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Lord Rix: My Lords, it is clear that if the Bill ever reaches the statute book, it will be a team effort. The decision will be based on medical evidence and a team will decide on the required definition.
Lord Addington: My Lords, I thank the noble Lord for that confirmation. I hope that the Minister will be able to confirm that that will be the way forward in a decision of this nature.
It is a human right to have a consensual sex life—a point that we should not overlook. There is always a danger of becoming overly protective towards certain groups in society. It is a basic human right to be able to live your own life to the greatest extent that you are capable of—that was probably rather inelegantly expressed, but I hope that my sentiment was not misconstrued by anyone.
The noble Lord, Lord Carter, mentioned a further problem with the Bill; namely, bringing such a case to trial. I totally concur with him. Such problems will arise, and there will be ways forward. Major steps have been taken, for example, to stop the intimidating process in terms of children giving evidence in court. I hope that this will be taken on board. It is a problem that we should embrace. The fact that something is difficult does not mean that we should not attempt it; indeed, it must be done.
The principle is unanswerable: when someone has effectively committed rape, the capacity should exist to punish that person. I do not think there is any dispute about that. I could continue at considerable length but I should be repeating what has already been stated.
This is a further example of where we should seek to extend the rights of all disabled people. The comments of the noble Lord, Lord Astor, on this aspect were highly appropriate. I appreciate that the inspiration of the noble Lord, Lord Rix, may come principally from Mencap, but it should be borne in mind that other types of disability may need other approaches. We must bear that in mind. We must attempt to extend the rights of disabled people and, where required, protection for disabled people in the outside world. The subject is difficult—it is multi-faceted—but we should not draw back from it. If this Bill does not make significant progress, I hope that the intentions behind it will soon be encompassed in law.11.52 a.m.
Baroness Anelay of St Johns: My Lords, I, too, thank the noble Lord, Lord Rix, for introducing the Bill, and for explaining in so authoritative a manner why it is important to accord the protections he described to a variety of people with mental impairment. As always, his presentation was very persuasive.
It is a legitimate use of a Private Member's Bill to call the Government to account with regard to the delay in bringing forward their proposals, which were the subject of consultation some two years ago in the document, Setting the Boundaries. I join the noble Lord in asking the Government what their timetable will be in bringing forward those proposals.
We all hope that a government Bill on this subject will be before the House soon. In the light of that—and of the fact that this Bill is unlikely to progress to Committee stage or beyond as we are so near to the end of the Session—I thought it important to pay more attention to the contents of the Bill than one might have the luxury of doing in the normal course of a debate on a Private Member's Bill on a Friday.
It is important that we get the proposals on this issue right, within the context of a wider review of the reform of legislation on sexual offences. I can say straightaway that they will not be the subject of partisan political debate. That is not to say that we shall agree one-hundred per cent with everything that the Government are likely to include in a White Paper. We shall need to give their proposals proper parliamentary scrutiny. If the Government are misguided, we shall not be afraid to say so. But I certainly hope that we shall be in agreement with the principles set out in the Bill and that we shall be able to agree as regards their practical implementation.
I believe that all support the argument advanced earlier that clear and coherent legislation is required to protect children and vulnerable adults from abuse and exploitation and to ensure that abusers are appropriately punished.
The Bill exposes the underlying tensions in the current criminal law. On the one hand, there is a need to protect the most vulnerable people in society; on the other, we need to protect citizens against unjust conviction and punishment. A balance has to be struck. The question, as ever, is how to find the right
balance. When we consider the imposition of a severe penalty such as life imprisonment for a strict liability offence, we should always take one step back and think even more carefully before we proceed as legislators to enact such provisions.The key issues to be considered in relation to the Bill are complex. The noble Lord, Lord Addington, referred to the European Convention on Human Rights and to the universal right to a private life. We have to have regard to Article 8 stating that everyone has a right to respect as regards his private and family life. We need to achieve a balance between the right of the individual to sexual autonomy and a private life and, on the other hand, the duty of any society to protect vulnerable people from abuse by those who wish to exploit them. I should be grateful if the Minister and the noble Lord, Lord Rix, can explain how they believe that the provisions of this Bill affect the right of vulnerable people under Article 8.
We have heard a persuasive explanation of how the current law is failing. We shall have to look into the detail of that when the Government present their own Bill. Setting the Boundaries recommended that when vulnerable people do not consent to sex, charges of rape and sexual assault by penetration can and should be used where possible. However, it noted that these offences rely on proof of consent. The noble Lord, Lord Rix, and others have carefully addressed that point. This could be particularly difficult for vulnerable people. Some may not have sufficient ability, knowledge and understanding to be able to consent to sex. The report properly discussed how the law could define capacity for consent as regards very vulnerable people.
