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Lord Bassam of Brighton: There is very little for me to say in reply. However, I should like to confirm the two points made by the noble Lord, Lord Brennan. We are consulting on shortening the period from eight days to three days. We are also very urgently reviewing the issue of offences committed abroad and their applicability to the sex offences register.

I am most grateful to the noble Lord for his support. As he said, this amendment will sharpen up the clause in the way that he outlined. I commend the amendment to the Committee.

On Question, amendment agreed to.

1 Apr 2003 : Column 1235

Lord Falconer of Thoroton moved Amendment No. 74:


    Page 6, line 24, at end insert—


"(1A) A person does not commit an offence under this section if—
(a) he arranges or facilitates something that he believes another person will do, but that he does not intend to do or intend another person to do, and
(b) any offence within subsection (1)(b) would be an offence against a child for whose protection he acts.
(1B) For the purposes of subsection (1A), a person acts for the protection of a child if he acts for the purpose of—
(a) protecting the child from sexually transmitted infection,
(b) protecting the physical safety of the child, or
(c) preventing the child from becoming pregnant,
and not for the purpose of causing or encouraging the activity constituting the offence within subsection (1)(b) or the child's participation in it."

The noble and learned Lord said: Many of the offences in the Bill are designed to protect children from those who seek to abuse and exploit them. We have no wish to interfere with the work of those who seek to protect young people from pregnancy and sexually transmitted disease. Under existing law, we believe that such people will not be viewed as aiding and abetting a criminal offence while working within professional or agreed policy guidelines.

It was firmly established by the House of Lords in the case of Gillick in 1986 that a doctor exercising his bona fide judgment about what he honestly believes to be in the best interests of his patient would not be criminally liable if he prescribed contraceptives for a girl under 16 years of age. That judgment would provide a defence to anyone who was acting within the guidelines it establishes, known as the Fraser guidelines, and giving legitimate contraceptive or sexual health advice to a young person under the age of 16. This will apply to doctors, other health professionals, and anyone exercising his or her bona fide judgment within the Fraser guidelines to provide legitimate contraceptive and sexual health advice and treatment.

I listened very carefully to the significant number of people who have made representations to me in recent weeks about the concerns that still exist, and the fear that people will be deterred from providing advice and treatment to children under 16. I am sympathetic to those concerns. We have come to the view that the matter needs to be settled by clear statutory provision.

A statutory exception needs to provide protection from prosecution for the offences of aiding, abetting, or counselling, the offences that cover sexual activity with children—the child sex offences, the familial child sex offences, the abuse of trust offences, the offences relating to those with a mental disorder or learning disability who are children, and the specific offences relating to sexual activity with children aged under 13. The exception also needs to cover the offence of arranging or facilitating child sex.

I am of the firm opinion that we need to draw the exception more widely than the Gillick case, to provide protection for people other than doctors and health professionals who should be able to act in the best

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interests of a child without fearing prosecution—for example, parents, teachers and voluntary youth workers.

Government Amendments Nos. 74 and 375 will make it absolutely clear, in statute, that those who act with the purpose of protecting a child from sexually transmitted infection, protecting the physical safety of a child, or preventing a child from becoming pregnant, are not liable to prosecution so long as they do not act to cause or encourage the sexual activity to take place. I believe that the provisions we are making provide effective protection for those who are genuinely acting in the best interests of a child, but they do not protect anyone whose actual purpose is to bring about the commission of the child sex offence.

I am most grateful to the noble Baronesses, Lady Noakes and Lady Walmsley, and to the noble Lords, Lord Astor of Hever, and Lord Thomas of Gresford, for tabling Amendments Nos. 75, 459 and 78. These amendments would introduce an exception to the offence at Clause 15 of arranging or facilitating a child sex offence, and to the making of a risk of sexual harm order, where someone is involved in the provision of sex education, sexual health advice, or contraceptive services for a child under 16. However, I cannot accept the amendments as they stand. As I explained, they are not drawn widely enough to provide the protection from prosecution that is sought in relation to the offences in Part 1 of the Bill.

The risk of sexual harm orders will be made only where a person has actually, on at least two occasions, carried out one of the acts listed in Clause 110(3) and there is reasonable cause to believe that it is necessary for such an order to be made for the purpose of protecting children. In view of these criteria, I cannot see how someone who was acting in the best interests of the child could ever be the subject of one of these orders. Therefore, I consider it unnecessary for the exception in this context. I beg to move.

Baroness Noakes: I thank the Minister for introducing his amendments. As he said, they respond to a number of concerns expressed to him regarding those involved in sex education, the provision of sexual health advice, and contraceptive services. Had the Bill remained as originally drafted, there would have been a danger that those who have never accepted the Gillick judgment could have used this Bill to make life difficult for those providing advice to young people.

Several questions arise as a result of the Minister's amendments. Can the noble and learned Lord clarify the position of a person providing sex education or information to a child who then goes on to commit an offence under the provisions of Clauses 9 to 14? Further, does the provision of sex education always fall within the "protection of the child"? If it does not, can the Minister tell us what would not be included? In all the circumstances, I am unsure whether sex education or information would fall within the terms of protection from sexually transmitted infections, protecting physical safety, and the prevention of pregnancy provisions. We need to be absolutely clear that matters covered by sex education would fall

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within that category. If the Minister's response to that is positive, my much more modest Amendment No. 75 will be superseded.

I heard what the Minister said in respect of Amendment No. 459, which relates to sexual harm orders. I toyed with degrouping this amendment in order to discuss it later tonight, but I have allowed it to be dealt with now in the interests of speeding up the proceedings. I understood the Minister to say that it would be unlikely that a risk of sexual harm order would be taken against such a person. However, the provision of sex education and contraceptive advice would fall within paragraphs (c) or (d) of Clause 110(3). We would not want the people who provide such advice to fall unwittingly within the basic criteria, which could trigger an application for a risk of sexual harm order. That is the reasoning behind the tabling of this amendment. I look forward to the Minister's response.

Baroness Walmsley: I very much welcome the Government's amendments, which I believe move us in the right direction. However, my worry is that they may be a little overcomplicated in that they are too prescriptive. I fear that they may trap someone who, with the best of intentions, may be advising a young person, say, about the emotional side of sexual relations, which is not listed in the purposes specified in Amendment No. 375.

My amendment would protect not only teachers and health professionals but also bona fide non-professionals, and workers employed by agencies such as the Brook Centres, which provide sexual health advice and distribute condoms to young people. Such people have expressed considerable concern about whether they would be trapped by the provisions of the Bill while going about their bona fide work. Although they are not health professionals, they provide a valuable service, supervised by professionals working for a competent and well-regarded organisation. Can the Minister reassure both myself and those agencies that, under his amendment, they would not be liable for prosecution if they continue with their valuable work in the best interests of young people?

Increasingly, in order to reach out to those young people most at risk of unwanted pregnancy, AIDS and other sexually transmitted diseases, agencies such as Brook and the FPA have to take part in outreach programmes, meeting youngsters in their home environment—such as clubs, community and youth groups, and even on the streets. Young people working in their own communities are often the most acceptable to the young in providing such services. It would be a tragedy if such work had to be curtailed. Perhaps the Minister can reassure me and people from agencies like the Brook Centres.


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