We now come to a group of amendments that concern the family relationships in the familial sex abuse clauses—Clauses 28 and 29. Amendment No. 201 adds step-siblings and foster-siblings to the list of basic relations—if I may term them that—in Clause 30(2)(a). That extends the relationship beyond blood relations. The amendment is consistent with the inclusion of step-parents and foster parents in paragraphs (b) and (c). In terms of creating a family relationship that can be abused, I cannot see that step and foster siblings can be separated from siblings of whole or half blood, who do not have to live in the same household to be able to abuse their family relationship.
I am aware that under Clause 30(3)(d), foster siblings may be brought within the scope of the familial sex abuse clauses, but step-siblings could not be caught, except by Clause 30(4), which does not concern family relationships at all. It would be safe to include those relationships squarely in Clause 30(2). While I am on my feet, I support the amendment of the noble Lady, Lady Saltoun, which seeks to clarify which cousins are intended to be covered by Clause 30(3). The noble Lady knows far more about the meaning of words such as "cousin" than I could ever learn, and I look forward to hearing what she has to say. I beg to move.
There are three amendments in this group: Amendments Nos. 201, 202 and 203. They all deal with the question of who should be included in the family group. Clauses 28 and 29, dealing with familial child sex offences, are designed to protect children within the family environment, where they should be entitled to feel safe and protected but where, unfortunately, they are especially vulnerable to abuse and exploitation. Because of the balance of power in the family unit and the close and trusting relationships that exist within it, the family creates ideal opportunities for exploitation and abuse. What familial relationships should be covered? It is clear that the most important factors are the proximity of the relationship and the balance of power that exists between the abuser and his victim, and that those attributes extend beyond the immediate blood relatives of a family. The definition of the family unit also needs to be drawn widely to reflect the fairly loose structure of the modern family and the sometimes transitory nature of familial relationships.
In brief, the definition of the family unit is therefore drawn into three categories. Subsection (2) relates to core family members. Subsection (3) relates to wider family members, such as the partner of the child's parent who lives or has lived in the same household as the child, or who holds or has held a position of trust or authority in relation to the child. Subsection (4) relates to other persons living in the same household as the child and who hold positions of trust or authority in relation to the child at the time of the alleged offence.
The noble Baroness, Lady Noakes, proposes bringing step-siblings and foster-siblings within subsection (2), which covers relationships where there will always be an offence. As the noble Baroness will be aware, step-siblings and foster-siblings may not be related by blood; they may never live in the same household and may rarely come into contact with each other. So we do not think that it is right for them to be covered by subsection (2). We have already covered foster-siblings in subsection (3)(d) because we recognise that in some cases they may live in close proximity. There may also be merit in bringing step-siblings, who are not covered by paragraph (d), into the scope of the offence in certain circumstances. We should like to consider that point further. We are not suggesting their inclusion in subsection (2); in effect, we are suggesting subsection (3)—it depends on whether or not they live together.
Amendment No. 202 is a government amendment. Subsection (3)(b), as drafted, brings the partner or spouse of the child's aunt or uncle within the scope of the offence, where the defendant lives or has lived in the same household as the child, or where he holds or has held a position of trust or authority in relation to the child. On reflection, we think that those relationships ought to be covered by subsection (4), where the defendant lives in the same household as the child, and where he holds a position of trust or authority in relation to the child. We no longer think that there is anything peculiar to the relationship between partners or spouses of aunts or uncles as distinct from a range of other relationships. Amendment No. 202 takes out of the scope of the relationships covered by the offence the partner or spouse of the child's aunt or uncle.
The amendment of the noble Lady, Lady Saltoun, Amendment No. 203, would restrict the relationships between cousins covered in subsection (3) to first cousins. However, I do not think that the amendment is necessary, given that "cousin" is defined in subsection (5)(b) as,
"the child of an aunt or an uncle".
In the light of those considerations, I respectfully suggest that the noble Baroness, Lady Noakes, withdraw Amendment No. 201 to enable me further to consider the point about step-siblings. I make it clear that it is in regard to subsection (3), not subsection (2). I also ask Members of the Committee to accept the government amendment, Amendment No. 202.
For the reasons that I have given, I am afraid that I do not think that Amendment No. 203 is necessary because the point is already covered. I therefore hope that the noble Lady will not feel it necessary to move it when the time comes.
Clearly, I should have spoken to my amendment earlier. In spite of what the noble and learned Lord has said, I still think that "cousin" should be more sharply defined at an earlier stage. That would avoid any confusion. The child of an aunt or an uncle is a first cousin. It would be advantageous to specify that in the Bill. I shall not say any more, because my argument is now redundant. I still believe that, for clarity and to avoid doubt in the first instance, it would be better to specify the cousinship.
I would certainly like to support the noble Lady, Lady Saltoun. Often, it is we in the Westminster village who are familiar with the legalese of legislation. However, having been a Member of the House since 1987, I cannot claim to be entirely familiar with the legalese that comes before us. "First cousin" is clear beyond peradventure. One would not have to look for implicit provision in other parts of the clause. But I concede that the argument has been well answered by the Minister, as does the noble Lady, Lady Saltoun.
I was also going to rise to support the amendment of my noble friend Lady Noakes. I am grateful to the noble and learned Lord for agreeing in characteristic style to take it away, to look at it more fully and to take into account the omission that my noble friend talked about. We look forward to whatever comes of that at the next stage.
I have taken wise counsel from my noble friend, who has a very real understanding of the Bill. We have had a fairly complicated discussion on Amendment No. 202. My understanding of that amendment differs from that of my noble friend. Rather than call that a point of issue between us, I wish to pose a question to the noble and learned Lord to clarify either my understanding or my misunderstanding about it.
As I see it, the amendment appears to strip out one of the most obvious categories of potential sex abuser—the non-blood-related uncle. Deleting subsection (3)(b) removes uncles by affinity; that is to say, those who are not related by blood but who are married to a child's blood aunt. It also removes putative uncles; that is, a boyfriend of a child's blood aunt. Of course, it does the same for aunts by affinity and putative aunts. But it is well known that uncles, in particular, can abuse the trust that being part of a child's family gives them. Some men become obsessed with children within their families. The NSPCC says that, after brothers and fathers, uncles are the most likely source of sexual abuse within the family.
I shall base my question around the following example. Am I correct in taking as an example the tragic murder of Danielle Jones, who was abused by her uncle Stuart Campbell, who was married to her father's sister? He had an obsessive sexual interest in teenage girls and became infatuated with Danielle. The infatuation led to her murder. Leaving aside the murder element, the man was guilty of taking advantage of a member of the family with whom he had a position of trust. He neither lived in the same house, nor, I believe, was he a carer, trainer, supervisor or in sole charge of the child. Therefore, on my reading, by removing paragraph (b), and by not conforming with the conditions in subsection (4), he would not be caught by these measures. If that is the case, then it would be bizarre, but I need to be told if that is the case.
If the amendment is made, it would also mean that some children within a family could be protected, whilst other siblings were not. For example, when a widow married a widower and they both brought children to the new marriage, then two of the children would be protected and the other two would not. That is also a problem. If the wife's brother took a sexual interest in any of those four children, the children of the mother would be protected by the familial abuse provisions, but the children of the new husband would not.
I am trying to elicit from the Minister whether I am right that that kind of person, that kind of relationship, which is among some of the most common abuse of people within a family, is caught by the provisions. If they are not caught, I would argue that subsection (3)(b) should stay in. If they are caught, how does that happen? I am talking about somebody who does not fulfil the terms of subsection (4)(a) and (b)—an uncle married to a blood relation of a child who does not either live in the household, or is a carer, trainer, supervisor or in sole charge of (B).
I understand the question. The uncle married to the sister of the father would not have been caught in the circumstances put forward by the noble Baroness under subsection (3), as unamended by Amendment No. 202; because as I understand the example given, he would not have lived with the niece—who would not be his niece by blood but by marriage; he would have no role in caring for or training her. If that is the position, that relationship would not have been caught by the existing subsection (3) with paragraph (b). So the removal of subsection (3)(b), which is Amendment No. 202, makes no difference to that example.
We think that the right course would be that with such a person, the critical question should simply be: are the subsection (4) conditions satisfied? I think I have answered clearly the question of the noble Baroness, Lady Blatch. I am not sure whether I agree with the noble Baroness, Lady Noakes or the noble Baroness, Lady Blatch, but it would be invidious of me to find out which.
