dr. Harris) pointed out, we are very hung up about the particular environment of a public lavatory. There are other places, such as showers on camp sites, to which the public have access, but apparently there is no problem with such structures: the door can be closed and there is no problem with people engaging in any sort of sexual activity.

I agree with my hon. Friend the Member for Oxford, West and Abingdon, in that the Government seem to want to single out toilets, for a reason that I cannot quite understand. I agree with those who say that public toilets are not the place to have sex—they should be used for the purpose for which they are designed—but the subtext of some of our debates in Committee suggests that this issue involves discrimination against gay men. I do not want to pass legislation that discriminates in any way, but I must admit that I am struggling to understand that argument. Perhaps that is because I am not a gay man, but I cannot see in what way the provision discriminates, given that it applies to heterosexual sex in toilets, as well as to gay sex.

Chris Bryant (Labour, Rhondda)

I am sorry that the hon. Lady entices me to my feet. I had resolved not to say any more on this matter, having failed dismally to persuade the hon. Member for Beaconsfield (Mr. Grieve) of my argument in Committee; indeed, I note that the hon. Member for Oxford, West and Abingdon (Dr. Harris) has done just about as well as me in that regard. The history is that the police have spent vast amounts of time and energy deliberately trying to catch men having sex with men in gentlemen's toilets, and the enormous worry exists in the gay community that the police will start doing that again, because we will have expressly decided to retain this element of the legislation. Many police forces have extremely enlightened views, but as we have discovered in the past few weeks, some police forces and officers do not. It is wholly right to seek to prevent the misdemeanours referred to, but the worry is that the provision is discriminatory.

Sandra Gidley (Liberal Democrat, Romsey)

I thank the hon. Gentleman for his intervention. Much of what is said on this issue is based strongly on historical argument and expressed in that context, but I would contend that we live in an ever more accepting society. There are some who have a complete abhorrence of any sex other than heterosexual sex in the missionary position, but in general society is much more tolerant, particularly young people.

I have to question the slightly muddled thinking, as it could be regarded, of my hon. Friend the Member for Oxford, West and Abingdon. He said on one occasion that the public have a greater abhorrence of seeing a gay couple speaking—[Hon. Members: "Kissing."] Sorry, I meant kissing, not speaking; things have not got that bad. He said that the public have a greater abhorrence of a gay couple kissing than of a heterosexual couple kissing at a similar stage in a relationship. However, he then said that an element of distress, alarm or offence should be involved when an offence is committed. What happens if even minor forms of sexual activity are included? As we know from discussions of another matter, kissing is sexual activity. People might be very shocked to see two gay men kissing in a public toilet, but they may not be shocked to see a heterosexual couple doing so.

Evan Harris (Liberal Democrat, Oxford West and Abingdon)

My point is that, even if we accepted the new clause, sadly, because of public attitudes, there would still be a low threshold in terms of complaints made against men having sex in public. However, the existing clause provides no threshold whatsoever. It is not as if the new clause would not allow those who are offended—we must accept that people are offended by whatever offends them—to make a complaint. But one need not reach that threshold for sex in public lavatories, whereas the existing public order offence—which might catch such behaviour in a park, or on a bus or train—does require that someone be distressed and alarmed. In other words, we are writing a disproportionate level of offence into law, even despite public attitudes.

Sandra Gidley (Liberal Democrat, Romsey)

I am not sure that I am any the wiser for that intervention.

Amendment No. 147 is intended to point out a slight anomaly whereby certain activities that are just as offensive, in some eyes, are not covered by the clause as drafted. My hon. Friend the Member for Oxford, West and Abingdon sought to go further, but his new clause does not achieve quite what he intends. I support his comments on the public order offence; indeed, initially, we wanted to develop our thinking on the treatment of this offence in that way. It is an offence, but I hope—and I seek reassurance from the Minister and others—that undue weight will not be placed on using the clause as a means of persecuting people or going on a witch hunt. That may not be quite the right term, but it is the only one that I can think of without a double meaning.

To sum up, clause 66 is flawed. I would welcome hearing the Government's opinion on what has been said, but I do not think, sadly, that new clause 10 quite takes us to where we should be either.

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

I want to say briefly that I welcome Government amendment No. 85, which came out of an excellent debate. I did not participate much in it myself, but it was fascinating to listen to it and it provides a good example of some of the good work that was done in Committee.

On the present subject of debate, which has taken up considerable time, I want to repeat some of the points that we made in Committee. We do not feel that the Government amendment of the time, which is now clause 66, is appropriate for the Sexual Offences Bill. Our point was that it was an interim measure, but in the fullness of time when appropriate legislation came along—we acknowledged that it could not be attached to the Criminal Justice Bill—we wanted there to be a new public order offence, as recommended in "Setting the Boundaries". We do not want to lose sight of that. It is how we believe that matters should be progressed. As I mentioned in Committee, it would have been helpful if the phrase "distress, alarm or offence" was in the clause, because it would have made it easier to move this forward as a public order offence in the future.

I want to put those comments on record. We have heard some reassuring words from the Minister to the effect that there remains the possibility of inserting amendments into other legislation. I hope that this is not the end of the story—[Interruption.] I do not want much more talk, but suitable action on a public order offence in the future.

Paul Goggins (Labour, Wythenshawe and Sale East)

Unlike the hon. Lady, I hope that this is the end of the issue.

I begin by responding to the hon. Member for Oxford, West and Abingdon (Dr. Harris). As he made a powerful and knowledgeable speech, I thought that he would have made an interesting member of the Committee. If nothing else, we could have observed his developing relationship with his hon. Friend the Member for Romsey (Sandra Gidley), who asked some searching questions. I shall also deal with amendment No. 147, which would add sexual activity in shower cubicles to the existing clause 66.

Hon. Members who have followed the debate here and in the other place will be aware of the history behind this offence. We believe that existing legislation—public order Acts and provisions on outraging public decency—are already capable of covering sexual activity in public. However, we have accepted the case for a specific offence of sexual activity in a public lavatory, in acknowledgment of particular public concerns, which have been reflected in debate and in correspondence. I have to say to the hon. Member for Romsey that similar concerns have not been raised about sex in shower cubicles.

Claire Curtis-Thomas (Labour, Crosby)

I support my hon. Friend's observations. I greatly welcome the introduction of this new offence. It is something that preoccupies quite a number of my constituents, because we have a plethora of seaside gardens that have lavatories, which, unfortunately, have attracted a considerable amount of sexual activity of the sort that we have heard discussed this evening. In common with my hon. Friend, I have never received any correspondence about sex in the shower. When I receive the same sort of mailbag on that as I do on sex in the toilet, it might become an issue. For the moment, I am delighted that we are carrying this measure forward: it will bring much relief to many offended people in my constituency.

Paul Goggins (Labour, Wythenshawe and Sale East)

I am delighted to hear that my hon. Friend is pleased with this particular clause. Those who might engage in sex in shower cubicles may be caught by existing legislation, which could cover that particular instance.

The new clause proposed by the hon. Member for Oxford, West and Abingdon does not recognise that we are making an important distinction—

Sandra Gidley (Liberal Democrat, Romsey)

If the offence of having sex in a shower cubicle is covered by existing legislation, why is the parallel offence of having sex in a public toilet not so covered?

Paul Goggins (Labour, Wythenshawe and Sale East)

That is the whole point, and we covered it extensively in Committee. We believe that sex in toilets is already covered, but we are making the point of explicitly making it a separate offence. That has always been clear and we accept it. Indeed, the constituents of my hon. Friend the Member for Crosby (Mrs. Curtis-Thomas) are delighted by it.

