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Mr. Malins: When my family asks me later tonight what I have done today to serve my country, I shall be able to say that the Solicitor-General said that I exposed an anomaly. That is enough for anyone in one day. That the Minister said that she will take a further look at this is very satisfying. I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 65 ordered to stand part of the Bill.
Clause 66 ordered to stand part of the Bill.
Clause 32
Sexual activity with a person with a mental disorder or learning disability
4.30 pm
Sandra Gidley: I beg to move amendment No. 189, in
clause 32, page 16, line 20, leave out 'refuse' and insert 'consent'.
The Chairman: With this it will be convenient to discuss the following:
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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'.
Sandra Gidley: 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.
The Solicitor-General: 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
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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.
Sandra Gidley: 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.
The Solicitor-General: May I assist the hon. Lady? Under the definition used, that should not be a problem because the clause states that a person is:
(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.
Sandra Gidley: 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.
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The Solicitor-General: I beg to move amendment No. 52, in
clause 32, page 16, line 20, leave out 'or learning disability'.
The Chairman: 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.
The Solicitor-General: 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.
Sandra Gidley: 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.
The Solicitor-General: 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.
Mrs. Brooke: 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.
The Solicitor-General: 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.
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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.
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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.
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