House of Lords
Friday, 11th October 2002.
The House met at eleven of the clock: The CHAIRMAN OF COMMITTEES on the Woolsack.
Prayers—Read by the Lord Bishop of Guildford.
Copyright (Visually Impaired Persons) Bill
11.5 a.m.
Lord Morris of Manchester: My Lords, I beg to move that this Bill do now pass.
Of all the parliamentary virtues, brevity runs even cleanliness a close second as next only to Godliness. So I shall be brief.
The unfailing care and concern shown by noble Lords of all persuasions in facilitating the Bill's swift passage into law exemplifies this House at its best: making good law to combat injustice with absolute unanimity of purpose.
I pay warm tribute to my honourable friend Rachel Squire on having piloted this humane and long overdue measure through the House of Commons with such exemplary skill and success. Her wide fellowship of supporters both there and outside Parliament worked as one in promoting a Bill which is at once clear, workable and consensual.
Speaking as a serial legislator in this policy area—both as a Private Member and a Minister—I hold Rachel's achievement in the highest admiration.
The Bill opens up to visually impaired people a world of information and culture from which today they are mostly and quite wrongly excluded. Indeed in the last year for which we have figures—because of the shortcomings of the copyright law as it now stands—95 per cent of the 100,000-plus titles published in the UK were unavailable in formats accessible to them.
My good friend Professor Ian Bruce, Director General of the RNIB, hails this Bill as perhaps:
- "The most significant legislative advance for blind and partially sighted people in the last 20 to 30 years".
The Bill will help over 2 million blind and partially sighted people in this country and hopefully, by example and impact, millions more across the world. It is thus also one of considerable international significance and again I commend it to your Lordships' House.
Moved, That the Bill do now pass.—(Lord Morris of Manchester.)
Sexual Offences (Amendment) Bill [HL]
11.8 a.m.
Lord Rix : My Lords, I beg to move that this Bill be now read a second time.
First, I must declare my long-standing interest in the world of learning disability as the president of Mencap. The Bill seeks to improve the outdated laws governing sex offences with vulnerable adults, particularly people with a learning difficulty. Its message is that urgent reform is needed to protect them from abuse and exploitation. On several occasions, and in both Houses, the Government have declared their commitment to reviewing sex offences law, including better protection for vulnerable adults. Setting the Boundaries, the Government's own review of sex offences laws, which was published in 1999, received over 700 responses. However, three years have passed and we are still no closer to legislation.
The risks to children of sexual abuse are better understood and better protected then ever before. Noble Lords will agree that horrific cases of child sex abuse, such as the case of Sarah Payne, struck a chord with millions of parents throughout the country. Everyone has been moved by the courage and dignity of Mr and Mrs Payne. We all share their determination to ensure that something positive comes of such a tragedy and that their daughter's death was not in vain. I am pleased that the Home Secretary, David Blunkett, announced further measures to protect children from sexual abuse at the Labour Party conference only last week.
In contrast, much less is known or written about the vulnerability of people with a learning disability to crime and sexual abuse. However, the extent and nature of such sexual abuse is disturbing. Behind Closed Doors, published in 2001 by Mencap, Respond and Voice UK—which all support this Bill—also highlights the type and extent of sexual abuse experienced by adults with a learning disability and how poorly the current law serves them. The law offers only limited protection and is not an effective deterrent to abusers. New legislation is urgently needed to protect people with a learning disability and to increase the chances of conviction.
Figures show that incidences of sexual abuse may be as much as four times higher for people with a learning disability than for the rest of the population. There are an estimated 1,400 cases in each year, yet only 1 per cent of those reach conviction. Many cases—many more than 1,400—go unreported. The human suffering behind this statistic cannot be ignored. Respond, the country's leading provider of therapy and counselling to people with a learning disability who have been sexually abused, took more than 1,000 calls this past year from people with a learning disability, their parents and carers. The effects of abuse in all these cases have been catastrophic and long lasting. The experience of sexual abuse is difficult enough for people without a learning disability to recover from, but if one has a learning disability the
process of recovery is a far slower and more painful one. They may become clinically depressed, develop eating disorders and end up harming others.In addition to how best we can protect people with learning disabilities from abuse, we must also consider how best we can help them. The national provision of counselling and therapeutic services for people with a learning disability is extremely poor. It is an alarming fact that mainstream counselling services do not possess the expertise to offer specialist support. Nor do they receive sufficient funding to offer counselling to that vulnerable group. Thus, many a learning disabled person is turned away. Frankly, people with a learning disability are doubly discriminated against.
