I thank the hon. Lady for her intervention, and I see where she is going with her mention of the duty. As always, we will get into a bit of a debate over the duties of the state to protect the most vulnerable in our society, under-18s. One could fiddle around with this, and we could start getting into debates about the right to personal freedoms under article 8(2) of the European convention on human rights, but she has made a strong point.
The hon. Lady has helped me to move on to my more substantial point in this debate, because although children are of course vulnerable and the state has a legal duty to protect them, there is another range of people who are quite vulnerable and who this Bill does not cover: those who have marginal decision-making capacity to consent to marriage. I have done lots of decision-making capacity assessments in my career as a doctor and as a subject of my previous academic research. I admit that I have never made an assessment of capacity to marry, but in general, while the decision about whether somebody has decision-making capacity is very binary—yes or no—there are people whose assessments lie somewhere in the middle, and whose situation is unclear and complicated. Those assessments go to the courts for determination, and there are people with a range of mental conditions, such as learning disabilities and cognitive impairment, whose capacity to consent to marriage may be marginal and may be queried, and about whom determinations need to be made.
Although the broad criteria for assessing decision-making capacity for marriage are codified in the Mental Capacity Act 2005, there was originally a common law test, and following that Act the courts have continued to interpret it and apply common law tests for marriage. The test that has been used has evolved over the past 20 to 30 years, and it interacts quite tightly with the common law test for capacity to consent to sexual relations, because judges, rightly or wrongly, have looked at those two as being quite closely associated. In previous cases that have gone to the courts, it has been said that the capacity to consent to sex has to be a lower threshold than the capacity to consent to marry, because by definition if a person marries they have to consummate the marriage. Those are not my words, and they are not necessarily my views, but they are how the courts have applied those two common law tests of capacity.
Our judiciary is absolutely fantastic. It is great that we have it, and those judges do fantastic work in applying the capacity test to complex situations, but nevertheless those tests have evolved over the past 20 or 30 years, importing societal values and mores into them. While we are making clear decisions about what we define as childhood and adulthood, there are some very broad-brush legal proceedings in terms of children.
Indeed, courts have to interpret the Mental Capacity Act 2005, which is the general framework for assessing capacity. On the train on the way to this Committee, I was reading about a recent case relating to the common law test of marriage that said that test now includes consideration about the extent of a person’s assets, in certain situations. So a whole range of issues are being brought into this that will have big, real-world impacts on people being able to get married or not, and have consequences for them. It is a big deal.
Our courts do this very well, but it concerns me that we have not sat down and had a proper look at the issues around the group of people for whom capacity to marry could be quite marginal. We have not said, “Actually, should Parliament codify the common law tests for consent to marriage and consent to sex?” I mused as to whether I could table a probing amendment or a new clause to this Bill relating to that issue, but the last thing I want to do is hinder its progress or cause a big problem. To be frank, I do not know what I would put down as the common law test for either of those things. As a Parliament, we need to look into this on a cross-party basis.
The Bill will massively help vulnerable children and protect them, but there is a swathe of vulnerable adults with marginal capacity to consent to sex or marriage. We do not know if they are being protected sufficiently, or if we have limited their freedoms too much, in terms of the way the common law tests to marry or to have sex are operating. Once my hon. Friend the Member for Mid Derbyshire has got the Bill over the line and on to the statute book, I hope hon. Members on this Committee would be keen to take the next steps to look properly at how the common law tests for marriage and for sex are working, and to see if we can do something to improve them.