The proposals in the Bill make it essential that we arrive at an objective and reasonable test of what constitutes incapacity to consent. The danger if we get that wrong is that the police could be deterred from charging an alleged offender or that a jury could be deterred from convicting an offender.
In the definition of incapacity to make a decision in Clause 1(4), the Bill follows the recommendations of the Law Commission in its paper, Consent in Sex Offences—a definition accepted by the Government in their document, Setting the Boundaries.
Subsections (2) and (4) of Clause 1 also adopt the review's approach of applying the test of capacity only to the most severely disabled people, rather as the definition of "defective" does in present law. Therefore, I was intrigued to note the provision in Clause 1(3)(b) that the intention is to protect people who are able to make a decision about consent but unable to communicate their lack of consent. I find that an interesting proposal. I listened with great care to the remarks of my noble friend Lord Astor of Hever with regard to those who have autism spectrum disorders. He is an expert in these matters. From long experience, I know that I shall have to listen to him carefully when we debate a sexual offences Bill.
If we have the luxury of a Committee stage on this Bill, we shall need to consider in some detail the problems raised by the drafting of Clause 1. We shall
want a definition of "material time" in Clause 1(3). We shall need to resolve what appears to be the circular reasoning of Clause 1(4)—whereby a person who is unable to make a decision is apparently defined as "a person who is unable to make a decision".As a result of the provisions of Clause 1, we are faced with the problems that flow from introducing a specific offence of strict liability, where the defendant cannot claim any defence. How do we protect a person who has sexual relations with someone whose vulnerability is not in doubt but does not know, and could not be expected to know, that the victim has a severe disability? The noble Lord, Lord Rix, referred to a team arriving at an appropriate definition in individual cases; but there will be a problem for the individual in terms of knowing whether the person falls into that category.
We need to address the position of a person who "lacks capacity to consent" but who is engaged in a non-exploitative sexual relationship. That must be considered in relation to the Bill. How can we protect such people against prosecution? To be specific—I am not a lawyer; this is simply a practical question—will persons who lack the capacity to consent to sexual relations find themselves liable to prosecution under Clause 1 if they engage in sexual activity with another person who lacks the capacity to consent to sexual relations? That conundrum has to be resolved. I note that in Consent in Sex Offences the Law Commission stated:
- "Should Parliament choose to recognise that lawful sexual activity may take place between a person who lacks capacity to consent due to mental disability and one who does not, a limited exemption to criminal liability will be needed".
I appreciate that in the event of a conviction the judge could decide whether the offence was not so serious as to warrant a custodial sentence. Is that really a good enough reason for exposing an individual to an absolute offence and a criminal record? We will have to address that very sensitive question when the government Bill is brought forward.
The Bill addresses very properly the important issue of abuse of trust, which worries all noble Lords. Clause 2 raises complex problems regarding the impact of the offence of abuse of trust and the definition of vulnerability, together with serious questions about its potential impact on care services. The consideration of a person's position of trust in connection with sexual offences legislation is not itself new. The government review was not convinced that the present regime of good practice and the professional code were adequate to provide protection. It did see a strong case for the law to reflect the serious abuse of the implicit relationship of trust between vulnerable people and those who provide medical, therapeutic or intimate
care services to them. I hope that the Minister can confirm today that that is still the Government's position.Clause 2 covers a much wider group of people with disabilities than Clause 1, including those with the capacity to consent to sexual activity. I would be grateful if the Minister and the noble Lord, Lord Rix, can explain whether Clause 2(3) covers volunteers who offer their services in residential care or nursing homes, hospitals or the personal home of an individual who is receiving care. Do they believe that volunteers should be so covered? I heard the noble Lord, Lord Rix, say that all aspects of care would be covered, but I ask whether volunteers in particular are covered.
The Government's report recommended that there should be offences of breach of relationship of care, which would include actions by unpaid persons. However, that does not seem to have been translated very carefully into Clause 2. I would be grateful if the Minister and the noble Lord, Lord Rix, can explain whether the definition of a vulnerable adult in Clause 2(4) covers people who will be required to be resident in accommodation centres that the Government plan to set up to process the applications of asylum seekers. If not, do they intend that those persons should be so covered?
Is Clause 3 intended to cover cases where people in a position of trust who are not themselves committing an offence as defined in Clause 2 nevertheless facilitate sexual activity between a disabled person and somebody else who is not in a position of trust, and who is unpaid? The noble Lord, Lord Rix, referred to grooming, as did other noble Lords. However, there are people who, without any payment, facilitate contact between disabled people and others in the knowledge that they will be abused.