That claim is supported by Voice UK, a voluntary organisation that provides a telephone support service for victims and their parents. Voice UK agrees that local authorities do not have the finance to pay for specialist counselling. In one case, a local authority paid for the assessment but did not have the money to pay for the counselling recommended by the assessment. That aspect will not require legislation, but I seek assurances from the Minister that he will review availability of resources to ensure that people with a learning disability have the right support. I look forward to hearing his response.
It is also worth reflecting on the reasons behind the unique vulnerability of such people to abuse. Someone who has a substantial learning disability—who has problems with communication, who is not streetwise and whose experiences have not given him or her a strong sense of their own worth—is at particular risk of abuse, especially by those on whom he or she depends. The vulnerability that brings abuse also brings an enhanced risk of the abuse not being reported, not being detected, and, if reported, then frankly not being believed.
Let us consider also the distress that may follow if a case is successfully prosecuted and comes to court. To give evidence is an ordeal for many people who have suffered personal trauma, who find that the right words do not come easily, and are intimidated rather than supported by court routines, to the point of wondering whether they are the victim or are themselves in the dock. Imagine what it is like for an adult with a learning disability who has been sexually assaulted to have to give that evidence in court. Then reflect on what it means to have to relive the experience and then not to be believed at the end of it. The disturbing and horrific cases of abuse bring home the need for extra support for vulnerable witnesses. I hope that the important measures in Speaking up for Justice will help them to regain their confidence in the judicial system and, with the right support, encourage more people with a learning disability to come forward.
I turn to the detail of the Bill. Clause 1 makes it a criminal offence for a person to have sexual relations with an adult who lacks the capacity to consent to them. The intention is to give absolute protection to those who cannot consent to sexual relations. In the case of sexual intercourse, a person will be liable to a maximum term of life imprisonment—which is only
equivalent to the current maximum possible sentence for rape—and in the case of sexual activity, a person will be liable to a term of imprisonment not exceeding 10 years.The current law—the Sexual Offences Act 1956—forbids intercourse with a person who is termed "a mental defective". Subsequent Acts have in no way improved the situation. Frankly, that is demeaning for vulnerable adults and may involve the victims coming to court to test their abilities, effectively putting victims on trial. There have been few prosecutions under the Act and even when they have been successful, the maximum sentence has been no more than two years.
Currently, the law does not classify who can and cannot consent to sexual relations. Subsections (3) and (4) of Clause 1 set out a new test of capacity to consent to clarify whether someone is capable of entering a sexual relationship. It draws on the Law Commission's statutory definition of capacity to consent and the proposed definitions set out in the joint British Medical Association and Law Society proposals. Those proposals, backed by Mencap, are based on the principle that an individual would need to understand the basic elements of sexual behaviour and be able to distinguish that sex is different from non-sexual or medical contact. They should also understand that sex can have foreseeable consequences, such as pregnancy or sexually transmitted disease. If they cannot meet those criteria, they are unlikely to be able to consent to sexual relationships.
Clause 2 seeks to ensure that those who owe a vulnerable adult a duty of care should not enter into a sexual relation with that adult. Care workers are entrusted with work of an intimate nature. The overwhelming majority of them are skilled and have an extraordinary commitment to their work. However, too many cases of abuse are still committed by care workers, and abusers often seek employment in intimate caring roles. The current law prohibits sexual relations between teachers and pupils because of the abuse of trust involved. The Bill will criminalise inappropriate relationships between care workers and those who are cared for—in all aspects of care. In the case of sexual intercourse, a person would be liable to a maximum term of life imprisonment and in the case of sexual activity, to a term of imprisonment not exceeding 10 years.
Clause 3 makes it an offence to procure sexual relations with a person with a mental disability. The aim is to provide wider protection to people with a learning disability living in the community. One problem is that people with a learning disability may lack the kind of social functioning that other people take for granted. The average person may dismiss threats such as, "I'll tell your parents if you don't do what I say", but a person with a learning disability may feel genuinely threatened by such an approach. There should be a specific offence to cover such deliberate targeting and pressurising into having sex.