I think my noble friend is probably nearer to the Minister in terms of the explanation that he has just given. For clarification, is he telling me that the partner or spouse of a blood relative of the child—that is the uncle who is not a blood relative—if he was not either living in the house or a carer, trainer, supervisor or in sole charge of the child, would not be caught by the provisions, with or without subsection (3)(b)? If that is the case, how can we make it clear in any amendment to the Bill, that that sort of person would be caught? I have given the most dramatic example of the case of Danielle Jones, but there are many young teenage girls who are still missing today and the issues concerning them have not been resolved. Prior to them being murdered they have suffered much sexual abuse. One has to imagine that because such cases do not all end in murder, there are many young girls who are vulnerable from uncles within a family.
Yes, I confirm what the noble Baroness has said; namely, that the uncle, not by blood but for example married to or the partner of the sister of the father, would not have been caught with paragraph (b) either in or out of the Bill under subsection (3). He would only be caught if it was under subsection (4), which means a live-in relationship, and paragraph (b) was satisfied. The reason why we do not think it is appropriate to catch the person—save in subsection (4)—is that we are dealing with family situations. We cannot catch people in a family situation who conceive an obsessive feeling about a person who these provisions are designed to protect, but are outside the family unit—for example a friend. They might be called "uncle", but would not fit in any known category of uncle. We have had to draw the line somewhere, and the line is being drawn around the family unit, as defined in Clause 30.
If I could come back again. The uncle of a sister of the father of the child is a pretty close relative. He may not be a blood relative, but he is a close relative. He may have an incredibly close physical relationship with the family. My understanding is that the murderer of Danielle Jones did have a close relationship. The family were so shattered by the news that it was that uncle who had murdered their daughter, because of the closeness of the relationship of all of them in that family.
It seems bizarre—I go back to the word I used rather cautiously earlier—that the person who abused the girl dramatically before eventually murdering her would not have been caught, simply because he did not live with the family or live with A and was not her carer, trainer or supervisor or in sole charge of her. The Bill needs amending to include what I regard as a very close relationship—the mother or sister of the parent of the child.
As the noble Baroness knows, it is obviously the case that dramatic abuse—I do not know the details of the case, so I am not commenting on it—would be covered by a range of other provisions in the Bill and by other existing provisions of the law.
Here we are focusing on the family unit. The noble Baroness will know better than I that close relationships with, for example, somebody who is not an uncle—the next-door neighbour, perhaps—cannot be caught appropriately by the clause, even though the relationship could be as close as in the situation described by the noble Baroness. We must have clear limits. We will consider closely what the noble Baroness said, but we think that we have got the balance about right.
Could we have some less complicated language? We keep hearing about the "spouse of the aunt or the uncle". The spouse of the aunt or the uncle is the uncle by marriage or the aunt by marriage. Those terms have been used all my life and are, so far as I am aware, still in use.
I am puzzled by what the noble and learned Lord said in answer to the noble Baroness, Lady Blatch. I can see the situation if the family live in separate houses, but is the noble and learned Lord saying that, if I gave space to live in my house to my sister and her rather unsatisfactory husband, he would not be included in the scope of the clause unless he were regularly involved in caring for, training or supervising my daughter? Would that be the position if the noble and learned Lord's amendment were made?
I have suggested that the gentleman of whom I spoke was rather unsatisfactory and was not regularly involved in anything desirable. Surely, if he lives in the house as the husband of the aunt, he should be within the scope of subsection (3). It is going too far to remove him from that, as the noble and learned Lord's amendment will do, and say that he is covered only if he is involved in caring for her. It would be extraordinary for a resident uncle by marriage not to count, unless he were a useful uncle by marriage involved in caring, training or supervising.
The noble Viscount has got it exactly right, as he defines the issue. We are acting on the basis that the question is whether the uncle by marriage—I apologise for using such complicated language previously—should be regarded as somebody separate from a person who lives with the family but provides no care. The noble Viscount has got it right. We think that we have drawn the line in the right place.
It has been a useful debate, and my noble friend Lady Blatch has exposed some issues that should be thought about further.
I thank the Minister for agreeing to consider the position of step-siblings again, but only in the context of subsection (3). I understand that that is his position. However, I go back to what he described as proximity and balance of power. I cannot see the difference between including half-sisters and half-brothers in the close family unit described in subsection (2) and including step-siblings and foster siblings. The noble and learned Lord said that it was a blood relationship or a half-blood relationship, but, given the ability of a half-sister, step-sister or foster sister to influence and abuse the child through the family relationship, there could be circumstances in which the same degree of potential for abuse existed.
My noble friend, Lady Blatch, exposed the issue of the position of uncles by marriage. The clause also deals with partners who are not necessarily married, so it is more complicated than the noble Lady, Lady Saltoun of Abernethy, suggests. Again, my noble friend sees the relationship as being the dominant issue. It does not necessarily matter whether the person lives in the same household or has to prove that a caring relationship of the sort referred to in subsection (4) exists. It is the family relationship—notwithstanding the fact that it is not a blood relationship—that carries the potential for abuse.
I am prepared not to press Amendment No. 201 pro tem, given the noble and learned Lord has said that he will look at the matter again. I hope that he will not move his Amendment No. 202, thus allowing us to debate this further before Report stage. Our debate today has made me more concerned about family relationships and how they are to be brought within these offences than I was at the outset. In the meantime, I beg leave to withdraw the amendment.
moved Amendment No. 202:
Page 14, line 42, leave out paragraph (b).
I am sorry that the noble and learned Lord has not taken the advice of my noble friend Lady Noakes because it would be helpful if we could consider this matter further. The Government have nothing to lose. Taking the two Houses combined, they have such almighty powers that they will get their way in the end. I think that we should all be given an opportunity to stand back and think again.
The noble Viscount, Lord Bledisloe, pointed out a matter that I had not properly picked up, which was my fault. He said that an uncle of the sister of the father of the child who lives in the same house but does not have any supervisory, training or caring responsibilities, would not be caught. Equally, if the same uncle is in sole charge of the child, but does not live in the household, again he will not be caught. Only someone living in the household with a caring or supervisory role would be caught.
That is a very muddled arrangement. We are discussing here an uncle who takes advantage of and abuses a child in what my noble friend described so well as a "family situation". Members of the Committee on all Benches should be extremely concerned about any abuse taking place in such close family relationships. Simply because both of the criteria set out in Clause 30(4) are not fulfilled, a young person will have no redress.
I make a final plea to the noble and learned Lord. Will he consider giving the Committee more time to consider Amendment No. 202 as well as to allowing himself time to reconsider his position?
Having listened to the debate, I consider that the point as regards the distinctions between family relationships and blood relationships is a good one. I support the suggestion made by my noble friend Lady Blatch that further consideration might be given to this matter. It is of some importance as regards the welfare of the child.
I seek clarification on one point about which I am very concerned. Is it not the case that, either under this clause or the earlier clauses relating to sexual offences, the case would have to be proved? Therefore, in the second set of circumstances the offender would be caught under earlier parts of the legislation once it is enacted. If not, then there is a serious gap. If so, however, the point is covered.
The noble Baroness, Lady Howarth, is quite correct. The noble Baroness, Lady Blatch, has been extremely persuasive in making her point. However, I feel that it would be wrong for me not to move the amendment because it would give a totally false expectation about what is going to happen next. Even though the noble Baroness has put her point very well, I feel that at this stage the right course is for me to move the amendment.
had given notice of her intention to move Amendment No. 203:
Page 14, line 44, after "are" insert "first"
The noble Lady said: I will not move the amendment, but I want to say that I am not happy with the definition in subsection (5)(b) that,
X'cousin' means the child of an aunt or uncle".
That is not correct. It is sloppy and bad use of English. If the noble and learned Lord does not see fit before Report stage to qualify "cousin" as I have requested, I reserve the right to return to this matter.
[Amendment No. 203 not moved.]
Clause 30, as amended, agreed to.
Clause 31 agreed to.
Clause 32 [Sections 28 and 29: existing sexual relationships]:
On Question, Whether Clause 32 shall stand part of the Bill?
This is exactly the same argument as we had in relation to Clause 27. I indicated then that where the formation of the relationship was by the abuse of an existing relationship and it continued after the Act came into force, then I did not believe that there should be a defence. This is precisely the same point as regards familial relationships. Having reconsidered the position, we support the noble Baroness, Lady Blatch, in removing this clause from the Bill.
