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Sexual Offences Bill [HL]

Consideration of amendments on Report resumed.

Clause 15 [Arranging or facilitating commission of a child sex offence]:

Baroness Walmsley moved Amendment No. 59:

The noble Baroness said: My Lords, in moving Amendment No. 59, I shall speak also to Amendment No. 61 in the group. We were grateful to the Minister at an earlier stage of the Bill for tabling the amendment which included subsection (3), making it clear that those who act to protect children from sexually transmitted infections, to protect their physical safety and to protect them from unwanted pregnancy would not be committing an offence under the clause. However, there are still concerns, which is why I have submitted the amendments.

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Earlier this evening the noble Baroness, Lady Blatch, suggested that it was almost unbelievable that somebody giving bona fide sex advice to a young person could possibly be caught under the clause. However, it is a fact that many of those who give that advice are the very people who are concerned about the unamended clause. They are people who work for reputable organisations such as the Brooke Advisory Centre, the Family Planning Association, Childline and many people who are commonly called agony aunts who write in some of the teenage magazines.

I feel that some of those teenage magazines sometimes go too far, but it has to be said that they are part of the culture of young people who do look to them for advice. On the whole the people who give that advice are reputable and well-intentioned. If they are concerned that the Bill as drafted is ambiguous and could make them feel that they were in danger of falling foul of the law if they carried on doing their good things, then I believe that that deserves our full attention.

The main thing missing from the Bill is reference to the emotional well-being of young people, because, particularly for them, emotions and sexual activity are tied up together. It is very difficult to separate them. I know that if the noble Baroness, Lady Howarth, was able to be with us this evening—and she is very sorry that she cannot be—she would be able to give us the perspective of the advisers on Childline who are concerned that often they are called upon to talk to young people about issues to do with sexual activity. Those young people are not just concerned about their own sexual activity. Sometimes they are distressed and worried about having perhaps witnessed their parents having sexual activity and they do not understand what is going on. They need reassurance and advice.

It is for that reason that I have tabled Amendments Nos. 59 and 61. Other amendments in this group would achieve similar aims. One way or another it is important that on the face of the Bill there is reference to the emotional well being of people as well as tangible things such as their sexual health and avoidance of unwanted pregnancies.

I hope that the Minister will carefully consider the amendment and look favourably upon it. There is much concern among professionals and well-intentioned and trained non-professionals, who do much good work. I have always felt that those who say that young people can get too much sex education are mistaken. It does not cause them to indulge in more sex than they otherwise would. It just means that they are well-informed about the consequences of sexual activity. We should do all we can to ensure that those who give good sex advice to young people are not in danger of falling foul of the law. I beg to move.

Baroness Noakes: My Lords, I shall speak to Amendments Nos. 60, 62, 169 and 170 tabled in my name. In our debate in Committee, the noble Baroness, Lady Walmsley explained the loose ends which existed. We were delighted that the Minister tabled the amendments which resulted in subsections (2) and (3) of Clauses 15 and 75. I have tabled slightly

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different amendments from the two tabled by the noble Baroness, but I do not think there is anything of substance between us. Amendment No. 62 represents wording suggested by the Periodical Publishers Association, which has a particular concern in relation to the work of agony aunts in magazines aimed at under-16s. We are trying to ensure that the exception provided by these two subsections covers not just the physical side of sex but also the emotional and psychological side.

I know that the Minister is keen to try to understand the kind of examples which could arise that would lead to the need for that. Perhaps I may put to him the case of a 15 year-old child confused about either a sexual relationship or his or her sexuality. He is in a relationship with another child under 16, which involves sexual activity. The child knows about condoms and all the kind of things about which one would advise a child in order to avoid sexually transmitted disease, pregnancy and so forth, but is confused as to how he feels about sexual activity and wants to discuss feelings of guilt, stress and perhaps even an obsession he has developed. He seeks advice from a trusted adult, Childline or one of the magazines which specialise in advice. He wants to know whether he should have sex, what will be the consequences for how he feels and what normal reactions are possible for him.