Paul Goggins (Labour, Wythenshawe and Sale East)

I am not going to give way again, as I am conscious of the time and of the fact that we have much else to debate. Those who spoke to the various amendments have received a fair hearing in the House.

As I was saying, new clause 10 does not recognise that we are making an important distinction between sexual activity in toilets and sexual activity in public generally. We are seeking to outlaw all sexual activity in public toilets, but sexual activity in public per se is not a crime unless it causes harassment, alarm, distress or offence. The Government believe that sexual activity in public toilets is wholly inappropriate. On the other hand, if a couple take care to find an isolated area where they may reasonably expect to be unobserved in order to engage in sexual activity, we would not wish to criminalise them. However, we do wish to make it absolutely clear that sexual activity in public toilets is wrong. We do not wish to allow offenders to argue that they did not expect someone else to see or hear them because it was late at night, or to question whether an unfortunate witness was really distressed by their activities.

Concerns have been raised in the debate tonight—and movingly in Committee by my hon. Friend the Member for Rhondda (Mr. Bryant), who may not have won the day but made a powerful case—that the provisions could become a modern way of targeting the gay community. I said to my hon. Friend in Committee and repeat it now that in cultural terms we live in a very different age, frankly, than when homosexuals were pursued by the police in public toilets. I recall a time when the gay community, or individual homosexual men, were targeted in public toilets in Manchester. Yet within a mile of those toilets today, there is the gay village, which shows that the whole culture has changed.

I must make it plain to the hon. Member for Oxford, West and Abingdon that the police have an obligation to prosecute the law equally. I certainly undertake to monitor the impact of the legislation to ensure that it is implemented fairly and that gay men or any other group are not singled out in any particular way. If there is any question of people being blackmailed, blackmail is an offence, which should be dealt with in the appropriate way. I therefore resist the new clause and associated amendments.

I shall not detain the House for long in dealing with the Government amendments. The hon. Member for Beaconsfield (Mr. Grieve) has acknowledged the improvements that we have made. We concluded that there was no justification for treating categories of relatives any differently, so we tabled Government amendments Nos. 50 and 51 to bring relationships between aunts and uncles and their blood nephews and nieces within the scope of the offences in the Bill.

Finally, I should like to deal with the offence of voyeurism. As the hon. Member for Mid-Dorset and North Poole (Mrs. Brooke) said, we had a very good debate in Committee, although she acknowledged that she was a voyeur rather than a participant in it. These Government amendments remove the reference to "structure" from the definition in clause 69 of a private act for the purposes of the voyeurism offence. I was certainly persuaded by the strength of the argument put forward by members of the Committee about the scope of the offence. As drafted, the definition of a private act covers someone being undressed, in their underwear, using the toilet or engaging in a sexual act of a type not normally done in public when in a structure in which they might reasonably expect privacy. In Committee, we discussed the scope of the offence, and whether it should protect those not only in a structure that affords privacy, but in other places or spaces where privacy might reasonably have been expected.

Government amendment No. 85 removes the term "structure" in this context and replaces it with "place". I am grateful to my hon. and learned Friend the Member for Redcar (Vera Baird), because she made that clear and simple suggestion in Committee. The amendment will widen the scope of the offence to protect someone engaging in a private act in any place where they could reasonably expect privacy. It will be for the court to determine whether or not their expectation of privacy was reasonable. Government amendment No. 86 is simply a minor consequential drafting amendment ensuring that the definition of "structure" remains in force to cover the term as it is used in clause 68. I urge the House to accept these amendments and I hope that the hon. Member for Oxford, West and Abingdon will withdraw his new clause.

Evan Harris (Liberal Democrat, Oxford West and Abingdon)

It is disappointing that the Minister would not engage in formal debate on this important issue by taking interventions. I would have asked him two questions. First, he says that he wants to make sex in public lavatories a particular offence because of the number of complaints from the public, but why must we always give in to public opinion when the impact will be discriminatory? That was the justification used for years of discriminatory sex laws. Secondly, why is the Minister concerned only with public lavatories? Does he not think that no-go areas on Clapham common and Hampstead heath and in other parks are worth reclaiming for the public for the same reason? If this new offence is good enough for public lavatories, it should be good enough for other areas.

The Minister said that the police have a duty to prosecute the law equally. I agree, but the law is not equal in this instance. The hon. Gentleman would not take an intervention on the point, but it is clear that the standard of complaint required for sex outside public lavatories, which can take place between men and women and not just between men, has a higher threshold—the need for someone to be distressed or alarmed by it—than sex in public lavatories. That means that convictions will be easier to obtain and even with an equal prosecution of the law there will be a disproportionate effect. The law will no longer be equal in terms of the defence available. The Minister has failed to deal with that point and has therefore spoilt what would otherwise be a useful Bill, for me and for many people outside the House who are concerned about the history of discrimination in this area.

I am grateful to my Front-Bench colleagues for recognising that clause 66 is unsatisfactory. I recognise that they have a responsibility to deal with the best possible outcome at this point rather than with the best outcome possible, but I maintain that in years to come the Bill will have a disproportionate effect. The Government, and those who have acquiesced to the Bill, have created an inconsistency and have failed to take the action in other areas of the law that would be necessary for a widely based law. The Government need only look at the proposals in their own White Paper to see that they have made a U-turn and conceded an unreasonable argument from the official Opposition and Members of the House of Lords. Time will show that it will lead to unjustified discrimination.

I would not win a vote on the issue and I shall not divide the House, but I wished to make it clear that if prosecutions are disproportionate—and entrapment and blackmail ensue—the Minister had the opportunity to take a fairer approach that applied to people of all sexualities. Having said that, I beg to ask leave to withdraw the motion.

Motion and clause, by leave, withdrawn.

Clause 4 — Sexual Assault

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

I beg to move amendment No. 187, in page 3, line 15 [Clause 4], at end insert—

'(c) a person aged below 18 years at the time of the offence shall be assessed by a multidisciplinary team and be eligible for treatment, even if he does not subsequently become subject to notification requirements.'.

Michael Lord (Deputy Speaker, Central Suffolk and North Ipswich)

With this it will be convenient to discuss the following:

Amendment No. 116, in page 5, line 34 [Clause 13], leave out '9' and insert '10'.

Amendment No. 144, in page 5, line 34 [Clause 13], leave out '9 to' and insert '11 and'.

Amendment No. 117, in page 5, line 34 [Clause 13], at end insert—

'( ) A person under 18 (A) commits an offence if—

(a) he intentionally touches another person B,

(b) the touching is sexual,

(c) B is under 13 or B is over 13 but does not consent to the activity and A does not reasonably believe that B consents.'.

Amendment No. 145, in page 5, line 34 [Clause 13], at end insert—

'(1A) A person under 18 commits an offence if he does anything which would be an offence under sections 9 and 10 if he were aged 18 save that conduct by a person (A) with another person (B) which would otherwise be an offence under this section shall not be an offence if:

(a) B is aged between 13 and 16 and A is no more than 2 years older than B,

(b) B has the capacity to consent to that conduct,

(c) B does consent to that conduct,

(d) The conduct does not involve penetration,

(1B) B will be regarded as having the capacity to consent to conduct by A only if B is capable of understanding the nature and implications and reasonably foreseeable consequences of such conduct.'.

Amendment No. 192, in page 5, line 34 [Clause 13], at end insert—

'( ) A person under the age of 18 does not commit an offence if the sexual activity is consensual and with someone of similar age and is initiated by the participating parties. Exempted sexual activity does not include penetration of the vagina, of the anus or of the mouth by a penis.'.

