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Lord Tebbit: My Lords, I hope that the Minister will understand that this is an example of the old adage

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that hard cases make bad law. Although we would not think for a moment that the provision would be abused, I do not like to think of someone coming along the road in some years, saying, "Well, there's a precedent", and introducing a similar clause into another Bill.

Lord Williams of Mostyn: My Lords, there are ample precedents. When the noble Lord was in government, I am sure that he never even dreamt of putting his hand to such a thing. The procedure is actually called the draft affirmative order procedure. I shall develop another observation made by the noble and learned Lord, Lord Mayhew. Under the Northern Ireland Act 2000, suspension and restoration orders are exercisable and were exercised last October in advance of parliamentary approval.

The point made by the noble Lord, Lord Tebbit, and the noble and learned Lord, Lord Mayhew, is correct. Other things being equal, we ought to do our utmost to have as full parliamentary scrutiny as possible. Casting no clouts at the House of Commons, I think that we can say without unduly unctuous self-congratulation that, in the Northern Ireland context, we rightly spend a good deal of time and trouble on discussing such difficult matters.

I think that I have dealt with the specific questions. I shall come back for one moment to explain the rationale, which we originally had by way of analysis, that the affirmative procedure was not necessary to reinstate elections. That was because we were returning to the citizens of Northern Ireland something taken away from them. The normal criticism of government and delegated powers on a Henry VIII basis is that one is taking things away from the individual. That was our stance, and I do not think that it was illegitimate. Having had many representations from noble Lords around the Chamber, I thought it reasonable to come to that conclusion.

It is true that the concessions might have been made late last evening in the House of Commons, but noble Lords will concur that we have a much more civilised atmosphere in which to have rational debate. I know that that comment will not appear in Hansard. We have drafted rather quickly, and full tribute goes to parliamentary counsel and the officials in the Northern Ireland Office, because we had to work quite hard to get the provisions in appropriate form.

Lord Brooke of Sutton Mandeville: My Lords, I indicated that I was uneasy about the second amendment. My noble and learned friend Lord Mayhew, and subsequently my noble friend Lord Tebbit, were much more explicit. Am I correct in understanding from the answer that the Minister gave to my noble and learned friend that the election could almost be concluded before Parliament had the opportunity of passing the affirmative resolution? That was fundamentally what caused the unease in the Select Committee.

Lord Williams of Mostyn: My Lords, certainly that is theoretically possible, although the margin—28 days—would be very tight. However, I would not regard it as a proper way of conducting ourselves if the Secretary of

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State made an order and, on the 27th day, with the election campaign having virtually concluded itself, then came to Parliament. That would not be a proper way to approach matters.

I constantly remind myself and my colleagues that resolutions may well go through the House of Commons with a large majority, but the recent death rate in this House means that I now have 27 per cent of the available votes, not 28 per cent. If principle does not work, arithmetic may do. However late it was, noble Lords could reject something. I am not inviting them to do so, but if they thought that the behaviour of the Government had not been decent and honourable, they have the sanction. I do not think that we shall come to such apocalyptic days, because there is no purpose in our volunteering to come forward with amendments if then we do not abide by their decency and spirit.

A number of noble Lords said that the elections had been put off until 31st December. No, my Lords, no. They must occur before 31st December. We would prefer the autumn, if possible. The Government will not have the open-ended mandate, as it were, identified by the committee of the noble Lord, Lord Dahrendorf, because there will have to be an extension of up to but not exceeding six months, and that will have to be by affirmative procedure of both Houses.

By and large I hate to be optimistic, but I detect a vague feeling of agreement. On that basis, I shall sit down.

On Question, Bill read a second time, and committed to a Committee of the Whole House.

Sexual Offences Bill [HL]

5.6 p.m.

The Minister of State, Home Office (Lord Falconer of Thoroton): My Lords, I beg to move that the House do now again resolve itself into Committee on this Bill.

Moved, That the House do now again resolve itself into Committee.—(Lord Falconer of Thoroton.)

On Question, Motion agreed to.

House in Committee accordingly.

[The DEPUTY CHAIRMAN OF COMMITTEES (Baroness Thomas of Walliswood) in the Chair.]

Clause 54 [Paying for sex with a child]:

Baroness Noakes moved Amendment No. 290:

    Page 25, line 18, after "intentionally" insert "or knowingly"

The noble Baroness said: I shall speak also to the other amendments in the group. Amendment No. 290 inserts "or knowingly" into Clause 54(1), so that the offence of paying for sex with a child is committed if a person either intentionally or knowingly obtains for himself the sexual services of a child. The other amendments do the same for the other offences in Clauses 55 to 59, which deal with prostitution and child pornography.