I and all of these organisations respect the right of all consenting adults to have sex, and that includes those with a learning disability. Many people with a
learning disability have successful relationships, and many are successful parents. However, it is important that we make sure that people are not pressurised and that those who cannot consent should be safeguarded from abuse. It is clear that the law does not provide people with a learning disability with sufficient protection from sexual exploitation.I hope that the Government will support the principle behind the Bill. What we really need are specific dates for action. If the Minister can give a guarantee that the Government will introduce a Bill on similar lines or address all our major concerns in a more comprehensive Bill, that would provide significant reassurance to me, to your Lordships' House and, most importantly, to people with a learning disability, their families and their carers. I commend the Bill to the House.
Moved, That the Bill be now read a second time.—(Lord Rix.)
11.21 a.m.
Lord Carter: My Lords, I congratulate the noble Lord, Lord Rix, on introducing the Bill. As we know, it deals with an extraordinarily sensitive subject and relates to some of the most vulnerable people in society. The noble Lord explained the Bill well, and there is no need to go into great detail on the clauses.
People with a learning disability are at greater risk of sexual abuse or exploitation than the rest of the population. Their condition seems to attract a certain sort of sexual predator. People with learning disabilities trust and rely on those who care for them or befriend them. They are anxious to please them and can be groomed for abuse. As we heard from the noble Lord, Lord Rix, they can be threatened with hints that there will be complaints to their parents or to others in authority, if they do not submit.
It seems extraordinary that there is no legal framework to protect people in such a situation. I ask my noble and learned friend whether it is correct that obtaining sex through the deception of learning disabled people is not, in itself, an offence. There is, of course, the difficulty associated with obtaining evidence from a learning disabled person that would be acceptable in court. I shall return to that point; I am not sure that the Bill deals fully with that problem. The Bill attempts to deal with the problem by defining the offence and defining what constitutes a lack of capacity for informed consent. It also deals with the duty of care taken on by those responsible for learning disabled people.
Only yesterday, I spoke to a solicitor, Mr Paul Bacon, who has a great deal of experience in the field. He asked me, in particular, to draw the House's attention to the position of a learning disabled person when a case is brought but fails. He said that that had an enormously detrimental effect on the learning disabled person and could completely destroy their trust in those who care for them.
I can give an example of how the mind of the Government can be changed on the subject of disability. The noble Lord, Lord Rix, may find it
encouraging. We know that it is almost unknown for Private Members' Bills that start in the House of Lords to make any progress in the other place without the backing of the Government. For 10 years, I was Opposition Front Bench spokesman on disability. In almost every Session, there was a Private Members' Bill on disability discrimination. My noble friend Lord Ashley of Stoke introduced more than one; I introduced one; and other noble Lords did the same.We always received the same answer from the Dispatch Box, which was that education and persuasion were better than legislation. Eventually, however, there came the Disability Discrimination Act 1995. I pay full tribute to William Hague, the Minister who introduced it. I understand that he had to do some hard debating inside the government before the Bill was introduced. As we know, the present Government have built on that foundation. Perhaps, not all the time that we spent on Private Members' Bills on the subject was wasted. I hope that it will not take 10 years in this case.
I shall conclude with another example—not a Private Members' Bill—of something that was done on the subject of learning disabled people. In the late 1980s, I was involved in the production of an ITV documentary concerning the position of learning disabled people who were unfit to plead but who had been charged with a crime. At the time, there was a dreadful case involving a learning disabled daughter, who, after lengthy interrogation by the police, pleaded guilty to the murder of her parent. She was simply anxious to please. The eventual trial showed that she could not have committed the murder.
The campaign that followed the documentary resulted in the passing of the Criminal Procedure (Insanity and Unfitness to Plead) Act 1991. In that case, the Government were able to work on the law to cover the position of a learning disabled person charged with a crime. With this Bill, we are considering the position of a learning disabled person who is the victim and a witness. I say to the Minister that, if it was possible to deal with the first situation, it should be possible also to deal with the obverse situation, in which the learning disabled person is victim and witness.
