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Lord Falconer of Thoroton: The noble and learned Lord, Lord Cameron, will be aware that Clause 23(5) applies where person A,

He will also be aware that Clause 24(3) states:

    "A person (A) looks after another person (B) on an individual basis if—

    (a) A is regularly involved in . . . training . . . B"

and that Clause 26(1) states that,

    "is not an offence . . . if, immediately before the position of trust arose".

I am loath to identify the precise moment at which the relationship of trust occurs, but certainly it can start before there has been an incident of teaching. Once it has become clear that person A is going to teach or train person B on a regular basis, then potentially the point at which the position of trust was established would have arrived. I think that it would be unwise to define it more precisely than that because it would depend on the facts of each individual case.

Baroness Blatch: I think that the noble and learned Lord, Lord Cameron of Lochbroom, has made a point in his remarks. Either person A would be committing an offence, in which case he would already be in a position of trust and therefore committing an offence under the Bill or—if I modify slightly my example of the same two people—where person A applied for a position having already struck up a relationship with person B, then of course the defence under Clause 26 would apply. I am rightly chided, I think, over the way I used that particular example. However, there is a choice to be made here. My noble friend Lady Carnegy made a very pertinent point. This is something about which the teaching unions are extremely concerned. We are referring here to sixth-formers. Sixth forms in schools tend to be close communities. If one sixth-form pupil is conducting an affair with a much older school teacher, and they claim a pre-existing relationship so that they benefit from immunity under Clause 26 if it remains part of the Bill, then there is an impact on other students in the school. Simply to say that the teacher should not teach the particular girl while she remains a sixth-former in the school, but that he should teach other children, does not resolve the difficulty.

The decent and honourable thing to do—indeed, as far as the school is concerned, it is what the teacher should do—is for the teacher to remove himself altogether from that position of trust. A choice is available to such people.

I remind Members of the Committee that if such relationships occurred only rarely, then I would not seek to make a further point to support my case for the removal of Clause 26 from the Bill. But I refer again to

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the Welsh case. A network of paedophiles was operating not only in north Wales, where young children were being passed around like parcels so that people could sexually abuse them, but also all over the country. Indeed, people from my own local authority sought jobs for themselves in that part of Wales because that kind of activity was going on. People in the paedophile networks will realise that they have a tailor-made defence under the provisions of Clause 26. They will manipulate circumstances so that a relationship is struck up before the position of trust commences. They know that they will be provided with immunity from prosecution beyond that point. The Minister is absolutely right that the relationship must be tested, but I return to the Welsh case because it is the most vivid for many of us. We all remember reading that dreadful report. That case went on for many years and the repercussions are still being felt in the lives of many people. Young people in that situation are extremely vulnerable. They are desperate to be loved. They will even allow the most awful things to happen to them because somebody is taking care of them and loving them—but at the same time seriously abusing and taking advantage of them. Those are the people we want to protect.

This does not do a disservice to people in the kind of relationship mentioned by my noble friend Lady Noakes and the noble Lord, Lord Monson. If we are about anything when we come to legislate, it should not be about giving an excuse to somebody who manipulates the system. Once Clause 26 is part of the statute, it could be manipulated by taking advantage of young, vulnerable people who will always profess to having had or being in a relationship prior to the abuse of trust position.

If Clause 26 goes onto the statute book and allows persons to take sexual advantage of vulnerable people, paedophiles will be completely free of any kind of offence. However, I do not intend to press my opposition to Clause 26 at this stage. The noble and learned Lord has been marvellous between the last time that we met and this stage. He has listened very carefully in respect of other clauses about which I was equally concerned and responded. I shall read everything said in this debate and hope that the noble and learned Lord will do the same. If nothing changes, I shall return to this matter on Report.

Lord Monson: Does not the noble Baroness agree that persons who are attracted to 16- and 17-year-olds are not, strictly speaking, paedophiles?

Baroness Blatch: The case that I have been making over and over again is that persons engineer sexual relationships with people much younger than 16—so that at 16, as in the Welsh case and one of the examples that I gave, the offender almost has a free rein and can be free of committing an offence.

Clause 26 agreed to.

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Clause 27 [Sections 18 to 22: existing sexual relationships]:

On Question, Whether Clause 27 shall stand part of the Bill?

Baroness Blatch: I was delighted to see the name of the noble and learned Lord associated with the opposition to Clause 27 and am mightily relieved that it will not stand part of the Bill.

Lord Monson: I realise that I am ploughing a lone furrow, in that I think that Clause 27 strikes the right balance as it stands and should not be deleted. That was presumably the view of the White Paper Setting the Boundaries and of the other documents mentioned in the Explanatory Notes. No doubt the noble and learned Lord will correct me if I am mistaken. I confess that I cannot remember what those different documents said about the clause.

We have been hearing from the media generally for months, if not years, and heard in earlier debates that a higher and higher proportion of young people are becoming sexually active at 13 or even earlier. I think that is deplorable, but there does not seem to be anything that anybody can do about it.

At the same time and perhaps consequentially, we are told that 16 and 17 year-olds are, to all intents and purposes, adults and should therefore be given the vote at 16. In this House, that proposal came from Conservative Back-Benchers but received support from all parts of the House—and many letters in the press in recent weeks have supported that idea. The Government seem to agree that 16 or 17 year-olds are de facto adults, as they used the Parliament Act to ensure that 16 and 17 year-olds of both sexes can now be legally sodomised by anyone not in a position of trust. That was against the wishes of the overwhelming majority of your Lordships on both sides of the House and the public—and against the wishes of a number of responsible homosexuals. That, despite the physical dangers involved and described so graphically by the noble Lord, Lord McColl, with his enormous medical expertise.

How strange then to demand up to five years imprisonment for someone in a position of trust—not a position of authority because an employer, office manager or foreman can get away with anything under the Bill—who perhaps merely kisses the younger person, as he or she may have been doing week after week or month after month prior to the Bill coming into force.

I realise that nothing that I say will change the Government's mind at this stage, but I thought that was worth saying none the less.

12.15 p.m.

Lord Falconer of Thoroton: I will briefly explain why we are not supporting Clause 27 anymore, which is entirely in line with my remarks about Clause 26. The abuse of trust offences are designed to protect children from being manipulated by the relationship of trust

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into what are ostensibly consensual relationships in circumstances where the genuine nature of the relationship must be in doubt.

As the rationale for these offences is to protect young people from being manipulated into such relationships, it follows that we should not make it a defence to a continuing sexual relationship that the manipulation occurred before it became unlawful. There is an option; namely, that the relationship of trust can be brought to an end. It is unlike Clause 26, where the start of the relationship was not the product of the abuse of trust relationship—whereas under Clause 27, the relationship would have been the product of the abuse of trust.

If Clause 27 stands part, the only reason for it not being unlawful would be if the relationship started before the Bill became law. It is very difficult to justify continuing the relationship after it becomes unlawful simply because it started before. For that reason, my name is added to that of the noble Baroness and we agree that Clause 27 should no longer stand part of the Bill.

My name also appears with that of the noble Baroness in relation to Clauses 32 and 51 stand part. Those deal with situations where a relationship or position of dominance is manipulated to start a relationship. That would have occurred before the Bill became law but continued after. The fact that the manipulation started before should not be justification for it continuing after the Bill becomes law. When we come to Clauses 32 and 51 stand part, I hope that we shall be able to deal with them as quickly as Clause 27.

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