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Lord Falconer of Thoroton: That is right. Whereas the Bill says, "unable to refuse", the amendment says, "unable to consent". They both amount to precisely the same level of protection.

Earl Russell: I cannot help being a little perturbed by the case of R v Jenkins which the noble Lord, Lord Adebowale, quoted. If "consent by animal instinct" is to be taken as a sufficient consent, then one does, does one not, altogether remove the element of reasonableness which is such a consistent thread through the body of the common law? I cannot help but feel that that could have rather more far-reaching consequences than perhaps we are thinking about at the moment. It worries me.

Lord Falconer of Thoroton: I am not aware of the detail of the Jenkins case. Obviously I shall have to look at it. It is a perfectly legitimate concern and I understand the concerns being expressed. However, looking at the wording, I think that the concerns are misplaced. I must consider profoundly what has been said in relation to it. I think that we are all trying to reach the same conclusion.

Lord Adebowale: I agree that we are all trying to reach the same conclusion, and I think that I understand the noble and learned Lord's response to my amendment. However, I am still concerned. I think that the case that I quoted raises some genuine issues which I am not sure have been fully addressed. I believe that the ability to consent is critical to the ability to make a choice. I respect the support that noble Lords have given to my amendment. However, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Astor of Hever moved Amendment No. 205:

The noble Lord said: In moving the amendment, I speak to Amendments Nos. 206, 209 and 210. Before doing so, I should like to mention the rationale underlying the amendments and to explain in particular the grouping. These four amendments deal with the issue of whether physical incapacity warrants inclusion in Clauses 33 to 51. In the next group I shall tackle the specific area of definitions: the complexities of what the terms "mental disability", "mental disorder", "learning disability" and "learning difficulty" cover and which terms are preferable for use under this legislation. I realise that Amendments Nos. 205 and 209 introduce a term "mental disability". However, for the sake of clarity I prefer to talk about the advisability of adopting this term when I speak to Amendments Nos. 207, 211 and 404. I speak now to Amendments Nos. 205, 206, 209 and 210.

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The Law Society and MIND have made several representations to us about the advisability of including physical incapacity in Clauses 33 to 51 along with whatever definition is preferred to describe mental impairment. Many people are not capable of expressing valid consent or indicating a lack of consent and are as such vulnerable because of a physical disability.

There may be circumstances where a person may not fit the legal criteria of "mental disorder" or "learning disability" but may be unable, by reason of physical incapacity, to communicate his or her consent to sexual activity: for example, those who are mute, deaf or in a coma. Although their reason for incapacity to consent is of a different kind—it is physical, not mental—they should be afforded the same protection.

In paragraphs 4.5.8 of Setting the Boundaries, the Law Commission recommended that for the purpose of any non-consensual activity offence,

    "(1) a person should be regarded as lacking capacity consent if at the material time:

(a) the person is by reason of mental disability unable to make a decision for themselves on the matter in question: or
(b) the person is unable to communicate their decisions on that matter because they are unconscious or for any other reason". Sub-paragraph (1)(b) points to some physical disability. It is on that basis that we have some sympathy for the inclusion of physical incapacity. It is a point which is covered in the rebuttable presumptions in Clause 78. We on these Benches believe that a debate on its inclusion here is worthwhile.

It is clear that during the consultation process, there were some who believed that physical incapacity should be included in Clause 33 and following clauses. Paragraph 4.53 of Setting the Boundaries states:

    "The review was unanimously agreed that some people had levels of mental and sometimes physical disability so severe that they could not be regarded as being able to give consent in any circumstances. Examples may be those with severe brain damage, severe learning disabilities or severe dementia. Such people would not be able to understand what was being asked of them or to communicate consent, or the lack of it, in any way".

That suggests that there is some overlap between physical and mental impairments in terms of being able to consent. It might then be thought appropriate to include those with physical incapacity in the amendments which deal with inability to consent because of mental disorder or learning disability. I beg to move.