I am very grateful to the noble and learned Lord. I fully support what he has said and hope that this clause will not stand part of the Bill.
In moving this amendment I also wish to speak to Amendments Nos. 212 and 218. These are probing amendments to ascertain the rationale for using the terms "refuse" and "choose" rather than the term "capacity to consent". It may be helpful to group these amendments with those in Clause 34 as they address the same substantive points.
Capacity to consent is central to determining whether a relationship is appropriate for a person with a learning disability. The failing in the current criminal law is that it does not define capacity to consent and does not set out who can and cannot consent to sexual relationships and in what circumstances. It wrongly categorises people as being a mental defective or not a mental defective rather than focusing on whether an individual can consent to sexual relations in particular circumstances. The meaning and the effect of the common law is also subject to some legal debate.
Certainly an act of submission without any understanding of what is taking place cannot possibly constitute consent. I should like to remind the noble and learned Lord, Lord Falconer of Thoroton, of the case of R v Jenkins. In that case David Jenkins was a support worker in a residential unit. He admitted having sexual intercourse with a woman resident. When it was discovered that she was pregnant DNA tests confirmed he was the father. At the trial experts agreed that the woman could name only some body parts, could not distinguish acts of sexual intercourse from other pictures shown to her and had no understanding of pregnancy or contraception. Plainly, she lacked the capacity to consent, as we would understand the term.
However, the judge ruled that she had given consent through her "animal instincts". This case alone is a stark reminder of the need for new legislation and for laws to ensure that those who cannot consent have absolute protection of the law. It is alarming not only because it would allow abusers to claim that sexual relations are not abusive, but also because it dehumanises the person with a learning disability and robs them of their privacy and dignity.
As regards the words "refusal" or "consent", I agree that in order to consent to sex an individual must understand what is proposed and its implications and be able to exercise choice. The word "choice" reflects cases in which someone is in a position of power over another, so that person is unable to refuse or choose to have sex. There is a difference between "choice" and having the freedom to make that choice. Someone may comply with another's request for sex, but that does not mean that the choice to have sex has been exercised freely or without undue influence.
There is a sound basis to preferring the term "consent", over and above the niceties of the English language. I have already explained that the word "consent" is pivotal in determining whether an act is abusive. The BMA and the Law Society have published guidance that uses the test of capacity to consent to sexual relations. The phrase "capacity to consent" has also been thoroughly tested in case law. It is a valid defence to most sexual offences committed against people of all ages. The term "consent" is used by parliamentary draftsmen in many criminal statutes, but has not been defined.
I am mindful of the Law Commission's draft report and the draft Bill on capacity and the Government's commitment to introduce new capacity legislation when parliamentary time allows. The Law Commission and the two Government consultation documents on mental capacity—Who Decides and Making Decisions—use the term "capacity to consent". I seek clarification from the Government as to why they have departed from that wording. For my part, I am uncertain as to whether inability to refuse will give less or more protection to people with a learning disability. However, I am clear that the law should protect people who are unable to give any consent to sex.
There is sound precedent for using the term "unable to consent" and that should be reflected in the offence. If we proceed with the terms "choice" and "refuse", I would like an assurance about whether it will be necessary to revisit and redraft the clause when the new mental capacity legislation is in place.
We on these Benches support the probing nature of the amendments. We question the wording of the clause.
Ability to consent and ability to refuse are different, the first demonstrating active agreement and the second simply describing where someone could not demonstrate their unwillingness. Other clauses in the Bill discuss consenting to sexual activity, and it is unclear why the Government have decided to change their stance and use the words "unable to refuse" and have opted to refer to choosing to agree to the touching rather than consenting.
We on these Benches would be interested to know how the words "refuse" and "consent" are to be taken in regard to Clause 77. That clause defines consent in a way that would probably be incapable of understanding in the case of a person with a learning disability. We welcome an explanation from the noble and learned Lord.
I suppose that there must be something wrong with me, but I cannot see the distinction in any practical context of lacking a capacity to consent and lacking the capacity to choose whether to agree. I cannot see that in the definition of the mental state there is any practical distinction. However, I may have misunderstood the situation.
The amendment raises important wider issues about the definition of the capacity to consent—I use that term in a non-technical sense—to which we shall come under later amendments. For the moment I shall address only the technical issue that the noble Lord, Lord Adebowale, raises in Amendment No. 204.
The amendments are concerned with a situation whereby someone with a mental disorder or learning disability is approached to engage in sexual activity. The issue is whether at that time they were able to understand enough of what was proposed to refuse if they did not want to engage in sexual activity. The clauses as drafted define the criminal behaviour in terms of it being committed against someone who is unable to refuse being subjected to it. That clearly defines the vulnerability of the victim in these cases and does so in straightforward language. That does not seem to amount to any substantive change. The proposal is perhaps designed to probe why we have chosen the words that we have.
The answer is a technical drafting point. If we used the word "consent" it would import the definition of consent at Clause 77, which states that,
"a person consents if he agrees by choice, and has the freedom and capacity to make that choice".
So the Bill provides that a person can consent only if he has the capacity to choose. As Clause 33(2) is meant to be a definition of capacity to consent, incorporating the word "consent" would make the definition circular. That is why we have used different words. Noble Lords can consider the point by looking at the relevant provisions. However, we have made the decision because of that good drafting point. In those circumstances, I invite the noble Lord to withdraw the amendment.
The very point that the noble and learned Lord has just made was made in my briefing from Mencap. Although I wish to support my noble friend, perhaps it is because of loyalty to him as well as a belief that his description of people with a learning disability must commend itself to the Committee.
I have a question for the Minister in the light of his explanation. I am still persuaded by the noble Lord, Lord Adebowale. If a person is propositioned in these circumstances but has not consented; if the only test—should the case come before the courts—is whether they had a capacity to refuse; and if it was proven that they could perhaps have refused but did not, or it was deemed that they had not refused, then, although they had not consented, they would be left without a defence. The victim would still be a victim and there would be no remedy in court, simply because the only test was whether they had the capacity to refuse. It seems that there is a lacuna. I am not sure that the noble and learned Lord has been more persuasive than the noble Lord, Lord Adebowale.
That is right. Whereas the Bill says, "unable to refuse", the amendment says, "unable to consent". They both amount to precisely the same level of protection.
I cannot help being a little perturbed by the case of R v Jenkins which the noble Lord, Lord Adebowale, quoted. If "consent by animal instinct" is to be taken as a sufficient consent, then one does, does one not, altogether remove the element of reasonableness which is such a consistent thread through the body of the common law? I cannot help but feel that that could have rather more far-reaching consequences than perhaps we are thinking about at the moment. It worries me.
I am not aware of the detail of the Jenkins case. Obviously I shall have to look at it. It is a perfectly legitimate concern and I understand the concerns being expressed. However, looking at the wording, I think that the concerns are misplaced. I must consider profoundly what has been said in relation to it. I think that we are all trying to reach the same conclusion.
I agree that we are all trying to reach the same conclusion, and I think that I understand the noble and learned Lord's response to my amendment. However, I am still concerned. I think that the case that I quoted raises some genuine issues which I am not sure have been fully addressed. I believe that the ability to consent is critical to the ability to make a choice. I respect the support that noble Lords have given to my amendment. However, I beg leave to withdraw the amendment.
In moving the amendment, I speak to Amendments Nos. 206, 209 and 210. Before doing so, I should like to mention the rationale underlying the amendments and to explain in particular the grouping. These four amendments deal with the issue of whether physical incapacity warrants inclusion in Clauses 33 to 51. In the next group I shall tackle the specific area of definitions: the complexities of what the terms "mental disability", "mental disorder", "learning disability" and "learning difficulty" cover and which terms are preferable for use under this legislation. I realise that Amendments Nos. 205 and 209 introduce a term "mental disability". However, for the sake of clarity I prefer to talk about the advisability of adopting this term when I speak to Amendments Nos. 207, 211 and 404. I speak now to Amendments Nos. 205, 206, 209 and 210.
The Law Society and MIND have made several representations to us about the advisability of including physical incapacity in Clauses 33 to 51 along with whatever definition is preferred to describe mental impairment. Many people are not capable of expressing valid consent or indicating a lack of consent and are as such vulnerable because of a physical disability.
