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Baroness Jay of Paddington: I hope that my noble and learned friend did not misunderstand me. I find Amendment No. 74 extremely helpful. As he says, it goes beyond health professionals in a way which I am sure will be useful. I am concerned only by what may be a practical tension between Amendment No. 74, if

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agreed by the Committee, and the remaining inhibitions about something being a statutory criminal offence even though the people dealing with it are exempted in this way.

Lord Falconer of Thoroton: I understood that and I hope I have made clear the kind of circumstances in which it would be appropriate to use the criminal law. I hope that in practical terms there will not be that tension.

3.45 p.m.

The Earl of Listowel: Can the Minister explain to the Committee what form of assessment he would expect to take place if there were prosecutions under this particular part of the Bill? Does he expect that a psychologist would be involved to consider the level of learning development of the child? Perhaps the details may wait until we debate Clause 14, but it would be helpful at this point if the Minister could advise the Committee on how he sees assessment coming into practice under this part of the Bill.

Lord Falconer of Thoroton: I believe the question is directed to those cases in which a person aged 16 years or under is prosecuted in this regard. The issue of young people who sexually abuse or commit sexual crimes is complex. In the past it has not received the focus and attention it should. Young people who sexually abuse are a diverse group. Many may have been victims of sexual abuse or may have witnessed domestic violence. In addition, we know that a large number may also have learning difficulties and some may have mental health problems. So there is a real need to address the problems which have contributed to the offending, including providing any specialist intervention that may be required.

As this area has been neglected in the past, there seems to be a lack of knowledge and expertise about how to deal with such young people, including the kind of assessment and treatment methods which are most appropriate. Various bodies within the family of government are considering this issue. The Home Office and the Youth Justice Board have set up an interdepartmental working group with the Department of Health and the Department for Education and Skills to consider the whole issue of young people who sexually abuse. The group has covered a number of areas where further improvement is needed.

Baroness Howarth of Breckland: I thank my noble and learned friend for giving way. Having been involved 10 years ago in the work initiated by the NCH and then with the Department of Health following the report on children who abuse other children, I am deeply concerned that any work that is undertaken now is carried through. As the Minister explained, this is an offences Bill rather than a welfare Bill. There are real difficulties about getting on to the face of the Bill which kind of assessments and treatment programmes

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would work. There is a large amount of knowledge among professionals about what would work, but that is re-examined on every occasion.

Lord Falconer of Thoroton: I agree with the comments of the noble Baroness. It is not appropriate to put on to the face of the Bill how we deal with the problem of a sexually abusive child or young person. I appreciate that this does not bring much comfort, but the problem is recognised. There are gaps in our knowledge and in the approach that we take. There are also gaps in particular parts of the country and in the kind of help available. We need to consider how we fill in such gaps. That is what we are seeking to do.

There must be a twin-track approach; that is, clarity as regards what is the criminal law but also a commitment to deal with the problem much more widely than simply by considering the criminal law. I always feel that when dealing with a criminal offences Bill, the other part of the story tends to become lost. However, I am glad that the noble Earl has given me an opportunity to describe the other side of the process, perhaps more fully than I would have done otherwise. I have also indicated that there are gaps and problems that we need to look at. I am sorry to have talked for so long, but it may help later on.

We are consulting practitioners and experts in the field to help inform the inter-departmental working group. It will report to Ministers later this year; but how much and how quickly we can continue to improve work with this group will depend on resources—in particular the outcome of the next spending review.

Lord Skelmersdale: It occurs to me that the noble and learned Lord relied, both in his wind-up on Second Reading and today, on the good sense and discretion of the CPS. Is that entirely satisfactory? I understand exactly what he said about the difficulties of getting the right words into the Bill. However, I hope that when he comes to look at this with his advisers and perhaps other noble Lords, he will bear that in mind, because it does not seem to be satisfactory.

