Clause 32 - Sexual activity with a person with a mental disorder or learning disability

Sexual Offences Bill [Lords] – in a Public Bill Committee at 4:30 pm on 16th September 2003.

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Photo of Sandra Gidley Sandra Gidley Liberal Democrat, Romsey 4:30 pm, 16th September 2003

I beg to move amendment No. 189, in

clause 32, page 16, line 20, leave out 'refuse' and insert 'consent'.

Photo of Roger Gale Roger Gale Conservative, North Thanet

With this it will be convenient to discuss the following:

Amendment No. 190, in

clause 32, page 16, line 25, leave out 'refuse' and insert 'consent'.

Amendment No. 191, in

clause 33, page 17, line 7, leave out 'refuse' and insert 'consent'.

Amendment No. 192, in

clause 33, page 17, line 12, leave out 'refuse' and insert 'consent'.

Amendment No. 193, in

clause 34, page 17, line 36, leave out 'refuse' and insert 'consent'.

Amendment No. 194, in

clause 34, page 17, line 41, leave out 'refuse' and insert 'consent'.

Amendment No. 195, in

clause 35, page 18, line 11, leave out 'refuse' and insert 'consent'.

Amendment No. 196, in

clause 35, page 18, line 16, leave out 'refuse' and insert 'consent'.

Photo of Sandra Gidley Sandra Gidley Liberal Democrat, Romsey

These amendments have been tabled in a spirit of clarification. There are concerns among those who work with people with mental disorders or learning disabilities that the law uses different terminology for people who fall into those categories than it does in its discussion of rape in the early clauses. There is a strong feeling that there is not parity of esteem between the two phrases that are used. The rape clauses have the phrase ''B does not consent'', but these later clauses have,

''B is unable to refuse''.

Part of the reason for tabling the amendments is to probe the Government's thinking. Why is the term ''unable to refuse'' used, when we could have a similarity throughout the Bill by using the term ''unable to consent''? This is a fundamental point. There are people who think that the Bill as currently drafted is discriminatory to some extent. I urge the Minister to try to explain, because we do not want to have to return to this matter on Report.

Another problem is that the Bill is unclear about when someone is able or unable to consent. We have talked about the capacity to consent being pivotal, so that is a considerable concern. We need further clarification. The proposed definition of ''unable to refuse'' is quite loosely worded and may lead to inappropriate prosecutions. The other concern is that the current definition risks people with learning disabilities being seen as never able to consent to sexual activity. I am sure that we all acknowledge that people with learning disabilities are perfectly capable of entering into a sexual relationship. The emphasis of the wording is completely wrong.

It is clear that there is an attempt to protect people with learning disabilities, and that is welcome. The amendment is intended to probe whether we have chosen the best way to do that. The new offences of rape, assault and sexual assault all use the term ''consent'' and it would be helpful if the Government stated clearly why that term was not used in the context of people with learning disabilities.

Photo of Harriet Harman Harriet Harman Solicitor General (Law Officers), Member, Labour Party National Executive Committee

As the hon. Lady reminds us, clauses 32 to 35 are designed to protect the most vulnerable of those with mental disorders—those who lack the capacity to consent to sexual activity. Although many people with a mental disorder are

fully able to consent to sexual activity, there are some, for example those with a profound learning disability, who are unable to give their informed consent. The law has hitherto failed to provide adequate redress for vulnerable people who have been targeted by predatory individuals. The clauses, together with clauses 36 to 46, are intended to remedy the problem by providing a strong legal framework to provide better protection. They are set out very clearly.

Amendments Nos. 189 to 196 seek to change the wording in the clauses from ''unable to refuse'' to ''unable to consent'' to sexual touching. Capacity to consent is defined in clauses 32 to 35 as ''unable to refuse'' rather than ''unable to consent'' because if the latter were used, it would refer to the definition of consent in clause 75 and that would be circular because that clause refers to the capacity to choose. The idea is that everything is set out in these clauses so that when people read them they know what they mean, rather than having to go to clause 75. Anybody reading the clauses would know what they were aiming for and would not have to dive for different clauses in the Bill to read about consenting.

In any event, the only change would be presentational, because there is nothing between the two phrases in terms of meaning. We have chosen a different phrase so that the clauses are self-contained and do not get tangled up with the definition in clause 75. For those reasons, I resist the amendments.

Photo of Sandra Gidley Sandra Gidley Liberal Democrat, Romsey

I think that I understand the Solicitor-General's points, but I suspect that there are many people who would prefer the Bill not to differentiate in that way. When researching the area, I came across a court case—I cannot remember the name of the judge—involving a young girl who had a learning disability. The ruling was, I think, that she was unable to refuse because of her animal instinct. My concern relates to ''unable to refuse'' and the animal instinct that was referred to by the judge—I do not agree with his views. I am concerned that there will be an opportunity for a judge in a similar situation to use the same excuse. If we changed the wording, that idea might not be used in future.