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The amendment was suggested to us by the Metropolitan Police, which has provided very helpful briefings to a number of noble Lords and suggestions for several parts of the Bill, all based on its thorough professional knowledge of the subject matter. The Metropolitan Police says that it can often prove, through painstaking investigation, that a person had knowledge of prostitution and was gaining financially, but that it may be more difficult to prove intention—the state of mind of the person.

The example that the police pose is of a pimp who says that he knew that a person was working as a prostitute, but that he did not intend that to happen. Would he get away with it under the offences? They tell us that that is not fanciful, and say that pimps are likely to make such statements. For example, a man drops a woman off in a red-light district, goes home and waits for her to return with the money. He says that he knew that she was working as a prostitute and giving him money, but that she wants to do it. It was not his intention for her to do it. The Minister looks sceptical, but that is what the police have told us.

The police's concerns were in particular in relation to the prostitution offences—those in Clauses 55 to 59. I have also added "knowingly" to Clause 54, possibly unnecessarily, but for good measure in case there were people who might say that they knew that they were paying for sexual services with a child but did not intend to do so. I beg to move.

Lord Falconer of Thoroton: The noble Baroness puts the case very clearly. I find it quite difficult to see how the activities covered in the relevant offences could in practice be committed knowingly without being committed intentionally. For example, is it really likely that a person who knows that he is obtaining sexual services for himself in return for payment will not be intending to obtain sexual services? That is perfectly easily dealt with. Similarly, is it likely that a person who knowingly controls the activities of a prostitute will not be intending to do so? Again, I find that quite difficult.

The only situation in which I can conceive of a person having the requisite knowledge but not the intention is where he is not acting with free will. For example, where a person makes his house available for prostitution as a result of a threat, he would knowingly be facilitating prostitution, but he would not intentionally be facilitating it. But such a person should not face criminal liability, especially criminal liability carrying high penalties.

However, I will think about the examples given by the noble Baroness. I say that without giving rise to any expectations. Subject to considering the examples, our present view is that not much would be added to the existing offence.

Baroness Noakes: I thank the noble and learned Lord for that reply and for being prepared at least to think about the matter further. In turn, I will consider carefully what he has said, in particular whether one

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can control without knowing about the matter. That is a satisfactory basis on which to proceed and I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

The Lord Bishop of Portsmouth moved Amendment No. 290A:

    Page 25, line 23, leave out "either"

The right reverend Prelate said: I shall speak to the amendments in two groups because they are not specifically related. I shall speak first to those in the 290s and then to Amendment No. 303A and those following.

I begin by acknowledging the great progress that the Government have made in advancing recommendations made in the sex offences review Setting the Boundaries. Clauses 54, 55, 57 and 59 comprehensively set out in law for the first time the range of offences related to the abuse of children through prostitution and pornography. The proposed offences properly acknowledge that all children, as defined by the United Nations Convention on the Rights of the Child and the Children Act 1989, up to the age of 18 are victims of abuse. In this respect, I wholeheartedly welcome these clauses.

However, as it stands, Clause 54 makes a set of distinctions in relation to the age of a child who has been abused which I regard as flawed and to which I fundamentally object. The clause proposes that in cases involving under-16s, the maximum sentence available to the court should be imprisonment of 14 years. However, for cases involving 16 to 17 year-olds, the maximum sentence available to the court would be seven years regardless of the particular circumstances of the case.

I submit to the Committee that such distinctions do not reflect the reality of the lives of children who are abused in this way. The age limit seems to me to be arbitrary. It is difficult to gauge things at that particular age in the development of growing children/adults.

The clause as it stands appears to establish a blanket assumption in law that in all cases the gravity of the offence and the effects upon the child are lessened where the child is over 16, whatever the evidence or the circumstances of the crime committed. Research evidence produced by, among others, the Children's Society and Barnardo's demonstrates the highly complex range of factors that can result in the abuse of children in prostitution. For many children, problems may have begun very early on in their lives that have led to them presenting a high level of vulnerability. We must remember that vulnerability at any age is identified and targeted by abusers.

Although the offence may have been committed when the child was 17, the child's engagement with abuse through prostitution was more often than not begun at a much earlier age. I am not suggesting that the defendants in cases involving 16 to 17 year-olds should be held responsible for previous incidents of

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abuse of a child. However, I ask Members of the Committee to consider in this respect that the effects on the child and the seriousness of abuse cannot be so strongly, and in my view arbitrarily, linked to age. Control and coercion begin at a much younger age and most 16 to 17 year-olds will have been conditioned into a lifestyle of sexual exploitation which means that they are not able to make informed choices whether they are 13 or 17 years of age.

