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Lord Thomas of Gresford: Will the Minister explain why the phrase,
- "for the purpose of obtaining sexual gratification"
Lord Falconer of Thoroton: This is a very sensitive and difficult area. I understand the amendments moved by the noble Lord, Lord Astor of Hever, to be probing amendments. He made it absolutely clear—he telegraphed this in advance for which I am grateful—that he seeks to deal with the issue of sexual education for people with a mental disorder or a learning disability.
The noble Lord proposes that in order to be guilty of an offence under Clause 44 the person who intentionally causes the victim to engage in the relevant activity must do so in effect for the purposes of his own sexual gratification. That would, as it happens, exclude those cases where the carer procures the victim to engage in sexual activity with someone else for money, for example. The noble Lord, Lord Astor of Hever, would plainly not wish to exclude that.
As a means of getting to the end that the noble Lord wishes to reach—legitimate sex education activity that is not a criminal offence—the amendment does not work because of the sorts of case that it lets in. There
might well be other cases where simply bullying or intimidation was the motive, rather than sexual gratification. Again, I am sure that he and the noble Lord, Lord Adebowale, would not wish to exclude those cases.How then does one deal with the problem? The next proposal is to create some exemption scheme related to the Secretary of State through which authority is given. Again, I fully accept that the amendment is probing, but the scope of the exemption is very broadly defined, both with respect to the nature of the activity covered and the care workers to whom it might apply. It is very difficult to see how it could work in practice, in terms of the positives. How would one get the authorisation? What would be the effect of not being authorised if one were legitimate? What would the scope for abuse be even if one were authorised? The amendment has absolutely no feel of practicality. Although it is only a probing amendment, it does not get off the starting block as a sensible way forward.
The noble Lord, Lord Adebowale, effectively accepts, which is sensible, that it is very difficult to deal with the problem in the Bill. As the noble Baroness, Lady Blatch, said, one has to leave it to prosecutorial discretion. Is that enough? The noble Lord asks about producing some sort of guidance. We need to think about that, as it seems an important issue. Without giving any assurance, I should like to come back to that on Report and indicate where we have got to. However, I make it absolutely clear that our pretty firm view is that dealing with the matter in the Bill is not the right method, as it would lead to more problems than one would solve.
The noble Baroness, Lady Howarth, made a point about those not suffering from a mental disorder or learning disability but who have a physical disability. The provisions do not refer at all to them. Therefore, the normal law would apply, and the relevant question would be whether there was genuine consent, assuming that the person to whom she referred was an adult. We need to look at whether there is there some degree of vulnerability.
Baroness Howarth of Breckland: Those people who are quadriplegic with communication difficulties, but who are not psychologically or mentally impaired—the kind of people with whom I deal—are certainly vulnerable, in that there is a power relationship with the care worker. Certainly, the new adult protection units are discovering in a number of places that they have to look into such situations. If we were able to consider them in the Bill and have a clearer way forward, it would help the units and people who try to provide the services. I would be grateful if it were possible at this stage to see whether there was any possibility of including that group of clients in the Bill.
Lord Falconer of Thoroton: Perhaps I may consider that. In effect, the question that the noble Baroness raises is one of a whole new category of people. We have to see whether they are adequately covered by the provisions about the problems of communication. I
imagine that she would suggest that vulnerability gives rise to the problem as well as communication. We cover it to some extent—I know that it will not be adequate enough for her—in Clause 78, in which we give rise to certain presumptions. However, I imagine that she is referring to a more pervasive protection than simply that. I will certainly consider what she has said, again with no assurances.I shall come back at a later date to the question asked by the noble Lord, Lord Thomas, perhaps by correspondence.
Lord Astor of Hever: I very much take the point made by my noble friend Lord Campbell of Alloway. It was never my objective to have the amendments included in the Bill. However, I have been persuaded by bodies that I respect that the issue is important and needs to be debated. I am very grateful for the support of the noble Baroness, Lady Walmsley, who recognised the importance of sexual education by properly trained and properly regulated staff.
I agree with my noble friend Lady Blatch that this is a very difficult area. Our amendments are not perfect, as I said in my opening speech. I discussed them thoroughly with our advisers before agreeing to move them. My briefing was not from the Sexual Freedom Coalition but from bona fide legitimate charities which I respect.
We have had a good debate and I thank the Minister for his reply. I very much look forward to the Government coming forward, as I hope they will, with something positive in relation to national guidance on sexual education. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 235 and 236 not moved.]
8.45 p.m.
Lord Falconer of Thoroton moved Amendments Nos. 237 and 238:
- Page 21, line 10, leave out subsection (3).
- Page 21, line 11, at beginning insert—
On Question, amendments agreed to.
[Amendment No. 239 not moved.]
Lord Falconer of Thoroton moved Amendment No. 240:
On Question, amendment agreed to.
Clause 44, as amended, agreed to.
Clause 45 [Care workers: inciting sexual activity]:
[Amendments Nos. 241 to 245 not moved.]
Lord Falconer of Thoroton moved Amendment No. 246:
On Question, amendment agreed to.
[Amendment No. 247 not moved.]
Lord Falconer of Thoroton moved Amendment No. 248:
On Question, amendment agreed to.
Clause 45, as amended, agreed to.