Amendment No. 193, in page 5, line 39 [Clause 13], at end insert—

'(3) In respect of consensual sexual activity any decision about prosecution would be based upon consideration of the best interests of any child involved.'.

Amendment No. 196, in page 5, line 39 [Clause 13], at end insert—

'(3) Any decision about prosecution would be based upon consideration of the best interests of any child involved.'.

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

In Committee, I welcomed the amendments tabled by the Government to the effect that young people under 18 who had committed what might be regarded as more minor offences would not necessarily be put on the sexual offenders register. However, the Minister commented in Committee that as a result not all individuals would be eligible for a multi-agency assessment and subsequent treatment. On Second Reading, I mentioned a case in my constituency of a boy who committed an offence at the age of 14 and received a fine of £10 but no treatment. At the age of 19, he committed a serious offence and 13 years later he is still in prison. I feel passionately that we must ensure that young offenders, even those who receive only a caution, receive assessment and treatment. That is when it is most needed. I know that the Minister does not want such a provision in the Bill, but I am very concerned that it will slip through the net unless we make the point to him over and over again. I hope that the Government will appreciate that I do so with the greatest sincerity and from my experience of the tragedy experienced not only by the victim and their family, but by the family of the offender.

I come to the most important issue that we will discuss tonight. It was unresolved in Committee, even though we all tried to find a solution. At this late stage we still have a responsibility to try to reach that solution. This is a 21st century Bill, but it must be a matter for great concern that it will criminalise normal teenage behaviour. My colleagues and I do not propose that the age of consent should be lowered and we made that clear in Committee; however we have to find a solution to this issue.

We need co-operation from the Department of Health and the Department for Education and Skills on the guidelines for the Bill. We need to introduce information about relationships between young people to sex and relationship education—including at parenting classes. It is vital to get this right. A young teacher asked me at the weekend whether the Bill would mean that teachers should stop 12 and 13-year-olds kissing at school discos. I do not make that point lightly. If the Bill criminalises that sort of activity, what are teachers supposed to do, given the positions that they hold? That comment gave me a good reason for carrying on with the amendment.

Our amendments resulted from a great deal of thought, if not a great deal of legal input—in fact, none, since we simply reflected on all that had been said in Committee. As all our complex arguments, complicated amendments and even common-sense amendments—more of which we offer now—were turned down, it seemed that we should try to achieve the bare minimum tonight. It was clear in Committee that we needed to detach clause 9 from clause 13—they were clauses 10 and 14 in Committee, but I shall stick now to the new numbers. I thought that I would try to go no further than that this evening, even though I am pretty concerned about some of the Bill's criminalisation of normal activities. In that way, I thought, I might at least tackle this basic problem about kissing and affection.

Amendment No. 116 would simply detach clause 9 from the all-embracing clause 13. Having done that, I then seek to add to clause 13 to provide for child protection—a point I ask Members to consider closely. If the amendment were accepted by itself, it would require follow-up work on clause 9, which would then not be compatible with clause 13. It would be possible to make the two clauses compatible simply by adding a fourth point to the effect that A would have to be more than two years older than B. I was reluctant to do that because I do not find offensive the idea that a 17-year-old and a 14-year-old should kiss. However, making the difference three years would trigger the need for consequential amendments to clause 9, and that, as I am neither a lawyer nor a draftsman, is not my job.

The basic approach of detaching clause 9 from clause 13 and putting all possible safeguards into the Bill—more could be added in the way that I have suggested; for example, A could be more than two years older than B or more than three years older; or more could be added on the test for consent—offers a solution to our problem, although I cannot pretend that it is a perfect one. It took me hours of thought and determination to reach that point, although the House may not think so given my rather ragged amendment. I hope that the amendment will not simply be knocked out of court because it is not complete. I can see a way through that problem.

I will be minded to press for a vote on the amendment if the Minister does not say something that addresses the problem. I should be happy to support other amendments, but I am convinced that we must show the world and young people that we care about them and do not want to criminalise them for normal behaviour.

Claire Curtis-Thomas (Labour, Crosby)

I appreciate what the hon. Lady is saying, but according to the police, one reason why there are so few prosecutions in this area is that the law simply is not specific or clear. I have gained the impression that the hon. Lady seeks to introduce a series of caveats to clauses that seem to me to be very straightforward. That would not bring any progress or any more convictions than occur at present because of the lack of clarity.

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

That was an important intervention, allowing me to say categorically that I am here because I do not want 14-year-olds or 15-year-olds to be convicted for kissing. I have not attempted to remove from the Bill anything involving penetration or any of the other things that obviously go on, given what we hear about the number of teenagers who engage in sexual activity. I have not attempted anything as ambitious as that, but I feel that we need to tackle the problem in clause 13, which really is most offensive. It has been brilliant working on the Bill, but I have a huge commitment to trying to obtain something sensible on this point and to give a better message to young people. They receive enough bad messages from us, and this one will buzz around all sorts of youth groups—"Now they are doing this to us." That is the message that is being sent out, and we need to send a better message and to put common sense back into the Bill in this area, alongside all the good proposals that it contains elsewhere.

I am minded to push for a vote on amendment No. 116 to establish the principle that the Government, with all the expertise at their disposal, should do all that they can to come up with a technical answer.

Hilton Dawson (Labour, Lancaster and Wyre)

I sympathise with the case made by the hon. Member for Mid-Dorset and North Poole (Mrs. Brooke). I want to speak only to amendment No. 196. I beg the forgiveness of the House if there has been any confusion—amendment No. 193 was a mistake. I handed in the wrong piece of paper—mea culpa.

Amendment No. 196 would add to clause 13 the provision:

"Any decision about prosecution would be based upon consideration of the best interests of any child involved."

I agree that the clause is the most unsatisfactory provision in what is, on the whole, an extremely fine Bill. The clause is appropriately named, but if it is not amended I foresee the day when youth groups throughout the country will produce shock-horror videos about it.

I do not believe that clause 13 will lead to young people being prosecuted or being put into youth custody for kissing or touching each other. The Government have assured us that that will not happen and that the regulations will operate in such a way as to prevent it. I accept their good intentions.

I also accept and share the Government's concern to protect children from sexual offences committed by other children. It is an extraordinary and disturbing fact that as many as 40 per cent. of offences against children are committed by their peers. I share, too, the Government's commitment to an equalised age of consent at 16 and to the principle, reinforced throughout the Bill, that a child aged under 13 is not capable of giving legally significant consent. Those are vital, protective measures that will help children to resist peer pressure to take part in sexual activity before they feel that they are ready.

I share all the Government's intentions for the protection of children, and my main concern about clause 13 is that it will undermine those efforts. Young people have already greeted with complete incredulity the fact that we could even consider such provisions. I have spoken to young people from the UK Youth Parliament and from my constituency and they feel that politicians who could even consider implementing such a clause are wholly out of touch and are certainly out of sympathy with the lives of young people.

All our positive efforts in the Bill will be dismissed if we do not amend the clause. All the messages that the Government are trying to get over and all the positive work that they are doing to try to help young people will be dismissed out of hand and forgotten. The clause will undermine all that work.

We are told that a third of all men and a quarter of all women claim to have had sexual intercourse before the age of 16. The bald statements in the clause will undermine the serious efforts that are being made to address teenage pregnancy and sexually transmitted diseases. Clause 13 sends out conflicting messages to young people who need good information and responsible help.

The clause could compound the problems of a young person who is being pressured into a sexual relationship. They could be told that, after all, they consented, or that they, as well as the person who is pressurising them, could be put into custody. That is the sort of message that could be given to young people and it will undermine the rest of the Bill.

