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Lord Campbell of Alloway: Before the noble and learned Lord sits down, I was not going to speak on this amendment, but I shall be brief. This jumble of amendments, many of which are repetitive, come from different sources. Obviously, the Government will consider them. I am not wasting time. Some of the amendments are unique. In the light of this discussion, would the Government be prepared to draft an amendment on which they could then consult with everyone concerned so that this could be done off the Floor of the House before Report?
Lord Falconer of Thoroton: I thank the noble Lord for that suggestion. However, many of the points have been raised before, quite legitimately. We know what the issue is. It is about regular face-to-face contact. I think we have broadly accommodated every other issue. I have set out what our position is. I do not think any purpose would be served by a consultation which, as it were, went round the houses again. I fully appreciate the spirit in which the proposal is made but I am not sure that it would take us very much further.
Baroness Howarth of Breckland: Perhaps I may ask the Minister a different question. I welcome the Minister's remarks and believe that that would be extraordinarily helpful. I believe the one issue that was not picked up by the Ministerit was all rather fastwas that of leaving out "personal" in terms of personal care. I would have spoken to this had I not thought that it might be addressed with the other issues. The reason I am particularly concerned about removing "personal" is that it has a very clear defined meaning in relation to the social care legislation. With the current debates in relation to "supported living" as against "direct care", if we include "personal" in the personal care provisions I think that there will be all kinds of legal debates. I had hoped that the noble Lord, Lord Thomas, would be here. I thought that I needed someone with his mental agility in the law to help me on this matter, but I think that I have made my point.
Lord Falconer of Thoroton: The point has been made to me privately. It is an entirely good point. As a result we have knocked out altogether the reference to "personal care". The relevant words are in Amendment No. 274. I should have said this and I apologise for not doing so. They are,
Lord Rix: My tinnitus is roaring away. I did not hear that the definition of a "care worker" included independent advocates. Can the noble and learned Lord perhaps calm my tinnitus and assure me otherwise?
Baroness Blatch: For the past 15 years my tinnitus has not stopped roaring away, so I have difficulties the whole time. The noble and learned Lord not only speaks very fast but is also precipitative because I had hoped to speak in support of my noble friend's amendments. I am not absolutely certain that I entirely accept what the noble and learned Lord said about my noble friend's amendment regarding the word "regular", and, for example, on Amendment No. 263, standing in the name of the noble Lord, Lord Adebowale, which broadens the protection afforded by Clause 48 by widening the definition of "care worker". It does that by removing the requirement in subsection (2) that the perpetrator is acting in the course of employment. Furthermore, it removes the requirement that the perpetrator must have face-to-face contact with the victim.
My noble friend certainly made a powerful point about the casual acquaintance, which is technically face-to-face and which can be extremely abusive. I am not sure that the points made by the noble and learned Lord cover totally that kind of encounter. I genuinely think that we should reflect on what has been said on all sides of the Chamber about that particular issue. I do not know whether my noble friend wants to return to it.
The noble Lord, Lord Rix, initially raised the issue of personal advocacy. Again my noble friend was very persuasive. The noble and learned Lord has been very helpful and says that it is included in the understanding of how Pepper v Hart works; that it is on the record and could be invoked if there was a future situation with someone engaged in personal advocacy. If so included, there may well be a need at some time to have a definition of what "other services" means because there are all kinds of services. If one removes the word "personal", then "services" is a very wide definition. I can see courts saying that that is not really a service. Nevertheless, with the increasing incidence of
However, I want to put on the record that I support Amendments Nos. 256, 257, 259, 263, 265, 271 and 276 tabled by my noble friend Lord Astor, the noble Lord, Lord Adebowale, and the noble Lord, Lord Rix.
Lord Falconer of Thoroton: Perhaps the noble Lord will reflect on whether it is sensible to start picking out specific kinds of services. We take the view that it is much better to have a wide definition, as the noble Baroness, Lady Blatch, says, so that it covers as much as possible without seeking to limit it. I apologise to the noble Baroness for speaking so fast that I prevented her from getting in.
On the "regular face-to-face" issue, we are very keen to ensure that on the first occasion, if abuse occurs, where it is likely that there would be "regular face-to-face contact", it will be covered. Equally, even if the person were temporary but regularly provided face-to-face services, that would be covered. The question is not whether someone is temporary or permanent but whether they have regular contact with the victim. Where the amendments go too far is that the provision of any services, no matter how limited, should not of itself give rise to the relationship that can create the criminal offence. That is the issue.
(a) is, whether or not in the course of employment, a provider of care, assistance or services to B in connection with B's mental disorder or learning disability, and
(b) as such, has had or is likely to have regular face to face contact with B."
Page 23, line 5, leave out from "home"" to "of" and insert "means an establishment which is a care home for the purposes"
Page 23, line 7, at end insert
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