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Sandra Gidley: The hon. Gentleman mentions the peripatetic teacher who teaches once a week. I accept that that would be caught under the definition of ''regular''. What about supply teachers? There are always occasions when a school must go to the C list for someone to look after a class in the knowledge that the teacher is not very good, although not necessarily for the reasons under discussion. Teachers will go into a school on a one-off basis.
Paul Goggins: I am grateful to the hon. Lady for raising that point. Her question has two answers. First, the supply teacher who takes over from the regular classroom teacher and has the regular contact with the child could be said to have a relationship that reoccurs regularly. Secondly, a supply teacher may teach children in a school, which has a sixth form. There may be a 17-year-old in the school who does not meet the teacher in the school and is never taught by him. We would not want to capture that teacher under
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the clause, because there is no regular contact by definition of the child being at that school and the teacher being a supply teacher at the school.
The hon. Lady is looking quizzical, so perhaps I have not persuaded her of my argument. I repeat that the supply teacher who takes over the full-blown, regular relationship with the pupil in the class is clearly caught under the Bill. As for the teacher who goes to the school as a supply teacher and who never comes across the 17-year-old with whom he may take up a sexual relationship, that is a different relationship. There is no regularity in such contact.
Sandra Gidley: The hon. Gentleman defeats his own argument. He said that there was no contact at the school between the 17-year-old and the supply teacher and that it was a later contact. Clearly, that relationship would not want to be brought under the remit of the Bill. Will he confirm that that was his argument?
Paul Goggins: What I can confirm concerns the 17-year-old who is in a sexual relationship with a supply teacher who came to the school on a one-off basis. I did not say that the teacher ''did not meet the child'' in the course of carrying out his duties; I said, ''may not have met the child''. We do not wish to capture such a person under the provisions. We want to capture the supply teacher in a classroom who has regular contact with the child, even for a short time. That is a different relationship. As with all things in the Bill, a line must be drawn and we believe that we have struck the right balance.
Sandra Gidley: I am disappointed to hear the hon. Gentleman say that the right balance has been struck. He spent much time talking about schools, but the clause applies to more vulnerable children, perhaps with a learning disability, where the situation is much less clear. Unless there were some big falling-out and a vexatious complaint, the relationship that he described between a 17-year-old and a supply teacher would be very unlikely to result in a complaint against the teacher, because it involved a consensual act.
The matter becomes more difficult if people who less easily understand the boundaries of a sexual act are involved, and we shall come on to clauses on that issue later. Such people may not understand some of the ramifications. For those cases where care workers or therapists go to an institution occasionally, there is a real question of vulnerability that must be addressed. We must find a way to protect people in such situations.
I am very disappointed that the Under-Secretary will not give way on any aspect of this debate. I shall not press the matter to a vote, but it is very likely that we will want to revisit it on Report. I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Amendments made: No. 210, in
clause 24, page 12, line 23, at end insert—
' ''care order'' has—
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in relation to England and Wales, the same meaning as in the Children Act 1989 (c.41), and
in relation to Northern Ireland, the same meaning as in the Children (Northern Ireland) Order 1995 (S.I. 1995/755 (N.I. 2));'.
No. 211, in
clause 24, page 12, line 34, at end insert—
' ''education supervision order'' has—
in relation to England and Wales, the meaning given by section 36 of the Children Act 1989 (c.41), and
in relation to Northern Ireland, the meaning given by Article 49(1) of the Children (Northern Ireland) Order 1995 (S.I. 1995/755 (N.I. 2));'.
No. 212, in
clause 24, page 13, line 8, at end insert—
' ''supervision order'' has—
in relation to England and Wales, the meaning given by section 31(11) of the Children Act 1989 (c.41), and
in relation to Northern Ireland, the meaning given by Article 49(1) of the Children (Northern Ireland) Order 1995 (S.I. 1995/755 (N.I. 2));'.—[Paul Goggins.]
Clause 24, as amended, ordered to stand part of the Bill.
Clause 25
Sections 18 to 21: marriage exception
Question proposed, That the clause stand part of the Bill.
Vera Baird: I wish to raise the same point about the marriage exemption that was raised this morning. In effect, the debate has already taken place under clause 16 about similar kinds of activity. The additional factor in clauses 18 to 21 is that the person is in a position of trust—that, if anything, makes the position worse—but there is no reason why, if what is outlawed against a child in clauses 18 to 21 is child abuse, there should be any permission for it through a foreign marriage.
I accept that the further distinction is that one can only commit the offences discussed this morning with a person who is under 16, whereas these can be committed by a person in a position of trust even against a person who is over 16—in other words, against a person who could lawfully marry in the UK. Therefore, the mischief is not as complete.
None the less, all the offences to be committed by a person in a position of trust can be committed against a person under 16, who we would all say ought not to be able to consent to any of them, or to be relieved of the opportunity of refusing to consent, by being married. I respectfully suggest that, if the Solicitor-General is prepared generally to review the marriage exception, she should consider clause 25 as well.
The Solicitor-General (Ms Harriet Harman): The points that my hon. and learned Friend makes follow on from the well-made points in the earlier debate. It goes without saying that reviewing the marriage exception in the context in which we discussed it this morning and the response that I gave then would apply similarly to the abuse of trust. The question is whether we have drawn the balance right, with the right age, the right sort of activity and the right defence. Obviously, the abuse of trust issue would have
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to come into our consideration of and consultation on that point.
Mrs. Brooke: I thank the Solicitor-General for that. I believe that many of the points that we discussed this morning apply to this clause. It occurred to me that the marriage exemption is almost discriminatory, given that some relationships in the 16-to-18 age range would be allowed but others would be disallowed; for example, if people had chosen to live together or were of the same sex. I wonder whether discrimination is involved.
The Solicitor-General: If the hon. Lady's point is that there is discrimination in relation to the marriage exemption, she is right. It is discriminatory—it discriminates between those from a different country who had a lawful marriage there and came to this country, and those from this country. That is the whole point of the marriage exemption. It is available to foreign nationals but not to those domiciled here who have a lawful marriage according to the laws of this country. I hope that we will not go back into the marriage exemption.
3.45 pm
The Chairman: Order. I can say distinctly that we will not go back into the marriage exemption.
Mrs. Brooke: My additional point was about covering the age range of 16 to 18. I thought that that was another point on top of what we discussed this morning. I am not advocating the point of view at all but I think that, in the wider sense, the marriage exemption is discriminatory.
The Solicitor-General: We will consider the hon. Lady's points, and perhaps we will have the opportunity to discuss them with her further when we reflect on the issues to reconsider between now and Report.
Question put and agreed to.
Clause 25 ordered to stand part of the Bill.
Clause 26
Sections 18 to 21: sexual relationships which
pre-date position of trust
Sandra Gidley: I beg to move amendment No. 188, in
I tabled the amendment to clarify what would happen in certain situations. It occurred to me that someone who was keen to have a relationship with a person could quite easily make sure that they were in employment that would facilitate meeting that individual and prolonging a relationship. The first part of the relationship may have been conducted under some sort of duress. I fully admit that that is a slightly obtuse point.
What protections are in place to ensure that the defendant who is accused of abusing the position of trust; or rather how easy will it be to make the defence that he did not know that the position of trust would—I apologise, I am tying myself in knots. I knew
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precisely what I meant when I drafted the amendment. [Laughter.] It has been a long haul since then. The point is that we do not want people manoeuvring themselves into positions proactively. We are learning that people are very cunning. I drafted the amendment after the briefing from the paedophile unit, when I assumed that everyone was out to do terrible things, and that everything in the world was a conspiracy, and it occurred to me that the clause might have a loophole.
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