The original Bill dealt with three changes to the criminal law - reducing the minimum age of consent for male homosexual acts to 16 (bringing it into line with the law applying to heterosexuals and lesbians); dis-applying the criminal law to those under the age of 16 who engage in acts of buggery with persons over the age of 16; and the introduction of a new criminal offence outlawing sexual relationships between persons over 18 and those under that age where the older person is in a position of trust as defined under the Bill.
The NAHT is concerned with the last of these proposed changes. The Bill outlawed consensual sexual relationships between a teacher and pupil who is over the legal age of consent (re 16 and 17 year olds) and who both attend the same institution.
In the wake of the scandals that have come to light at various institutions, the NAHT fully understands the wish for legislation to reduce the likelihood of abuse in institutions such as local authority homes, residential homes and hospitals, where there are restricted opportunities for vulnerable persons over the age of 16 to either leave the institution or to confide in others who would be able to help them.
Where improper relationships do occur in schools and colleges, we firmly believe that they should continue to be a matter for professional disciplinary action, firmly enforced by employers and the new General Teaching Council. This was also the conclusion of the majority of the respondents to the government working group's consultation on the matter. We therefore do not believe that a new criminal offence should be created in relation to schools and colleges, apart from those where pupils reside at the school concerned, as is the case with the other types of institution that are covered.
The Bill affected all those who care for, train, or supervise pupils in full time education under the age of 18. In the original second reading debate in the House of Commons, the home secretary gave two reasons for the scope of the Bill in this regard. First, he argued that teachers act in loco parentis, and so should be covered. He also argued that there are practical difficulties in creating separate groups within the education category and that 'invidious' anomalies would be created where there would, for example, be a different law applying to day pupils and boarders within the same class.
As far as the in loco parentis argument is concerned, it is notable that other categories of 'carers' are not covered, such as guardians, god parents, and church and youth organisation leaders who, if not in law, have the same responsibilities when young people are in their care, and who would have regular contact with those under 18.
In relation to the other arguments on the practical difficulties of restricting the application of the Bill and the anomalies that might be created, we believe that parliamentary draftsmen would not find it impossible to draft suitable wording, and that the requirement for proportionality supersedes the few anomalies that would be created.
In any event, the Bill contained anomalies, such as the exemption which would mean that a relationship which is not considered a breach of trust at the commencement of the Act becomes a criminal offence if it continues and the position of trust subsequently arises. The exemption also means that you could have two employees - one exempted but in a position of trust and one not exempted.
The government has therefore accepted other anomalies created by the Bill, and so could accept the additional anomaly that might be created by restricting the Bill to residential pupils so that the legislation is reasonable and proportionate. Other parts of the Bill specifically restrict its application to institutions where persons under 18 are 'accommodated and cared for'. Only schools and colleges are treated differently, which we do not believe is right or appropriate.
We also believe that the Bill does not provide a satisfactory definition of the sort of behaviour that would be criminal. Sexual intercourse is clearly covered, but all other sexual activity is left to what a 'reasonable person' might regard as being sexual 'in all the circumstances'.
We do not believe this to be satisfactory when an individual might be faced with criminal prosecution, a six month prison sentence, and be subject to the notification requirements of the Sex Offenders Act 1997.
We believe that the government should clearly set out those acts that it would consider sexual in relation to a breach of trust.
At present, the Bill would allow the possibility of a 23 year old male teacher being prosecuted, convicted and registered for five years as a sex offender, for behaviour short of sexual intercourse, even where it was one moment of stupidity. The law should not allow such draconian possibilities for what is, although a serious breach of professional standards, an indiscretion not justifying criminal prosecution.