The problem remains that whatever the penalties for offences introduced by this Bill, in each individual case we are bolting the stable door when it is too late. It is important in this society that we prevent the commission of the offence in the first place, in addition to trying to follow the admirable example of the noble Lord, Lord Rix, of dealing with the offence appropriately when it has happened.
I am grateful to the noble Lord for giving us this opportunity to have a preliminary debate about this sensitive and complex issue. I certainly do not wish to make up my mind fully on the detail at this stage. I simply say that I agree wholeheartedly with the noble Lord's objectives in this Bill, and I hope that we can deal with them fairly speedily in a government Bill and that we can ensure that the people who need protection receive it very quickly.
12.7 p.m.
The Minister of State, Home Office (Lord Falconer of Thoroton): My Lords, I join everyone else in the debate in paying tribute to the noble Lord, Lord Rix, for introducing this Bill, for his work with Mencap, and the work that he has done for years and years in championing the vulnerable people that this Bill seeks to help. Everyone in the House will wish to pay tribute to the noble Lord in that respect.
The debate has been incredibly powerful and moving, and it can be divided into two stages. First, has the case for reform been made? It has been emphatically made in the most powerful way imaginable. Secondly, what do we do about it now? That is the critical question. On the first issue, the details of the case, it reiterates that the Government support the following propositions. Vulnerable people with learning disabilities are particularly susceptible to certain sorts of abuse, including sexual abuse. The size of the problem is both unknown and hidden. The current law is patently inadequate to deal with it. It is not simply a question of the detail of the substantive law; it is also one of how the law acts in practice. The noble Viscount, Lord Tenby, my noble friend Lord Carter, and the noble Lords, Lord Rix, Lord Astor of Hever, and Lord Morris, all made the point about the process and its effect on people who must go through it. I endorse and agree entirely with the point by the noble Viscount, Lord Tenby, that both the form of the law and its jargon are straight from the Middle Ages. The law is offensive and degrading, not just in how it is expressed but in what it requires people to do—for example, going to court and, using the jargon of the current law, proving that they are a defective, which is humiliating and degrading.
The substantive law and how it works in practice must be changed. We did not set up the sex offences review solely to deal with the problem but it was intended in part to do so because we recognise that the whole law on sexual offences, including this aspect, is out of date. One of the principal themes of the review was to identify legislation that would better protect children and the more vulnerable. Noble Lords throughout the House referred to the report of the review, Setting the Boundaries, which is a report to the Government. It proposed a range of offences designed to achieve this across the board. It also recognised the importance of addressing the specific need to protect people with a mental disability, including learning disabilities.
We also welcomed the report produced by Mencap and others entitled Behind Closed Doors. We were pleased to note that it reinforced the recommendations made in Setting the Boundaries.
The noble Lord, Lord Rix, raised a specific point about counselling and support for people who find themselves in difficulties, rather than about the substance of the law. He will know that the Department of Health launched guidance entitled No Secrets on 20th March 2000 under Section 7 of the Local Authority Social Services Act 1970. No Secrets deals with developing and implementing multi-agency policies and procedures to protect vulnerable adults from abuse. Multi-agency codes of practice had to be implemented by 31st October 2001. The guidance was drafted by a steering group funded and led by the Department of Health, which included representatives from the Home Office, the Wales Office, the police, social services, health and the voluntary sector. I have answered on the process, which represents a cross-government commitment to dealing with the problem.
The noble Lord also said that there was insufficient funding for counselling and support services for people with learning disabilities. There have been substantial increases in the level of funding provided for social services in recent years. He referred in particular to the agony of a care assessment being done by a local authority, but the authority then not having the funding to put in place the conclusions of that assessment. When a care assessment has been undertaken, the local authority has a duty to provide the service. Incidents of the kind that the noble Lord mentioned should never have happened.
The Department of Health has funded Voice UK for the past 10 years and has funded Respond for the past 8 years to support people with learning disabilities and their families who have been victims of abuse. I hope that that goes some of the way to dealing with the point that the noble Lord, Lord Rix, made about help and assistance in practice.
The Bill deals with the criminal justice system. An underlying theme of the debate was that people with learning disabilities have just as much right to justice as those who do not have such disabilities. I agree. We need to put that into practice. We share the noble Lord's concern that the criminal justice system should enable victims of offences who have learning difficulties to get justice. It must be highly traumatic for an adult with learning difficulties to have to speak in a court full of strangers about the sexual abuse that they have suffered.
