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Viscount Bledisloe: My Lords, I should like to ask the noble Baroness two questions. First, I gather from her opening remarks that she assumes that, under her Amendment No. 1, the characteristics of the defendant can be taken into account. Can the noble Baroness explain how she gets that from the wording? Does she assume that "all the circumstances" include the characteristics? It is normally held that "circumstances" relate to the surrounding fact, and that "characteristics", which are something different, relate to the defendant. Alternatively, is it because the clause to be inserted specifically refers to "A"—namely, the defendant—and it is from there that one

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gets these characteristics? I see the noble Baroness nodding her head to indicate that my second answer describes her logic. I am grateful to her.

Secondly, on her Amendment No. 87, in relation to the need for the judge to rule whether there is sufficient evidence, the noble Baroness expressed in eulogistic terms her confidence in the ability of the judiciary to rule on this difficult matter. If that is the opinion of Her Majesty's Government, why are they not equally prepared to rely—in similarly eulogistic terms—on the discretion of the judiciary in matters of sentencing?

Lord Lucas: My Lords, I congratulate the noble Baroness on taking on the Bill. I am delighted that she has missed the worst of it; we are now in relatively calm waters. However, I counsel her against using the Regulation of Investigatory Powers Act and the Terrorism Act as precedents. Both seek to limit the freedom of the individual for the benefit of the state. The House had to push back quite hard in that respect. I certainly remember the RIPA; and terrorism Acts in general have had that pattern to them. Any provision introduced in those Bills should not be regarded as a good precedent for bringing into civil legislation; such provisions generally relate to extraordinary circumstances, and involve measures of which one would wish to be careful.

I should like to ask the noble Baroness a couple of questions. The amendment refers to,


    "any steps A has taken to ascertain whether B consents".

Am I right to presume that that consent must be continuous? Is it the case that the offence of rape can be committed if consent is withdrawn at any time during the act? Must not the consent be specific—thus consent to vaginal penetration is not consent to anal penetration? Therefore, if I, as a publisher, am to evolve a form that A can fill in at the time and have B sign, it ought to be in the form of an electronic record that can be continually updated, so as to provide adequate evidence for the clause drafted by the Minister.

In general, I am delighted with the change. It came, I think, from the drafting of the noble Lord, Lord Thomas of Gresford, in Committee. I welcomed it then, and I am delighted to see it reflected in government amendments today.

Baroness Scotland of Asthal: My Lords, I thank all those who have complimented me on taking up my new role, but particularly the noble Baroness, Lady Noakes, and for her recognition of the sterling work done by my noble and learned friend the Lord Chancellor and his excellent team of officials. I, too, should have far preferred that he, rather than I, stood before your Lordships this afternoon. It was ever thus. My only comfort is that I am at least singing the song of the noble Lord, Lord Thomas of Gresford.

I turn to the concerns expressed by the noble Baroness, Lady Noakes, the noble Lord, Lord Campbell of Alloway, and echoed by the noble and learned Lord, Lord Cooke, about characteristics.

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They were also mentioned, I think, by the noble Viscount, Lord Bledisloe. My Lords, we fully expect that characteristics such as mental incapacity and extreme youth will be taken into account in line with the existing caselaw on such issues. We would not expect our courts to follow the New Zealand approach. We believe that we can rely principally on caselaw as regards reasonableness.

The noble Lord, Lord Lucas, commented on Clause 80(2), which provides that penetration is a continuing act, and therefore consent must continue throughout. The Bill seeks to underline that sexual intimacy must be consensual. Those who enter into it—in whatever form—must take steps to assure themselves that their partner in such activity is in full agreement to all that is transpiring. It would be wrong to say that assent to one activity can be properly construed as an assent to all activity. That is a distinction that we seek to draw. I therefore thank all those who have supported the compromise.

I see the attraction that the original formulation had for the noble and learned Lord, Lord Cooke. We saw the attraction ourselves, but we said that we would take it away for consideration and bring back a consensual set of amendments. We have now done that and the import of what we propose remains the same. There is no policy difference between the initial intention expressed in the amendment that was previously before the House, but not moved, and the amendment that is before us now.

I appreciate, too, the strong feelings expressed by the noble Lord, Lord Campbell of Alloway, about the direction. The ways in which we have structured the provisions will show that fear not to be well founded. We are confident that the court will be alive to the concern that the noble Lord has expressed about the possibility of appeal and will not take injudicious account of issues that should properly not be admitted. I leave the comments made about sentencing to another day.

