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Lord Lucas: My Lords, I have a great deal of sympathy with what my noble friend Lady Blatch has said and will listen with great interest to what the Minister says. However, I want to take this opportunity to raise a matter which concerns me very much. It relates to an earlier answer given by the Minister on the matter of consensual under-age sex, when she said that this would be dealt with through the final warning scheme.

Having obtained the document on the scheme and the underlying Act, I see that not only are these reprimands given without any chance of appeal or of erasing it from the record—merely if the police officer thinks that this is something which should be dealt with in that way—but once it has been given, the poor kid is on the sex offenders register for five years.

Baroness Scotland of Asthal: My Lords, I hesitate to interrupt the noble Lord but I think that I should. The whole idea is that those provisions would be amended so as to cover the sort of guidance that the noble Baroness, Lady Blatch, and others were referring to. We have scoped out the sort of guidance that it would include. It could include an opportunity for a warning or something of that sort to be made, which is a very light touch and would not form part of a record. If noble Lords look through the document, they will see that there are grounds and conditions set out therein which indicate the sorts of issues that the prosecutors should take into account before they decide to proceed with any charge in relation to those matters. Looking at the document in toto, we think that the guidance has the framework into which we can seek to insert the sorts of provisions which would give comfort

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regarding the issues we have debated at length. I know that officials have had an opportunity to talk in some detail with the noble Baroness, Lady Noakes, and, I believe, the noble Baroness, Lady Walmsley, and others.

Having taken on this brief at rather short notice, I myself have not had the privilege of going through that document in the sort of depth and detail that I know the other two noble Lords on the Front Bench have. I am assured, however, that my understanding is as I have just described and, as I say that, I notice that the noble Baronesses, Lady Walmsley and Lady Noakes, are nodding vigorously.

I can appreciate why the noble Lord, Lord Lucas, is alarmed, but it does provide us with the framework into which we can slot appropriate guidance to assist the prosecutor in coming to a well-informed judgment on how to deal with this matter. As I have also said, we propose that the CPS, not the police, should deal with these provisions.

Lord Lucas: My Lords, I am comforted because, as it is at the moment, the position is absolutely horrific.

7.15 p.m.

Baroness Scotland of Asthal: My Lords, I believe that Amendments Nos. 38, 41 and 69, tabled by the noble Baroness, Lady Blatch, to leave out Clauses 26, 31 and 46, must be resisted.

These clauses mean that a person in a position of trust, in a relationship covered by the familial child sex offences, or in a care relationship, will not commit the offences at Clauses 18 to 21, 27 to 28, and 40 to 43, if he proves that he and the other person were involved in a lawful sexual relationship which predated the position of trust, familial relationship, or relationship of care.

It may not be to our taste, but the reality is that relationships do exist between people of different generations. I know that it is a matter of some surprise to a number of women in particular that so many men seem to be fascinated by women 30 years their junior; but, no matter how surprised we may be, we have grown to accept it as part of human nature.

Baroness Blatch: My Lords, I am grateful to the noble Baroness for giving way. That was never any part of my case, nor has it been any part of the case made in relation to this amendment. I am not surprised that these relationships exist, and I do not want that to be a part answer to my amendment.

Baroness Scotland of Asthal: My Lords, it is the context in which we have to view some of these issues. The key issue here is whether relationships between two individuals that are lawful should become unlawful because circumstances have resulted in one of the parties now having a position of trust or a caring role in relation to the other, or in the parties living together and/or caring for the other.

If the amendments were accepted, we would not be talking about someone breaching a code of conduct or losing their job. We would be talking about that

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person's involvement in that relationship becoming a criminal offence, punishable by a possible sentence of imprisonment. We have listened to the arguments made, but we continue to believe that the amendment goes too far.