Photo of Harriet Harman Harriet Harman Solicitor General (Law Officers), Member, Labour Party National Executive Committee

May I assist the hon. Lady? Under the definition used, that should not be a problem because the clause states that a person is:

''unable to refuse if—

(a) he lacks the capacity to choose . . . or

(b) he is unable to communicate''

that choice. The phrase ''unable to refuse'' is therefore clearly defined, which should reassure the hon. Lady.

Photo of Sandra Gidley Sandra Gidley Liberal Democrat, Romsey

That is reassuring. We do not want to repeat the mistakes of the past.

I am still disappointed that the people to whom the clause will apply seem to be being treated in a way that diminishes the sentence. I know that that is not the intention, but that is how several people have interpreted the clause. However, I will not pursue the amendments any further at this stage.

Amendment, by leave, withdrawn.

Photo of Harriet Harman Harriet Harman Solicitor General (Law Officers), Member, Labour Party National Executive Committee

I beg to move amendment No. 52, in

clause 32, page 16, line 20, leave out 'or learning disability'.

Photo of Roger Gale Roger Gale Conservative, North Thanet

With this it will be convenient to discuss Government amendments Nos. 53 to 55, 57 and 58, 60 to 65, 67 and 68, 70 to 79, 81 to 84, 86 to 90 and 104 to 106.

Photo of Harriet Harman Harriet Harman Solicitor General (Law Officers), Member, Labour Party National Executive Committee

May I make it clear that the amendments in no way affect the scope of the protection afforded by the clauses to which they apply? We are talking about drafting and terminology, not substance. That is not to say that drafting and terminology are not important, but I want to reassure hon. Members on the nature of the amendments.

The definition of a mental disorder contained in the Mental Health Act 1983, which has been adopted in the Bill, includes those with learning disabilities. I am aware that the Government amendments are controversial. The reason why we are tabling them is because if we include a separate reference, as has hitherto existed in the Bill, to learning disability—that is, to state, ''mental disorder or learning disability''—it could be taken to imply that learning disability is not a mental disorder, but something separate and not automatically included, for the purpose of this Bill or any other legislation, under the definition of mental disorder. That could lead to challenges to the legitimacy of detention of persons.

Photo of Sandra Gidley Sandra Gidley Liberal Democrat, Romsey

I may not have been paying full attention, but am I to assume from what the Solicitor-General has just said that anybody with a learning disability is automatically regarded as having a mental disorder? I would not have thought that that was the case.

Photo of Harriet Harman Harriet Harman Solicitor General (Law Officers), Member, Labour Party National Executive Committee

The hon. Lady has immediately hit on the controversial nature of the discussion. Elsewhere in legislation, mental disorder is defined as including learning disability. That is controversial, and discussions are going on in relation to other legislation about whether that should be changed.

Photo of Annette Brooke Annette Brooke Shadow Spokesperson (Home Affairs)

I wonder whether the Solicitor-General can say how the Youth Justice and Criminal Evidence Act 1999, which uses the two terms, fits with what she is saying.

Photo of Harriet Harman Harriet Harman Solicitor General (Law Officers), Member, Labour Party National Executive Committee

I will have to check that. The argument that I am making is that we do not want to include in the Bill something that appears to be inconsistent with how definitions are read in other legislation. There might be an anomaly elsewhere, but we do not necessarily want to add to that.

If a person with a learning disability has committed an offence, provisions in the Mental Health Act 1983 enable detention in hospital as an alternative to imprisonment. That is because people with learning disabilities are included under the definition of those with a mental disorder. It is vital for the well-being of the individual and for the protection of the public at large that challenges to the interpretation of mental disorder as including those with a learning disability are not encouraged by leaving the issue unclear in the Bill.

On the other hand, I am aware that at least some of the learning disability charities object to the implication that learning disability is a mental disorder and I understand why. Since the days when the definition of mental disorder was generally understood to include learning disability, people, arguments and ideas have moved on. I sympathise with that view, but this Bill is not the right place in which to make the change because it might then affect other legislation.

A new approach to defining those with such conditions is being considered in the draft Mental Health Bill and the draft Mental Incapacity Bill. This is an important debate and terminology is important. I am not saying that the discussion should not take place here and that someone else should discuss it. It is important, but the change should be made in those Bills and if it is made, the Bill before us can be amended to ensure that it is consistent. I believe that the draft Mental Health Bill and the draft Mental Incapacity Bill are the right place for that discussion and it is taking place. We are trying to bring the Bill before us back to the status quo, while recognising that the status quo is under discussion.

In the meantime, the Government believe that it is right that the line taken in the Mental Health Act 1983 should be followed. I commend the amendments to the Committee for the reasons that I have given.

