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Mr. Clappison: The longer the Minister's intervention went on--it went on for a little while--the more confused he became. He has clearly shifted his ground from the original point that he made to my right hon. and learned Friend the Member for Sleaford and North Hykeham, when he referred to the absence of countervailing influences. My right hon. and learned Friend raised the question of in loco parentis. The Minister then said that the key principle is the absence of countervailing adult influences, but when I put the point to the Minister that, in the case of teachers, there were other influences, he returned to in loco parentis, so the Minister uses a bit of a circular argument.

Mrs. Ann Winterton rose--

Mr. Clappison: Before I give way to my hon. Friend, so that the House understands the argument that we are advancing, let me say that we feel strongly that protection should be given where it is needed. The concept of a position of trust should run much wider than the Government have allowed it to run in the Bill.

Mrs. Winterton: While supporting what my hon. Friend has said, may I refer to the intervention by my right hon. and learned Friend the Member for Sleaford and North Hykeham (Mr. Hogg) and the explanation of not using in loco parentis? May I give the example that is frequently heard about: the uncle, cousin or member of the family who abuses a child? The child does not tell because that person is a member of the family, yet such an offence would not be caught by the Bill. That is an important point. There are known cases--we all know about them. It is disturbing.

Mr. Clappison: My hon. Friend makes an absolutely correct point. Some people in a higher position of trust may be outside the scope of the Bill, compared with some people who are inside it. Detailed examination of the Bill has revealed example after example of potential loopholes and inconsistencies not just as between people who fulfil one of the four conditions in the Bill and people in entirely different sectors, but people within the conditions in some ways. We heard from the Minister in Committee that, for some purposes, in some circumstances, supply teachers would not be caught by the Bill.

Mr. Boateng indicated dissent.

Mr. Clappison: The Minister shakes his head, but he is on record in the Hansard of the Committee proceedings as saying that, in some circumstances, supply teachers would not be caught by the Bill. However, in the amendment, which originally came from Conservative Members, we are dealing with an increase in the maximum sentence. On that, we agree with what the Minister says.

We made those arguments first. I welcome the Minister's acceptance of the argument that we advanced in Committee that the maximum sentence for such an

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offence should be judged on its merits, not by reference to other sentences that were perhaps not entirely applicable, particularly the one on unlawful sexual intercourse, which I note the Minister now accepts is too low a maximum sentence, in his personal view. [Interruption.] Well, the Minister expressed his personal view earlier that the maximum sentence for unlawful sexual intercourse was too low. I think that he expressed something similar in Committee and in correspondence. We have been making our case on that for some considerable time, not least in view of the fact that the maximum sentence for indecent assault is now 10 years.

We advanced the same argument during the passage of the Bill that became the Crime and Disorder Act 1998. It is a shame that the Government did not accept the amendment that we tabled then, which proposed the increasing of the maximum sentence for unlawful sexual intercourse. If they had accepted it, we should not be in our present anomalous position. In any event, we feel that five years is more appropriate than the two-year maximum that the Government envisaged before hearing our arguments.

I agree with the Minister that the fact that we have asked for a higher maximum--and the Government now accept that there should be one--does not mean that such a sentence should be imposed in every case of a breach of trust, in which an older person in a position of trust engages in sexual activity with a 16 or 17-year-old. We are talking about a maximum. That maximum, however, must cater for every type of case, including the very worst type.

The Minister cited circumstances in which a maximum sentence of five years, or approaching that length, would be appropriate, but there may well be many others. There may be many cases involving older men, perhaps in their 30s or 40s, who are in a position of substantial authority over younger people. Such a man might lead a youngster into sexual experiences--sexual experimentation--for his own gratification, with no regard for the welfare of the youngster, and possibly with permanent consequences for that youngster. There will be such cases, in which people are convicted of such offences in such circumstances, and, when those circumstances apply and when there is a gross breach of trust with permanent consequences for the youngster involved, a much longer sentence than two years is called for. That was manifestly too low a starting point.

We think that the proposed sentence represents a victory for common sense, and hope that it will continue to be regarded as the maximum, even when the review of sexual offences in general takes place. A five-year maximum will give stronger protection to vulnerable 16 and 17-year-olds, and, as I said at the outset, it would be churlish of us not to welcome the fact that the Government have now accepted our arguments.

