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Lord Williams of Mostyn: Clause 3(5)(b) provides that preparing a person to engage in sexual activity with him at a later stage will only fall within the definition of "sexual activity" if the preparatory acts are themselves sexual in all the circumstances. Therefore, what I am saying is that the Bill will catch some activity, but the amendment, as drafted, will not do the work that the noble Baroness wants it to do.
Lord Williams of Mostyn: I could be right and I could be wrong. But I believe that the summary and conclusion by way of definition of the legal consequence, first, of the Bill and, secondly, of the amendment, is correct.
I turn now to the fifth category. Our offence is to deal with the abuses of a position of trust where a young person is especially vulnerable. I recognise that this is a matter of judgment. When one looks at Sir Ronald's report, it is not unreasonable to describe that collection of childcare establishments as our equivalent of the gulag archipelago. But no one wanted to know about the archipelago and no one recognised that it was a gulag, in other words, young children away from effective remedy.
I believe that qualitatively--I put this as a serious point which, I hope, may resonate with the Committee--the situation is different. I agree with what the noble Lord was saying. If one is abused but can go home at the end of the day that is different to that feeling of utter abandonment which we know perfectly well is what typifies those in residential care homes. What is done to people who can go home at the end of the day is wrong, but I believe that it is different in consequence and practical outcome to those people in full-time care.
Our offences are particularly designed to try to deal with the mischief which I have tried to identify. In the situations that we set out, the older person will be treated as being in a position of trust if he or she "looks after" the young person; that is, regular involvement in caring for, training, supervising or being in charge of the young person. Under the proposed amendments, a member of staff at one of the institutions I have mentioned could be liable even if he or she were not regularly involved in caring for, training, supervising or being in charge of the young person. In other words, the liability in law would arise because that person worked at the institution and had engaged in sexual activity with the young person, and not because he or she had been in that caring relationship of trust.
I recognise that this is a matter sometimes of quite fine judgment but I suggest that that is different. After all, a member of staff in one of these institutions could be 18 and the person with whom he had sexual activity could be 16 or 17. In that situation there would be no true relationship of coercive trust. That really is the point. What matters is the coercion of circumstance and power, not the coercion of simply being a member of staff. We need to bear in mind that many acts would in any event be caught by the criminal law. If there is no consent, the law protects. We have to bear that in mind. We believe that the liability should be based on the abuse of the relationship of trust.
As far as concerns social care workers, in order for the older person to be treated as in a "position of trust" a condition is that he or she "looks after" the young person. I think that we have that balance right. "Looks after" is defined in the way that I suggested a few moments ago. Many of those who could be classified as "social care workers" would already be caught by the provisions of the Bill; for example, those regularly caring for someone under 18 in a children's home or residential care home. But not all those who could be called "social care workers" should be caught. I repeat: this is a matter of judgment. We believe that one should focus on the real mischief that was identified by Sir Ronald. The real vice comes because there is an element of the young person being in the care of someone. That young person's consent becomes meaningless because the consent, notionally, is overborne by the fact, first, of the relationship and the breach of trust; and, secondly, because the young person has no one else to whom to turn.
If a social worker simply visits a young person of 16 or 17 resident at their own home and a sexual relationship develops, we believe that that should be dealt with by the General Social Care Council in England or the Care Council for Wales under the Care Standards Act 2000.
Social services inspectors are caught by the amendments. I know that that is done for good motive, but they should not be caught simply because they are inspectors. They should be caught if they abuse any position of trust with a young person. Not all social services inspectors would be in that category. I say as carefully as I may that we should not categorise all behaviour of which we disapprove with this kind of wickedness and the true desperation that is brought about by the illustrations in the Waterhouse report.
The question of youth groups may conveniently tip over into the question asked by the noble Lord, Lord Elton, about mentors. The noble Lord rightly pointed out that mentors may be of a very wide category indeed. I think again that one is trying to attack here the vice of abuse of trust. I hope the noble Lord will agree with me on the basis of our general experience that not all mentors will be in that situation.