Photo of Sandra Gidley Sandra Gidley Liberal Democrat, Romsey 4:45 pm, 16th September 2003

I thank the Solicitor-General for her explanation, but I sometimes worry that in trying to tie up all the ends in a way that affects the community at large the matter may not have been thought through. Notwithstanding what she said about people with learning disabilities previously being able to be treated in hospital rather than in jail, there are some wider implications. I am reminded that many people have lobbied long and hard for some years to put into the public's perception the idea that people with learning disabilities do not necessarily have mental health problems. The two often go together, but not always and some people have learning disabilities with no mental health problem. There is a feeling that to go down the track that the Solicitor-General is advocating is to return to the days of describing people as being mentally defective. That is how strongly people feel about the matter.

I take the Solicitor-General's point that the debate will take place next year, but we have the precedent of the Youth Justice and Criminal Evidence Act 1999. I should have thought it preferable at the moment to retain the existing term and to leave the arguments for another time. The amendments are attracting quite a lot of heat and it is important to ensure that other measures in the Bill are right.

There is a strong feeling among organisations such as Turning Point and Mencap about the concept of learning disability and it would be helpful to continue using that in legislation. To move in the direction that the Government are advocating is to take public perception back light years. I understand the technical argument that the Solicitor-General is making, but

there is a wider, societal argument that, sadly, the Government seem to be ignoring.

Amendment agreed to.

Amendment made: No. 53, in

clause 32, page 16, line 23, leave out 'or learning disability'.—[The Solicitor-General.]

Photo of Harriet Harman Harriet Harman Solicitor General (Law Officers), Member, Labour Party National Executive Committee

I beg to move amendment No. 112, in

clause 32, page 16, line 28, leave out 'possible' and insert 'reasonably foreseeable'.

Photo of Roger Gale Roger Gale Conservative, North Thanet

With this we may discuss Government amendment No. 113.

Photo of Harriet Harman Harriet Harman Solicitor General (Law Officers), Member, Labour Party National Executive Committee

Clauses 32 to 35 are designed to protect the most vulnerable among those with a mental disorder: those who lack the capacity to consent to sexual activity.

Although many people with a mental disorder will be able to consent to such activity, there will be some, such as those with a profound learning disability, who will be unable to give their informed consent. Such vulnerable people have been specifically targeted for sexual abuse by predatory individuals, and the law has hitherto failed to provide adequate redress. The clauses, together with clauses 36 to 46, are intended to remedy the situation by providing a strong legal framework to provide better protection.

Government amendments Nos. 112 and 113 seek to refine the definition of a lack of capacity to choose in the clauses by replacing the phrase,

''sufficient understanding of the . . . possible consequences of the sexual activity''

with

''sufficient understanding of the . . . reasonably foreseeable consequences of the sexual activity''.

That was proposed in another place. As a result of that debate, we undertook to consider the definition further. The amendments are supported by many of the organisations working to assist people with learning disabilities, and we have drawn on their expertise and on that of learning-disabled individuals who have raised the matter with us, in concluding that the amendments are the right way forward. We have accepted the concerns of those organisations that

''a sufficient understanding of the . . . possible consequences''

was too broadly defined and might require a greater understanding of the consequences of sexual activity—all the possible consequences—than might be found in many of the population at large.

We suggest that it is reasonable for the definition to cover understanding of the ''reasonably foreseeable'' consequences, such as that sexual intercourse could lead to pregnancy or carry certain health risks, but not of the emotional or all the other possible consequences of sexual activity, which, after all, many young adults without a mental disorder or learning disability might not understand. It is essential that the balance between protecting the vulnerable against abuse and respecting their human rights should be achieved. We believe that that more limited test brings us closer to that goal.

Amendment agreed to.

Question proposed, That the clause, as amended, stand part of the Bill.

Photo of Humfrey Malins Humfrey Malins Conservative, Woking

I wonder whether the Solicitor-General might consider—not now but before Report—whether there are any circumstances under the clause, to which subsection (4) would not apply, in which there could be a not-so-serious offence for which magistrates' powers of sentencing would be sufficient. There is no provision under subsection (3) for magistrates to have sentencing powers, but there might be the occasional case in which the magistrates' powers would be sufficient, so the matter need not be made indictable. I hope that the Solicitor-General will allow that point to be absorbed and respond to it in due course, perhaps by letter.

Photo of Harriet Harman Harriet Harman Solicitor General (Law Officers), Member, Labour Party National Executive Committee

I think that I can respond to the point by reference to amendments Nos. 114 and 115, which make the mode of trial either way. Perhaps the hon. Gentleman can support the arguments in those amendments.

Mr. Malins indicated assent.

Question put and agreed to.

Clause 32, as amended, ordered to stand part of the Bill.