There may be circumstances where a person may not fit the legal criteria of "mental disorder" or "learning disability" but may be unable, by reason of physical incapacity, to communicate his or her consent to sexual activity: for example, those who are mute, deaf or in a coma. Although their reason for incapacity to consent is of a different kind—it is physical, not mental—they should be afforded the same protection.
In paragraphs 4.5.8 of Setting the Boundaries, the Law Commission recommended that for the purpose of any non-consensual activity offence,
"(1) a person should be regarded as lacking capacity consent if at the material time:
(a) the person is by reason of mental disability unable to make a decision for themselves on the matter in question: or
(b) the person is unable to communicate their decisions on that matter because they are unconscious or for any other reason". Sub-paragraph (1)(b) points to some physical disability. It is on that basis that we have some sympathy for the inclusion of physical incapacity. It is a point which is covered in the rebuttable presumptions in Clause 78. We on these Benches believe that a debate on its inclusion here is worthwhile.
It is clear that during the consultation process, there were some who believed that physical incapacity should be included in Clause 33 and following clauses. Paragraph 4.53 of Setting the Boundaries states:
"The review was unanimously agreed that some people had levels of mental and sometimes physical disability so severe that they could not be regarded as being able to give consent in any circumstances. Examples may be those with severe brain damage, severe learning disabilities or severe dementia. Such people would not be able to understand what was being asked of them or to communicate consent, or the lack of it, in any way".
That suggests that there is some overlap between physical and mental impairments in terms of being able to consent. It might then be thought appropriate to include those with physical incapacity in the amendments which deal with inability to consent because of mental disorder or learning disability. I beg to move.
As the president of Mencap and the father and grandfather of a daughter and a grandson with a learning disability, I believe that I am somewhat qualified to add briefly to the discussion on the always vexed issue of terminology. The noble Lord, Lord Astor, has been kind enough to share his thinking and his briefing with me and I am happy to return the compliment.
We are, if I may say so, entirely agreed on the importance of clarity, all the more so since I am conscious that any time someone steeped in this debate even lists the diverse terms, a sort of quiet despair spreads across the noble countenances of others of your Lordships.
The Bill offers "mental disorder or learning disability", as does the noble Lord, Lord Astor, in Amendment No. 220 tabled in his name and those of the noble Baroness, Lady Noakes, and the noble Lord, Lord Campbell of Alloway. In the next set of amendments, Amendments Nos. 207, 211 and 404, the noble Lord and his co-sponsors seek to substitute "mental disability" for "mental disorder and learning disability", while in these amendments, Amendments Nos. 205, 206, 209 and 210, there are other attempts to exclude learning disability.
I have no objection to the separate proposal for inclusion of physical capacity as a relevant factor. Someone with very good intelligence and an unclouded mind may indeed be unable to act in and speak for their interests in a sexual encounter because of their physical incapacity. Furthermore, I have no objection to whatever terminology colleagues in the mental health field want to use to describe those with severe incapacitating mental illness.
But I do object to removing "learning disability" from the Bill. I know exactly what learning disability means. As the noble Lord, Lord Astor of Hever, said from our shared brief, it is in English usage in this country a common and commonly understood means of describing intellectual limitations of various degrees dating from birth or soon afterwards and lasting for life. Some social disability normally goes with the intellectual disability, although I have to say that some people with learning disabilities seem to me to have outstanding social skills. I have some sympathy with the desire to define the term in the Bill. I certainly want to use it.
"Learning disability" is different from the term "learning difficulty" when used to describe specific deficits in learning skills such as dyslexia. It is also different from "mental illness", which is a clouding or distortion of perception that may hit any of us, quite often does, and is happily amenable to treatment in many cases. Even senior Ministers of the Crown—I will not mention names—have been known to confuse mental illness and learning disability, and I want to take every opportunity to avoid that frequent confusion.
For the avoidance of doubt, I prefer to keep "learning disability" in the Bill and thus to recognise that it is something different from the perhaps fluctuating capacity that may go with "mental disorder", and stands out from the amorphous "mental disability". In short, I think that the Government have got it right in this particular and the noble Lord and his colleagues have got it wrong.
I am a newcomer to the Bill who happened to be in the Committee during this discussion. As the noble Lord, Lord Rix, pointed out, the definitions in the Bill are correct. Surely physical incapacity, where it would lead to a lack of communication ability, should be brought in. If that point is covered elsewhere in the Bill I will take my slapping on the wrist well, but it is an important point. I agree with the noble Lord, Lord Rix, but I wonder whether physical conditions that inhibit the ability to communicate properly are taken into account in the Bill.
We are dealing with a most complex issue. I support the point made by the noble Lord, Lord Rix. As someone who is involved with a charity that provides a service to many people with learning disabilities, and having involved myself in the world of learning disability over the past few years, I am always filled with a certain sense of despair when there is a failure to acknowledge what is an issue for well over a million people; indeed, it will become increasingly so over the next 10 years during which we shall see an increase of about 3 per cent in the main population and anything up to 70 per cent in minority ethnic populations. We need to start using the term, and understanding it as being a separate entity.
However, I have some sympathy with the point raised by the noble Lord, Lord Astor of Hever, in that there are people with physical incapacity who would face a real challenge in this respect. I put forward the following as a helpful suggestion. Both sides in this discussion are seeking to achieve the same aim. We are all in agreement as regards what we wish to achieve. We are trying to find a form of words that acknowledge a range of challenges faced by individuals, which might prevent them from engaging with the law. I suggest that further discussion takes place with the likes of MIND, my organisation Turning Point, and Mencap before the conclusion of the Committee proceedings. This would enable us to arrive at a suitable definition that might reflect the wishes of all sides.
I support one half of the proposal put forward by the noble Lord, Lord Astor of Hever. I do not want to enter a debate about definitions regarding disability, because the noble Lord, Lord Rix, is an expert in that field. However, I am the vice-chair of John Grooms charity for disabled people. It would be a pity if we did not explore the argument that if people with physical incapacity were not included at this point in the Bill it would leave a gap. This is a most complicated area. Real questions arise as to whether or not one can communicate consent in these circumstances.
There needs to be a definition about levels of capacity to communicate and about conditions in order to get the legislation right. It would be useful to hold further discussions on the matter to ensure that this group of people who are abused are included in the legislation. I have experience of advocating for physically disabled people who have been abused.
It is incredibly important for us to ensure that the basic definition of the group covered by Clauses 33 to 51 is the right one. There is not much doubt about the fact that we are all trying to arrive at the same conclusion. I thoroughly agree that the Government should keep their mind open between now and the Report stage on the issue of the right way to deal with this form of words. I shall set out our current thinking. However, I should tell the Committee that I shall carefully consider all the comments made today.
I shall refer to Amendments Nos. 205, 206, 209 and 210, but also mention the next group—Amendments Nos. 207 and 211—because they raise a similar issue. The first proposition, under Amendments Nos. 207 and 211, is that "learning disability" should be dropped from the definition. The noble Lord, Lord Astor of Hever, supports that proposal, but the noble Lords, Lord Rix and Lord Adebowale, are against it.
I can see the force of the proposal put forward by the noble Lord, Lord Astor of Hever. We believe that "learning disability" comes within the definition of "mental disorder". For that reason, it does not need to be dealt with separately. If we took that approach, it would have to go right across the board in relation to all these clauses, which means that we would need to bring forward an amendment to deal with the whole position. That is our current thinking, but that is not in line with the view expressed by the noble Lord, Lord Rix. Therefore, before we make a final decision on the matter, we need to discuss the matter with the various groups to ascertain whether we are right or wrong in that respect.
The second proposal in this group of amendments is to replace "mental disorder" with "mental disability". I know that the this has been proposed by the Law Commission, and that it is being considered for the Incapacity Bill, as well as the new Mental Health Bill. However, it would be unwise at present to connect oneself to a definition that has been put forward only in draft form because it may be amended before it becomes law. We believe that the right course of action is to wait for the later Bill. If the definition is adopted at that stage, or adopted in a changed form, we can then amend what would be the Sexual Offices Act 2003 in the subsequent Bill.
