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Baroness Noakes: The amendments in this group were tabled by my noble friend Lady Blatch but they also appear in my name and that of my noble friend Lord Astor. I pay tribute to my noble friend Lady Blatch for making such a powerful case when the abuse of trust provisions were first introduced. On that occasion, her pleas did not result in the amendments that she sought but she is again seeking to secure them.
We support the amendments. The abuse of trust provisions are extremely important but they are very narrowly conceived. They are basically conceived only for institutions. While the most notorious cases of sexual offence against children—in the Waterhouse report, for example—largely concerned activities in institutions, it is important that the Act goes as far as possible to deal with those situations in which positions of trust, positions of authority or other opportunities arise in relation to children. That is why we support the amendments tabled by my noble friend. The noble Lord, Lord Faulkner of Worcester, made a powerful case for extending the provisions. We also support that.
The abuse of trust provisions need to have the maximum possible impact on as many potentially harmful relationships as possible. That is why we believe that they should be extended widely. Amendment No. 162, which requires the Secretary of State to specify conditions for youth and community workers, is particularly important because it will allow an even wider group of people to be brought in.
Lord Thomas of Gresford: The noble Baroness, Lady Blatch, and the noble Lord, Lord Faulkner of Worcester, have proposed powerful reasons for extending the positions of trust in Clause 23. I expect that when the noble and learned Lord replies, he will tell us precisely what is meant by subsection (1)(b). What mechanism will be in place to widen positions of trust? We are in principle in favour of the amendments and in particular of Amendment No. 162. Whether it is right to attempt to specify every single position is a matter about which we should like to think more. Perhaps the noble and learned Lord can help us in that regard.
Lord Hylton: I support the general direction of the amendments. I believe that the law concerning abuse of trust should be as comprehensive as possible. The Minister may reflect on whether mentoring, for example, is covered. That is a rather fashionable
remedy for many problems affecting people under 18. No one wants to make recruitment more difficult than it need be in relation to responsible and much-needed posts and volunteers who engage in socially important work. However, employers have a duty to make clear to candidates for such posts and to volunteers what is and what is not a position of responsibility involving trust.
Lord Falconer of Thoroton: These are very important provisions. It is worth emphasising that the primary purpose of the abuse of trust offence is to provide protection in the criminal law for young people who are over the age of consent—16 or 17—and who are considered to be particularly vulnerable to exploitation and abuse within an ostensibly consensual sexual relationship.
The drafting of the offence covers young people below the age of 16 but it is hard to imagine that an offence would ever be prosecuted in relation to someone who was under 16 because that would involve sexual activity with someone who was under the age of consent, and one would never need to deploy the abuse of trust clause because that would lead to a lower maximum sentence.
The reality of these offences, rightly, is that they focus on 16 and 17 year-olds. The offence is not designed to catch other sexual offending behaviour, such as sexual intercourse with a child under the age of consent or non-consensual activity which fall within the scope of a range of other sex offences. It is important to focus on that. One has to keep it within some bounds because the law has decided that with persons over 16, while trust should not be abused, they are capable of forming sexual relationships.
In determining the positions of trust that merit intervention by the criminal law, some principles need to be set out. We have been guided by three criteria: first, the individual who is particularly vulnerable, for example on probation or in residential care; secondly, the location and/or lack of access to other adults and absence of countervailing influence makes the individual particularly vulnerable; and thirdly, the special influence of the adult: the relationship is in loco parentis.
We believe that the categories we are now adding to the offence—Connexions and personal advisers and those supervising young people in the community in pursuance of an order made in the criminal justice system—meet the criteria in full. They additionally merit inclusion because the state appointed them and compelled the young person into the relationship not through the young person's or their family's own choice.
I shall deal with the particular classes suggested. The first, as proposed by the amendments tabled by the noble Baroness, Lady Blatch, is that of childminders. The question is whether a registered childminder of a 16 or 17 year-old should be regarded as in a relationship of trust which requires this particular special protection. Applying the tests, is the individual particularly vulnerable; does the location and/or lack
of access to other adults and absence of countervailing influence make the individual particularly vulnerable, and is there a special influence of the adult? We believe that it is difficult to see that the tests are made out in relation to childminders.Secondly, I refer to sports coaches. My initial reaction to the speech of the noble Lord, Lord Faulkner of Worcester, was that they would not fall within the category. However, presumably without knowing what my notes state, the noble Lord seemed to hit the spot in respect of a large number of the criteria, particularly as he described a picture in certain circumstances of the vulnerable adult being isolated because of the control that a sports coach has. I am not in a position to give any guarantees or assurances to the noble Lord. We need to consider the matter. I see the force in what he said. I also see difficulties in how one defines a sports coach to try to capture what he describes.