I am grateful for the widespread support for the principles in Speaking up for Justice. We are committed to putting that into practice. As noble Lords will know, from 24th July 2002, a range of measures has been phased in to improve the treatment of vulnerable or intimidated witnesses. The measures will benefit both children and adults. They include special measures in court, such as screens around the witness box, television links, video-recorded evidence, clearing the public gallery and—a point made specifically by the noble Lord, Lord Astor or Hever—assistance with communication, including the use of intermediaries. In his powerful speech, the noble Lord effectively said that we should commit ourselves to being serious about that. We must recognise that it is very important for vulnerable people giving evidence. We have committed ourselves to that and have started to roll it out as much as possible. It is incredibly important to make the process easier.
We have already taken other measures. For example, for people suffering from Alzheimer's who are the victims of sexual or other abuse the process of going to court is a nightmare. The courts now accept that a video taken of the victim at the outset can be played in court without the need for the victim to go to court. We need to put that sort of policy into effect.
The law on competence is also being changed. From July a person who is unable to understand the implications of taking the oath will be allowed to give unsworn evidence provided they can understand the questions asked of them in court and can answer in a way that can be understood. These provisions will
enable some of the most vulnerable people in society, including those who suffer from a mental or physical disorder or who have a disability or impairment that is likely to affect their evidence, to give evidence for the first time. That builds on the earlier introduction of provisions protecting victims in rape cases.The Bill's first specific proposal is that it should be a criminal offence to have sexual relations with a person who lacks the capacity to consent to sexual relations. Setting the Boundaries proposed a very similar offence.
Secondly, the Bill sets out a new test of capacity to consent to sexual relations based on principles relating to understanding the basic elements of sexual behaviour and the reasonably foreseeable consequences of it. Setting the Boundaries recommended incorporation into the law of a definition of the capacity to consent to sexual relations, with reference to a definition proposed by the Law Commission, to which the noble Baroness, Lady Anelay, referred. This definition contains key elements that are consistent with those proposed by the Bill. The Bill would criminalise those providing particular forms of care for individuals with learning disabilities who engage in sexual activity with them. Setting the Boundaries proposed a very similar offence.
Part 3 contains an offence of procuring sexual relations with a person with a mental disability. My noble friend Lord Carter made the point about the susceptibility and suggestibility of people with a learning disability to threats and inducements that might not look threatening in other circumstances. He rightly asked whether it is right that the framework of the law does not adequately deal with that. The law does not deal with the issue adequately, because it focuses too much on the concept of vitiating consent, which is a difficult concept to deal with in this context. Setting the Boundaries proposed an offence of obtaining sex with a mentally impaired person by threat or deception to address the deliberate targeting and pressurising of people with learning disabilities into having sex.
I trust that my comments show that the matters covered by the Bill and the serious issues underlying them have already been brought to our attention by the recommendations in Setting the Boundaries. The noble Viscount, Lord Tenby, asked a direct question that goes to the heart of the debate: do the Government share the Bill's aims in levelling the playing field to provide proper protection for mentally impaired people? The answer is, "Most certainly, yes". Of course we can disagree about the precise detail of how it may be done and many of the questions that the noble Baroness, Lady Anelay, asked in her helpful and powerful speech need to be addressed and answered. However, I say unhesitatingly that we support the aims of the Bill and that we understand the urgent need to deal as quickly as possible with the problems that the Bill is intended to address.
Not wishing to let the Government off the hook, the noble Viscount went on to say that doing nothing is not an option. We agree. He said that the one thing we must not do is kick the problem into the long grass. Again, I entirely agree.
However, I hope that what I have said shows that we are thinking along the same lines as the Bill. We have been considering the large number of responses to the period of public consultation on these and the other offences proposed in Setting the Boundaries. My right honourable friend the Home Secretary has announced that we will publish our plans to reform sex offences, including the offences that deal with the issues that we have been talking about today, later this autumn. My right honourable friend confirmed that in a PQ in June. We shall introduce legislation as soon as parliamentary time allows. I notice my noble friend Lord Carter looking at me. He will have heard that phrase many times and knows that it could mean tomorrow or some time in a future in which none of us will participate. For the reasons that the noble Baroness, Lady Anelay, gave, I am not in a position to give a precise time by which we will do it, I assure the House that the issue will be dealt with urgently. We recognise the urgency of it. The House can hold me to account if it is not dealt with within a time that the House finds satisfactory.
