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Baroness Blatch: It is Committee stage so I can press the noble and learned Lord to be helpful. It would be extremely helpful if he simply said "yes" to me but he is avoiding saying that on the record.
- "The third condition is that A looks after persons under 18 who are accommodated and cared for in an institution which is ... a hospital ... residential care home, nursing home, mental nursing home or private hospital; ... a community home, voluntary home, children's home or residential establishment; ... or a home provided under section 82(5) of the Children Act 1989, and B is accommodated or cared for in that institution".
My amendment includes the word "normally" because it is possible that at the time of the offence, a person may not be accommodated in that institution. It does not say "normally resident"; it says "in an institution". If the person is not accommodated in that institution but, nevertheless, is a person of that institution, would he be protected under this clause?
Lord Williams of Mostyn: The noble Baroness is asking me a third question now. Her original question was focused, I assume, on Clause 4(3). The second condition is,
- "that A looks after a person under 18 who are resident in a home or other place".
It is no good asking me whether a person is in a home, and it has nothing to do with insurance claims. I cannot make it any plainer than I have.
Baroness Blatch: My amendment does not relate to subsection (3) but to subsection (4)(d). The second line of that subsection states:
- "a home provided under Section 82(5) of the Children Act 1989, and B is accommodated and cared for in that institution".
If the noble and learned Lord says that the protection continues, then I do not have to worry about my amendment. But if he cannot give an affirmative answer in that regard, I shall continue to have that worry.
Lord Williams of Mostyn: That is not the question that I was originally asked, which related to the word "resident". I shall put "resident" and "in a home" on one side because they no longer seem to be the phrases in question.
A person is accommodated and cared for in an institution even if that person, on occasions, while being accommodated there, for example, goes out of the house, out of the institution and out of the care home. I have never myself understood it to be suggested that "accommodated" means that you have to be within that accommodation for every second of every day in order to have that protection. It is a question for the courts to adjudicate on. But I repeat that they are well-known legal concepts. That deals with "accommodation".
Baroness Young: Perhaps I may pursue this further because it is an extremely serious matter. It is not just a kind of legal quibble. If you are not a lawyer, it is quite difficult to follow the argument.
I can read what it says here about being "accommodated" or "resident" in. The noble and learned Lord seems to be saying that when the boy is not in the home, it would be for the courts to decide whether or not this provision applies. Is that security enough?
We are saying that if the boy has absconded, for example, and is therefore living somewhere else, and certainly not accommodated in the home or resident in it, is he covered? If I understood him right, he seems to be saying, "It is perfectly all right. Do not worry about it all. It means he is really there and the courts will decide whether he was there or not". He clearly was not there. I do not understand the point.
The Lord Bishop of Winchester: Perhaps I may offer some assistance. If I put it in non-legal language, it sounded to me as thought he noble and learned Lord was saying that the person remains, as it were, on the books of the home whether he is in it or out of it. That is what I understood the noble and learned Lord to be saying and it may be helpful to put it in that language to see whether that is indeed what he is saying.
Lord Williams of Mostyn: I have been trying to say that, and I am most grateful. If a person is absent from the institution where he is either "resident" or "accommodated", he is still protected. I repeat that he does not have to be physically present for 24 hours of every day. I repeat that my residence remains what it is even if I am away from it.
Baroness Blatch: The noble and learned Lord could have circumvented this discussion a lot earlier simply by saying that I am right. I make a distinction. I am not talking about going out shopping, going to a cinema or going to play somewhere with friends. I am talking about a young person who has absconded from an institution--and I am sorry if the noble and learned Lord is offended by the word "home"--or is on a long break in a holiday house somewhere. In the Bryn Alyn cases, young people were positively farmed out to a group of paedophiles living in a bungalow somewhere other than the home. So those young people were not accommodated in the home, although they were normally cared for and accommodated in that institution.