At present, clause 13 is a hostage to fortune—or to the misfortune of vulnerable young people. It leaves the Government in the position of saying, "Yes, that is what the Bill says, but it is not what we really mean". That cannot be right; it cannot be an appropriate message to give young people.

Clause 13 offers nothing to young people who have actually committed serious sexual offences. Their problems would be compounded by a period in custody, yet their dangerous and damaging behaviour could be addressed by appropriate treatment.

Amendment No. 196 is the most modest amendment of all. It would introduce no radical new principle, but it would incorporate the paramount principle of the Children Act 1989. It would not preclude the consideration of other factors, such as the public interest, in deciding whether to prosecute, but it would give appropriate prominence to the best interests of the child. In addressing itself to the best interests of any child involved, it would allow an opportunity to consider the merits of treatment for those who have committed offences before, or possibly in preference to the case for prosecution. I hope that it would reinforce the message that although we do not condone sexual activity between under-16s, we do not prefer condemnation to sympathy, understanding and care.

I have had the opportunity to have a preview of what my hon. Friend the Minister might possibly say in response to amendment No. 196, because he wrote to me last Thursday in response to letter in which I raised the issue. I am grateful to have this opportunity to get my retaliation in first. The purpose of the amendment is to be sceptical about the merits of prosecution, but it would not reduce the protection afforded to young people. In fact, as I have argued, it could increase that protection.

Amendment No. 196 would in no way weaken the age of consent or introduce any element of decriminalisation. Despite the fact that, so far, there has been no consensus about the ways in which clause 13 could be changed, there would be a consensus about the desirability of incorporating the paramount and well-accepted principle of the Children Act 1989.

This issue is extremely difficult and the Government have an extremely difficult balancing act to perform. In giving way to the best interests of the child, amendment No. 196 would achieve a better balance—a balance more in keeping with the commitment in the long title of the Bill to protect children from harm than clause 13, and I hope that amendment No. 196 will be supported.

Lynne Jones (Labour, Birmingham, Selly Oak)

I very much share the sentiments expressed by the hon. Member for Mid-Dorset and North Poole (Mrs. Brooke) and my hon. Friend the Member for Lancaster and Wyre (Mr. Dawson). Although I wish to speak to amendment No. 192, which I tabled, I realise that since it was devised the hon. Lady has tabled amendments that are more clearly drafted and suit the purpose of dealing with teenage sexual activity more effectively.

Members of the parliamentary Labour party have received a briefing note on the Bill today that states:

"The age of consent for all sexual activity is 16. This is well known, well respected and well understood".

Well, I disagree. I think that most people believe that the age of consent relates to penetrative sexual activity, not to the sort of thing that many young people get up to as part of their normal activity—the sort of kissing and cuddling or even heavy petting in which young people engage, and in which I suspect many hon. Members engaged when they were younger. Many people would be shocked to discover that we are introducing laws that will criminalise such activity.

The Minister told me in a letter that

"under the existing law, children are not prosecuted for engaging in harmless sexual activity and"

the Government

"do not expect this Bill to make any difference".

He added that the Government would introduce guidance to ensure that that was the case. Of course, he repeated those assurances in Committee. Although the Government state that their aim is not to criminalise young people, that is exactly what the Bill will do. The reason why nothing serious happens at the moment is that, as I have said, the law is not understood or is ignored.

I am very concerned that the new offence replaces old terms, such as "indecency", with the much broader and more easily proved term, "sexual activity". As other Members have said, these measures will do nothing to enhance the reputation of parliamentarians among young people, who will be alarmed that we are considering criminalising the sort of activity that many of us will have engaged in when we were young. Even if the guidance makes criminal charges unlikely, a new law sends strong messages even when not enforced—the obvious example is section 28, which had a blighting effect on education about homosexuality for a whole generation of children.

Finally, will my hon. Friend tell me how complaints to police using the literal wording of the legislation will be avoided? Is he not concerned that third parties could easily bring forward complaints under this legislation as it stands, causing distress to young people involved and wasting police time? I hope that the Government will consider introducing amendments that have the effect of ensuring that young people are safeguarded from inappropriate sexual advances, while at the same time not criminalising normal sexual activity in which young people engage, in the way that the Bill currently proposes.

Dominic Grieve (Conservative, Beaconsfield)

I have a great deal of sympathy with the points made on both sides of the House about the problems that this part of the Bill has presented. On Second Reading, I said to the Home Secretary, in response to his challenge, that I hoped that one of us—I hoped that it might be me—might obtain the magnum of champagne that he had promised to anyone who solved the conundrum of how to deal with providing protection for those aged between 13 and 16 while not overtly criminalising activities that everybody regards as perfectly normal. Amendment No. 145 is my last attempt at doing that. It is similar to the proposal of the hon. Member for Birmingham, Selly Oak (Lynne Jones), and seeks, with an age difference of two years, to permit sexual touching that does not involve penetration. It is a simple amendment, and if it were accepted by the Government, it would meet that problem.

I cannot escape the fact that, as we debated this matter in Committee, it became clear to me that if my amendment were accepted, it would decriminalise activities between a 16-year-old and a 14-year-old or a 17-year-old and a 15-year-old that many might regard as extremely undesirable. The question that I asked the Minister in Committee was: notwithstanding that, might it be proper to say that however undesirable it was, it was not a matter on which the criminal law should be invoked if it were to happen? Other sanctions might have to be applied—or other disciplinary regulations imposed—if it were in a school setting where it should not take place.

I accept that this is a big problem. I can see that the Minister has a point, which he made perfectly properly in Committee. There will be occasions when the nature of the relationship, and the anxiety about the relative absence of proper consent because of a dominance by one party over the other, gives cause for serious concern.

I must therefore say reluctantly that the Minister has persuaded me at least to the extent that I am not willing to press my amendment to a vote this evening if it does not meet with the Government's approval. I am not saying that I am happy with the situation: I remain as concerned about the matter as I was when I first raised it on Second Reading. Having said that, I accept that the Government's approach to this matter has been reasonable and measured, even though the end result remains unsatisfactory. I suspect that the Minister shares that view, but sometimes I fear that Parliament may simply be left with unsatisfactory consequences of perfectly acceptable legislation.

Paul Goggins (Labour, Wythenshawe and Sale East)

I am grateful to the hon. Gentleman for his remarks. I will deal with clause 13 and the amendments to it in a moment.

On amendment No. 187, I fully understand the desire to ensure that young offenders who are at risk and in need of care receive appropriate advice and protection. However, for the reasons that I outlined in Committee and that I would explain again now if we had longer, I remain unconvinced that imposing a statutory requirement would add anything to the current arrangements. I want to encourage the statutory services and voluntary organisations to continue to develop those arrangements.

Many of the amendments exemplify an issue that has focused my mind for the best part of the past six months. Since Second Reading, in Committee and through the summer, I have sought with officials, colleagues and others to try to find a solution to the problem that we face. I wish to place on record my appreciation to all those who participated in that—whether they were politicians, non-governmental organisations, officials or whoever. A genuine attempt was made to try to find a solution, but I have concluded that the solution that people were looking for is simply not available.

The Bill tries to balance concerns about innocent, consensual sexual activity between under-16s with the need to provide protection for children. My hon. Friend the Member for Lancaster and Wyre (Mr. Dawson) was right to point out the level of sexual assaults carried out on children by other children. In that context, I visited the Haven project in London, one of the sexual assault referral centres—[Interruption.] I am advised that it is in the constituency of my right hon. and learned Friend the Solicitor-General. Such is the level of concern, the centre has found it necessary to develop a specialist service for children.

