| Previous Section | Index | Home Page |
7.15 pm
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—
Dr. Evan Harris: It was a major flaw.
Sandra Gidley: 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.
Ms Munn: 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.
The Solicitor-General: 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"
- "has unsupervised contact with B alone"
- "has unsupervised contact with B".
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.
| Next Section
| Index | Home Page |