To summarise the arguments we have made previously about this matter, the primary motivation for the abuse of trust offences is the need to protect young people aged 16 or 17 who, although over the age of consent to sexual activity, are considered to be vulnerable to exploitation from a person who holds a particular position of trust or authority in relation to them, and so has a considerable degree of power and influence in their lives. We do not believe that this argument applies to situations in which the sexual relationship was entered into before the relationship of trust. The young person was able to make a free choice about whether to enter into the sexual relationship and must have been over the age of consent. This exception does not apply when the relationship entered into was unlawful at the time; for example, if the young person was under the age of consent or the relationship was with a close blood relative. We are not exempting abusive relationships. We are making an exception for those which began legally, but then circumstances changed and one person entered into one of those relationships covered by Clauses 26, 31 and 46.

A 17 year-old may have freely formed a consensual sexual relationship with a person who subsequently becomes a Connexions adviser, with responsibility for her as well as for a large number of other young people. We take the view that this is not a matter meriting the intervention of the criminal law. No position of trust existed at the time the relationship was formed which could have exerted pressure on the girl. There are other means of dealing with the situation, such as professional codes of conduct, which have rightly been mentioned by the noble Baroness in support of her amendment. In our view, however, bringing the criminal law into play is going too far.

Turning to Clause 31, it is important to remember that the familial child sex offences go considerably wider than blood relationships. An example, as the noble Baroness has indicated, is where two 17 year-olds have a sexual relationship and, as a consequence, their parents meet, fall in love, and all four move in together. If the amendments are accepted, the relationship between their children becomes illegal simply because all are living together. That cannot be right. The relationship would be perfectly lawful if the two young people were living together on their own. Again, relationships that were not lawful when they came into being would not be covered by the exception.

On care worker offences, the relationships of care are defined broadly, because we have listened to those with experience in the area and heard of the extent of abuse inflicted by those who provide a range of services to people with a mental disorder or learning disability. We have, therefore, included in the scope of the offences all those who, for example, provide care, assistance or services to a person in connection with his mental disorder or learning disability. That goes far

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wider than those who provide physical care in a hospital or other institutional setting, and also covers care provided in the home.

The exception, therefore, allows for the situation where two people are in a lawful sexual relationship. One of them develops a mental disorder or learning disability and the other then provides care to that person at home while maintaining a sexual relationship with him or her. I continue to think that it would be wrong to criminalise such a genuine relationship entered into between two people not in a position of trust or a relationship of care with each other when the relationship began. Our individual preference should not inappropriately criminalise what others may lawfully agree to do consensually.

Baroness Blatch: My Lords, I am very grateful to the noble Baroness, who has given a very full reply. But all the arguments that she has used—leaving aside that of the home carer—apply also to the case of a teacher who has a sexual relationship with a 16 year-old. I notice that the noble Baroness always refers to 17 year-olds. We are talking about 16 and 17 year-olds, so I will use the figure 16. A teacher who has a sexual relationship with a 16 year-old and who cannot profess to have had a pre-existing relationship before taking up the post would be criminalised. That is what the law says. It is what the Bill advocates.

However, a friend of the 16 year-old, in the same school—another 16 year-old—could be having a similar sexual relationship, but because they had a one-night stand the weekend before the teacher took up the post the case would not be caught as the couple could profess to have had a pre-existing relationship. Even the couple who lied about a pre-existing relationship, professing to have had one when they did not, would not be caught under the Bill unless it could be proven that they had not told the truth, which would be almost impossible to discover. It applies to all those cases.

Behind the amendment is the relationship between a professional carer and/or teacher and the person in his or charge. Are we saying that it is acceptable because it is a common occurrence among 16 and 17 year-olds? It does not shock me; I know that it exists. Is it acceptable simply because a teacher and the young person had a very cursory sexual relationship before the teacher took up the post? Would it not be more professional for that teacher and/or carer either to wait until the person turned 18 or to find a job in another school, or care establishment?

That is the argument behind my amendment. But the Government have set their face against that and are prepared to live with what I regard as the anomaly against the Government, not the anomaly that the Government have used against me for my amendment. In the mean time, I beg leave to withdraw my amendment.

Amendment, by leave, withdrawn.

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Clause 27 [Sexual activity with a child family member]:

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