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Lord Campbell of Alloway: What could be covered under paragraph (b)—"the activity is sexual"—that would not be covered by "for the purpose of obtaining sexual gratification"? If the answer is "nothing at all"—and this is a probing amendment—I respectfully
suggest that it does not achieve anything that should be committed to a Bill which will become an Act of Parliament.
Lord Adebowale: I support the noble Lord, Lord Astor. I intended to raise this issue at Clause 46 stand part stage. However, it seems appropriate to raise my points now. In any event, I would rather make my points through an amendment than by pursuing the route of opposing clause stand part. For this reason, I am grateful to the noble Baroness, Lady Noakes, and the noble Lord, Lord Astor.
I am very conscious of the need for future legislation to strike a sensitive balance between promoting sexual autonomy and protecting people from abuse and exploitation. We need to ensure that people with learning disabilities enjoy their fundamental right to a healthy sex life but we must also protect people from harm.
At Second Reading, I listened closely to the arguments made that the Bill does not recognise that care workers may undertake work for people with a learning disability to help them to enjoy a sex life if they so wish. My understanding is that under current law care workers would not come within the ambit of the criminal law if that sexual activity is not indecent. However, under the provisions in the Bill a person may come within the scope of the new legislation even in cases where touching is within the context of a sex education programme and helps people to understand and express their sexuality. This is an issue of concern to the charity of which I am chief executive, Turning Point.
I have also received an informative briefing from Sue Brown at the deafblind charity, Sense. If I may, I should like to indulge the Committee's time by quoting from that briefing. Sense's policy on personal relationships allows for teaching of an intimate or sexual nature to take place only where there is no alternative method. However, Sense, like Turning Point, would not want to see the law deny the possibility of sex education, which in the case of a deafblind person might include the need for physical instruction for the purpose of education. It is not clear whether touching in this context would be considered to be "sexual" as defined in the Bill, but care staff could find themselves unable to provide essential support to deafblind people relating to sex education. This mirrors Turning Point's worries about the Bill.
On balance, it would be inappropriate to spell out an exception regarding sex education on the face of the Bill as it would be difficult to frame and there is a risk that this provision might be abused. However, guidance is needed to ensure that care workers who carry out legitimate sex education work are not prosecuted. Guidance is also needed to prevent prosecutions in cases involving two people with severe learning disabilities who engage in sexual activity but where neither person can consent to sexual relations. This issue has already been raised in a separate
amendment. I hope that the Minister can assure me that guidance will flow from the Bill's provisions to deal directly with this issue.8.30 p.m.
Baroness Howarth of Breckland: I want to raise the issue of people with severe physical disabilities who may not have a mental disorder or a learning disability. I speak as the vice-chair of the John Grooms charity for disabled people. That group of people has been missed out. I have been looking for an opportunity to raise the question of how they could be included in the Bill. I would be grateful if the Minister would consider how the legislation might include them so that their rights are the same as those of the groups we have already debated.
Baroness Walmsley: We support the amendments tabled by the noble Lord, Lord Astor of Hever. I raised on Second Reading the point that it is important that people with mental disorders and learning disabilities are enabled to have a sex life. That is a very fulfilling part of life, and it may be only with the help and instruction of care workers—properly trained and regulated, of course—that it can take place. The amendments would provide a reasonable amount of protection for people who certainly need it.
I turn to the point made by the noble Lord, Lord Campbell of Alloway, about paragraph (b), which makes it an offence if "the activity is sexual". He asked whether that paragraph did not cover the point. I believe that it may not, because the activity being sexual relates to the nature of the act. The words in the amendment,
- "for the purpose of obtaining sexual gratification",
Lord Campbell of Alloway: How an earth can there be gratification without an act, and why should the act be prohibited if it is not sexual? I am not trying to be difficult. The noble Baroness, Lady Walmsley, rightly criticised what I said—I am usually wrong, anyway—but I cannot understand her reasoning.
Baroness Walmsley: I should clarify what I meant. I did not say that we do not need paragraph (b). We need it to make clear the nature of the act to which we refer, but in addition we need the amendment tabled in the names of the noble Baroness, Lady Noakes, and the noble Lord, Lord Astor of Hever, to clarify the intention of the person committing the act.
Baroness Blatch: This is a difficult area. My noble friend Lord Campbell of Alloway suggested that the amendments were probing. In that spirit, I want to pose some concerns about the amendments being accepted.
Amendment No. 234 imposes a harder test in Clause 44 for proving that a care worker has caused a person in his care to engage in sexual activity. I should make
it clear that some powerful points have been made about the rights of such people, and I do not want to get in the way of those rights but simply to raise some questions.Amendment No. 241 would make the same change to Clause 45, which covers inciting sexual activity. The changes would require it to be proved that a defendant incited, or caused the activity,
- "for the purpose of obtaining sexual gratification".
I am sure my noble friend intends that an activity that is wholly innocent, such as legitimate sex education, should not fall foul of the offences. That is my reading of the meaning of the amendment. However, as I understand it, there is no real risk that such activities would be successfully prosecuted. Police, prosecutors and the courts have enough common sense to see that as a bona fide situation that has been registered under the system. Following the law of unintended consequences, the amendment would instead provide a much wider defence, which would actually require the prosecution to adduce evidence of the perpetrator's intention. Prosecutions could fail for lack of evidence of what he intended by his actions, even when they were overtly sexual. Defendants simply have to put up a reasonable sounding claim that they were not acting for their own sexual gratification and they can escape conviction. A claim that they caused or incited a disabled person to engage in sexual activity for "educational purposes" rather than their own gratification could result in an acquittal.
Under Amendments Nos. 243 and 244 care workers would be authorised by the Secretary of State—by what mechanism we are not told—to provide sexual assistance to their patients. This would exempt them—I am talking about the carers—from the offence detailed in Clause 45 of the Bill. If my reading is right, that would open up an astonishing loophole in the law. It would give a blanket defence to carers "providing sexual assistance". What does that actually mean? The Family Planning Association says that for disabled people,
- "assistance with sexual expression may be required . . . Staff and carers should take a holistic view of sexuality to encompass sensuality and intimacy".
- "Some physically disabled people who are unable to masturbate want to be able to put in the job description of their personal assistants that there is an option to relieve them of their sexual frustration".
- "Sex Angels, often nurses or care assistants who act as unofficial volunteers using their uninhibited minds and fingers to rescue the situation. This is always hush-hush".
If this amendment is at any risk of legally enshrining such activities, we really should have nothing to do with it. It would radically undermine the patient/carer
trust and could place some carers in an excruciatingly embarrassing position. I believe that it has some read-across to previous amendments.The amendment could also be abused. It could allow a carer who sexually abused one of his patients to claim that he was merely providing "sexual assistance". The amendment could give the abuser immunity from prosecution. The perpetrator of the offence would be free to argue that he was merely helping his victims to fulfil their sexual desires and was registered by the Secretary of State for the purpose. The amendment may even lead abusers deliberately to seek jobs as carers because of this exception in the law.
Those with a mental disorder or learning disabilities desperately need the protection of the law as well as proper respect for their fundamental rights in this area. Incitement is a term clearly understood in criminal law. The proposed amendments would obscure its meaning and remove protection from some of the most vulnerable people in society. That is what we are discussing in this part of the Bill.
If my reading of the amendments is correct, I hope that it will not be made more difficult to bring to account those who abuse very vulnerable people. We need to recognise and respect the rights of the physically disabled as well as those with learning disabilities to have fulfilment but at the same time we should not make it much easier for very manipulative people to be free to abuse in the name of the law.
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