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Baroness Walmsley: I remind the Committee that we are talking about offences committed against people under 16.

Baroness Blatch: I said that that girl was 15—under 16.

Baroness Walmsley: The noble Baroness, Lady Blatch, does not tell us the age of the woman with whom the young girl of 15 went to live. The noble Baroness said that she was older. The amendment refers to everyone—both parties—being under 16, so I suspect that the intervention of the noble Baroness is not specifically relevant to my amendment.

Turning to the Minister's response, he showed touching confidence in the CPS guidance; I look forward to the guidance being reviewed and updated. But I feel that the inappropriate criminalisation of a young person and the experience that he or she would undergo during that process are so appalling and damaging that I have no shame in placing yet another hurdle in the way by suggesting that the Attorney-General be involved.

If the CPS guidelines have the effect that the noble and learned Lord suggests, there will be few such cases and it would be appropriate for the Attorney-General to have to consider them, given the harm and damage that prosecution could do to a young person's recovery, development or future life opportunities. However, for the moment, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 76 negatived.

Lord Bassam of Brighton: I suggest that the Committee be adjourned and reconvene no later than 9.26 p.m.

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[The Sitting was suspended from 8.56 to 9.26 p.m.]

Clause 77 ["Consent"]:

Baroness Walmsley moved Amendment No. 377:

    Page 35, line 8, leave out from "Part," to end of line 9 and insert "consent means free agreement by a person with the capacity to agree"

The noble Baroness said: In moving Amendment No. 377, I shall speak also to Amendment No. 378. The issue of consent and the capacity to consent is crucial in this Bill. Amendment No. 377 seeks to provide a clearer and better definition of consent than that contained in the Bill. The two things are quite fundamental and thus it is important to define them clearly.

Unfortunately, activities coming within the remit of the Bill lower the thresholds for sexual behaviour which could be deemed to be an offence, bringing in some which are in fact widespread among young people under the legal age of consent. For example, sexual touching is quite common and there is a great deal of actual intercourse among under 16 year-olds. Although some of this activity may be coercive, the vast majority is consensual and experimental. This means that any change to legislation must strike a delicate balance between protecting those who are manipulated while ensuring that those who willingly take part in early sexual experimentation are neither criminalised nor discouraged from seeking the health and education advice they need. It is therefore vital to be quite clear about issues relating to age and the capacity to consent.

Setting the Boundaries uses the definition of "free and genuine agreement" for consent and states that capacity for under 16 year-olds should include the need to demonstrate that the child understands the nature and reasonably foreseeable consequences and implications of the act. Clause 77 adds "capacity" to the proposed definition, but fails to define it; hence my amendment.

Experimental, mutually agreed early sexual activity must lead to a reasoned, proportionate and sensible response involving respect for the child's growing capacities as enshrined in Article 5 of the UN Convention on the Rights of the Child, which says,

    "enabling the child to act according to his or her developing understanding and maturity".

Current Department of Health guidance on consent recognises that there is no set age at which a child becomes competent to consent to treatment. However, the courts have stated that under 16 year-olds can give valid consent if they have,

    "sufficient understanding and intelligence to enable him or her to understand fully what is proposed".

That is sometimes known as the "Gillick competence". Even the Mental Health Act recognises that children aged under 16 are capable of deciding on their own treatment.

In my amendment I have used a phrase similar to that used in Clause 33(2) in relation to people with learning difficulties. It is not wholly satisfactory since

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one might wonder exactly what "sufficient" means. However, I thought it might be acceptable since a similar phrase already appears elsewhere in the Bill. I beg to move.

9.30 p.m.

Lord Falconer of Thoroton: As the noble Baroness indicated in her helpful speech, Recommendation 4 in Setting the Boundaries proposes that the word "consent" should be defined in statute as "free agreement". Her amendment seeks to adopt that proposal instead of the definition set out in Clause 77, while the second amendment in this group seeks to define "capacity".