I want to re-emphasise that my aim is not to criminalise children and young people, but to protect them and ensure that we do not have confusion but clarity in the law. I know that hon. Members on both sides have tried to find different ways of resolving the problem. The first was by reference to age, but we immediately hit the problem that age is not a proxy for maturity. Children and young people of a similar age may have very different levels of maturity.

The amendment of my hon. Friend the Member for Birmingham, Selly Oak (Lynne Jones) refers to people of a "similar age", but there is no definition of what we mean by "similar". Does it mean a difference of one or two years? Such issues are extraordinarily difficult. Amendment No. 117 refers to children under 13 and to children over 13, but it does not tell us what we would do with children who actually are 13. Many difficulties arise from trying to resolve the issue by reference to age.

Others have tried to resolve the problem by reference to type of activity, drawing a distinction between penetrative and non-penetrative sexual activity. However, there are many forms of non-penetrative sexual activity which, when undertaken by children, would be extremely serious. We cannot, as Members of the House, ignore their seriousness.

My hon. Friend the Member for Lancaster and Wyre tried to resolve the problem by referring to the welfare of the children, but whose welfare does that mean? What happens if issues of welfare conflict between the two children involved? There is also a public interest in such decisions.

Hilton Dawson (Labour, Lancaster and Wyre)

I do not find my hon. Friend's argument at all conclusive. Balancing the interests and welfare of the children concerned will be a prime consideration in any case.

Paul Goggins (Labour, Wythenshawe and Sale East)

It will be a consideration in relation to deciding whether to prosecute. The interests of children are taken account of at all stages in the criminal justice system. Nothing is added by my hon. Friend's amendment. The interests, welfare and background of those who commit offences when they are children are always taken into account in decisions about whether to prosecute and in the outcome in court if they are found guilty.

Lynne Jones (Labour, Birmingham, Selly Oak)

Would it not therefore be appropriate to enshrine such a provision in the Bill so that it sends out a clear message to young people?

Paul Goggins (Labour, Wythenshawe and Sale East)

I understand my hon. Friend's point, but a clear message will be sent out via the guidance that will go to the prosecution service. That will make it absolutely clear that a whole series of considerations about circumstances and the children involved should be taken into account. Such guidelines currently exist for situations when sexual activity between children is illegal and there have not been prosecutions. I believe strongly that there will not be prosecutions in future.

I hope that hon. Members have observed from the Government amendments that the Government listened carefully in Committee and beyond to the many points that have been made, and we have listened just as avidly to points made today. My overall conclusion is that all the options that have been offered would have driven a hole through the age of consent. It is important for the House to send out a clear message—not least to young people—that the age of consent counts for something. Children should not feel under any pressure from the age of consent in any sense or feel that if they do consent to sex under the age of 16, there is something wrong with them.

There are no convictions at present. The guidance will be strong and I do not think that there will be prosecutions in the future for less serious consensual sexual activity between children. On that basis, and having listened carefully and agonised over the issues, I hope that hon. Members will not press their amendments to a Division because I shall certainly resist them.

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

I thank the Minister for his words and given the lateness of the hour, I shall not press amendment No. 187 to a Division. However, I shall press amendment No. 116 at the appropriate time. That is not because I want to weaken child protection in any way but because I want to register in the strongest terms my opinion that the issue should have been addressed. At the very least, we must send the strongest possible message that the guidelines must be comprehensive. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 8 — Causing or Inciting a Child under 13 to Engage in Sexual Activity

Clause 9 — Sexual Activity with a Child

Clause 10 — Causing or Inciting a Child to Engage in Sexual Activity

Clause 13 — Child Sex Offences Committed by Children or Young Persons

David Blunkett (Labour, Sheffield, Brightside)

I beg to move, That the Bill be now read the Third time.

I am in a unique position this evening because, thanks to the work of hon. Members from all parties, Members of the House of Lords and many outside organisations, we not only have a better Bill but one that is built on consensus. I thank my right hon. and learned Friend the Solicitor-General, who has done a good job tonight, and two former Home Office Ministers who helped with the Bill—the Secretaries of State for Constitutional Affairs and for International Development. As hon. Members can see, people get promotion by being involved with the Bill. Above all, I thank my good friend, the Under-Secretary of State for the Home Department, the Member for Wythenshawe and Sale, East (Paul Goggins)—I almost called him Sir Paul—for his work in Committee. In all seriousness, we are grateful for the work of Committee members, the way in which the Opposition have responded and the spirit of consensus that developed from Second Reading onwards. That is an exemplar for Parliament as a whole, and embodies the way in which the Chamber and politics generally should operate.

It was with trepidation that we drew up the Bill, and dealt with the balance between offenders and offences. For the past 50 years, from 1956 onwards, people have been reluctant to change the law or engage vigorously with difficult issues because of the dangers of taking them out of context. This Parliament has engaged with those issues, and one Committee member even described the measure as a "model Bill". We owe everyone from all parts of the House who has led and participated in debate on the Bill a deep debt of gratitude. I am more of a politician than a parliamentarian, but I think that it has been is an example of Parliament at its best.

The tone that was adopted when the Bill was introduced, and continued in Committee and on Report, showed that we wanted to deal with some of the most difficult problems as well as issues that required sensitive handling in their presentation to the public. On Second Reading, we reflected on comments made in the House of Lords, some amusing, some which made us grimace, and some things that we would rather forget. However, in the House and in Committee those issues have been dealt with in a way that has led to consensus, and I am grateful to everybody for that. Of course, different points of view have been expressed. I am not often outdone by Parliament on the sentences that should be imposed on people who commit crime, but on the issue of grooming we accepted the additional penalty that the Committee and the House suggested. We have been able to close loopholes that were drawn to our attention by the media, making it an offence, for example, to undress a child without the interference that would previously have warranted immediate action and a court case.

We have had genuine differences, which have arisen again today, on issues such as anonymity, where for once it was not the Government who wanted to legislate; I know that we in the Home Office sometimes go for legislation first and think of other solutions afterwards.

Simon Hughes (Liberal Democrat, North Southwark and Bermondsey)

An unusual paradox.

David Blunkett (Labour, Sheffield, Brightside)

This is not the former Liberal Democrat spokesman's swansong. I could not miss the voice, the manner or the heckling. Nevertheless, his contribution is welcome because he has seen the Bill through with us.

On anonymity, I hope that the Association of Chief Police Officers and the media, as well as the way in which we can toughen the guidance, will make a difference. I am certain that, if they do not make a difference, the attitude that has emerged in this House and the House of Lords will ensure that further steps are taken. That is both a clarification and a warning to those who have engaged with the issue.

Implementation will be vital. As was mentioned on Second Reading and in the statement on domestic violence, unless action is forthcoming from good words, there is no point in our spending time deliberating in Committee and in the House. The inter-ministerial group on sexual offenders and the taskforce on child protection on the internet are crucial in carrying forward Members' work and ensuring that we have solutions that work.

As I said, modernising the law on sexual offences has been a bed of nails for a very long time. We needed to modernise the law in the 21st century not simply because of equality or fairness, or simply because it was right to do so, but because it was essential to get the law right to tackle acts that all of us would agree are heinous crimes. It was therefore important to ensure that we were not engaged in a past agenda concerning private behaviour and how people live their lives—an agenda that occupied people in the 20th century for far too long. As someone who is known in Labour circles as a bit of an authoritarian, it has been a particular pleasure and pride for me to be the Home Secretary who has introduced this legislation in 2003. I do not want to be compared with Richard Nixon, but it took him to recognise the Republic of China, so there is hope for me in the future—although not, it must be said, in recording people's phone calls.