The third issue is the important proposal of whether "physical incapacity" should be included within these clauses. As a group, those with a physical incapacity have the capacity to consent, whereas these clauses are intended to protect those who lack that capacity. Some people, along with a mental disorder, also have a physical incapacity—
One can see that the types of vulnerable victim with whom these clauses seek to deal are different from the types of victim we shall seek to deal with in other parts of the Bill. Therefore, people in a coma, for example, who have been identified or those unable to communicate by reason of a physical disability are covered by the presumption in Clause 78. When people suffer only from a physical disability as opposed to a combination of a physical disability and mental incapacity, is it right that they should be brought within the provisions of this part of the Bill? Our current view is that if a person has a mental disorder and physical incapacity, he is already covered; if he has only physical incapacity, then that is better dealt with by the existing provisions. Would such people want to be covered by these parts of the Bill?
I thank the Minister for giving way. I am still unclear about the situation of a person who has a serious verbal communication difficulty—perhaps a serious speech impairment—who is unable to communicate, is perhaps frozen with fear and cannot communicate in any other physical way. Perhaps the Minister can explain how such a person would fare under this provision.
Let us assume the person to be an adult. Let us assume that he has no mental incapacity of any sort but that he is unable to communicate his wishes. If, without his consent, he was subjected to a sexual act, that, without any doubt, would plainly be caught by the first 11 provisions of the Bill. Therefore, I ask myself why it is also necessary to raise questions in relation to this part of the Bill with regard to such a person.
We also seek to provide additional protection for such people in Clause 78 by saying that there is a presumption that there is not consent unless the relevant burden is satisfied. We believe that that is the right way to deal with this issue. Obviously protection is in place, and I ask whether such people want protection under this heading. That is our basic position. As I said, our minds are open, but I set out what we consider to be the right approach. In the light of that, I hope that the noble Lord will not press his amendment now. Obviously we need to have further discussions about the way forward.
I thank the Minister for that reply. I agree with him and with all the other speakers that it is absolutely vital that we get the definition right. I had hoped that this group of amendments would relate more to physical incapacity but, as other Members of the Committee have addressed the definition issue, I shall touch on that.
As always, I am grateful to the noble Lord, Lord Rix, for, both inside and outside the Chamber, putting me right on all these very technical terms. It is entirely thanks to him that I understand most of them now. I say to him that we must all work together to try to get the right definitions in the Bill. I believe that in the past we have worked very well on that.
As the noble Lord, Lord Adebowale, said, this is a very complicated issue and we must all try to find the right form of words. I certainly think that MIND, Mencap and Turning Point need to get together.
So far as concerns physical incapacity, there has clearly been a difference of opinion as to whether there is sufficient protection. We want to read Hansard very carefully and consider that before Report stage. In the meantime, I beg leave to withdraw—
Before the noble Lord sits down, perhaps I may intervene briefly. I put my name to this amendment largely as a result of my experience at the Bar in learning disability cases.
"Learning disability", as the noble Lord, Lord Rix, knows probably far better than I, is a somewhat technical and narrow definition. My noble friend Lord Astor, on the Front Bench, seeks to remove a narrow definition and extend it in a way which will include the lesser. Looking at the matter from that point of view, I am absolutely with him. That is only one aspect of the issue.
If one looks at the words "mental disorder or learning disability" and squares them against "mental disability or physical incapacity", the latter is the more comprehensive concept that embraces the former, without importing difficulties of construction. One is using words that can be clearly understood. What a learning disability is cannot be so clearly understood because that has been the subject matter of a considerable amount of case law. One wants to get away from case law if one can. One cannot always escape. We are looking for the right definition which will work best in practice. One wants really to try to find the wider definition, using words that have not been treated with a form of technical interpretation and constraint. That is why I put my name to the amendment. I would not have done so if I did not support my noble friend.
Before the noble Lord withdraws his amendment, perhaps I may respond to the noble Lord, Lord Campbell of Alloway. He has put his finger on a particularly sore point so far as I personally am concerned. I have always realised that "learning disability" was a difficult definition of the condition of learning disability. But we want to get away totally from the use of the word "mental". Therefore, "mental disability", "mental defect", whatever it may be that has been used in the past or that which it is likely could be used in the future, is a total anathema not only to me as a parent and as a grandparent but to all people connected with the world of learning disability. We are talking about a constituency of 1½ million people in this country with a learning disability, which is a large proportion of the population.
I agree though that "learning disability", as such, is not a particularly adept description. I believe those in the Antipodes have probably put the matter better. They talk about "intellectual impairment", "intellectual disability" or "intellectual handicap". I believe that the use of the word "intellectual" probably sums up the condition more accurately and does not confuse the position with "learning difficulty", which of course is a separate issue. Learning difficulty can be from physical causes or dyslexia or sensory conditions, such as short sight, hearing impairment or whatever. Those conditions cause learning difficulties.
It is a sine qua non that a person with a learning disability also has a learning difficulty. So one sees that the arguments could rage across these Benches for the next 24 hours and I do not think I would be very popular if I continued. However, I throw this response to the noble Lord, Lord Campbell, as perhaps a challenge for the Government as something that should be looked at for the future, which is using the term "intellectual".
I shall speak also to Amendments Nos. 211 and 404. The amendments were designed to get to the bottom of the correct terminology. In the light of what the noble and learned Lord has said about reconsidering the definitions, I shall spare the House the rather lengthy speech that I was minded to give. I very much hope that we shall return to the matter in great detail on Report.
I shall speak also to Amendment No. 217. Some people have levels of mental disability so severe that they could not be regarded as being able to give consent in any circumstances. Examples include those who are profoundly learning disabled and many who are severely disabled. Such people will not be able to understand what was being asked of them or to communicate consent or the lack of it in any way. Absolute prohibition on sexual relations with such individuals is justifiable as essential for their protection.
Sexual contact with someone who cannot consent to that contact for reasons of severe learning disability should be a criminal offence. The amendment would make that offence one of strict liability. A defendant could not claim any defence once it was established that an individual was unable to give informed consent because of his severe disability. One can argue that it cannot be a defence that the accused thought that the individual gave his consent. My organisation, Turning Point, is aware of a case in which a person with a severe learning disability aged 30 was befriended by a member of his church and sexually abused. The accused claimed that he did not realise that the young man had a mental impairment, despite the fact that a clinical psychologist claimed that his condition was immediately apparent and that he could not give his informed consent.
I appreciate that there may be some cases in which a person's disability may not be immediately apparent or so self-evident, especially in a case of a person with autism or someone with a mental disorder. On that basis, I understand the rationale for including paragraph (d). Its drafting is an improvement on the current legal position, in which a defendant can simply claim that he did not know that someone had a mental disability as a means to escape punishment.
Indeed, I go further, I commend the Government for trying to close that dangerous loophole. On the other hand, I should not want the defence in paragraph (d) to be raised automatically with the solid intention of putting additional strain on the victim or used as a device to force that person to be cross-examined in the witness box, which has often happened. Similarly, I should be concerned if that was raised in cases in which the victim is so severely disabled that it would be absolutely evident that the person was vulnerable.
I am aware of a case in which it was established that a person was a "mental defective". That was challenged by the defendant. The victim was forced to give evidence, but the judge ruled that the victim was not a competent witness, refused that person special measures under the Youth Justice and Criminal Evidence Act 1999 and dismissed the case.
I hope that the Minister can reassure me that such a mistake by a judge will not happen once the Bill is enacted. The defence that the offender did not know that the victim had a severe learning disability is often not credible because of the circumstances or characteristics of the injured party. There is a case for dropping that as a special defence but not preventing it being pleaded in mitigation by an accused party. I should welcome the Minister's response to that suggestion.
In any event, I suggest that there is a case for guidance for Crown prosecutors and judges in this area to spell out the circumstances in which the defence in paragraph (d) can be raised; to reinforce the need for special measures to support the victim in court; and to explain how the reasonableness test in the clause will be applied in practice. I beg to move.
This is a most extraordinary amendment. Although I appreciate the spirit in which it is moved, the noble Lord is suggesting that a person could be imprisoned for life for intentionally touching another person in a sexual way without realising that that person suffers from a mental disorder or a learning disability. Surely, the prosecution must show that the defendant has some mens rea. The use of the expression that he would be guilty if he,
"could reasonably be expected to know that B has a mental disorder", covers all eventualities.
The noble Lord said that that should not be a defence where it is not credible. If a defence is not credible, the jury will not believe it; they will not accept it and will find the defendant guilty. Ultimately, that is the only way in which the criminal justice system can possibly work.