In the light of our intention to introduce reform of the law on sexual offences, the Government do not believe that it is prudent to take forward the measures proposed in the Bill at this time. They introduce piecemeal change when we believe that comprehensive change is needed to deliver the outcomes that the noble Lord seeks. Some matters, such as the proposed definition of the capacity to consent to sexual activity, have particular relevance to those with learning disabilities, but also have broader significance. The framework of laws on sexual offences needs to be considered as a whole for the sake of ensuring their coherence, leaving no gaps that abusers could exploit and enabling appropriate punishments to reflect the nature and severity of the harm caused.
I repeat my assurance to the noble Lord and all those who have spoken that the case for providing better protection is overwhelming and its urgency is accepted. The ways in which we must deal with this are to be set out in the answer given in November. We are committed to taking action on the issue.
I have not answered every question raised. In particular I have not dealt with the penetrating questions raised by the noble Baroness, Lady Anelay, on the precise legal consequences of the Bill, partly because many of the questions were too difficult and partly because it may not be appropriate to go through the detail of the Bill at this stage.
I shall pick up a few points to finish. I entirely agree with my noble friend Lord Carter that the sorts of learning disabilities that we are talking about attract a certain sort of predator. That is why action is urgent. He also made the point about it being a "both ways" problem: both in relation to being the victim and in relation to being over-persuaded into admitting things that are not appropriate. We need to examine that issue as well.
The noble Lord, Lord Astor of Hever, dealt with the particular problems of people suffering from autism. I entirely agree with that point. He also mentioned the
inappropriateness of the adversarial nature of court in dealing with these types of matters. Again we agree. That is why the measures introduced on 24th July seek to some extent to address that issue.The noble Lord, Lord Astor, also made the point that we have to address the issue as a generic mental health issue rather than as one based solely on intelligence level. We entirely agree with that.
My noble friend Lord Morris of Manchester raised the issue not only of the ability to give evidence but of the fact that in many cases there is a very long history of abuse that never comes to light. I agree with that. He also raised the issue, as did a number of noble Lords, of the importance of sentencing in this sphere.
One of the points that comes out loud and clear is that current law downgrades the crime by the sentences passed, treating it as less important than other types of crime in this sphere. That point is germane to the one made by the noble Viscount, Lord Tenby, about levelling the playing field. I very much agree with him. I think that I have already dealt with most of the other points made by the noble Viscount, Lord Tenby.
The noble Lord, Lord Ashley of Stoke, made the point— with which I entirely agree—that the current position is laughable. He also referred to the inadequacy of sentences and put his very considerable weight behind the required reform.
The noble Lord, Lord Addington, very modestly said that he supported all that had been said. As I said, I have ducked most of the questions asked by the noble Baroness, Lady Anelay. I hope that, in the light of what I have said, the noble Lord, Lord Rix—in hearing the enthusiastic report that we give—will consider whether the right thing to do is to wait for the wider Bill.
12.22 p.m.
Lord Rix: My Lords, I am most grateful to all your Lordships for turning up on this Friday morning and being so eloquent, thoughtful, and indeed thought-provoking. You have all contributed to a wonderful debate on the Second Reading of this Bill, and you have offered many practical suggestions on how the clauses could be implemented or improved. I agree entirely with the noble Lord, Lord Astor, that there is a need to protect all vulnerable adults and not only those with a learning disability. However, I am sure that that will be made quite clear in any future legislation.
The noble Baroness, Lady Anelay, made many points and asked many questions. So I hope that she will allow me to hide under the Minister's skirts, as it were, and perhaps to respond—in that well-worn phrase—in writing. However, as the Bill is likely to be subsumed into a larger Bill, I think that the questions will be more appropriately addressed to the government of the time.
I am extremely grateful to the Minister for his comments on the issue of specialist counselling services. No doubt Mencap will be able to follow up his advice.
I also welcome the Minister's commitments on this matter as a priority for the Government, and his assurance that all concerns voiced today will be dealt with in a more comprehensive Bill—which I think is probably correct—concerning sexual offences. I only hope that the Government do introduce this more comprehensive Bill, perhaps in the gracious Speech, including all the salient points in today's Bill, and then proceed to pass that legislation without further delay. However, I am sure that the Minister will forgive me if I still regard this Bill as a safeguard measure if the government legislation is not forthcoming. I am sure that noble Lords in the Chamber would encourage me in that.
My Lords, you have all given us a great deal of hope today that a dreadful wrong in the justice system is soon to be put right, and I am in your debt. I commend the Bill to the House and invite the House to give it a Second Reading.
On Question, Bill read a second time, and committed to a Committee of the Whole House.
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