I beg to move amendment No. 903, in

schedule 11, page 212, line 5, leave out paragraph 11.

With this it will be convenient to discuss the following amendments:

No. 741, in

schedule 11, page 212, line 15, leave out paragraph 17.

No. 742, in

schedule 11, page 212, line 16, leave out paragraph 18.

No. 743, in

schedule 11, page 212, line 17, leave out paragraph 19.

No. 744, in

schedule 11, page 212, line 18, leave out paragraph 20.

No. 904, in

schedule 11, page 213, line 22, leave out paragraphs 43 to 46.

The amendments are all probing; they deal with different items in schedule 11 to test how the list was compiled. Part 1 of the schedule lists violence offences, of which there are 62; and part 2 lists sexual offences, of which there are 36. One offence in each category is

''aiding, abetting, counselling, procuring or inciting the commission of''

any of the other offences listed.

The offences mentioned in the amendments were chosen to test the water. The first, in paragraph 11, is the offence of abandoning children, under section 27 of the Offences Against the Person Act 1861; other amendments deal with further offences under that Act. The last amendment would leave out the offences under the Prohibition of Female Circumcision Act 1985; riot under the Public Order Act 1986; and violent disorder and affray under sections 2 and 3 of the same Act. The amendments tabled by the hon. Member for Woking list other offences. They are sample counts to test the proposition.

Do the Government believe that the offences in the list meet the threshold of seriousness that is necessary for someone to be defined as dangerous under clause 209? For example, a neglectful parent, who has a conviction under paragraph 11 for abandoning children, might later be convicted of affray under paragraph 46, but would that make that person dangerous? Such a person may have many defects and would clearly have broken the law, but neither event would make them dangerous according to the definition of that word that is generally understood. Although clause 209 contains a reasonableness test, which I understand, being convicted of such an offence

would take a person into a certain league, so that they could receive an extended sentence under clause 207. Of course there are some complications, of which I am sure the hon. Member for Woking is aware. For example, certain offences, such as affray, carry a maximum sentence of three years, and certain clauses, such as clause 205, would not apply to those cases because a higher sentence is necessary to trigger them. I think that that is right, but I stand to be corrected.

However distasteful we might find them, some of the offences listed could be regarded as ideological offences. For example, female circumcision might be thoroughly distasteful to everyone in Committee, but it might be committed as a result of the pressures of a strong cultural background. In such cases, it may be inappropriate to define a person as dangerous, so I wonder whether all the implications have been thought through. I have not checked the figures, because I have not asked a parliamentary question about it recently, but there cannot be many convictions for female circumcision. However, I am unsure whether those convicted and punished for that offence would be any less likely to reoffend if the act was carried out on the basis of a strong cultural or faith tradition. In some cases, punishment will not necessarily do any more than force hesitation and will not force a person to accept that what they did was wrong.

Affray, listed at paragraph 46, encompasses a whole range of activities. There is very dangerous affray—we saw some of that on local election day in my constituency last year—but affray can also be much less serious. The definition under the Public Order Act 1986 is as follows:

''A person is guilty of affray if they use or threaten unlawful violence towards another and his conduct is such as would cause a person of reasonable firmness present at the scene to fear for his personal safety.''

It can be committed in private, as well as in public places. I accept that it is a violent offence, but is it the sort of dangerous offence that would justify triggering that definition for the purposes of this legislation?

I hope that those examples test whether the list is the right one. Rather than having a list of nearly 100 offences, it might be better to leave it to the court to apply the test on the basis of a general definition of a serious sexual or violent offence, rather than using a list that will, as the hon. Member for Woking said, be out of date within months, if not weeks, of becoming law.

I would like to deal with amendments Nos. 741 to 744. They are probing amendments that would knock out paragraphs containing the well-known offence of assaulting an officer preserving a wreck, as well as the more popular offences of assault with intent to resist arrest, actual bodily harm and injuring persons by furious driving—another rarity. I should be interested if the Minister could tell us how many convictions there have been for assaulting an officer preserving a wreck in the past 20 or 30 years, or even—if he has such figures—40 years. There might be one or two more for furious driving.

I cannot help with preserving a wreck, but yesterday I asked the same question about furious driving, and I can give the hon. Gentleman the answer. In 2001, 83 persons were proceeded against for furious driving, of whom 38 were committed to the Crown court for trial. By the end of 2001 there were 16 proceedings for trial and eight people had been found guilty.

That is most interesting. The Minister, for obvious reasons, did not dare ask how many offences had been recorded of assaulting an officer preserving a wreck. I shall take a wager: we can bet something substantial—or significant, depending on the next clause—on how many such offences there have been in the past 30 years.

