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Lord Lucas: I am happy to support a number of the amendments in the name of the noble Lord, Lord Northbourne—though not Amendment No. 403C, which would land me in considerable trouble every time I changed my daughter's nappy.

Touching is a very important part of bringing up a child for parents, more distant members of the family and—at times of stress or when particular instruction is required—others into whose charge the child is given. It is an important way of communicating comfort, affection and solidarity. A child who is deprived of touching grows up a much lesser person as a result—and will find his or her journey through life much harder.

I am keen that we should do nothing in the Bill to discourage people who should be touching children from touching them when the time is right. I find the word "sexual" in that context difficult to interpret unambiguously to mean what I would like it to mean. In olden days, as the song goes, a glimpse of stocking was looked on as something shocking. Many people now have trouble even seeing a woman's eyes and not thinking of that as something shocking. It goes with the fashion, the person and the beliefs a person has as to what is sexual.

Many people are uncertain as to whether any touching of a child has a sexual element; whether any relationship between a man and a woman necessarily has of it something sexual or may be thought to have of it something sexual. I find that using a word that is so broad in this context to deal with something relatively narrow leads us into the areas that the noble Lord, Lord Northbourne, finds difficult. It is making

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life difficult, particularly for teachers and others who are not part of the family but who none the less have charge of a child and will from time to time need to give comfort and guidance to that child. It puts them in a position where they feel in danger and at risk from the interpretation of a phrase.

If they imagine how it could be used they can see it being used against their perfectly innocent—and indeed, entirely desirable—acts of touching a child in order to comfort them. I do not want that to be the position. I would therefore like to see something stronger and clearer in the clause. There are various ways of achieving that. I am attracted by what the noble Lord, Lord Thomas of Gresford, said. That leads us to some extent in the right direction.

I am even more attracted by the direction indicated by Amendment No. 400 in the name of the noble Lord, Lord Northbourne, which makes it clear that sexual touching is intended to lead to the sexual arousal of one party or another and is not just sexual because touching a child or a member of the opposite sex always has a sexual element or because they are touching a part of the body that is considered sexual.

I understand that it is a difficult area, but as a man of plain English as opposed to a lawyer I find Clause 80 frightening. I can see it putting me off becoming involved in any profession where I might have to touch children to do the best by them. I can see why the noble Lord, Lord Northbourne, feels the same. We should be careful of going down that road. There is an evil further down it. We should not cut off children from the love and support of which touching can be an essential part merely because we are frightened of what happens if one goes too far down that road.

Lord Monson: I had not intended to take part in the debate on this group of amendments, but my noble friend Lord Northbourne made such a good argument that I felt I must rise to support him. I would go even further than the noble Lord, Lord Lucas. The late Auberon Waugh wrote a great deal of good sense on this sort of thing. He must have been 10 or 11 years younger than me, but like me he was at school before the 1960s. Before the 1960s it was quite common in boys' prep schools and public schools to find masters who patted boys on the knee.

In retrospect they were obviously repressed homosexuals, but they were often extremely good masters and they did not do any harm. That is the point. That is why I believe that Amendment No. 403B is the crucial amendment in the group. If it does not cause harm to the child, it should not be an offence. It did not harm any of us; they would not have dreamt of going any further than patting boys on the knee. We laughed about it between ourselves, but that was all. I make no comment on the other amendments in the group, but I think that Amendment No. 403B is vital.

The Earl of Listowel: I rise to comment on what my noble friend Lord Monson just said. I recognise that that may well have been his experience, but I have spoken to other young people who have had someone, perhaps a rowing coach, pat them on the knee, and

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that can shatter their confidence in someone whom they really admired, if they can work out what the touching was about. I am sure that my noble friend's experience is true; but there is another experience, which is also true. When a young person has trust in an adult and that adult uses that trust to abuse them, even in what would seem an insignificant way, that can be harmful.