I hope that the Government will reflect on today's debate and make proposals to deal with such a serious matter. The matter affects some of the most vulnerable people in our society.
11.27 a.m.
Lord Astor of Hever: My Lords, I thank the noble Lord, Lord Rix, for introducing the Bill and explaining his objectives so clearly. As president of Mencap, he works tirelessly for those with learning difficulties. As the noble Lord, Lord Carter, said, they are among the most vulnerable in society. It is an important issue, in which, as the father of an autistic daughter, I have a personal interest. I shall concentrate solely on autism-specific needs. The law relating to sexual offences is urgently in need of reform, both in terms of providing a proper deterrent to offenders and
protection for people with a learning disability and in terms of handing out punishments that reflect the crime.Negative assumptions are often made about the ability of a person with a learning disability to give evidence. As a consequence, evidence offered by people with disabilities has frequently been discounted. However, people with autism spectrum disorders may have an excellent eye for detail and are unlikely to fabricate evidence or give false testimony. However, the adversarial nature of the court acts as a barrier to the delivery of justice. Giving evidence can be an ordeal for many people who have suffered personal trauma. They find that the right words do not come easily, and they are intimidated, rather than supported, by court routines.
In 1998, the Government published a report called Speaking Up for Justice, which included measures allowing an approved intermediary to help a witness to communicate. We now need a commitment to make the new intermediaries available to all witnesses and victims with autism spectrum disorders and people with a learning disability who wish to have their services. Are the Government committed to extending the intermediary service for those who request it?
There are approximately 500,000 people with autism spectrum disorders in this country. Although some adults are looked after by their parents, many are cared for by care staff and support workers, at least some of the time. A National Autistic Society survey found that more than 30 per cent of adults with autism live in a residential setting. All adults with autism will have social and communication impairments that render them vulnerable to abuse. Therefore this group represents a significant number of those needing protection under this Bill.
The nature of autism, as a "hidden" disability, means that people on the spectrum may be perceived as being "normal" and find their impairments ignored—I can certainly vouch for that with my own daughter. They are open to exploitation and may not be able to communicate or understand that they are being abused. People at the lower functioning end of the spectrum may not be able to speak at all, which leaves them particularly vulnerable.
However, those with higher-functioning autism, or Asperger syndrome, are in danger of being ignored because they do not fit under the neat title of "learning disability" and could be, inaccurately, assumed to be able to deal with relationships and therefore unlikely to be exploited.
The terminology of "mental disability" used in the Bill must be inclusive of all people with autism spectrum disorders. The definition of learning disability in Valuing People does not include those with higher-functioning autism or Asperger syndrome. The Bill must not exclude those who have an average, or above average IQ, but are nevertheless vulnerable due to their social and communication impairments.
In order fully to protect people on the autism spectrum, I hope that the Bill will be accompanied by generic mental incapacity legislation that sets out a functional test of capacity to consent. This must not focus exclusively on intelligence, but also on the social understanding required to consent to sexual relations. Capacity tests need to take into account the complexity of the process of consent.
For example, a person with Asperger syndrome may be able to give consent in some situations, according to the mood or the environment, but not in others. Therefore legislation for mental capacity is essential but must be able to apply to a wide variety of disabilities and conditions.
In Clause 1(3) the Bill defines a person who lacks capacity to consent based on an inability by reason of a mental disability,
- "to make a decision for himself on whether to consent".
- "the nature and implications of the sexual relations, and . . . the reasonably foreseeable consequences".
I wholeheartedly support the principle, in Part 2, of criminalising any sexual relations between a care worker and a vulnerable adult in his or her care. The procurement of sexual relations with a person with a mental disability, Clause 3, should also be a criminal offence. Finally, I support the terms of imprisonment set out in the Bill as accurately reflecting the severity of the offences it introduces.
11.35 a.m.
Lord Morris of Manchester: My Lords, for personal reasons well known to him, I am delighted to be following the noble Lord, Lord Astor of Hever, in this debate. No one is better qualified than him to speak on this important Bill.
There can hardly be an issue more deserving of our attention than that of seeking—as this Bill does—to end the hideous abuses of trust committed in care environments against some of the most vulnerable people in Britain today.