Barry Gardiner (Labour, Brent North)

We've got the tapes.

David Blunkett (Labour, Sheffield, Brightside)

You've got the tapes; you've got the message.

Finally, I thank the non-governmental organisations that have campaigned, advised and, on occasion, supported us. The venture has been collaborative and a genuine model for how we should proceed. It has been an example of how Parliament can make a difference. It is a great pity that because of consensus rather than controversy, very little of what has occurred will be recorded in the news media tomorrow morning.

Dominic Grieve (Conservative, Beaconsfield)

I am grateful to the Home Secretary for his words and the spirit in which the legislation has been introduced. The subject is not easy—I certainly did not find it so, and I am sure that that is true of all those who served in Committee. There was a common determination that we should not approach the Bill in a partisan way, and I hope and believe that we have created legislation that will stand the test of time.

A great deal of credit goes to the Government. When the Bill started out in the House of Lords, there may well have been a temptation, particularly when the key areas relating to rape were placed under scrutiny, for the Government to cease the consensual approach and feel that they were being threatened. It is greatly to the Home Secretary's credit that he listened carefully to what was being said and accepted amendments that I believe have in no way detracted from what he was trying to achieve in changing the law in relation to rape, but have provided essential safeguards that will guarantee that a fair trial can take place. The Government are to be commended for what they have done in that respect.

When we have approached the Bill here, it has been noteworthy that, because of the good work in another place, many areas of the Bill have gone through, I hope not on the nod—I hope that we have always scrutinised it sufficiently—but at any rate with no dispute whatever. On those matters where there have been anxieties, one has only to look at the number of amendments tabled by the Government on Report to acknowledge that they have taken on board most, if not all, of the anxieties that have been expressed. In every respect, the Bill leaves the House in a better state than that in which it arrived, although it had already arrived in a good state because of the Government's attitude from the outset.

I thank—I echo what the Home Secretary said—the non-governmental organisations. I also thank the police, who have provided us throughout the Bill with much support and assistance in difficult areas, particularly many of those dealt with by my hon. Friend the Member for Mole Valley (Sir Paul Beresford). I thank him for organising some briefings that we received during the Bill's passage. I also thank the Government Whip exceptionally in respect of this Bill, and those who have whipped for the Opposition. We have succeeded in scrutinising in every aspect in Committee a Bill that was timetabled. I am sorry that we did not quite achieve it on Report but I do not blame the Government for that. Indeed, it would be churlish to blame Liberal Democrat Front Benchers. The blame certainly lies elsewhere.

The Bill is modernising and it is now gender neutral, and I am delighted about that. I am also delighted that it will clearly provide greater safeguards for children, which has been a great anxiety in the House. I hope very much that those work. I am pleased by the modernisation of some areas of law, which while understandable were archaic. I greatly welcome the Government's last-minute decision to accept that the marriage exception was irrelevant in the 21st century. While it may have been appropriate 100 years ago, it ceases to be so when we are living in a much more diverse society where there have to be ground rules about the way people behave.

I do not want to take up more of the House's time. It has been a pleasure and, indeed, a privilege to participate in the passage of the Bill. As for anonymity, the one outstanding matter, I am grateful to the Home Secretary for what he said. It is an area of deep anxiety. I hope that he can accept in that spirit the reason why we have kept on raising it, even though I accept that the Bill will not stand or fall by that particular clause. I hope that the Government can come away with constructive proposals by negotiation with the media, but if they cannot it is a matter that we will have to tackle, because otherwise the administration of justice will become very difficult.

I do not want to end on an unhappy note. The good note that I can end on is that I think that we have done—I hope that we have done—a good job. I thank all those who have participated in the Bill for making that possible.

Meg Munn (Labour/Co-operative, Sheffield, Heeley)

It is difficult to overstate the importance of the Bill. As has been said, this is an incredibly complex area. Legislating on it is not easy. Indeed, the more we look into it and examine the situation, the harder it is to come up with proposals that will work. Offences of this nature change over time. In particular, the introduction of such things as the internet have made such matters very complex.

To be subjected to a sexual offence is devastating. It is not to overstate the case to say that, for many people, it can scar their whole lives, but that is not to take away from the people who come through that experience and, rightly, describe themselves as survivors. Many of those people have suffered for many years the frustration of seeing inadequate justice in place to deal with those offences. Their families and those who work in that sector, as I did for a number of years, have felt that our justice system was not up to dealing with such offences. Equally, it is important that future offending is prevented and the Bill, commendably, seeks to do that as well. I am encouraged by the seriousness about the offences and the lengths to which the Bill goes to ensure the protection of the most vulnerable in our society.

The Bill seeks to offer protection not just to children but to adults with learning disabilities and mental disorders, and it recognises that part of the devastation that people experience when subject to such offences is the betrayal of trust. How can vulnerable adults and their families and children and their parents who have been subject to such an offence ever feel that they can trust people who are placed in positions of responsibility?

The Bill sends out a clear message to society in general as to what is acceptable and unacceptable and, beyond that, it takes seriously the fact that this is not just a question of what happens in our country and tackles so-called "sex tourism." The Bill states that what is not acceptable for children in our country should not be acceptable for children in other countries.

There are relatively few people in the Chamber, but we should not underestimate the importance of the Bill to many people. There will be people out there watching this on television and looking at what has been said. Following previous debates on this subject, I have received phone calls and letters from people throughout the country saying how important it has been to have these matters debated.

The Government have done a good job in tackling the issue and should be congratulated on that, as should Members on both sides of the House. It is a complex area, and the Bill needs to be implemented and monitored. It is only through the process of implementation that we will learn whether the clauses we have agreed will achieve the aims that everybody wants to see achieved. In monitoring that, we will come to understand whether we need further legislation to tackle these serious offences.

Simon Hughes (Liberal Democrat, North Southwark and Bermondsey)

I am pleased to have the opportunity of seeing the Bill through. The Home Secretary knows that there are two other Bills that we have to see through together before my current Home Office work load is passed on entirely to my colleagues.

It is a great pleasure to welcome a Bill that, as the Home Secretary said, had been sitting around as an idea. Some of us had been lobbying for a reform of this area of the law for a long time, and I pay tribute to the Government for bringing the Bill through a proper consultative process, a good review body that came up with a set of sensible suggestions and then a consultative Government paper. Like the reform of coroners, a subject that has also been sitting on the shelves of the Home Office for a long time, this matter needed the attention of Ministers, who have produced what is substantially a very good Bill.

I pay unequivocal tribute to the Home Secretary and his Ministers for the way in which they have made sure that the Bill got on to the statute book. His colleagues past and present have co-operated with my colleagues and me, and with others, to make sure that we get the best possible agreement in all areas of the Bill. I pay tribute to the Under-Secretary of State for the Home Department, the hon. Member for Wythenshawe and Sale, East (Paul Goggins), to the Solicitor-General and to now-elevated colleagues who have gone before. As the Home Secretary said, we all hope that being on Home Office duty provides us with a launching platform for greater things. There may even be those on the Conservative Front Bench with the same hope, although they are not all here tonight to express it.

Chris Bryant (Labour, Rhondda)

They are not here at all.

Simon Hughes (Liberal Democrat, North Southwark and Bermondsey)

They are well represented by the hon. Member for Beaconsfield (Mr. Grieve), although his elder and better is no doubt not far away.