Mr. Allan: We will not oppose the change. The Minister gave welcome assurances in describing the broad spectrum of possible sentences, and, in a letter to my right hon. Friend the Member for Berwick-upon-Tweed (Mr. Beith), the Home Secretary wrote:

"I must stress that this would be a maximum penalty for use in the most extreme cases but we accept there could be rare circumstances where it could be justified."

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We can envisage those circumstances. The Minister referred to detention centres, but we are also thinking of residential institutions, especially institutions for those with disabilities, in which such a maximum sentence could be justified.

I was pleased to hear the Minister revert to Latin in describing "in loco parentis" as an important concept. In Committee, when I expressed concern about the definition of in loco parentis in regard to the offences that we are discussing, I was told off for being old fashioned: the Government were trying to move forward and establish clear definitions, suggesting, for instance, the definition of a person

"regularly involved in caring for, training, supervising or being in sole charge of such persons"

as a pithy replacement for "in loco parentis".

Our main wish is to establish that there is a difference between consensual and non-consensual offences. I hope that, when he sums up the debate, the Minister will mention indecent assault, and will tell us that the review of sexual offences will examine the way in which the prosecuting authorities deal with non-consensual offences such as indecent assault, as opposed to the offences introduced by the Bill. We feel that, in some of the circumstances that we are discussing, the coercive element in a relationship could be used as a ground to argue that consent had been overridden. In such circumstances, rather than prosecuting on the basis of an offence involving a consensual act--as provided for in the Bill--the authorities could override the consent, demonstrate that to the court and thereby act on the basis of the more serious offence of indecent assault, or similar sexual offences, on the ground that no consent had been given. We hope that the introduction of additional measures will not make us lose the will to demonstrate the lack of consent, and fall back on an offence that may be easier to prove.

6.15 pm

I am pleased that the Minister has said that the matter will be for the discretion of the court. As he will know, we are opposed to mandatory sentences in general, but, in regard to sexual offences, especially the offence that we are discussing, we believe that, when issues of consent are involved and a wide range of possible circumstances exists, it is important to leave the determination of the appropriate sentences to skilled judges, advised by equally skilful lawyers.

We hope that the review will bear fruit in respect of the critical issue of non-consensual indecent assault, as opposed to consensual offences, in due course, but believe that this may be the most appropriate sentence for the extreme and rare circumstances described by the Home Secretary when, in the near future, the Bill comes into force.

Mr. Hogg: I want to make two points. The first relates to my intervention on the Minister's speech; I am gratefulto my hon. Friend the Member for Congleton (Mrs. Winterton) for what she said in my support.

I feel that there are circumstances involving abuse of trust that the Bill simply does not address. I am talking about the concept of in loco parentis. The father, the uncle and the person who employs the au pair are just three examples. I well understand why many would think that such people should be subject to the penalties prescribed

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in clause 2 just as much as those who exercise some other function in the prescribed institutions. The Minister may be right, but I hope that he will think again. The Bill will go to the other place, and, in any event, there is to be a review of sexual law. We should ask whether those exercising the function in loco parentis should be subject to the law that we are now applying to the groups specified in clause 2.

Let me raise a different point, which comes from the opposite direction. Many abuses of trust are clearly very grave. It is serious, and a real abuse, when an older man takes advantage of either a man or a woman in a school, prison or other prescribed institution. Quite different circumstances can arise when there is a close similarity in age between the person who is under 18 and the person who is over 18. I have in mind, for instance, a young teacher who might form a relationship with a pupil of, say, 17. That teacher could be found guilty of a serious criminal offence attracting a sentence of up to five years. It is true that we would not expect the courts to subject that person to such a penalty, but I am nevertheless uneasy about the position that we are creating.

Let me make a suggestion to the Minister. He may care to reflect on it before the Bill goes to the other place, where it can be amended further. My hon. Friend the Member for Hertsmere (Mr. Clappison) referred to the statutory defence applying to those under 24. The Minister might well wish to consider whether, when there is an age similarity--let us take up to 24 as an example--the consent of, say, the Attorney-General should be obtained before there can be a prosecution. There is a risk of injustice, and I am reluctant to leave the matter to the good sense of the prosecuting authorities. I hope that the Minister will contemplate a specific approach to deal with cases that will otherwise fall within the prescribed categories, involving people whose ages are close. I would be greatly reassured if he would do so, bearing in mind the possibility of making the consent of the Attorney-General a condition of prosecution.

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