It is, of course, wholly characteristic of my friend, the noble Lord, Lord Rix, that this Bill is of his making. The whole House deeply respects him for his humanity and the constancy of his concern for those he works with such distinction to help.
In one case of which I have details, that of a young woman of 22 who was raped, sexually and physically abused for over a year by a male care worker, the judge ruled that she was not capable of giving evidence and dismissed the case.
Is that not, by any standards, very deeply disturbing? Can it possibly be right that so vulnerable a young woman should have to come to terms with the
appalling effects of abuse on that scale while offenders, even if they are punished, can be given the kind of sentence imposed for petty robbery? Never was it more essential to ensure that justice is seen to be done and that the sentencing framework acts as an effective deterrent to sex offenders—whether paid employees or volunteers—in what purport to be protected environments.With all his customary eloquence the noble Lord, Lord Rix, has persuasively stated in detail the case for the Bill and I know my noble and learned friend Lord Falconer of Thoroton will want to respond for the Government as fully and positively as he can.
Meanwhile I conclude by thanking the BBC for its most helpful exposures of abuse—not least that at the Brompton Care Home in Kent—and congratulate Mencap on continuing its campaign to reform an outdated law that today so grievously piles handicap on handicap for people with learning disabilities.
11.37 a.m.
Viscount Tenby: My Lords, perhaps I may begin by declaring an interest as chairman of trustees of a residential home for mentally handicapped and disabled ladies and also as a father whose eldest daughter comes within both these categories.
We should all be grateful to my noble friend Lord Rix for bringing to our attention the very disturbing anomalies which exist in the law in this area and for promoting a short and lucid Bill which would go a long way towards putting things right. Surely, no one has a greater record than he has in this particular field. Those of us involved in it never cease to be grateful to him for all his work.
We have already heard that Sections 6 and 7 of the Sexual Offences Act 1956 set out that to have sexual activity with a defective, presumably a mental defective—I digress for a moment in saying how far, praise be, we have come in the past 45 years in our descriptive techniques that it is almost as though one was reading something from the darker periods of the Middle Ages—is a criminal offence carrying a maximum penalty of two years. Compare that, if you will, with a maximum of life for an offender committing rape against someone who has a capacity to consent or not through reasoned judgment. I must add, in fairness, that although sentencing maxima are always used by the media to beef up their particular arguments of the day, in practice sentencing, especially for this offence, is often seen by the public as being light and inconsistent more than anything else. Be that as it may, the fact is that under present arrangements we are legally loading the dice against the most vulnerable in our society and it is not a minor concern. We have already heard that there may be some 1,400 new cases of rape or some other form of sexual abuse per year although, of course, owing to the particular circumstances of the offences and the victims themselves, many such will go unrecorded. So the figures are probably very much higher than that and, as we have also heard, the number of convictions are minuscule.
Even allowing for the practical difficulties where the plaintiff may be incapable of securing a successful prosecution, I ask the Government whether it is a remotely satisfactory state of affairs that someone who is most in need of our compassion and care can be denied those comforts at a time when they have perhaps been subjected to a traumatic experience of truly awful proportions?
I am aware of some of the current thinking in relation to those with learning disabilities—not least the current emphasis on individual empowerment so that such members of our society can lead as full a life as possible, including sexual activity where appropriate—but my own view, which is probably regarded in some circles as, how can I put it?—unreconstructed—is that the nature of sexual relations cannot be turned off and on at will like a tap without causing some emotional damage, particularly perhaps to women. But these are deep moral waters in which it is not the business of government to paddle.
We are not, however, dealing with empowerment in the Bill. It is important to emphasise that at the outset. The concern is solely that those with learning disabilities should receive the full protection of the law. I have already mentioned that the present 1956 law makes it an offence to commit an act of an indecent or sexual nature against a mental defective. So, arising from that, plaintiffs must go to court to be cross-examined to see whether or no they fit the description. In other words, having gone through what has probably been a terrible ordeal, they then have to be humiliated in open court to establish their credentials as mental defectives. One wonders at the levels of imagination and sensitivity of the drafters of the 1956 act. They would perhaps have been at home in some of the more unusual medieval courts.