The purpose of my amendments is to ask the Minister three straightforward questions about the schedule. First, how were the 62 violent offences chosen? What methods were used? Was there wide consultation? Secondly, were any interesting offences omitted from the schedule? Was anything considered then rejected, and if so, for what reason? Thirdly, is there any prospect of making additions to the schedule? If so, does he have any offences in mind?

The importance of the nature of the schedule becomes apparent when one looks more carefully at clause 205. The Minister must correct me if I am wrong, but it seems that the trigger in clause 205 will work as follows. A defendant is in the dock and has been convicted of a serious offence—for example, grievous bodily harm with intent. The judge has to sentence. I read the clause several times before I was sure of the truth of this: the judge has then to address himself to the question of whether there is a significant—or substantial, but we shall talk about that later—risk of the defendant committing a specified offence in the future. A specified offence, as we have seen, can be a very downmarket offence. I think that we all agree that offences such as assault with intent to resist arrest—that is a section 38 assault—are at the bottom end of the market.

I hope that I am putting this adequately, but the scenario is that a conviction for a top offence will be coupled with consideration of the serious risk of a further specified offence, which could be very low level. Those who sentence someone who has been convicted of a serious offence may be assisted by the prosecution, which might not be a happy trend. We shall discuss later whether someone should be sentenced for what they have actually done rather than what they might do, and that is a bigger matter of principle. However, an unhappy scenario is developing in relation to the schedule. There is a prospect of further specified offences being considered, and specified simply means specified, rather than specified with a 10-year backup.

I simply do not see how the provisions will work in practice. If someone pleads guilty to a serious offence, such as a section 18 wounding offence, it is inevitable that someone who looks at his record will think that he will commit further offences. Furthermore, how does one sentence him? I may be wrong, but if one is satisfied that the thresholds have been crossed as regards the offender's probable future course of

action, one is stuck, even if this is his first offence, with a certain sentence—one may believe that one's sentencing power is not adequate, but there will be a 14-year or life sentence. I put those general points to the Minister because I am uneasy about the practical, day-to-day consequences of the schedule and the various classes of offence.

I apologise for my unavoidably late arrival. However, I have listened carefully to my hon. Friend, and his starting point was someone who appeared before the court charged with causing grievous bodily harm. Would not actual bodily harm also fit the bill as a specified offence, although there would also have to be a further offence and the risk of serious harm to the public for it to be dealt with as a dangerous offence?

Yes, my hon. Friend gives another telling example, and the Minister is obliged to explain the selection of offences a little more. We look forward to hearing from him.

Will my hon. Friend confirm from his wide legal experience that when we refer to actual bodily we mean any physical harm of any description that can be detected?

Yes, my hon. Friend is right. The definition of actual bodily harm is some bodily harm, which can be as little as a bruise, a graze or a black eye. It ranges from quite a serious offence to the very bottom end of the market, which could include any visible injury—even a bruise or a little scrape.

On that note, I hope that the Minister will give us more of the background to the schedule. We look forward to hearing from him.

This subject interests me. I listened carefully to my hon. Friend's opening remarks, and I agree with him. The key aspect of clause 205 is that when someone who has been convicted of a specified offence is sentenced, there must be

''a significant risk to members of the public of serious harm''

occasioned by the commission of further such specified offences. We would like from the Minister an exposition of the exercises that sentencers will have to perform when someone is before them. It would be easier to draw conclusions about such a risk if someone were before the court for a serious first offence such as grievous bodily harm. However, for less serious offences such as actual bodily harm, which although it may be serious can encompass offences less serious than violence, we need an exposition from the Minister of the sort of exercises that sentencers would have to perform.

Schedule 11 contains a long list of sexual offences. However, I draw a distinction between sexual offences that involve consenting adults and those that do not. The Sexual Offences Bill will create new offences for consenting adults such as outdoor sex, and we shall be studying that with great interest. As a member of the Select Committee on Home Affairs, I do understand why that should be considered an offence; but although I am besieged in my constituency surgeries by people complaining about a great many things, that has not been one of them. I look forward to hearing

the Minister's explanation. Neither have I heard any complaints about the offences commonly associated with public toilets.

Do the specified sexual offences in schedule 11 include acts committed by two consenting adults? There is a big distinction between such offences and serious offences in which there is a lack of consent of adults or minors.

How has schedule 11 been drawn up? It is intended to be a complete list of all sexual and violent offences carrying a maximum sentence of two years or more. The trigger for considering an extended sentence is one of the offences in the schedule that carries a maximum sentence of between 2 and 10 years; for public protection the trigger is an offence on the schedule that carries a maximum sentence of 10 years and above. That is how the two parts relate. Will the list be added to? Yes, indeed it will. The Sexual Offences Bill, which the hon. Member for Hertsmere (Mr. Clappison) mentioned and which will be given a Second Reading in the other place later this week, will change a great many offences in updating the law. It will also affect schedule 11.