Baroness Howarth of Breckland: I support the clause as drafted, but I rise to support the noble Lord, Lord Thomas of Gresford, in his phrase "right-minded". As a professional who has touched a lot of children in my time to give them comfort, professionals know clearly where the boundaries are and how important it is to ensure that one uses those boundaries—by ensuring that other people are around and ensuring that one does not leave the child in a position in which it may feel uncertain. The most important saying is that young people themselves should feel comfortable with what is happening. The problem with the kind of experiences described is that most young people will giggle about it but do not know how to stop it happening. I am therefore uneasy about changing the basic phrases.

I am also concerned that there is discussion about false allegations. At present, research is available on both sides, showing that some such allegations are made but that on the whole, young people are confirming that they have actually been abused. Freud has been mentioned. Freud was seeing a lot of incest cases, from which he obtained his material. We must therefore recognise that we did not see much of what was happening in the past; much of it was accepted. It is up to our generation to stop that, while not preventing good, warm, physical contact.

I am a physical person; my father was a physical person; we had a close physical relationship, but nothing sexual. I do not accept that there is necessarily sexuality in every relationship. I therefore hope that we will be absolutely clear and recognise that professionals know how to draw the boundaries. A great deal is now written about all of that to add protection. We should retain those phrases to protect young people, but I like the amendment tabled by the noble Lord, Lord Thomas.

Lord Cameron of Lochbroom: I hesitate to rise, but perhaps the Minister will confirm that the definition of "sexual" extends beyond children to the provisions in Clause 33 and onwards. I understand that in Clause 33(1)(b), for example, a jury will be invited to determine whether touching is sexual. I should be interested to know how a judge is supposed to charge a jury. The first of the two tests relates to the nature of the activity and asks the question whether a reasonable person would consider that it may be sexual. Having overcome the first hurdle, it goes on to ask a different question of the jury; that a reasonable person would consider that the activity is sexual, and cites its nature, circumstances or purpose,

    "or all or some of those considerations".

I defer to the noble Lord, Lord Thomas of Gresford, who has the task of addressing juries in this jurisdiction, but if I were north of the Border, I would

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find it difficult to tell the members of a jury exactly how they should go about the task of determining for the purposes, for example, of an offence brought under Clause 33(1), whether the touching was sexual. The matter might be made much worse if the word "reasonable" were to be deleted and substituted by the word "right-minded".

These are questions which the Committee ought to address in some detail, given that the word "sexual" appears in quite a number of clauses in the Bill, and it may have different consequences and questions that need to be asked in relation to the offence contemplated in a particular clause.

Speaking personally, from what I have heard in the debate so far, I understand the concerns which gave rise to the amendments which have obviously been narrowly drawn in relation to the concerns of my noble friend Lord Northbourne in regard to children, although the matter extends further. Along with my noble friend, I am concerned about the use of the phrase, "may (at least) be sexual" in the first part of this clause. Surely it is unnecessary to have the words "at least", because while the touching may be mainly sexual, it may be other things as well.

Those are merely comments on the drafting of the clause which, I suspect, along with some of the early clauses of the Bill, may give rise to difficult questions when charging a jury. Indeed, at one stage I believe that the Minister offered to produce a specimen charge in relation to the problems which arose under Clause 1.

Baroness Walmsley: I do not intend to treat the Committee to the spectacle of two Liberals again disagreeing with each other. Therefore, although I strongly support the spirit of the concerns expressed by the noble Lord, Lord Northbourne, I shall support the amendments tabled by my noble friend Lord Thomas of Gresford because I feel that they could provide the solution.

I know that this issue is very important for men who work with children either in social services or in education. I visit many primary and nursery schools and, in particular in nursery schools, it is already rare to find a man working in those settings. That is very unfortunate. As the noble Lord, Lord Northbourne, has already remarked, many children do not have a close male relative or male role model at home. It is therefore important that we do not do anything to discourage the right kind of men from working with children and from showing them some form of affection within the bounds of the responsible professional, as outlined by the noble Baroness, Lady Howarth.

Touching is important. Often what a deprived child most needs is a jolly good hug and so it is important to set the parameters within which that can be done by professionals—in a caring manner, with no danger to their own professional future and no danger to the child. I believe that the amendments spoken to by my noble friend Lord Thomas of Gresford may well move us in the right direction in that respect.