As the noble Lord, Lord Adebowale, said, and the noble Lord, Lord Thomas of Gresford, identified, the two amendments are designed to remove the requirement that sexual activity with a person with a mental disorder or a learning disability, or causing a person with a mental disorder or a learning disability to engage in sexual activity, is committed only where the defendant knows or could reasonably be expected to know of that person's mental disorder or learning disability.
I accept that in some cases where someone has a mental disorder or a learning disability sufficiently severe for them to lack the capacity to consent, that will be utterly apparent. In such cases, it would be relatively easy to prove that the defendant could reasonably have been expected to know of the person's lack of capacity to consent. I would have thought that that would apply in the sort of case that the noble Lord refers to when he says that the position was "immediately apparent". In the vast majority of cases, there would be no requirement to call the victim, because it would be proved by medical evidence that that was the position.
It is right to recognise that there may be cases where incapacity is not apparent and that there is a genuine defence. It is for the prosecution to prove its case. It is not possible for restrictions to be made on when the defence can be advanced; that must be a matter for the defence itself. But we should be prepared, first, to trust juries to reach sensible conclusions about it, and, secondly, to trust judges to ensure that there is no requirement for any demeaning cross-examination to establish the position. It can usually be established by the calling of other evidence.
I agree with the point made by the noble Lord, Lord Thomas of Gresford. It would be wrong to convict anyone of an offence that carried a maximum sentence of life imprisonment when they did not know, and could not reasonably have known, that someone did not have the capacity to consent to sexual activity. Therefore, although I understand the spirit in which they were moved, I must resist the amendments.
I note the response of the noble and learned Lord, Lord Falconer. Although I understand the comments made on my amendments, my concern is that it is still possible for someone to be cross-questioned. The example that I gave is clear evidence of that, and it is only one among many. I am not sure that I am entirely satisfied. I note the comments of the noble Lord, Lord Thomas. I beg leave to withdraw the amendment.
The amendment aims to challenge the reasoning behind the wording of Clause 33(2)(a). Subsection (2) gives two alternative reasons why B is unable to refuse sexual activity. Either he lacks the capacity to choose, or he is unable to communicate his choice. With the former option we are given a further explanation in brackets,
"whether because he lacks sufficient understanding of the nature or possible consequences of what is being done, or for any other reason".
Amendment No. 213 proposes replacing "possible" with "reasonably foreseeable". "Possible consequences" is too broad and too vague. "Reasonably foreseeable" seems a better alternative. It points to the likely outcome rather than what is "possible", which might relate to any number of things. The Law Commission used the term "reasonably foreseeable" in response to the consultation document. It is a small point, but it is important we get it right. It is just the sort of thing that might become the basis of legal wrangling in court cases. So I would welcome the Minister's clarification on the choice of wording.
I feel that I am being drawn into the most unhelpful legal debate about particular words. The perfectly well-intentioned amendment of the noble Lord, Lord Astor, seeks to replace "possible consequences" with "reasonably foreseeable consequences". It seems to be based on the Law Commission definition of capacity to consent, as proposed in Setting the Boundaries. Unlike the Law Commission's definition, our definition refers to a person who lacks sufficient understanding of the possible consequences of what is being done. The Law Commission definition referred to a person who is "unable to understand" the reasonably foreseeable consequences of the Bill.
The effect of the amendment would be to refer to a person who lacks sufficient understanding of the reasonably foreseeable consequences of the act. I am not sure that it is any different from a provision which refers to a person who lacks sufficient understanding of the possible consequences of the act. The definition in the Bill is clearer and more straightforward. One could find a million lawyers who would give a million definitions of the proposal made by the noble Lord, Lord Astor. I believe that it is right to take straightforward words, put them in the Bill and leave it for the court to decide on the facts of the case, rather than adopt a range of words that are selected from various other parts of the law which might be over-complicated. Unless a good reason is given for departing from the simple words, we are minded to stick with our own. However, we will of course consider any arguments that are advanced.
Amendment No. 214 is a probing amendment. I have been wondering what other reasons could be invoked in relation to capacity which the inclusion of the phrase "or for any other reason" would be designed to cover.
I almost feel that this vague wording is a result of drafting legislation on consent. If the wording is too loose it will create trouble in the courts. We would welcome a more tightly-worded specific phrasing in the clause.
Amendment No. 215 continues in that vein. The Bill leaves open the possibility that a defendant may be charged with offences because he has sexual relations with a person who, he knows, has a mental disorder or learning disability. Not all mental impairments are constant conditions, affecting someone to the same extent and degree continuously. The Bill should make it clear that the defendant's knowledge of the subject's mental disorder or learning disability relates to the time at which the alleged offence took place, rather than to the general knowledge that the subject has been diagnosed as suffering from a mental disorder or learning disability. I beg to move.
I do not want to argue with my noble friend about the amendment. He said that it was a probing amendment, so I speak to it in that vein.
I am concerned about the narrowing of the test. My noble friend said that he would prefer to see a tightening of the wording. However, if there were a tightening of the wording, it would have to be more comprehensive and inclusive. Anything that fell outside the tightened-up wording would not be caught by the phrase,
"or for any other reason".
It would be difficult to draft a law that covered all eventualities. The Bill leaves the courts freer to make a judgment about whether something is caught by the provisions. If B lacks the capacity to choose or—I would prefer to use the word used by the noble Lord, Lord Adebowale—to consent for any reason other than not understanding the nature or consequences of what is happening, it could be that there was another reason. There could be another reason that would be just as valid and prove that something undesirable had happened to the victim, B. The catch-all phrase,
"or for any other reason" leaves the courts with some welcome flexibility.
I hope that my noble friend will agree that person B should receive the protection of the court from sexual assault on the basis of a reason that is accepted by the court after due process as valid but falls just outside the wording of the subsection as it would be if we took away the words,
"or for any other reason".
The difficulty is that, if we narrowed the wording, we would have to consider more closely how we described all the possible eventualities. That might be too difficult.
We accept the reasoning of the noble Baroness, Lady Blatch, about the matter. The basic thing that must be established is that B is unable to refuse. He is unable to refuse, if he lacks the capacity to choose whether to agree to the touching; that is what must be proved. He might lack that capacity because he lacks,
"sufficient understanding of the nature or possible consequences of what is being done, or for any other reason".
"or for any other reason" would include the matters referred to in the amendment moved by the noble Lord, Lord Astor of Hever, but I imagine that a significant number of lawyers could think of variations that do not quite fall within the bracketed words but which, none the less, a sensible person would think showed that the victim lacked the capacity to choose whether to agree. It would not be helpful to restrict the basic definition of whether somebody lacks capacity. Although I fully understand the reasons for moving the amendment, which is only a probing amendment, we think that we would give the best protection by including the words,
"or for any other reason".
That is why we did it.
Originally I drafted an amendment which sought to insert a new clause after Clause 116. It was headed, "Orders of court: therapeutic or counselling services for victims". Unfortunately, I was informed that such a clause would not find a happy home in this Bill, and that the best I could hope for would be to receive assurances from the Minister by pursuing the route of opposing the Question whether this clause should stand part of the Bill. This I am now doing, and I trust that I shall not detain noble Lords for very long.
The issue is the lack of specialist counselling and therapeutic services for people with a learning disability who become victims of sexual abuse and for whom the process of recovery can be painfully slow and, of course, painfully difficult. Therefore we must consider how best we can help them.
The national provision of counselling and therapeutic services for people with a learning disability is extremely poor. These services possess neither the expertise to offer specialist support, nor do they receive sufficient funding to offer counselling to this vulnerable group, which may well contain those with profound learning and multiple disabilities, thus making communication and counselling even more difficult.
I raised this matter last October when I introduced my own Bill on sex offences, supported by Mencap, VOICE UK and the Ann Craft Trust, all organisations deeply involved in supporting victims of these heinous crimes. Alas, as yet I do not feel that I have received a satisfactory answer or, indeed, any answer.
I hope that the Minister will review the availability of resources to ensure that victims with a learning disability are at last given the right and proper support. If it would help to resolve matters, I would gladly beat a path to the Minister's door to explore the way ahead. On the other hand, a cast-iron, copper-bottomed commitment—if that is possible—made now might well provide the solution. I look forward to the Minister's response.