On Question, amendment agreed to.

4 p.m.

Lord Campbell of Alloway had given notice of his intention to move Amendment No. 2:


    Page 1, line 18, leave out "Sections 76 and 77 apply" and insert "Section 77 applies"

The noble Lord said: My Lords, on the advice of the Table, I cannot divide on the amendment, because it would leave out Clause 76, which is a substantive amendment on which I have to divide the House at a later stage. That being so, unless any other noble Lord wishes to speak on this matter, I am minded not to move the amendment for the reason that I have given.

[Amendment No. 2 not moved.]

Clause 3 [Assault by penetration]:

Baroness Scotland of Asthal moved Amendment No. 3:


    Page 2, leave out lines 13 to 21 and insert—


"( ) A does not reasonably believe that B consents.

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( ) Whether a belief is reasonable is to be determined having regard to all the circumstances, including any steps A has taken to ascertain whether B consents."

On Question, amendment agreed to.

[Amendment No. 4 not moved.]

Clause 4 [Sexual assault]:

Baroness Scotland of Asthal moved Amendment No. 5:


    Page 2, leave out lines 30 to 38 and insert—


"( ) A does not reasonably believe that B consents.
( ) Whether a belief is reasonable is to be determined having regard to all the circumstances, including any steps A has taken to ascertain whether B consents."

On Question, amendment agreed to.

[Amendment No. 6 not moved.]

Clause 5 [Causing a person to engage in sexual activity without consent]:

Baroness Scotland of Asthal moved Amendment No. 7:


    Page 3, leave out lines 11 to 19 and insert—


"( ) A does not reasonably believe that B consents.
( ) Whether a belief is reasonable is to be determined having regard to all the circumstances, including any steps A has taken to ascertain whether B consents."

On Question, amendment agreed to.

[Amendment No. 8 not moved.]

Clause 10 [Sexual activity with a child]:

Baroness Noakes moved Amendment No. 9:


    Page 5, line 8, after "indictment" insert—


(a) where subsection (3) applies, to imprisonment for life, and
(b) in any other case,"

The noble Baroness said: My Lords, in moving this amendment, I shall speak also to Amendments Nos. 10 to 14 and 25. All the amendments concern sentencing provisions where offences against children under 13 are involved.

Amendments Nos. 9 and 10 relate to Clause 10 and ensure that the maximum penalty for the sexual touching of a child under 13, where penetration is involved, is the same as that under Clauses 6 or 7; namely life. Clause 80(6)states:


    "Touching . . . in particular includes touching amounting to penetration",

and it is quite possible that Clause 10 could be used to prosecute the sexual penetration of a child under 13. Amendments Nos. 11 and 12 relate to Clause 11 and align the maximum penalty for causing or inciting the penetration of a child under 13 with the penalty in that clause.

The aim of the amendments is to ensure that there can be no possibility that an offence involving penetration of a child under 13 ever picks up a lesser maximum sentence than life. Without the amendments, a prosecution may well, whether in error or for some other reason, be taken under the softer of the clauses. That should not be an option. The Minister's response on Report was that 14 years was enough if the wrong section had been used to prosecute the offence. We disagree with that.

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Amendments Nos. 13 and 14 are slightly different, although they are again directed at offences involving the under-13s. The amendments would remove the possibility of a summary conviction involving negligible penalties where an offence against a child under 13 was committed under Clauses 12 or 13; that is, engaging in sexual activity in the presence of a child, or causing a child to watch a sexual act.

As I explained on Report, my motivation in introducing the amendments was to ensure that the Bill was internally consistent. The equivalent offences for those with a mental disorder are set out in Clauses 34 and 35. Those offences offer no option for summary proceedings. I remain mystified as to why the Government think that an offence against a child of 13, for whom no issue of consent will ever arise, could result in a lower penalty than the equivalent offence against a mentally disordered person who cannot in fact consent. The Minister did not answer that on Report.

Lastly, Amendment No. 25 deals with the grooming offence in Clause 17. It had been my contention at earlier stages of the Bill that the sexual grooming offence is a serious offence which should be triable only on indictment. The Government have not accepted that, which leads me to fear that the new offence will be used for marginal cases. In any event, if it can be proved that a person meets the requirements of Clause 17 in relation to a child under 13, that is a very grave matter. It should not be possible for such a person to be tried summarily because, by definition, it is a serious offence which merits a significant penalty. My amendment would achieve that for offences in relation to the under-13s. I beg to move.


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