I add tributes to four of my party colleagues in particular. My hon. Friends the Members for Mid-Dorset and North Poole (Mrs. Brooke) and for Romsey (Sandra Gidley) have borne the brunt of the effort in this place and have done their job extremely well, while my colleagues Baroness Walmsley and Lord Thomas of Gresford did the same in the other place. This was a Bill where one had to be pretty committed to do the work, and the work was done by my colleagues to their credit and to the benefit of the Bill. They worked well with colleagues from all parties. I add a tribute to Lord Alli, who tabled significant amendments that were supported across the House. Like many of my colleagues, he sought to improve some areas that were technically very difficult, and about which there had been much controversy. As a result we have produced a much better Bill, but not without considerable effort.

Finally in my thank you list, as well as thanking many voluntary bodies and the police in general, I pay particular tribute to the Metropolitan police, who briefed colleagues in all parts of the House effectively, competently and supportively.

This was none of my doing, but I appreciate the fact that, apart from the last three groups of amendments on Report, everything was dealt with within agreed times. That is certainly the best way to approach such legislation. We should not be passing laws relating to criminal offences without having time to debate them and ensure that we get them right.

I shall now single out the substantive issues. As the hon. Member for Sheffield, Heeley (Ms Munn) said, this Bill is hugely important outside this place. We have reformed the law on rape significantly and for the better. The struggles that the House of Lords went through to try to get that right are important. There was a moment when it looked as if it would be possible to convict someone of that most serious offence without their having understood what they were doing. At one stage in the Lords, there was the possibility that a defendant in a rape trial would no longer be able to argue that he believed that the alleged victim was consenting. That has been changed in a way that does not, I believe, prejudice the victim, but does ensure that the person accused is given a fair trial. That is a hugely important factor in dealing with this most serious offence.

Various other areas of the law were improved in the House of Lords, with the result that on a whole set of issues the prosecution was indeed required to establish the burden of proof, which had not been clear at the beginning. Another small but important issue was raised in the Lords, and the Government agreed that people who give advice, such as the agony aunts of this world, should not be criminalised for the advice that they give.

It was also important to state in law that people who abuse positions of trust should be prosecuted, and minors are now much better protected, whether from grooming, from people abusing positions of trust or from other people in the family. I agree with the Minister that that protection also applies within the marriage relationship. We cannot allow young people to be abused and exploited as was possible under the previous law.

There are other tricky areas, which are difficult to deal with, and which I am aware sometimes raise a laugh outside among the public. We did not get it right in the beginning, and people who walk round their homes with no clothes on, without doing anything else, could have been prosecuted just for that. The Government understood that the law needed to be drafted properly so that people who chose to do that did not unwittingly find themselves in court. Likewise, people who cause no offence and have no ill motive can be without clothes in parts of the country where that is permitted—such as on beaches in Dorset, as my hon. Friend the Member for Mid-Dorset and North Poole (Mrs. Brooke) explained, or elsewhere.

We may not have perfectly right the difficult subject of sex in public places. The Minister knows my views: we argued that that activity should be dealt with within a public order context rather than in sexual offences legislation. None the less, the Liberal Democrats, like all the other parties, are clear that it is important to understand that public conveniences are just that, and must not be abused by people in a way that prevents the public from using them as conveniences. I hope that message has come out loud and clear from all parts of the House.

Finally, I hope that it will be noted that we have also tidied up a few little things that would otherwise have been wrong and anomalous. For example, people who have committed offences that are no longer offences will not remain on the sex offenders register. Such matters are important. Their implications may be limited, but they are hugely important for the individuals involved.

I draw two messages from the Bill. One is that young people are now better protected by the law from people within their family, from other people whom they know, and from outsiders who seek to abuse them. Secondly, where that happens, we need to make sure that the police have the resources they need to follow up offences that will be on the statute book in the next few days. If we are to ensure, as we should, that those who groom young people into prospective crime are caught, we need to ensure that all the police authorities have the facilities and numbers to follow matters through.

As the hon. Member for Sheffield, Heeley (Ms Munn) said, this is good legislation—not perfect, but significantly better than before—that is fair to men and women and to different types of relationship. But the proof of the pudding will come when we discover whether it is used wisely and understood clearly, and whether those with the authority to implement it are given the resources to do so. We wish the Bill well, and I am pleased that my colleagues in particular have been able to contribute to improving substantially what is very important legislation.

Chris Bryant (Labour, Rhondda)

This is becoming a bit of a love-in, with all of us congratulating one another—

David Blunkett (Labour, Sheffield, Brightside)

Only in the legal sense.

Chris Bryant (Labour, Rhondda)

Indeed. I, too, would like to congratulate the Home Office on being courageously bold in a quiet way, and on achieving what is, by all accounts, important legislation that will probably have a more direct effect on people's lives than much other legislation, even though it will barely be reported in tomorrow's newspapers and other media. This has been a good process. The initial consultation did, indeed, set the boundaries, and Ministers' response to probing amendments in Committee was entirely helpful. Making sex and sexuality, which are so often profoundly divisive issues in society, matters of open consensus in the House is a remarkable achievement; if only we could provide the same advice to the Anglican Church.

This is an excellent Bill primarily because of the added protection that it gives to children. Many of my constituents have been very concerned in recent years about the seeming increase in the number of child abuse stories. They will be pleased to learn that we are moving with the times and providing stronger protection, at a time when people are able to travel more around the world. One of my constituents is a very close family relative of two young children who were abducted and murdered some 15 years ago. Still nobody has been convicted of those murders, and I know that my constituent passionately wants the double jeopardy rule to be reformed as the Government would like it to be. My constituent does not understand why the House of Lords still has not finished with the Criminal Justice Bill, and looks forward to its completing its legislative passage.

I should also like to congratulate the Home Secretary as a gay man, because one of the most extraordinary aspects of this Bill is that it is probably changing more laws on homosexuality than on many of the other issues facing us. We barely talked about that issue in Committee because there is general consensus on it, but it took some courage to introduce many of the amendments. Ironically, the law on homosexuality in this country has probably been more illiberal and discriminatory in the past 150 years than it has in the past 1,000. Indeed, every time a Bill has been introduced to try to improve matters in the past 50 years, we have tended to take two steps forward and one step back. Many people will be profoundly happy to see the end of the offences of solicitation, of gross indecency, of procuring others to commit homosexual acts, and of assault with intent to commit buggery.

The hon. Member for Southwark, North and Bermondsey (Simon Hughes) has referred to the Government's recent decision to include section 93 and schedule 4, which provide for those convicted of now abolished homosexual offences to come off the sex offenders register. That is good for those individuals because it allows them to get on with the rest of their lives. Equally importantly, it is good for the register, because people can now have absolute confidence that those on it are included for a very good reason.

Many congratulations, then, and further congratulations to the Home Secretary on the amendment tabled in the other place to the Criminal Justice Bill, which will make homophobic hate crimes illegal in the same way as racial hate crimes. That is a movement entirely in the right direction and should be welcomed.

I believe that this is a fine Bill. For once, we have not moved two steps forward and one step back. This is a resolute step forward and, as the hon. Member for Beaconsfield (Mr. Grieve) said earlier, it is a Bill that will stand the test of time.

Evan Harris (Liberal Democrat, Oxford West and Abingdon)

This is indeed important legislation and I share the pleasure of the hon. Member for Rhondda (Mr. Bryant). I am pleased to see the abolition of existing discriminatory offences, particularly gross indecency and buggery, which were especially important in terms of their scope and the number of people whose lives were blighted by the threat of blackmail and shame for what were consenting offences. The changes made in that area of law are more important than other legal changes in respect of rights for gays and, more widely, for gays and lesbians.