Perhaps I may reassure the Committee. I do not believe that the case is made out at the present time for the inclusion of youth groups in the scope of the new offence, but I am happy to say that we will keep the matter under review. I ask the Committee to cast its eye over Clause 4(1) of the Bill. It states that,
I was not quite able to understand--it is my fault--the thinking behind Amendments Nos. 21 and 22. If one adds "normally" as is proposed in Amendments Nos. 21 and 22, the noble Baroness will produce an outcome contrary to that for which she is looking. I find it difficult that the amendment seeks to restrict the protection of children to those who are normally resident in a home as opposed to those who may on some occasions reside in such a place. I know from my own experience in the Waterhouse context that some very difficult children could not be dealt with in one home and sometimes they resided in homes for quite a short period of time. If one adds "normally" one will produce the unintended consequence that the protection may well be removed. I do not believe that that is what the noble Baroness wants. It may be that I have misunderstood the thrust of the amendment. But that is how I construe it.
Lord Carlisle of Bucklow: I apologise to the noble and learned Lord because I entered the Chamber in the middle of his remarks. Over the past 12 months and more, the Criminal Injuries Compensation Board has seen many of these cases. They are, as the noble and learned Lord stated, disturbing. I agree with him that the most serious point of all is that the young people are abused in a home where they have been required to go by the order of a court. We have put them there for their care and protection and those who are supposed to be protecting them have themselves abused them.
The other serious issue--I know this from the cases that I have seen--is that when they complained their complaints were not listened to and were often totally ignored. They were then told to go back and carry on as before. I accept the strength of the noble and learned Lord's argument, but is he saying that because it is vital that there should be protection in that area one should not look at these other areas as well; or is he saying that it is the intention of the Government, through the power in the following clause, to widen it to other areas which may not have the same individual features as those who are in charge of a community home but who, nevertheless, are in a position of trust over the children at the time that they are in their care?
Lord Williams of Mostyn: I am most grateful to the noble Lord, Lord Carlisle of Bucklow. Perhaps I may make two points. Neither of them is intended to be a forensic or debating point. The first point reinforces the general case that I was making. When the noble Lord served with such distinction on the Criminal Injuries Compensation Board, as it formerly was, that meant that the criminal law had sanctions. The noble Lord's authority could not have compensated without a criminal offence having been committed. That is not a full answer but it is a distinct answer; and it is an important answer from the public's point of view--that our law is not without weapon and strength.
The Lord Bishop of Winchester: I should like to take up two points from among those raised by the noble Baroness, Lady Blatch, and by the Minister. The first point may assist the Minister, while the second seeks to establish whether he needs to keep on making the distinction around the area of the fifth condition.
I was attracted to Amendment No. 17, but I could see the point being made by the Minister in his response. However, his argument might have been strengthened if he had referred to Clause 3(5)(a) rather than only to 3(5)(b). Subsection (5)(a) makes exactly the distinction that the Minister intended, thus making the point that it would behard to bring in "grooming"--such as sharing a box of chocolates or a new pair of trainers--within the meaning of the Act because that would covered by the words,
Perhaps I may go on to ask why the Minister and the Government, while they are very properly determined to work at the questions concerning young people in care--in the broadest sense--are apparently so unwilling to move on to the areas covered by these amendments? Those concern the "family" in the widest sense, voluntary organisations--including churches and religious organisations, which have quite properly been included in Amendment No. 26. The Minister referred to Clause 4(1) which makes provision for the Secretary of State to bring in by statutory instrument other conditions laid down in the Bill. However, why should he be determined to do that only later? He seems reluctant to take action at this point. I feel that there is only too wretchedly ample evidence that terrible things have happened to children and young people in care. Thus his distinction between those wholly in the care ofothers and those only partly in such care, with the chance to go home, does not seem to me to be a distinction of the power, clarity and necessity that the Minister obviously wishes the Committee to accept.
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