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10.45 p.m.

Baroness Blatch: No one who has spoken in the debate, and no one I know, wants to see entirely innocent people criminalised by the offences in the Bill. I do not know what the Minister intends to do about the amendments, but I am certain that he would agree with what I say.

Sadly, as was mentioned by the noble Earl, Lord Listowel, all too many children experience inappropriate touching and approaches. It is those who have an evil intent towards children whom we must keep in mind. I know from my time as Minister of State at the Home Office—from visits to prisons, young offender centres—just how many people were there because they were abused as children. Their lives had been completely blighted. That is no excuse for criminal behaviour, but their lives had been utterly thwarted in terms of being able to grow up naturally. The effect of inappropriate sexual behaviour towards them had a very real impact.

I have some concern therefore about tampering with Clause 80. I am particularly concerned and particularly sensitive to the issues raised by the noble Lord, Lord Northbourne and by my noble friend Lord Lucas. But the definition of what is sexual goes to the heart of the Bill. That needs to be born in mind.

I am not a lawyer and I do not envy those who have to address their minds to this issue. Even those who sit in judgment in the courts sometimes need the wisdom of Solomon in order to arrive at a fair judgment. I am talking particularly about young people—on whom most of our discussion has been concentrated.

It seems to me that Clause 80 represents a fair attempt to ensure that the word "sexual" for the purposes of the Bill will be interpreted in a way that ordinary people would expect. For that reason, we should be reluctant to interfere with the wording.

It seems that the first amendments in the group, tabled by the noble Lord, Lord Northbourne, and my noble friend Lord Lucas, are concerned that activity that is not sexual should not be in danger of falling within the scope of the Bill. They have a point. It would be dreadful if entirely innocent actions were deemed to be a sexual offence. However, I think that we can have confidence that under the existing requirement in Clause 80 a "reasonable person" must consider the action to be sexual, and the professionals are probably the best people to make that judgment.

My concern is that Amendments Nos. 399A, 400, 400A to 400C, 401A, 401B and 403A to 403C would go much further. If, as proposed in Amendment No. 400, Clause 80 were replaced with a test that the touching or penetration must be,

    "intended to give rise to the sexual arousal of either party",

we should place on prosecutors an additional burden to prove that intention. A pecularity of the word "arousal" may be that the perpetrator could claim the defence that he was already aroused before the touching took place.

Amendment No. 403B would limit the definition of what constitutes the sexual touching of a child to circumstances where an offence would be committed

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only if there was proof of harm or likelihood of harm to the child. This could radically undermine child sex offences. It could allow a perpetrator to adduce evidence that the child consented willingly and was not harmed physically or psychologically. It could require prosecutors to prove by physical evidence or using expert witnesses that harm was caused or was likely to be caused.

Amendment No. 401A would allow a conviction for, say, the Clause 9 offence of sexual activity with a child only if a reasonable person,

    "of the same gender, sexuality, age and ethnic, social and cultural background",

as the defendant could be conjured up in the mind of the jury to say that the touching was sexual. That really is going too far.

Amendment No. 401 in the name of the noble Lord, Lord Thomas of Gresford, replaces the concept of a reasonable person with that of the right-minded person. I am not familiar with the phrase "right-minded person" but the courts are very familiar with the phrase "a reasonable person" and, in my book, that should stand.

I shall be interested to hear what the Minister has to say about Amendment No. 402. I do not want to see the words "at least" removed from the clause, as the amendment suggests, but it will be interesting to hear what the noble and learned Lord says will be the effect. I suspect that the words help to ensure that activity which has an additional purpose or a pretext is not excused. For example, if a gym coach holds an athlete in a particular posture and uses the occasion to touch the person improperly, I trust the wording makes it more difficult for the coach to argue that the sexual touching was merely incidental and therefore not criminal.

I shall be interested in the Minister's reply. Just as judges in court need the wisdom of Solomon, I suspect that the noble and learned Lord will need it in responding to this debate.

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