Clause 46 [Care workers: sexual activity in the presence of a person with a mental disorder or learning disability]:
[Amendments Nos. 249 to 251 not moved.]
Clause 47 [Care workers: causing a person with a mental disorder or learning disability to watch a sexual act]:
[Amendments Nos. 252 to 254 not moved.]
Clause 48 [Care workers: interpretation]:
Lord Adebowale moved Amendment No. 255:
The noble Lord said: In moving Amendment No. 255, I shall speak to all my amendments to Clause 48. This will be interesting: it is a big task and a massive group of amendments. I hope that I am up to the challenge and, more to the point, that Members of the Committee can keep up with me because I may have trouble myself.
The amendments to which I shall speak include Amendments Nos. 263, 272, 273, 275 and 277. I wish also to support the amendments tabled by the noble Lord, Lord Rix—Amendments Nos. 258, 260, 279 and 280. These amendments on advocacy are very important and I give notice of my intention formally to support the noble Lord, Lord Rix, when he moves them.
The aim of Amendment No. 255 is to define more closely the meaning of "care" to include activities such as training and supervision within the definition. That would make these provisions consistent with the equivalent clauses in relation to children who live in a care setting, as defined earlier in the Bill.
The manager of a care home may not provide regular care but will certainly provide regular supervision and possibly training and will be in a position of care and trust in that care setting. The organisation BILD, led by the excellent Dr John Harries, has pressed the importance of the caring role to extend to individuals who provide citizen advocacy for people with learning disabilities. I know that this is an issue that rightly preoccupies the noble Lord, Lord Rix, and the noble Baroness, Lady Noakes. People providing advocacy hold a position of trust. The Bill's provisions should extend to them as well as to those who provide training and supervision.
Amendments Nos. 263, 272 and 273 also relate to the relationship of care. Care staff may be entrusted with work of a very intimate nature such as washing an individual or changing their clothes. The amendments seek to take account of situations where people may be in a position of trust but do not provide face-to-face support. Such people may have some contact with the individual and enjoy a position of authority but do not provide hands-on or face-to-face support. A senior hospital figure is one example. I should like to avoid situations in which an abuser claims that he does not have face-to-face contact with the person as a means of avoiding a prosecution. The noble Lord, Lord Rix, has addressed a similar issue in relation to the word "regular". I hope that the noble and learned Lord, Lord Falconer, will confirm that that issue is addressed in a later amendment.
Amendment No. 275 broadly seeks to achieve the same objective sought in similar amendments tabled by the noble Baroness, Lady Noakes. I have already outlined the need for care settings to be broadly defined. This amendment explicitly seeks to set out the need for the offence to apply to situations in which a person provides training, social, educational or recreational activities to a person with a learning disability. We know that sexual abuse can take place in any setting and that people may be particularly vulnerable to abuse in youth clubs, day centres and other similar environments. Indeed, we are all too painfully aware that those settings may not be properly regulated, are inadequately staffed, or have staff who are inexperienced, poorly trained or too frightened to speak out when they see another staff member committing abuse.
Volunteers may also work in day services but are indistinguishable from staff in terms of the power and position they hold over a person with a learning disability. All abuse is morally indefensible. That includes indirect toleration of abuse or collusion in relation to reporting or responding to abuse. Day services may create their own cultures of abuse, particularly those that remain institutional. Supervision of people with learning disabilities may be poor or borderline or neglectful. People are not offered real activities or opportunities to interact with others.
The law on sex offences should explicitly set out what is right or wrong and define care settings as widely as possible. I appreciate that the existing clause seeks to include all situations and all settings where support is provided to another individual. However, I
I turn finally to Amendment No. 277. I note that the noble Baroness, Lady Noakes, has a similar amendment. I am concerned that the inclusion of the term "personal" may narrow the scope of protection and unintentionally mean that some forms of care would not come within the provisions of the Act. A person may be in a position of care and trust but not provide personal care to another individual. That individual may have a combination of physical, social and healthcare needs. For example, a person who works in a day centre and closely supervises and supports an individual to develop social skills and interact with others may not be providing personal, hands-on nursing care but is still in a position of trust and may abuse that position if left unchecked by law. The removal of the term "personal" will ensure that all forms of care are covered by the Act. I beg to move.
"(3A) A person guilty of an offence under this section, if the activity caused involved—
(a) penetration of B's anus or vagina,
(b) penetration of B's mouth with a person's penis,
(c) penetration of a person's anus or vagina with a part of B's body or by B with anything else, or
(d) penetration of a person's mouth with B's penis,
is liable, on conviction on indictment, to imprisonment for a term not exceeding 14 years.
(4) Unless subsection (3A) applies,"
Page 21, line 15, leave out "7" and insert "10"
Page 21, line 27, at beginning insert—
"(2A) A person guilty of an offence under this section, if the activity incited involved—
(a) penetration of B's anus or vagina,
(b) penetration of B's mouth with a person's penis,
(c) penetration of a person's anus or vagina with a part of B's body or by B with anything else, or
(d) penetration of a person's mouth with B's penis,
is liable, on conviction on indictment, to imprisonment for a term not exceeding 14 years.
(3) Unless subsection (2A) applies,"
Page 21, line 31, leave out "7" and insert "10"
Page 22, line 29, leave out "the care of" and insert "caring for, training or supervising"
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