Sexual Offences Bill [HL]

Part of the debate – in the House of Lords at 2:45 pm on 10 April 2003.

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Photo of Lord Falconer of Thoroton Lord Falconer of Thoroton Minister of State (Criminal Policy), Home Office, Minister of State (Home Office) (Criminal Justice System) 2:45, 10 April 2003

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.