The person he consults can say, "No sex, you are under 16" and then no question of aiding and abetting or any of the other matters would arise. But that is not the real world so it is quite possible that the person giving advice would reassure the child that perhaps his strong desire for sex is not unusual. The adviser is not likely positively to counsel having sexual relations but it is likely that the advice will be given on the basis that it is not wrong for the child. Thus reassured, the child could go on to have sexual intercourse with the other child.

I do not believe that people in that situation should be caught by the Bill. We have already discussed the issue of whether it should be unlawful for teenagers to have consensual sex. Those of us who are concerned that the law should reflect the reality of consensual teenage sex have a similar concern in relation to advice given to teenagers involved in consensual sexual activity. If we do not deal with the doubts that exist—for example, in relation to publishers—advice columns could be closed down. The noble Baroness, Lady Walmsley, said that some advice goes further than she thinks advisable but such columns appear to meet a need. If they are closed down because of risk-averse lawyers, less information might be available to teenagers—which could lead to more problems down the line for society. I hope that the Minister will reconsider.

8.45 p.m.

Baroness Gould of Potternewton: My Lords, it may be that the wording of the amendments is not entirely correct but I hope that my noble and learned friend

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will feel able to support the principle behind the amendments, then perhaps we can return with something better.

It is almost impossible for anyone counselling children on engaging or not engaging in under-age sex to ignore the emotional problems that the child is likely to raise. I understand that Childline has received 800 calls this year from children seeking relationship advice and its counsellors must be reassured that the clause will protect them. If my noble and learned friend can say that is the case, the organisations to which the noble Baronesses, Lady Walmsley and Lady Noakes, referred can be clear that they are protected by the clause as it stands. It will be difficult for organisations to continue giving advice if they feel that there is any ambiguity in the Bill.

Baroness Blatch: My Lords, it will come as no surprise to anyone that I oppose the amendment. I have already expressed my grave reservations about the education defence. The potential for abusing that defence can only be made worse by the amendment, which extends its scope even further.

We are talking about some of the most manipulative people and worst confidence tricksters in the world. Here we are giving them a defence on a plate. Allowing a person to claim, as Amendment No. 61 does, that he was facilitating a child sex offence to protect a child's emotional well-being could open up all kinds of arguments. What, for example, is "emotional well-being"? It is certainly something much broader than the physical protection of a child. It is a very vague notion and will allow individuals to introduce young people to all sorts of material and to give them all kinds of appalling advice—safe in the knowledge that they can rely on the proposed defence.

If Amendments Nos. 62 and 170 are accepted, a person could with impunity supply a child with sexual literature that does not even pretend to be about so-called safer sex, help or pregnancy but deals merely with the emotional and physical aspects of sexual relations. Would the provision include pornography or advice about sexual technique? It seems wide to me and probably could.

The amendments go far beyond the legitimate concerns of a health professional or teacher and even further into the realm of activities that a person might undertake to groom a child for abuse. I hope that my noble friend and the noble Baroness, Lady Walmsley, will reflect not on the needs of health professionals or teachers—who have nothing to fear from the Bill—but on those manipulative individuals who will welcome a tailor-made defence to their abusive behaviour.

Lord Falconer of Thoroton: My Lords, I appreciate the very genuine concerns which have motivated the noble Baroness. I am sympathetic to them. It is obvious that help is of incredible importance with regard to many problems of an emotional kind. The noble Baroness, Lady Blatch, identifies the problem in relation to the amendment. Without it being pointed out, everyone can understand that those people who wish to encourage children to engage in sex for their

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own ends can say various things which will help them in relation to it. Therefore, the balance to be struck in this area is incredibly difficult.

