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Baroness Noakes: My Lords, I support the amendments tabled by my noble friend Lady Blatch. I shall also speak to Amendments Nos. 135, 139 and 140, which stand in my name and that of my noble friends Lady Blatch and Lord Astor of Hever. Like my noble friend Lady Blatch, I continue to believe that a position of trust arises through the existence of a specified relationship regardless of its duration. Whether we are talking about vulnerable young people or mentally disordered people, they may trust a person in a certain position however long that person has been in the position.
Why regularity other than some other indication of substance was chosen seems obscure. Indeed, on care worker offences, the Government accepted that abuse could take place at the first time of meeting someone with a mental disorder. The possibility of abuse derives from the position of the abuser, not how long or how often the abuser sees the vulnerable person. I struggle to see the logic of the Government's position.
When the Minister dealt in Committee with the corresponding amendments relating to the abuse of trust, he gave the example of a nurse who looks after a 17 year-old during a one-day stay in hospital. He asked if there were to be no allowance for a relationship to occur after the stay in hospital ended. He seemed to conclude that abuse of trust offences would apply if "regularly" were omitted. But as I read the offences under Clauses 18 to 22 the position of trust must exist at the time of the sexual activity. So if a sexual relationship takes place after the position of trust ceases to exist, there is not a problem in relation to the abuse of trust offences.
The Minister, giving an example relating to care workers, said that the case of a person providing any service, such as a shop assistant or a taxi-driver, would be caught. But those people, if not employed by a care home or hospital, would be care workers only by virtue of Clause 47(4), which requires the services to be provided "in connection with" the person's mental disorder. I cannot see that shop assistants and taxi-drivers are within that category.
We see it as a simple issue. Has a vulnerable person been sexually abused? If so, was that abuse carried out by someone who had access to the vulnerable person through a position that gave some power, authority or other status in relation to that person? If so, an offence has been committed regardless of whether it was the first encounter or one of many. I hope that the Minister will reconsider his position.
Lord Rix: My Lords, Amendments Nos. 135, 139 and 140 seek some measure of accountability towards a vulnerable person, which would enable us to distinguish the additional responsibility and hence the culpability of a care worker rather than an ordinary citizen. That explains the requirement of regular contact. However, one incident involving someone in a one-off support role can do a lifetime's damage. I can
Lord Falconer of Thoroton: My Lords, the purpose of Amendments Nos. 88, 89 and 90 tabled by the noble Baroness, Lady Blatch, is to remove the word "regularly" from the definition of what counts as a position of trust. At present, a position of trust is defined as one where an adult is regularly involved in caring for, training, supervising and/or being in sole charge of a child or children.
The primary purpose of the offences is to provide protection in criminal law for young people over the age of consent who are considered particularly vulnerable to exploitation in an ostensibly consensual sexual relationship from those in a relationship of trust towards them. As the noble Baroness, Lady Noakes, said, her amendments would have the same effect on the care worker position.
Neither of the sexual offences is designed primarily to deal with other sexual offending behaviour, such as sexual intercourse with a child under the age of consent or non-consensual activity, which fall within the scope of a range of other sexual offences. We are dealing with 16 and 17 year-olds. It is intended to deal with abuses of a position of trust where a young person is especially vulnerable because of their circumstances or because the relationship is particularly strong. Imposing the severity of the criminal law can be justified only where the breach of trust is sufficiently serious to warrant the creation of the criminal offence.
As the noble Baroness, Lady Blatch, made clear, the amendments seek to extend the offence beyond those who have regular responsibilities in relation to the child. The amendments pose the question of whether it is desirable to catch by the clause very brief contact in which there is no opportunity to build a relationship of trust with the 16 or 17 year-old. As I understand the position of the noble Baroness, Lady Blatch, her amendment seeks to cover the risk of what might happen if a supply teacher comes for one lesson, irrespective of the fact that there is no further contact. As the noble Baroness, Lady Noakes, said, it is only during the lesson that the relationship exists. Even if one comes occasionally, if one comes regularly, that is sufficient.
I am genuinely interested to discover what it is that the noble Baroness, Lady Blatch, wishes to catch. If I am right in my analysisthe noble Baroness, Lady Noakes, agrees as regards timingif there is only one-off contact, the only period of the contact during which the relationship exists is, for example, where the supply teacher is teaching. Is it really sensible to amend the law in that way when that would also give rise to other related difficulties? I would be interested to know whether that is the situation that the noble Baroness is trying to catch.
To return to the first example, if a supply teacher covers a colleague's maternity leave or regularly covers different teachers' leave across the schoolthe noble Baroness, Lady Blatch, gave that exampleit is likely that those circumstances would already fall within the scope of the offence. A nurse on temporary placement to a children's wing or a social worker on secondment to a children's home would similarly be covered. The noble Baroness, Lady Blatch, gave the example of a nurse treating someone for one day, perhaps as an outpatient at an A&E department. A 17 year-old comes in with a broken leg and is treated by the nurse for a period but never sees the nurse again in a nursing context. Is it what happens during that period that we should cover by omitting the word "regularly"? The noble Baroness, Lady Noakes, is nodding. But is that a sensible way of dealing with the problem?
I remain committed to the view that codes of conduct and disciplinary guidelines that exist in the professions concerned are the most appropriate means of dealing with consensual relationships where the existing requirements of the abuse of trust offence are not met.
Care worker offences raise similar issues in the parallel situation of dealing with care workers. The government amendments tabled in Committee went some way to meet the concerns expressed in the amendment tabled by the noble Baroness, Lady Noakes. They allow for a breach of a relationship of care to be committed on a first meeting where it was likely that subsequent contact would be regular. However, to go any further by including irregular contact risks infringing the freedom of choice of those with a mental disorder or learning disability who have the capacity to consent to sexual activity.
The amendments would catch, for example, the temp from an agency undertaking for a day reception duties at the hospital clinic that a person with a mental disorder attends. We think, with respect, that that is going too far.
A balance has to be struck, and we think that although the matter is difficult, we have the balance right. However, if there are particular examples that I have not dealt with that the noble Baronesses are seeking to capture in their amendments, I would be interested to hear them and I would consider them.
Baroness Blatch: My Lords, many of them are not regular. The Minister has not so far given a proper definition of "regular" for the purposes of the Bill and the defence against abuse. I have posed a number of questions, including a specific one this afternoon, to which the Minster has not responded. It is essential that we understand what is going to stand up in court as being "regular" contact. We do not know. I referred to casual workers.
I am also bothered by the situation in an establishment when a young person of 16 or 17 years, or even a young person in a sixth form, or with a mental impairment, who would be a concern of the noble Lord, Lord Rix, believes that a teacher, a care worker or a social worker who comes before them is in a position of trust, it is not said that because they are only in for one day that they are not in a position of trustunlike the person that they see for five or seven days a week. Anybody in a position of authority, who exercises some power in one of those establishments, is deemed to be by the patient, the school pupil or the person in the children's home, to be in a position of trust. If an abuse takes place in that situation an abuse is an abuse. The idea that they are given on a plate a defence as set out in the Bill is wrong. We shall return to that matter. I hope that at the next stage of the Bill the noble and learned Lord will come forward with a scientifically worked-out view of the definition of "regular". I beg leave to withdraw the amendment.