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Lord Faulkner of Worcester: My Lords, the amendment is not very different from an amendment that I moved in Committee on sports coaches and positions of trust, or from the amendment moved by the noble Baroness on Report on the same subject. There is no disagreement at all about the issue of principle—that 16 year-old and 17 year-old athletes may need to be protected from the sexual advances of their sports coaches.

The relationship between those athletes and their coaches is very special. It can involve long periods away from home solely in the company of the coach. In a very real sense in those circumstances, the coach is in loco parentis. In other words, he is in exactly the position of trust that other parts of the Bill show that legislation needs to cover.

The amendment moved by the noble Baroness on Report was replied to at great length, in his previous existence, by my noble and learned friend the Lord Chancellor. I have re-read what he said. The noble Baroness quoted some of it, and did so very fairly. He said:

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He went on to say that the problem with that approach was that the licensing arrangements for the certificate would not be introduced until 2007. He asked what would happen in the meantime, and said:

    "We believe that the right approach is to consult now to take a view on whether the approach that we suggest is the right one, and if not, whether earlier measures need to be considered".—[Official Report, 2/6/03; col. 1153.]

Is my noble friend able to say anything further about the earlier measures that the Government may be willing to bring forward if we are able to demonstrate to them that the issue of sports coaches requires immediate attention? I hope very much that the Government will be willing to take the point on board. If they do not feel it necessary to amend the Bill as the noble Baroness has proposed, we need an assurance that young athletes will be protected from the predatory advances of the unscrupulous sports coach.

Lord Thomas of Gresford: My Lords, I am very much in sympathy with the sentiments expressed on both sides. In fact, there was a reference in an amendment that I moved on Report to the position of sports coaches, as some noble Lords may recall. However, there is a downside to the issue. When my son was 15 or 16 years of age, I formed a youth rugby team in my local club. I became a qualified Welsh Rugby Union coach for adults as well as youngsters. For a number of years, I ran a youth side for those aged 16, 17 and 18.

I would not do that now because, under the Bill, I would be vulnerable to a false allegation put forward by anyone—if I dropped them from the team, for example. There is always that possibility. Although there is a great deal of sympathy for the ideas, such provisions would be a disincentive for people to come forward to assist in coaching at any stage.

Lord Northbourne: My Lords, I support the noble Lord, Lord Thomas of Gresford, in that line of thinking. In Committee, I referred at some length to the problems to which the Bill will lead in recruitment in the youth service and probably the education service as well. Although the department wrote me a letter—I think that some noble Lords had a copy of it—that stated that I was talking nonsense, I know that I could prove that I was right if I were given a few thousand pounds to do the research. My own inquiries have indicated that there is a groundswell of anxiety among those who work professionally and as volunteers in areas with children.

I want to take two minutes to approach the matter rather philosophically. I have thought a good deal about it. All the confusion arises from the fact that there is not one instinct that preserves the human race, but two. There is the instinct of sexual attraction, which produces the children and the misuse of which is, of course, the subject of the Bill. However, there is a second and extremely important instinct, which is to care for the nation's children—one's own children, one's grandchildren, and other people's children, for whom many people are prepared to care in loco

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parentis. The Bill does not even give a nod of acknowledgement to that second instinct, which is extremely important in the nurturing of the nation's children and the bringing up of the next generation.

The devil of the Bill, at least so far as it concerns the rather vague crime of sexual touching of children, is in the uncertainty. People who work with children—professionals, parents, grandparents or whoever—have the right to know that there is a balance in how the Bill will be administered. They need to know where the boundary lies between touching that is supportive and for the good of the child, and touching that is damaging and rightly proscribed by the Bill.

I was attracted to the amendments, particularly because they suggest that the Secretary of State should,

    "specify conditions relating to ancillary and caretaking staff",

and to, "youth and community workers". That indicates that the Government might condescend to give some guidelines as to what they mean by sexual touching. If we follow Sigmund Freud, all touching is sexual. Exactly what are we proscribing? It certainly cannot be in the kind of touching. It is in the intent of the touching—in the brain of the toucher.

We have not thought carefully enough about what we are saying. The outcome to which the noble Lord, Lord Thomas, referred is one of the downsides that will arise from the Bill. I support the amendment and ask the Government to consider whether they would, in respect of all positions of trust, specify conditions so far as possible as to what they believe is proper and not proper for a person, as a sports coach or youth worker, to do.

6.15 p.m.

Baroness Scotland of Asthal: My Lords, we have had a very balanced debate in relation to the matter. The noble Lords, Lord Thomas of Gresford and Lord Northbourne, have raised some very important issues about trust, confidence and the need to make sure that we do not discourage people from right and proper involvement in the care of children that inures to their benefit.