Any statutory exceptions to protections offered to children by the criminal offences must be framed in such a way that they cannot be persistently manipulated by an abuser to avoid prosecution for abuse. That is why the exceptions have been worded in the way that they have, focusing on the specific protections being offered to the child—against sexually transmittable diseases, pregnancy or physical harm—that will exclude the provider's behaviour from the scope of the offence.

I am moved by the level of concern expressed by the noble Baronesses, Lady Walmsley, Lady Noakes and Lady Gould of Potternewton. There is no doubt that they are trying to deal with an actual problem. I have therefore spent a lot of time considering whether there is a way in which we could address those concerns without opening a loophole that an abuser could seek to exploit or causing grave concerns that we are weakening the protection that we offer to children. It is a difficult issue. I have looked at the amendments, keen to see what could be done to meet those concerns.

Amendment No. 59, moved by the noble Baroness, Lady Walmsley, would amend Clause 15(3) so that rather than acting "for the purpose" of protecting the child, the defendant is required to have acted "to promote the child's welfare, with particular regard for the need" of protecting the child.

I do not feel that the term "to promote the child's welfare" adds anything here, as there can be no doubt that the actions in subsection (3)(a) to (c)—protecting the child from pregnancy or infection, or protecting his physical safety—would promote the child's welfare. My concern about the term "with particular regard for" is that this is a lower test than "for the purpose of", which would only fuel the argument that the exceptions clause is weakening child protection. I think that the current wording is better and provides better protection for children and I wish to retain it.

Amendment No. 60, in the name of the noble Baroness, Lady Noakes, would extend the provision at Clause 15(3)(b) to cover both the physical and the emotional safety of the child. Her Amendment No. 169 would do the same in Clause 75(1)(b).

I am very concerned that the term "emotional safety" is too vague. It would create a potential loophole that abusers could exploit, claiming that they were, for example, seeking to protect a child from emotional bullying by his peers when in fact they might be trying to acclimatise a child to sexual matters in order to prepare the way for unlawful sexual activity. It would be a very difficult clause to police. There are differing views in the sector as to the right way to go.

Amendment No. 61, in the name of the noble Baroness, Lady Walmsley, would extend Clause 15(3)(b) to cover "the physical safety and emotional well-being" of the child. It is similar to the approach taken by the noble Baroness, Lady Noakes. I do not think that there is much to choose between "emotional well-being" and "emotional safety", as the noble

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Baroness said. I fear that both could potentially weaken the protection offered to children. What is the position if someone with the bona fide interests of the child were to say, "I understand your problems. You would feel a lot better if you did commit certain sexual acts"? The person giving that advice may be motivated by his or her belief, but such advice may not really be what reasonable people would regard as in the best interests of the child.

Amendment No. 62 would add a new subsection (3)(d) to Clause 15 that would exempt those who provide,

    "bona fide advice and information about the emotional and physical aspects of sexual relations".

Amendment No. 170 proposes the same change for Clause 75 by creating a new subsection (1)(d). The words "bona fide" are open to wide interpretation—honest belief that it is okay, no matter how mad. Those words may be suitable for guidance notes, where they are already used. I know that the term was used in the case of Gillick, but I do not believe those words to be sufficiently precise for us to include in statute.

I do not believe that the phrase,

    "advice and information about the emotional and physical aspects of sexual relations",

has anything to recommend it as regards being different in its ultimate effect from the more straightforward terms, such as, "emotional safety" or "emotional well-being". We are going round and round in a sort of linguistic circle. I genuinely wish to help noble Lords with their concerns, but we are trying to strike a very difficult balance. Therefore, any provisions that we include in legislation to protect those who act to protect children must not undermine the protection that it offers to children.

This is a difficult area, but, having thought about it a great deal, I am moderately satisfied that we have broadly got the balance right. If the amendments proposed by the noble Baronesses, Lady Walmsley and Lady Noakes, were placed in the Bill, I believe that we would end up with this becoming a major focus of criminal proceedings—not because such provision would form the basis of criminal charges but because it would become "the issue" upon which defendants would rely. We would regret that outcome.

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