That brings me to the question of a link between the age of consent and the distinctions in sentencing that the clause makes. The lower maximum sentences that are available to the courts for 16 and 17 year-olds imply an assumption that the child being old enough to consent to sexual intercourse is relevant to the offence of paying for sex with a child. The suggestion is that on some level the child can consent to his or her involvement in prostitution. I simply do not believe that this approach is consistent with that set out in Setting the Boundaries. The House must acknowledge that this perception of children's involvement in prostitution is an outdated one which the Department of Health has sought to address in its 1999 guidance to local authorities setting out how they should treat children as first and foremost in need of protection and support. This came about as a result of campaigning by organisations such as the Children's Society.

Such guidance has resulted in better responses to children abused in this way and a decrease in the number of proceedings taken against children and young people. But the situation lacks consistency across the country. Children are still liable to prosecution related to their abuse in this way through existing offences in the Sexual Offences Act 1956 and the Street Offences Act 1959, which this Bill does nothing to address.

Latest Home Office figures show that in 2001 there were eight cautions, 14 prosecutions and six convictions of children under the age of 18 under Section 1 of the Street Offences Act 1959. The majority of those children had been between the ages of 16 and 17. We have a duty to protect 16 and 17 year-olds and I am concerned that the clause as currently drafted falls short of this need and sends out the wrong message to abusers. I am also concerned about the possible abuse of the distinction the clause makes by the defence in trying to secure a lesser sentence by arguing that the child was believed to be over 16. I seek the Minister's reassurances on that.

To some extent, Members of the Committee have already looked at this matter in earlier debates on the clauses relating to the sentences of care workers, when the need for the application of the principle of proportionality was highlighted. I agree that there is a need for sentences to be proportionate to the offence that has been committed and for the circumstances of the case to be fully considered. However, I am concerned that as the clause is currently drafted sentencers will be prevented from matching the offence to the sentence by the arbitrary bar being placed on the maximum limits according to age distinctions. As legislators, surely we must aim to set broad parameters

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that are reasonable and workable, based on evidence, and leave it to the Lord Chief Justice and the judiciary to decide on the length of sentence they believe to be appropriate.

These amendments would ensure that the judiciary have at their disposal the power to give sentences of up to 14 years where a person is convicted of paying for sex with a child. These amendments are supported by the Children's Society, Barnardo's, Childline and the NSPCC. I beg to move.

5.15 p.m.

The Earl of Listowel: I support the amendments standing in the name of the right reverend Prelate and myself. I, too, will address my comments first to the 290s and latterly to the 300s. I strongly support the principle of the amendments. I believe there should be no less protection for 16 and 17 year-olds than for under-16s.

Some while ago, I was at a shelter for homeless young people between the ages of 16 and 23 and I saw a young girl speaking with her neighbour in the dining area. She was talking about her visit to Ibiza and about the dancing, the sex and the drugs involved. Later I spoke to the volunteer worker who sat next to her. He described to me how she had had her leg very close to his as she had been describing those incidents.

I remember another time when a young woman wanted to ask my advice on laundry. She held up an undergarment made of leather with steel studs and asked my suggestions for cleaning it. When I looked at the garment, it clearly stated "dry clean only". I discussed this later with another staff member. He had had an identical conversation with a girl about this matter.

My point is that young girls who have had very poor experiences in the family and perhaps later on in care often try to find a way to add value to their lives by securing the sexual attention of adults. I certainly believe that we must do all we can to protect those children against being used by adults. Any child making the transition from adolescence to adulthood may lose his or her way. That could happen even to one of your Lordships' children. We all know that the transition from adolescence to adulthood is a difficult time. We need to be as protective of these children as we can.

In addition, we need to be aware of the health risks involved. This matter was very much brought home to me recently by visiting sufferers of HIV/AIDS. One man had experienced the disease for six years and had lost his wife through HIV/AIDS. Another young woman had lost her child the previous week from AIDS. That brought home to me the risks associated with sexually transmitted infections, in particular HIV/AIDS. We know that incidences of many of these infections are now rising. Experienced sex workers are normally aware of the risks and take the necessary protections. Newcomers are less likely to be prepared, in particular children. At the moment when the client and the girl have to negotiate practising safe sex and

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the use of a condom, immaturity and inexperience puts children at a considerable disadvantage. Those are my concerns. I look forward to the Minister's response. Finally, on the latter group of amendments I should also welcome his making clear how he intends to implement the legislation to make it effective.

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