| Previous Section | Index | Home Page |
7.30 pm
As I have explained, the Government have been involved in the consideration of proposals relating to a civil partnership registration scheme and intend to introduce legislation as soon as parliamentary time allows. Instructions are already in place to ensure that, if such a scheme is introduced, sexual offences legislation will be amended by that legislation to provide an equivalent to the marriage defence for persons who have entered into a registered civil partnership. I hope that that meets the point that the hon. Gentleman has done the House a favour in raising, and that that can be flagged forward into the civil partnership Bill. In the circumstances, I consider that new clause 9 is unnecessary and I hope that he will agree to withdraw the motion.
I turn to the mental disorder clauses 31 to 34, which give specific protection to those with a mental disorder who lack the capacity to consent. The amendments seek to loosen but not sever the causal link between the mental disorder and inability to refuse in subsection (1)(c).
Someone who has a severe mental impairment may not have the capacity to consent, and that can be seen to result entirely from the severity of their mental impairment. There is a direct causal link. However, there are others with a mental disorder who also would not pass a test of capacity. Their lack of capacity may result in part from circumstances other than the fact of having a mental disorder but which relate to their mental disorder: for example, someone taking medication for a mental disorder, or who has spent all their lives in an institutional environment and become perhaps very compliant with requests that staff make of them but who may have had no opportunity to become aware of what sexual activity entails, or may not know that there is a choice to be made when it comes to engaging in sexual activity. They have a mental disorder, they lack the capacity to consent, they are equally vulnerable and they need our protection. However, their mental disorder may have combined with their environment in producing someone who lacks the capacity to consent.
We are concerned that a strict causal link would call into question the applicability of the clauses to such persons, and lead to challenges as to the link between the mental disorder and the capacity to consent, which, in many cases, may be very difficult to prove. Consequential amendments are included to subsection (1)(d), which deals with the mens rea of the offender. It is for those reasons that I am proposing the amendments.
I turn to amendments Nos. 188 and 189, which reintroduce a change allowing the provision of hands-on sex education, such as teaching a person with profound and multiple disabilities to masturbate, or getting them to masturbate themselves, in strictly limited circumstances—the hon. Member for Romsey set those out—where there is no alternative way that sex education can be provided. In Committee, we made it clear that we were aware of certain differences among the learning disability charities as to the legitimacy of sex education that involved any form of sexual touching. My hon. Friend the Minister met with Sense. He spoke to it about those differences and suggested that it should meet with the charities that had reservations to see if together they could achieve some consensus on the issue.
I understand that Sense met the other charities on 2 October and that a level of agreement was reached. As the hon. Member for Romsey said, there is a consensus in the voluntary sector. Since then, the proposals have been under consideration by the Department of Health, which in turn is having discussions with Sense. We can say that there is now, as a result of the discussions that were initiated by my hon. Friend the Minister in response to the hon. Lady's amendments, consensus in the voluntary sector. We are not quite there yet in terms of consensus between the Government and the voluntary sector. The process is ongoing, so I do not believe that we are yet in a position to decide whether a sex education exception should be legislated for and, if so, precisely what form it should take.
Mr. Grieve: If that is the case, can that still be done if the Bill goes back to the House of Lords unamended? Will there not be a procedural difficulty if this part of the Bill has not been touched or handled in this House? There would be no scope for the Government to bring in such an amendment.
The Solicitor-General: I think that this Bill would not be the legislative vehicle for that amendment, but the hon. Gentleman can rest assured that there are always more legislative opportunities, which he constructively engages in, trundling along, whether it be from the Home Office or the Department of Health.
I say absolutely genuinely that this is not a fobbing-off exercise. These are immensely difficult areas. We want to ensure that people with learning disabilities have as many rights and as full opportunities as they possibly can, but we also want to be very careful not to expose them inadvertently to sexual abuse. We must get it right. We are on our way there and have made a lot of progress, but we are not there yet. We are not in a position yet to decide.
I will not pretend that there are not significant areas of concern about such an exception, so I am not
guaranteeing that there will be agreement between the voluntary sector and the Department of Health; I hope that there will be agreement but I am not guaranteeing it. We must be extremely careful not to open a loophole for abuse. However, the Government are committed to continue considering the issue and, if it is resolved in favour of an exception, to legislate when a suitable opportunity becomes available. For the reasons that I have given, I must resist the amendments.I turn to amendments Nos. 148 to 180. My hon. Friend the Member for Sheffield, Heeley (Ms Munn) also participated in the debate on them. I understand the reasons and the strong feelings behind the amendments, as they were expressed in Committee. Again, as with civil partnerships registration and hands-on sex education, this is perhaps not the right Bill to have these discussions: while I sympathise with those views, I do not believe that the Bill is the right place to legislate on the issue.
A new approach to defining those who should be included in the new mental health Bill is being considered, and similar consideration is taking place in relation to the mental incapacity Bill. That is the context in which all these decisions should be made. We need to have consistency across the board. Primary mental health legislation is the place to have the discussion, and that is indeed taking place.
I reiterate that the amendments in no way affect the scope of the protection afforded by the clauses: we are not talking about changing that through the amendments. They cover that which we want to cover. We are talking about the language, and I do not say "only the language", because I understand very well that the language and how we define things is crucial. Mental disorder as defined in the Mental Health Act 1983, to which the Bill has been linked, includes those with learning disabilities. Therefore, the scope of the protection is assured. For those reasons, I must resist the amendments.
I acknowledge that there is a separate reference to those with learning disabilities in the Youth Justice and Criminal Evidence Act 1999 but just because there is an anomaly there, it does not mean that we should create loads more in the Bill. What we need to do is get it sorted, amend all previous legislation across the board and get it dealt with in the right context—primary legislation. That is the place we should do it. I do not want us to be out of line, not least because there are concerns about challenges to detention under the Mental Health Act 1983 that may arise out of the Youth Justice and Criminal Evidence Act terminology, so we want to be consistent in that respect.
Dr. Evan Harris: I am grateful to the Solicitor-General for her comments on new clause 9, particularly in respect—she went as far as she could—of the Government's intention that, should there be civil partnerships legislation, registered civil partnership should apply as marriage applies. Indeed, in that respect, it was encouraging to hear her say that she thought that that would be a more suitable vehicle than going just with the consent, as set out in the new clause. In the light of that, I beg to ask leave to withdraw the motion.
Motion and clause, by leave, withdrawn.
New Clause 10
Sexual Activity in a Public Place
'1. A person is guilty of an offence if he intentionally engages in sexual activity in a public place or in a lavatory to which the public or a section of the public has or is permitted to have access, whether on payment or otherwise, which he knows or ought to have known was likely to cause harassment, distress, alarm or offence to any other person and which causes or has caused harassment, distress, alarm or offence to any other person.
2. It is a defence for the accused person to prove—
(a) that he had no reason to believe that there was any person within sight or hearing who was likely to be caused harassment, distress, alarm or offence; and
(b) that his conduct was reasonable.
3. A constable may arrest a person without warrant if—
(a) he engages in sexual activity which the constable warns him to stop; and
(b) he engages in further sexual activity immediately or shortly after the warning.
4. A person guilty of an offence under this section is liable on summary conviction to imprisonment not exceeding six months or a fine not exceeding level 3 of the standard scale or both.
5. In this section "sexual" is as defined in section 79.'.—[Dr. Evan Harris.]
Brought up, and read the First time.
| Next Section
| Index | Home Page |