The Government can rightly take pride in taking action, because it was not an easy process. It was clear from the outset that it would take a good deal of departmental time to have a review, a consultation and a White Paper and then a contentious Bill that would be difficult to whip, particularly in the other place. Gaining consensus in the House of Lords was particularly difficult.

I take particular pleasure in knowing that when the idea of having a review, which later became "Setting the Boundaries", was first mooted from the Dispatch Box in February 1999, it was partly in response to a new clause that I had proposed to the Sexual Offences (Amendment) Bill 1998—a Bill that was later blocked in the House of Lords and had to be pushed through under the Parliament Act. The amendment dealt with the privacy provision, which meant that even a consensual homosexual act could never be lawful if more than two people were present. A review was proposed in response to my new clause and I would like to take this opportunity to thank the Government for initiating it. I also thank the people who served on that review, which set out for the first time the need for gender-neutral and sexuality-neutral legislation.

I share the joy of the hon. Member for Rhondda at seeing both clause 93 and schedule 4 enacted. It is all the more laudable that the Government acted in that respect—they can again take great pride—because it was not the Government's initial position that something needed to be done in this area. In the Committee considering the Bill to which I referred, the right hon. Member for Brent, South (Mr. Boateng), then a Home Office Minister, said to me:

"It is important that we get one thing crystal clear. I suggested that the hon. Gentleman was being cavalier in his apparent disregard of the public expenditure implications of the course that he is proposing. Is he seriously suggesting that police time should be spent going through the charge sheets of individuals who have pleaded guilty, been convicted or been cautioned for the offences in question, in order to determine into which of the three categories"—

consensual, non-consensual, private—

"they fall, and so whether his new clause will bite? Does he consider that to be a justifiable use of police time?"—[Official Report, Standing Committee E, 11 February 1999; c. 148.]

The Government have certainly now accepted that it is an appropriate use of Home Office time for that work to be done. We have had to wait a long time for those measures, which should have been introduced earlier.

In respect of the one substantive amendment—amendment No. 195—that was not agreed, I hope that there will be an informal time limit on the Home Office's determination of this matter. Even a month taken to act in respect of something that has always been consensual and should never have been registrable is a month too long.

It was a little churlish of the hon. Member for Beaconsfield (Mr. Grieve) to argue that 45 minutes for debating the issue of sex in public lavatories was too much, particularly when he himself made several pertinent interventions in that debate. As I said, singling out public lavatories for a lower standard of complaint, a lower standard of proof and a lower number of available defences than for sex in parks, commons, heaths and other areas is a questionable path down which to go. That is my only negative point about the Bill.

Finally, it is important to note that the Government have only just started to deal with some issues, particularly trafficking and the exploitation of people—mainly women, and often, sadly, children—as sex workers. I am glad that, following the evaluation of pilot schemes, cross-European and international work, the Government have recognised that there is clearly more to do. On the question of prostitution, I am delighted that the Government have had the courage to initiate a review in that area also and I hope that it leads to legislation—

Alan Haselhurst (Deputy Speaker, Saffron Walden)

Order. I remind the hon. Gentleman that on Third Reading he should be talking about what is in the Bill, and not speculating about the future. Other hon. Members are waiting to speak on the Bill.

Hilton Dawson (Labour, Lancaster and Wyre)

It was a privilege to serve on the Committee on this historic Bill. It is a fine Bill that will offer protection to many vulnerable people in this country and abroad for many years to come. It was a very positive experience being part of a Committee that had a genuine debate, with sincere and committed people on both sides doing their level best to try to improve the legislation.

Huge challenges lie ahead. We have improved the law on prostitution, on the protection of children who have been sexually abused, on young people who are themselves abusers and on trafficking. It is now essential that we improve the resources for, and availability of, treatment and support for offenders to ensure that the legal protection that we have put in place makes a real difference to people's lives. I have great hopes for further legislation that may stem from this Bill. We have laid down important structures in the Bill, including provision on the inability of young people under the age of 13 to consent to sexual relations. That will have profound implications for the age of criminal responsibility in the future.

The biggest challenge that will arise from the Bill will be faced not only by the Home Office, the Government and Ministers, but by all of us. The most important way in which we can protect children who are sexually abused in our society is by ensuring that we have a nationwide network of treatment centres for adult abusers. That heinous behaviour can and must be addressed properly, and it is a challenge for all of us whether we are prepared to accept such centres, whose fundamental role is to protect children, in the heart of our constituencies. These are huge issues for all communities. Sexual abuse is rife in our society and we must ensure that children are much better protected by putting such a network in place.

Claire Curtis-Thomas (Labour, Crosby)

Like all the other hon. Members who have spoken on Third Reading, I am profoundly grateful to the Government for introducing this Bill, especially the clauses that will protect young people with learning difficulties. I am the mother of a daughter with a learning difficulty, who will achieve the maturity age of a six-year-old. Like many other hon. Members, I have had parents of children with learning difficulties coming to my surgeries. Some of those children have been sexually abused, some of them in care homes. Unfortunately, achieving a prosecution has always been incredibly difficult because there have always been debates about whether or not such an individual is capable of consenting to sex.

The reality is that my daughter will never be in a fit position to consent, or otherwise, to sex. In fact, it would take very little to induce her into any form of behaviour. The prospect for many parents of children with such difficulties was that they could never be exposed to society. They would never have the opportunity to live in sheltered accommodation, because if they were exposed to some sort of sexual activity, it would be almost impossible to achieve redress. There would only have been a terrible assault and no actual justice for the individual. That remains the case until we prove that this legislation works.

I was unable to speak on the Bill earlier because it covers such a highly emotive area for me and for people and parents like me. The effectiveness of the Bill will be borne out only if there are successful prosecutions, as the Minister said. It will be so if my colleagues in Mencap tell me that it is working and that those people feel that they have more rights and a greater chance of justice when acts are committed against them. It will be so if the police feel more disposed to take prosecutions to the Crown Prosecution Service and when the CPS is confident enough to take those cases to court. Few cases get there now.

I welcome the Bill from that personal perspective and on behalf of many parents in a position similar to my own. I thank the Home Secretary for his reassurances on anonymity. The guidelines that will soon be issued to the press will, I hope, have the desired effect. I am deeply concerned about the publication of scandalous stories and their effects on innocent people and on the juries who are expected to reach judgment.

Vera Baird (Labour, Redcar)

I pay the greatest of respect to what has just been said by my hon. Friend the Member for Crosby (Mrs. Curtis-Thomas).

I shall return the mood to one of congratulation by complimenting the Government on the excellence of the Bill. It was a true pleasure to serve on the Committee, and I congratulate the Home Secretary and the Under-Secretary who has dealt so well, so amiably and so flexibly with the Bill this evening. I also compliment the advisers who have worked extremely hard, sometimes running to stand still.

Clause 1 is of particular importance. It did not end as it started and has been amended for the better. Its purpose has unflinchingly remained the same throughout. For women, it is a progressive and symbolic provision. It has taken since 1975 to find a Home Office sufficiently understanding to reverse the rule in Morgan v. the Director of Public Prosecutions. That rule said that it is a complete defence to rape for a man, whatever the woman says or does, to say that he believed that she was consenting. Because of the emphasis placed by the clause on the actions carried out by the defendant to check the complainant's state of mind, it will also be much less possible for previous sexual history to be used to say that that was what persuaded a man that a woman was, in fact, consenting.

Finally, I appeal to the Government to hold the fort on anonymity. Clause 1 brings twin changes of great benefit to women in the continued fight for sexual rights. I congratulate the Home Secretary.

Question put and agreed to.

Bill accordingly read the Third time, and passed.