The amendments would widen the scope of the offence of abuse of trust, which is primarily designed to protect young people aged 16 and 17 from being manipulated into unsustainable relationships by adults who hold a position of trust in their lives. We are dealing with a group of children who can involve themselves in consensual sexual activity if they so desire. My noble and learned friend Lord Falconer responded to all the amendments in detail on Report. The noble Baroness, Lady Blatch, and my noble friend Lord Faulkner of Worcester mentioned that.

On Amendments Nos. 33 and 34, which relate to persons appointed to supervise children or act as children's guardians under certain provisions of the Children Act 1989, I would like to apologise to the noble Baroness and to the House for the fact that the Government have not fulfilled our commitment to table amendments on Third Reading. It is still our firm intention to include the categories within the scope of

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the abuse of trust offences, but it has taken longer than anticipated to confirm legislative references and ensure that the amendments correctly identify the persons whom we wish to bring within the scope, both in England and Wales and in Northern Ireland.

I assure the noble Baroness that as soon as her amendments were tabled on the previous occasion, officials were in contact with their counterparts in the Department of Health and CAFCASS and continue to be so. She will know that the correct legislative references were not contained in her amendments. We have addressed that, and we want to address the matter carefully and fully. She referred to one bit of advice waiting from a legal counsel on 13th June, but that was not the only issue. I reassure her that the matter is being pursued energetically.

It is with some regret that we are unable to deal with it as fully today as we would have wished. We want to make sure that there are no other categories of person who hold a similar position in a child's life and who might as a result merit inclusion in the scope of these offences. This requires us to have detailed discussions with the Department of Health and the Children and Family Court Advisory Support Service. It would clearly make sense to table all such amendments together, and we intend to do this as soon as possible in Committee in the House of Commons.

I turn now to the position of the youth and community workers who are covered by Amendment No. 32. As my noble and learned friend the Lord Chancellor explained on Report, the decision on whether to include another category within the scope of these offences is based on how well the proposed category fits within the guiding criteria for the abuse of trust offences, and whether it is appropriate to criminalise consensual, and what would otherwise be lawful, sexual relationships in such circumstances.

The basic guiding principles for inclusion are as follows. First, the young person is particularly vulnerable. For example, he or she may be in residential care or on probation in the community. Secondly, the location and/or lack of access to other adults, and the absence of countervailing influence, makes the young person particularly vulnerable. Thirdly, the special influence of the adult, namely that the adult acts in loco parentis, is relevant.

As we have already made clear, we do not believe that youth and community workers fall within these criteria. Although they are employed by local authorities, their role is to run centres or projects that children attend voluntarily. They do not act in loco parentis and they do not have a position of power or influence in children's lives.

Ancillary or caretaking staff in institutions and homes, addressed by Amendment No. 31, are already caught within the scope of these offences if they look after the child as defined in the Bill: that is, if they are regularly involved in caring for, training, supervising or being in sole charge of the child. The noble Baroness, Lady Blatch, has also tabled amendments about the use of the term "regularly involved in" in relation to these offences, and I will be speaking to those amendments shortly.

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However, I must make it clear that in our view there is no justification for including any categories of persons within the scope of these offences unless they are regularly involved in caring for a child. This is the level of involvement that we believe justifies inclusion, because it is only when a regular relationship exists that the adult can seek to take advantage of it for a sexual purpose. Unless the adult regularly looks after the child, he does not have the involvement or influence in the child's life necessary to establish a position of trust.

We are satisfied that the offences already cover ancillary and care workers in those situations in which they are able to abuse their position of trust.

Finally, I turn to the position of sports coaches and Amendment No. 34, which was moved on the last occasion by my noble friend Lord Faulkner of Worcester, and today by the noble Baroness, Lady Blatch. The noble and learned Lord, Lord Falconer, made it clear during his response to the same amendment tabled for Report that there is to be a consultation across the national governing bodies of sport to determine whether any action need be taken. It would be wrong for me to pre-empt the outcome of that consultation process by making any further comment at this stage.

Should the consultation process indicate that, contrary to the Government's present belief, sports coaches should be covered by these offences, this can be achieved by means of the order-making power included in Clause 23(1) which allows the Secretary of State to add further categories of those in a position of trust for the purpose of these offences.

For these reasons, I cannot accept these amendments. My noble friend Lord Faulkner of Worcester asked about further measures, and it is too early for me to comment more fully than I have already. However, we will keep him and other noble Lords fully informed on progress if they so desire.

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