I know that, regrettably, on occasions—only rarely of course—the law in matters of establishing fact likes to make mountains out of molehills. But, in the matter of establishing whether a plaintiff is fit to comprehend whether certain offences have been committed against his or her person, I would have thought it would have been comparatively straightforward. Certainly, speaking as a former magistrate, when someone was up before the Bench for, say, shoplifting, it would become apparent in very short order whether there were special circumstances with the defendant as to normality.
Setting the boundaries, the government paper of 1999 recommended that there should be a new specific offence relating to sexual attacks on vulnerable people with learning disorders, and the Bill seeks to follow this course. However, that particular document again falls into the trap inherent in the 1956 Act of seeking to create a difference in magnitude between an attack on a normal non-consenting party and an attack on someone who lacks the capacity to consent.
The Bill—and we are coming to the crux of the matter here—seeks to make such attacks bear a similar range of penalties to those on a normal person. Accordingly, I have one question only for the noble and learned Lord the Minister, but it is a critical one
in relation to the Bill: do the Government share, at least in principle, the aim of the Bill to level this particular playing field?The Government of which the noble and learned Lord is a member have a good record of listening in matters of social concern. I am therefore looking forward to their proposals in relation to these matters. It may be an incorporation of the main points of this Bill in a new sexual offences Bill in the new Session, or giving the Bill a fair wind in the coming months, or some other acceptable formula. The one unacceptable option, however, would be to do nothing and to kick the proposals into the long grass. That would be a betrayal of all those innocent and frail members of our society who trustingly depend on us. We must not fail them.
11.45 a.m.
Lord Ashley of Stoke: My Lords, I should like to add a few words to the many fine speeches that have been made. Speaking last from the Back Benches places me in a similar position to the noble Lord who, some time ago, after a long, tedious, repetitive debate, stood up and said, "My Lords, everything that can be said on this subject has been said, but not everyone has said it". I must try to avoid the repetition that is endemic in a situation where one is speaking last.
The first thing I want to do is to add my very warm congratulations to the noble Lord, Lord Rix. He made a fine speech, delivered as usual in his lovely, mellifluous voice. It was very persuasive. He and all of us are seeking to persuade the Government that the whole House is behind this Bill. We believe that it is very important because it seeks to protect people with learning disabilities, to deter offenders and to establish appropriate punishments for those who do offend.
The present provision would be laughable if it was not so tragic. Its inadequacy goes a long way towards explaining the figures given by the noble Lord, Lord Rix, and why sex abuse among disabled people is four times higher than among the rest of the population. Those are shocking figures by any standards. The fact that they concern vulnerable people means that successive governments have failed, time and time again, to protect these people.
Forcing these people, as the present law does—this was referred to by the noble Viscount, Lord Tenby, in his eloquent speech—to go to court to prove that they are defective is to force them practically to incriminate themselves because they label themselves as unreliable witnesses.
To describe the originators of this particular law as "medieval" was being rather kind and generous to them. A sentence of a mere two years for the equivalent of rape goes to show the failure of successive governments. The lack of definition of "capacity to consent" makes the task of the prosecuting authorities all the more difficult.
The omissions and inadequacies of the present law amount to a rogues' charter and must be swept away. This admirable Bill will do exactly that. By defining
offences, by establishing proper punishments for offenders and by providing better training within the criminal justice system, it sends a message which is loud and clear. It is long overdue. Again, I warmly congratulate the noble Lord, Lord Rix, and wish the Bill Godspeed.11.48 a.m.
Lord Addington: My Lords, the remarks of the noble Lord, Lord Ashley, summed up my thoughts on the debate. Any point I considered to be vaguely original has been covered by other noble Lords. However, I am in the position of being supposed to sum up and so I shall, very rapidly, make some concluding remarks.
There are absolutely no grounds for argument with Clause 2 of the Bill and beyond. Abuse of a position of trust by someone caring for a vulnerable person should invoke the same penalties as the abuse of a child. That is absolutely unarguable.
However, there is an area in Clause 1 of the Bill where we should tread carefully—I believe that the noble Lord, Lord Rix, has done so, but we need confirmation—and that concerns the question of consent and who can give it. I hope that the noble Lord, Lord Rix, and the Minister will be able to confirm that the decision on whether or not a person is capable of giving consent—if it is contested—will not be left to one person. I hope that that will be the case.
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