Lord Falconer of Thoroton: I understand the point. It is difficult to deal with, save on this basis—there has to be a clear criminal offence. One cannot have something that seems to reflect shades of grey. It has to be clear what is criminal. As there needs to be that criminal offence available for an appropriate case, to some extent one has to trust to the good sense of the police and the prosecutors.

Baroness Blatch: I hope that the noble and learned Lord's reputation will not be damaged by my saying that I am pleased that he is going to resist the amendment. First, the amendments in effect legalise all consensual activity between people under 18, which would otherwise be caught by an age of consent offence under Clauses 9 to 13. It would also almost completely abolish the age of consent. It would

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therefore remove key protection for children, which the Government have recognised in devising the clauses for this Bill. The other amendments would leave cases to be dealt with under Clause 1—that is regarding small children. It would mean that children would have to go into the witness box to be cross-examined, which they are protected from under other provisions in the Bill, on whether they consented to sexual intercourse with an accused person under 18. It would become one of the central aspects of that trial. There could be quite an aggressive procedure for eliciting whether the child either gave consent or even understood what that meant. If the child did consent, then the case would have to be dismissed with no case to answer, because that would be the whole point of the trial. Under the present law, that is thought to be unacceptable.

The Minister will argue that the Government have recognised that in the Bill. Under the amendments a 17½ year-old who repeatedly had sex with an uncomplaining 12 year-old could not be prosecuted. Clauses 1, 3, 5 and 7 cannot be used, because they all require proof that the victim did not consent. He could continue with impunity, as long as she indicates her consent. The evidence is that a considerable amount of child abuse is carried out by young people.

Finally, a 17½ year-old who brutally and repeatedly sexually assaults a seven year-old, should be liable to the same penalty as an 18 year-old who does the same thing. Under the Liberal Democrat amendment the 17½ year-old would face the maximum sentence of five years in prison, and the 18 year-old would face life imprisonment. There is an inconsistency.

Whatever else we do, we should continue to keep the key protection for children, which the Bill, as it stands, provides.

Lord Campbell of Alloway: I support the carefully considered speech of my noble friend. I wholly agree with the Minister that there has to be a criminal provision. It seems to be common ground that there are gaps that have to be filled. Could the Lord Chancellor's Department, in consultation with the Home Office, provide a paper for this House to consider how those gaps can be filled? It is only an idea. Does it attract the Minister?

Lord Falconer of Thoroton: Yes, I will certainly consider it. We have tried in the Bill to provide, as it were, a seamless series of criminal offences that cover everything. The gaps that I referred to in my response to those behind me were the gaps in provision on a public service or other basis for those children and young people who do sexually abuse. Could the state take any measures? I understood that the request of the noble Lord, Lord Campbell of Alloway, related to the legal gaps in criminal law provision. I could certainly agree to provide that, but I do not think that it would

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be the Lord Chancellor's Department, I think it would be the Home Office and the Department of Health. Let me see what I can do that might help.

The Earl of Listowel: I thank the noble Lord, Lord Campbell of Alloway, for his helpful suggestion. If the Minister was prepared to do that, I would certainly find that most helpful.

Lord Carlisle of Bucklow: The noble Baroness, Lady Walmsley, in moving this amendment, limited her remarks to Clause 2 and the rape of children under 13. I understand what my noble friend Lady Noakes has said and the position taken by the Opposition—and what the Minister has said.

However, I notice that two other amendments are being taken here—in particular Amendment No. 31. That deals not with a clause that defines rape, but with Clause 6 dealing with a sexual offence with a child under 13. It states that a person commits an offence if he intentionally touches another person, if the touching is sexual, and that other person is under 13. Are we really sensible to legislate to make it an offence for a child of, say, 14 or 16 to touch sexually another child who happens to be under 13? I can totally appreciate my noble and learned friend's views on Clause 2 and those of the Government. However, what is meant by "a sexual touching"? Is a kiss a sexual touching? Is a pinch of the bottom a sexual touching? Are we really sensible to legislate to a degree that we are making an offence for any child to pinch another child's bottom, without at least putting some restriction that it should not apply if done by a young boy under 16? It should not be a criminal offence.

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