Thirdly, I refer to voluntary youth workers. This is very wide. It seems that the three criteria do not apply as clearly as in relation to sports coaches. As regards the appointment of guardians ad litem or supervisors under the provisions of the Children Act 1999, such persons are outside the control of the child or his family. They cover children up to the age of 18. I fully accept the points made by the noble Baroness that in such cases one would try to establish a relationship of trust, particularly in circumstances where the child might be vulnerable. Those seem worthy of further consideration. I shall further consider those between now and Report.
Therefore, we shall consider sports coaches, guardians ad litem and supervisors but can give no assurances. On the basis of the criteria we are applying, voluntary youth workers and childminders do not seem to me to be appropriate, remembering that we are focusing on 16 or 17 year-olds. Perhaps I may return to the issues I identified on Report as they certainly merit further consideration.
Amendment No. 162, tabled by the noble Baroness, Lady Blatch, would require the Secretary of State to make an order under the provisions of Section 23(1)(b) to specify conditions relating to youth and community workers. They will not be needed for the reasons that I am rejecting that particular part of the amendment.
On the question asked by the noble Lord, Lord Thomas of Gresford, on when the Secretary of State will apply his powers under Clause 23(1)(b), I hope that by indicating what the criteria are, I am indicating the approach that he would take in relation to it. In the light of the assurances that I have given, I hope that all the amendments will either be withdrawn or not moved.
11.30 p.m.
Lord Monson: I find the Minister's arguments convincing—in particular, his references to childminders. It is almost inconceivable that a 16 or 17 year-old would have a childminder. If a childminder was employed in the household, it would surely be to
look after the younger brother or sister of the 16 or 17 year-old. If a relationship were to develop between the older child in the household and a childminder, that would not be the state's business.
Baroness Blatch: I am grateful for the thoughtful reply of the noble and learned Lord. I will start with childminders, as they have just been mentioned. I count myself among those mothers who would not regard their 16 year-old as the right person to look after smaller children. I have three smaller children, twins and a single child. I would not have asked my 16 year-old to look after them. So it was not uncommon for me, and I suspect many other mothers, to have a babysitter to look after the children if we were not at home.
I must also say that, because of the lowering of the age of consent, if a sexual relationship had been established between the person babysitting and my daughter, or the babysitter and my son, and he or she was 16 or over, then that would have been entirely legal. There would be no protection whatever. I and my husband would have gone out, leaving this person in loco parentis over my children. That corrupting relationship would have been legal. I would have seen it as a corrupting relationship, because I would not have left the babysitter behind to have a sexual relationship with one of my children, whatever the age. That is an argument that needs to be returned to.
Regarding sports coaches, I am grateful for the Minister's response, because it is not just the instances cited by the noble Lord, Lord Faulkner of Worcester; there is a great deal of one-to-one coaching in the sports field. There are personal trainers and all sorts of special relationships. There is some impressive work, almost social work, taking place between some football clubs and schools, where there is a close relationship with some children who are perhaps not supported well at home, and the club knows about that. So I am grateful to the Minister. I am also grateful for him referring to the guardian ad litem relationship, because that can be a particularly sensitive relationship, at a particularly sensitive time in the life of the family and the child.
I am very surprised at the Minister's reaction to the voluntary provisions for community workers. I do not know how much knowledge the noble and learned Lord has of the field of youth and community workers. I know from my own county, and having been involved with young people for many years, that some interesting relationships are struck between youth workers and the young people who come before them. There are weekend camps, trips into the country, boating arrangements, sailing, climbing and walking. They are gatherings when, again, young 16 and 17 year-olds are in relationships that can be taken advantage of. If it was one's daughter or son, and a sexual relationship was struck between that person who was in a position of trust, then the parent would look to have some protection for their children—when they have paid money and allowed them to go away for
the weekend in the charge of such a person. I hope that the Minister will not close his mind entirely on that example.There are so many people outside the provisions that I have asked for. The three tests that the Minister gave—vulnerability, location and lack of access for young people in a particular situation, and the special influence of the adult—are three that I had in mind when I was thinking of youth and community workers. Certainly the voluntary sector, including people who take young people away on Duke of Edinburgh Award expeditions, are in a position of trust. Families, in good faith, allow their children to go away in the charge of these people, knowing that they will be protected. If they happen to have passed that magic age of 16, then there is no protection. Whatever happens, whatever sexual activity is involved, at that point it is a legal activity and I believe the parents deserve more of a guarantee of the safety of their children. I beg leave to withdraw the amendment at this stage, but shall return to some aspects of it.
Amendment, by leave, withdrawn.
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