I fully support all that has been said by the noble Lord, Lord Rix, concerning the provision of support and counselling for those people with mental disorders or learning disabilities who have to go through the legal processes or give evidence in a trial. I agree entirely with the noble Lord that the national provision of counselling and therapeutic services for people with a learning disability is extremely poor. We believe fundamentally that specialist services should be provided with adequate funding for these circumstances, a point also made by the noble Lord.
The criminal justice system is daunting for anyone, let alone those suffering from a mental disorder or a learning disability. Problems have arisen in the past because their evidence does not stand up in court under the scrutiny and interrogation of the defence counsel. I understand that provisions cannot be included in this legislation, but I would welcome assurances from the noble and learned Lord that steps are being taken to address these problems.
The Bill admits that different rules apply for people with mental disorders or learning disabilities, in particular those who are incapable of giving consent. Other legislation dealing with how the criminal justice system works should similarly reflect and address those differences.
On other grounds, Clause 33 is worrying. We would like to know why no functional test of capacity is included. How is a prosecution to be pursued under Clause 33? Who will be responsible for assessing the capacity of victims, questioning them, and providing them with access to the right support facilities and experienced care workers who can handle the inquiry? I shall certainly require a degree of persuasion from the Minister that these matters have been considered fully and that the procedure which would result from a prosecution brought under Clause 33, although not on the face of the Bill, has been thought through in detail and is appropriate to provide for the needs of these most vulnerable people.
Legislation on mental capacity would help to clarify cases involving people who lack the capacity to consent to sex and should therefore be a priority in order to complement the provisions of this Bill.
I have great sympathy with the problem described by the noble Lord, Lord Rix, of finding a suitable platform for raising this important issue. I had a similar experience with regard to services for young people who abuse. It is disgraceful if the situation is as the noble Lord described. These are very vulnerable people in the most terrible situation and very much in need of highly qualified, experienced persons to provide appropriate services. The training of such people takes a long time, as does developing the range of experience necessary to do such specialist work. Producing enough people requires long-term planning, so I hope that the Minister listened carefully to the noble Lord, Lord Rix. The sooner something is done, the better. Maybe it will take five or seven years to produce enough people to fill the gap that the noble Lord identified.
I listened with concern to my noble friend Lord Rix, whose remarks brought to mind earlier debates in Committee about therapeutic services for vulnerable young people. Does the Minister expect anything in the Green Paper Children at Risk to address the issue of developing a workforce to work with such children? Will the noble and learned Lord bring to the attention of his colleagues working on the Green Paper the concerns raised today?
There is concern at the delayed publication of part of the national service framework for children. Money is being passed to services throughout the country, yet the framework—particularly a document entitled The Emerging Findings—has not yet been published, so service commissioners will not be fully informed about how best to spend their budgets. Perhaps the Minister can convey my concerns. We would be interested to see the document coming forward soon, so that the right sort of therapeutic services are provided.
I support my noble friend Lord Rix. The organisation Respond, like Turning Point, is very concerned about the lack of clarity on the critical issue of therapy for victims of sexual abuse who have learning disabilities. As the law stands, there is great uncertainty about whether a person with a learning disability will receive therapy, even though therapy can actually help people to deal with the legal process better and with the incredibly emotional pain of abuse.
For too long, people who have been terribly hurt have been denied treatment for dealing with that hurt—an absurdity that must change. We know that abuse wrecks people's lives, yet often therapy is not made available to the victims of abuse. The treatment of people with learning disabilities is characterised by weak assessment procedures, uneven availability of treatment and lengthy delays. Poor service planning and low levels of commissioners' expertise prevent organisations such as Respond from doing their job properly. Funding is often too short term, rather than being matched to individual needs. This critical issue deserves our attention and I thank the noble Lord for bringing it to our notice.
My understanding is that the noble Lord's opposition is a device to raise certain issues because I would not want to lose Clause 33—which does offer protection to some very vulnerable people. That does not, nevertheless, make the points raised by the noble Lord any less valid; it seems an excellent way of doing things. This is a very wide issue—it is not just about resources but about the quality of the services made available to people who suffer from a mental disorder or learning disability.
My noble friend Lord Astor spoke about how this will work—the practice of making very sensitive judgments, what the tests will be and whether there will be a code of practice. They are very real issues.
This is an ingenious device, but I would not like to see Clause 33 disappear from the Bill, because the protection it provides is very important.
What the noble Baroness, Lady Blatch, says is widely understood around the Committee. The noble Lord, Lord Rix, was kind enough to give me warning of the purpose of this provision. We have had equally legitimate and parallel debates on the position of the victims and the perpetrators of sex crimes, particularly those who are underage.
One of the key principles underlying the offences in the Bill is that the provisions should offer better protection to the vulnerable. The sex offences review heard very disturbing evidence about the extent and nature of the sexual abuse of vulnerable people. The noble Lord, Lord Rix, has been drawing that to our attention in this House for a very considerable time. It included evidence that these vulnerable individuals are deliberately targeted for abuse by predatory offenders who calculate, all too often rightly, that they are less likely to be convicted than if they abuse somebody with no such disability.
Existing legislation has offered inadequate redress because of the inadequate nature of the criminal offences. These provisions try to make the criminal law better and more effective as a means of seeking to reduce the level of abuse.
The noble Lord, Lord Rix, is right when he says that that is only part of the story. What support is provided not just for victims who have a case brought in the criminal justice system but for those who are abused without proceedings being brought?
I appreciate fully why the noble Lord has raised this issue. I sympathise with his concerns that those victims of crime who are in this situation need specialist help in very many cases in terms of counselling and other services to aid their recovery. I fear that I may not be able to give him the assurances that he seeks. There are two sources of funding. First, there is local authority social services funding. Funding for social services has gone up generally. Relationships with local authorities require that the discussions with them determine how much they give. In addition, the Department of Health provides support to voluntary sector organisations which play a part in providing the sort of counselling to which the noble Lord referred.
The noble Lord knows better than I that for the year 2003–04, voluntary organisations in the learning disability field received approximately £1.4 million in Section 64 grant funding. That is made up of £496,000 paid in the current year and £898,000 that they applied for in previous years. The organisations that received this funding include his own organisation, Mencap, as well as VOICE UK, Respond and ARC. I anticipate that the noble Lord, Lord Rix, will say politely, "I know all that. It is not nearly enough; there is no over-arching strategy, it is patchy throughout the country because some local authorities do this and some do not". We would all share the view that provision needs to be much more focused and less patchy. That needs to be done as soon as possible. I cannot stand here and say that I can give an assurance that that will happen but we all agree that it should. I will take back what has been said today to my colleagues in the relevant departments.
The noble Earl, Lord Listowel, raised the question of the Green Paper Children at Risk. That will obviously deal with a different category of children rather than the vulnerable people whom these provisions are intended to deal with. It will cover issues about how they are to be supported when they become victims of crime in the kind of circumstances with which the Bill is intended to deal.
I appreciate that I have not dealt with the matter in a way which might satisfy all Members of the Committee. We are very mindful of the problem and recognise that the Bill can be part of the story.
As regards the final issues raised by the noble Lord, Lord Astor of Hever, and supported by other Members of the Committee, it is not possible for me to give definitive indications of the precise circumstances in which this clause will be used. But it is absolutely right that it has to be dealt with incredibly sensitively having particular regard to the interests of the victim in the context of proceedings and in considering whether or not it is in the interests of the victim in every case to bring proceedings. That will occur and it will very often require advice and assistance to the CPS way beyond the normal advice which is given.
I thank the Minister for that response. I am obviously disappointed that he has not got his hand in the Treasury's pocket. I hope that he will allow me to make further overtures to his department so that we may discuss possible ways of increasing the funding from perhaps other departments which are wealthier and more inclined to be able to distribute funds.
In moving this amendment I shall also speak to Amendment No. 221 in the name of the noble Lord, Lord Rix. As Members of the Committee will be aware, there is concern that protection is provided for vulnerable adults without impinging on their right to a private sex life.
This amendment aims to safeguard the achievement of this balance. Clauses 33 to 37 of the Bill could see two adults without capacity to consent prosecuted for engaging in sexual relations. That is clearly not the intended purpose of the Bill, but in its current form it poses a threat to the rights of vulnerable adults.
However, situations may arise where two adults with differing levels of capacity are sexually involved leaving the party with less capacity open to exploitation. It is necessary, therefore, that some form of amendment be introduced to guard against both of these risks without diminishing the protection provided by these clauses. It is my view that regulations would be the best means of resolution as they would provide clear enforceable guidance on the proper usage of the Bill without curtailing potential protection.