In answer to the hon. Gentleman's question about consent, the list of offences in part 2 of schedule 11 reflects offences as they are in statute at present. However, that will be subject to change if Parliament sees fit to pass the Sexual Offences Bill, which will amend the parts of the schedule. I wish to reflect on the point raised by the hon. Gentleman. If it is not solely a list of offences that do not involve consenting adults, I will write to him.

It is good to see you back this morning, Mr. Illsley.

Will the Minister elaborate slightly? He has explained that the list in schedule 11 is intended to be ''a complete list.'' He will know that in Northern Ireland, specified violent offences include riot and affray. These are not included in schedule 11. We should bear it in mind that there have been serious race riots in England and that, curiously, in Northern Ireland sentencing for riot and affray is substantially lower than in England. Why have those two been left out of the list?

I trust that I have understood the hon. Lady's point; riot, violent disorder and affray are to be found in paragraphs 44, 45 and 46 of schedule 11.

I just want to comment following the intervention of the hon. Member for Hertsmere. It strikes me that the only offence that might come into the category that the hon. Gentleman mentioned is soliciting by men. I notice that soliciting by women is not included, but I am sure that there is such an offence, because every Monday the inner London magistrates courts have a large list relating to female soliciting.

That is a good point, and I shall reflect on it in trying to deal with the question.

The main issue that was raised about the amendments was whether being found guilty of one of the offences would immediately put the person

concerned into the category of a dangerous offender. The answer is of course no. As the hon. Member for Woking pointed out, the court would then have to apply the test of significant risk of serious harm. I repeat that that is the really important safeguard. In the end, the courts must be trusted to operate the provision sensibly, and to have regard to that test. A test of serious harm is quite a high threshold.

As to the concern that has been raised about whether the court will give someone an indeterminate sentence because, on consulting the list of specified offences, it has decided that at some time in the future he might assault a police officer preserving a wreck, I do not see how that could possibly fall within the definition of a significant risk of serious harm. It would be left to the court to weigh up the matter. The intention is clear and the circumstances to which the chapter of the Bill relates are clear. It is intended to deal with the current gap in the system. I expect that the hon. Member for Hertsmere recognises—I do not know whether I said this before while he was in his place—that a risk of serious harm to the public remains from some people at the end of their determined sentences. That is the test that the court would be asked to apply within the framework of the clause.

I am grateful to the Minister for that response. I accept what he says, and that the purpose is to protect the public from serious harm. I think that he would agree that an appropriate line needs to be drawn somewhere to enable a decision to be made about who should be affected by the provision and what offences qualify. That was the point of my question. I shall be grateful for the Minister's comments in a letter.

One point that worried me, however, was whether in future consenting adults might be affected by provisions intended to deal with dangerous offenders. I am quite liberal in such matters and I draw a strong distinction between what consenting adults get up to and the law that is intended to protect minors and adults who have not consented to the relevant actions.

I am concerned about the idea of bringing people within the compass of such provisions, and especially the newly created offences such as outdoor sex and garden sex. My constituents will be relieved to know that it is still permissible to have sex in their homes. As we are creating new offences, it is important to mention the point.

So garden sex in the suburbs is adding a bit of excitement to a morning of considered and careful debate.

I think that there is broad consensus on the Opposition Benches for the general proposition of the hon. Member for Hertsmere that consensual activities should not be placed in the same category as things that are clearly a danger to other adults or children. I shall not prolong the debate by asking the Minister to answer my points about people who commit offences that they see as culturally acceptable, but I should be grateful if he could reflect on the questions that I asked and perhaps give

me a reply in writing. I hope that this debate has raised a set of questions about the appropriateness of a list and this list. We shall have to reflect on those matters. The sets of trigger mechanisms are quite complicated. There are some concerns about the list. I can see where it is derived from and, although it appears to have gaps, I shall reflect on what the Minister said. I am sure that we shall return to the issue, and I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

I beg to move amendment No. 756, in

schedule 11, page 214, line 7, after 'racially' insert 'or religiously'.

With this it will be convenient to discuss Government amendment No. 757.

These are two drafting amendments that cover paragraphs 57 and 58, which as currently drafted do not take account of the changes that were made by the Anti-terrorism, Crime and Security Act 2001, which extended such provisions to cover religiously, as well as racially, aggravated offences. The amendments make a small change to reflect the law as it currently stands and to deal with a drafting error.

Amendment agreed to.

Amendment made: No. 757, in

schedule 11, page 214, line 8, after 'racially' insert 'or religiously'.—[Hilary Benn.]

Question proposed, That this schedule, as amended, be the Eleventh schedule to the Bill.

I again ask the Minister to reflect on whether it is better to have the schedule in the Bill or to issue the list by way of guidance. Another way would be to have the norm as a list, which would be in sentencing guidelines. I ask Ministers to reflect on that.

Question put and agreed to.

Schedule 11, as amended, agreed to.