The more the noble and learned Lord has spoken, the more I believe that the words "normally accommodated and cared for in the institution" are appropriate. I wish to test the opinion of the Committee.
9.7 p.m.
On Question, Whether the said amendment (No. 20) shall be agreed to?
Their Lordships divided: Contents, 56; Not-Contents, 69.
Ampthill, L.
Attlee, E.
Blatch, B. [Teller]
Boardman, L.
Bridgeman, V.
Byford, B.
Carlisle of Bucklow, L.
Cocks of Hartcliffe, L.
Crathorne, L.
Cumberlege, B.
Dean of Harptree, L.
Dixon, L.
Dixon-Smith, L.
Elton, L.
Ferrers, E.
Fookes, B.
Fraser of Carmyllie, L.
Geddes, L.
Glenarthur, L.
Greenway, L.
Haslam, L.
Henley, L.
Hodgson of Astley Abbotts, L.
Kimball, L.
Lofthouse of Pontefract, L.
Luke, L.
Lyell, L.
McColl of Dulwich, L.
Mackay of Ardbrecknish, L.
Miller of Hendon, B.
Monro of Langholm, L.
Monson, L.
Montrose, D.
Nickson, L.
Northbourne, L.
Northbrook, L.
Northesk, E.
Palmer, L.
Park of Monmouth, B.
Parkinson, L.
Pearson of Rannoch, L.
Renton, L.
Roberts of Conwy, L.
Seccombe, B. [Teller]
Shaw of Northstead, L.
Shrewsbury, E.
Skelmersdale, L.
Sterling of Plaistow, L.
Stoddart of Swindon, L.
Strathclyde, L.
Trefgarne, L.
Vivian, L.
Waddington, L.
Weatherill, L.
Willoughby de Broke, L.
Young, B.
Addington, L.
Allenby of Megiddo, V.
Alli, L. [Teller]
Amos, B.
Andrews, B.
Archer of Sandwell, L.
Bach, L.
Barker, B.
Bath and Wells, Bp.
Birt, L.
Blackstone, B.
Burlison, L.
Carter, L.
Clarke of Hampstead, L.
Crawley, B.
David, B.
Davies of Coity, L.
Dean of Thornton-le-Fylde, B.
Dubs, L.
Eatwell, L.
Elder, L.
Farrington of Ribbleton, B.
Gale, B.
Goldsmith, L.
Gordon of Strathblane, L.
Gould of Potternewton, B.
Hamwee, B.
Harris of Haringey, L.
Hilton of Eggardon, B. [Teller]
Hollis of Heigham, B.
Howells of St. Davids, B.
Layard, L.
Lea of Crondall, L.
Lockwood, B.
McIntosh of Haringey, L.
McIntosh of Hudnall, B.
Maddock, B.
Miller of Chilthorne Domer, B.
Norton of Louth, L.
Patel, L.
Phillips of Sudbury, L.
Portsmouth, Bp.
Ramsay of Cartvale, B.
Rennard, L.
Richard, L.
Russell, E.
Scott of Needham Market, B.
Sharp of Guildford, B.
Shutt of Greetland, L.
Smith of Clifton, L.
Smith of Leigh, L.
Symons of Vernham Dean, B.
Taylor of Blackburn, L.
Taylor of Gryfe, L.
Thomas of Walliswood, B.
Tomlinson, L.
Tope, L.
Tordoff, L.
Turner of Camden, B.
Wakefield, Bp.
Wallace of Saltaire, L.
Walpole, L.
Warwick of Undercliffe, B.
Wedderburn of Charlton, L.
Whitaker, B.
Wilkins, B.
Williams of Mostyn, L.
Winchester, Bp.
Young of Old Scone, B.
Resolved in the negative, and amendment disagreed to accordingly.
9.18 p.m.
[Amendments Nos. 21 to 23 not moved.]
Baroness Young had given notice of her intention to move Amendment No. 24:
- Page 4, line 16, at end insert--
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