The prosecution of two adults equally lacking in capacity to consent could be avoided while the possibility of abuse by an adult with a learning disability or a mental disorder could still be accounted for. Regulations would hold the advantage of carrying statutory force, allowing parties to be prosecuted if they were found to be in breach and would serve as a strong preventive measure against misuse of the Bill. Redress therefore would not be limited, but the right to a private sex life for vulnerable adults would be maintained.
Regulations are needed if the full protective potential of the Bill is to be realised. However, I should like to emphasise the need for regulations to have statutory force, in view of recent developments concerning the Mental Health Act 1983. There is a code of practice for the Act, but there has been much legal debate over whether it carries the weight of law. As a result, two recent breaches of the code have effectively been ruled lawful by the judge concerned. Those cases are now going to appeal. That clearly illustrates the grave danger that guidance or regulations can be wilfully ignored if they lack statutory force. I hope that the Government learn by experience and introduce regulations that explicitly carry statutory force and clearly set out guidance around the implementation of the Bill.
After what I have just said about requesting comprehensive guidance under Amendment No. 220, I should make it clear that I fully support the principle upheld by the amendment tabled by the noble Lord, Lord Rix. It should be possible for two people with a mental disorder or learning disability to have a sexual relationship without fear of prosecution. That applies to those who are aware of their actions and can give consent and those who are not and cannot. Currently, the former can undertake a relationship without fear of prosecution so long as neither party uses threats, deception, inducement or exploitation, as covered by Clauses 38 to 42. However, no sexual activity is permitted between those with a mental disability who cannot consent, and there is a risk that someone engaging in such an activity could theoretically be liable to prosecution.
Anyone who lacks the capacity to consent may not have a proper understanding of what behaviour is appropriate. It is not acceptable that they are dealt with by criminal prosecution, in the same way as someone who is not mentally impaired. I beg to move.
I should say at the outset that I am not saying that sex between two adults, neither of whom knows what he is doing, is a good thing. I am saying simply that it is not a matter for criminal prosecution. Since there may be an inequality of strength or personality between the two parties, it may be entirely appropriate to stop the relationship if either or both parties is suffering rather than benefiting. That is to be sorted out there and then, in the light of all the facts and as sensitively as possible. It is not something to be sorted out over months and by involving the police and the courts.
My proposed new clause is quite tightly defined. It says nothing about consensual sex between parties having capacity and choice, or abuse by one party who knows what he or she is doing of another who does not know what he or she is doing. It says nothing about the unlikely but not impossible situation of a large and forceful A, who does not understand the nature and impact of sexual activity, perpetrating sexual violence on a small and inoffensive B, who knows all too well what is going on but is powerless to stop it.
I have concentrated on the most likely scenario and have sought to address it through direct provision in the Bill, although the Minister may prefer the guidance approach advocated by the noble Lord, Lord Astor of Hever. If so, I shall listen carefully to his comments, although I have an unrepentant preference for direct provision over assurances about future guidance.
I support the amendment because the scale of mental disorder is all but infinite, and its effects are not so precisely known and are of various gravity. In a new look at the law—which this is in more senses than one—it is right that the Attorney-General should authorise a prosecution, having the advantage of totally objective advice as to the mental state of the person who is to be tried.
I sound a note of caution on both Amendment No. 220 and Amendment No. 221. I wonder whether my noble friend Lord Astor of Hever is prepared to rely on the normal processes and the good sense and sensitivity of those who deal with these cases. If discretion is limited, it seems possible that the protection which the Bill offers might be undermined. It seems that there is a defence in the Bill whereby a person with severely limited understanding could not be convicted of an offence if they do not have the capacity. I hope that the noble and learned Lord can confirm that. I think that there is a defence.
As my noble friend said, mental disorder or learning disability covers a huge spectrum of disability in terms of seriousness. If a person is at the less serious end of the spectrum, then the law will view them as more responsible for their actions than someone who has a serious mental disorder. It is a fact that some disabled people who commit sexual offences deserve to be prosecuted—there are occasions when that is the case. They may well take advantage of other disabled people or of children or of adults. That is why I really am worried that the blanket ban which I believe these amendments would introduce could result in such people escaping justice.
I think that we run the danger that any additional guidance issued under Amendment No. 220 could be inflexible. Although I make that prediction, it may well be precisely the guidance that we would all want to see. However, the consequence of Amendment No. 221 is that a person could not be convicted of any sexual offence under Part 1 if both victim and perpetrator lacked sufficient understanding of the nature of the activity. That means that where the victim is learning disabled, the perpetrator can get away with committing a sexual offence against him if his lawyers can show a lack of understanding about sexual activity. That would mean that disabled people are again less protected.
What is surprising about the amendment is that the exception is to the whole of Part 1. That could have severe unintended consequences if relied on as a defence by the perpetrator of, say, a child sex offence under Clause 9. It may be that defence lawyers will argue that neither party understood the nature of the activity—the perpetrator because of his disability and the child because of his age. As I said, the Bill as drafted contains a defence. A person who has severely limited understanding would not in any event be convicted of an offence as they would not have a mental capacity to have committed it in the first place.
I fully understand the considerations behind both amendments and I hope to give reassurance. It is perfectly plain that we all agree that the criminal law has absolutely no part to play in a significant number of the types of relationship to which the noble Lord, Lord Rix, referred. I should hope that it would not play a part in the vast majority of such cases. Usually, the prosecution of someone who lacks the capacity to understand the nature of his own actions due to a mental disorder or learning disability would be totally wrong and not possible as a matter of law because he could not understand that what he was doing was wrong. That would prevent a prosecution.
Moreover, Clauses 33 to 37 require that,
"A knows or could reasonably be expected to know that B has a mental disorder or learning disability and that because of it B is likely to be unable to refuse".
It would be very unlikely that someone with a serious mental disorder would meet that requirement, which has to be proved in order to make out an offence. Nevertheless it has to be said that the exact nature of an individual's position and its impact on their capacity to consent, whether they are the perpetrator or victim of an action, is not something that can be precisely determined outside the consideration of the circumstances of the individual case. The nature of an offender's mental status is a consideration whoever the victim may be. The Crown Prosecution Service follows a code of practice in determining whether the evidential requirements are met and whether it is in the public interest to mount a prosecution.
Amendment No. 220 would place a statutory obligation on the Attorney-General to produce supplementary guidance specifically in relation to persons with a mental disorder or learning disability. The code for Crown prosecutors and other CPS documents contain detailed guidance about the circumstances in which prosecution will be in the public interest. These will be updated as a matter of standard practice following the passage of the Bill.
For persons with a mental disorder or learning disability, criminal responsibility is not something that comes with a specific diagnosis; rather, it depends on the nature and facts of the whole case. It needs to be taken into account. If the case ever got to the CPS—and in many cases it would not—it would need to consider whether the evidential requirements are complete and whether or not the public interest test had been satisfied.
I do not think that the new legislation creates new issues in that regard so far as concerns the prosecution. I appreciate the thinking behind the amendments. The Government are not interested in criminalising that which is not criminal. But because of the difficulty of providing for every circumstance, whether in legislation or guidance, one has to trust to the good sense of both the authorities and the CPS; otherwise one would get into a situation where something that was obviously wrong which might be very exceptional was not covered.
In the light of the assurances I have given, I hope that the noble Lord, Lord Astor, will feel able to withdraw his amendment; and that the noble Lord, Lord Rix, will not feel obliged to move his amendment.
We applaud the thrust of the amendment in the name of the noble Lord, Lord Rix. However, we are concerned that someone who has a mental disorder or a learning disability and cannot therefore consent may have a condition which makes it unsuitable for him or her to have a sexual relationship. He or she may tend to use force or be unable to register unwillingness on the part of the recipient of their affections and to respond accordingly.
I am grateful for the support of my noble friend Lord Campbell of Alloway. My noble friend Lady Blatch asked whether it would be better to rely on the normal processes and pointed out that the guidance could be inflexible. We have received a great deal of briefing on the issue. Perhaps after discussion I may reflect on that. I agree with my noble friend that there are instances where someone with a mental disorder or learning disability deserves better treatment.
I shall read Hansard carefully. In the mean time, I beg leave to withdraw the amendment.