Lord Rix: As the president of Mencap and the father and grandfather of a daughter and a grandson with a learning disability, I believe that I am somewhat qualified to add briefly to the discussion on the always vexed issue of terminology. The noble Lord, Lord Astor, has been kind enough to share his thinking and his briefing with me and I am happy to return the compliment.

We are, if I may say so, entirely agreed on the importance of clarity, all the more so since I am conscious that any time someone steeped in this debate

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even lists the diverse terms, a sort of quiet despair spreads across the noble countenances of others of your Lordships.

The Bill offers "mental disorder or learning disability", as does the noble Lord, Lord Astor, in Amendment No. 220 tabled in his name and those of the noble Baroness, Lady Noakes, and the noble Lord, Lord Campbell of Alloway. In the next set of amendments, Amendments Nos. 207, 211 and 404, the noble Lord and his co-sponsors seek to substitute "mental disability" for "mental disorder and learning disability", while in these amendments, Amendments Nos. 205, 206, 209 and 210, there are other attempts to exclude learning disability.

I have no objection to the separate proposal for inclusion of physical capacity as a relevant factor. Someone with very good intelligence and an unclouded mind may indeed be unable to act in and speak for their interests in a sexual encounter because of their physical incapacity. Furthermore, I have no objection to whatever terminology colleagues in the mental health field want to use to describe those with severe incapacitating mental illness.

But I do object to removing "learning disability" from the Bill. I know exactly what learning disability means. As the noble Lord, Lord Astor of Hever, said from our shared brief, it is in English usage in this country a common and commonly understood means of describing intellectual limitations of various degrees dating from birth or soon afterwards and lasting for life. Some social disability normally goes with the intellectual disability, although I have to say that some people with learning disabilities seem to me to have outstanding social skills. I have some sympathy with the desire to define the term in the Bill. I certainly want to use it.

"Learning disability" is different from the term "learning difficulty" when used to describe specific deficits in learning skills such as dyslexia. It is also different from "mental illness", which is a clouding or distortion of perception that may hit any of us, quite often does, and is happily amenable to treatment in many cases. Even senior Ministers of the Crown—I will not mention names—have been known to confuse mental illness and learning disability, and I want to take every opportunity to avoid that frequent confusion.

For the avoidance of doubt, I prefer to keep "learning disability" in the Bill and thus to recognise that it is something different from the perhaps fluctuating capacity that may go with "mental disorder", and stands out from the amorphous "mental disability". In short, I think that the Government have got it right in this particular and the noble Lord and his colleagues have got it wrong.

Lord Addington: I am a newcomer to the Bill who happened to be in the Committee during this discussion. As the noble Lord, Lord Rix, pointed out, the definitions in the Bill are correct. Surely physical incapacity, where it would lead to a lack of communication ability, should be brought in. If that

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point is covered elsewhere in the Bill I will take my slapping on the wrist well, but it is an important point. I agree with the noble Lord, Lord Rix, but I wonder whether physical conditions that inhibit the ability to communicate properly are taken into account in the Bill.

3 p.m.

Lord Adebowale: We are dealing with a most complex issue. I support the point made by the noble Lord, Lord Rix. As someone who is involved with a charity that provides a service to many people with learning disabilities, and having involved myself in the world of learning disability over the past few years, I am always filled with a certain sense of despair when there is a failure to acknowledge what is an issue for well over a million people; indeed, it will become increasingly so over the next 10 years during which we shall see an increase of about 3 per cent in the main population and anything up to 70 per cent in minority ethnic populations. We need to start using the term, and understanding it as being a separate entity.

However, I have some sympathy with the point raised by the noble Lord, Lord Astor of Hever, in that there are people with physical incapacity who would face a real challenge in this respect. I put forward the following as a helpful suggestion. Both sides in this discussion are seeking to achieve the same aim. We are all in agreement as regards what we wish to achieve. We are trying to find a form of words that acknowledge a range of challenges faced by individuals, which might prevent them from engaging with the law. I suggest that further discussion takes place with the likes of MIND, my organisation Turning Point, and Mencap before the conclusion of the Committee proceedings. This would enable us to arrive at a suitable definition that might reflect the wishes of all sides.

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