We are all agreed that a definition is needed which makes the point that consent is agreement that is genuinely and voluntarily given, so that it is made quite clear in statute that submission—for instance, agreement given by someone who has been unlawfully detained or is under threat of violence to himself or a third party—could not be interpreted as consent.

There are probably a variety of words that could be used to achieve this policy objective and we have considered a number of options; but, after careful consideration, we have chosen the wording in Clause 77. I believe that it says exactly what we mean, in language that is clear and straightforward. We have moved away from the term "free agreement" that was proposed in Setting the Boundaries because of the concern, however remote, that it might give the impression that some pecuniary or other consideration may be involved in obtaining consent. However, we still give in effect the intention behind the words "free agreement" because we have ruled out submissions by requiring that the person must have the freedom to make the choice. We think that the test should be whether the complainant was in a position where he was able to make his own decision about whether or not to agree, and, being able to make the choice between agreeing and refusing, he chose to agree. We believe that the drafting of Clause 77 captures that position clearly.

The second amendment in the group, again moved very clearly by the noble Baroness, provides for a definition of "capacity"—a word that appears both in Clause 77 as it stands and in Amendment No. 377.

Whether a person has the capacity to consent is obviously relevant to whether he is properly able to consent. Those who might not have the capacity to consent are, as the noble Baroness rightly acknowledged, people with a mental disorder and children. Both categories are already covered separately by the legislation. The offence is designed to protect people with a mental disorder under Clauses 33 to 51, and those to protect children are in the earlier part of the Bill.

In the light of all those offences, it is unlikely that a court would have to look at issues of consent where such people are concerned. For example, if a child under 13 is raped, no issue arises as to consent. If a court has to consider consent—for example, in relation to a rape charge involving a child of 14—and therefore needs to consider the child's capacity to consent, I think we can rely on the court to give a

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sensible interpretation of the word. I therefore think it unnecessary and unwise to include a definition of capacity in the generic definition in Clause 77.

I hope that that is helpful. I think that our intention is broadly the same, and for the reasons given I cannot accept the amendment.

Baroness Walmsley: I thank the Minister for that clarification. I would not want to be accused of being inconsistent. Normally, I would say that I rely on the courts and should like to leave it to the courts. But in this particular case, where the Bill contains a number of definitions that are entirely necessary to a clear understanding of its provisions, I think that a definition of "capacity" is required. However, for the moment, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 378 not moved.]

Clause 77 agreed to.

Clause 78 [Presumptions about the absence of consent]:

[Amendment No. 379 not moved.]

Lord Falconer of Thoroton moved Amendments Nos. 380 to 384:

    Page 35, line 11, after "proved" insert "(a)"

    Page 35, line 12, after "act," insert—

"(b) that the complainant did not consent to it,
(c) ."
Page 35, line 13, after "and" insert "(d)"

    Page 35, line 15, leave out paragraph (a).

    Page 35, line 19, leave out "the defendant" and insert "he"

On Question, amendments agreed to.

Lord Falconer of Thoroton moved Amendment No. 385:

    Page 35, line 20, leave out subsection (2).

The noble and learned Lord said: I support this amendment and beg to move it formally.

On Question, amendment agreed to.

[Amendment No. 386 not moved.]

Lord Falconer of Thoroton moved Amendment No. 387:

    Page 35, line 23, leave out "referred to in subsection (1)"

On Question, amendment agreed to.

Lord Lucas moved Amendment No. 388:

    Page 35, line 25, leave out from "complainant" to end of line 27 and insert "or another person, causing the complainant to fear for his own or the other person's immediate safety"

The noble Lord said: I wish to speak also to Amendments Nos. 390 and 392, and, if I may, trespass at the same time on my noble friend's Amendments Nos. 389 and 391.

The effect of all the amendments is to broaden the ambit of Clause 78(3). There are several ways in which they would do that. First, they would add the concept of harm to the concept of violence. Secondly, my noble

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friend's amendments would take out the word "immediate" to allow future expectation to be there along with present harm. Thirdly, they add the concept of "serious detriment", which takes us away from physical violence into something which might be more associated with property or some other comfort of life.

The purpose of the clause is to set out circumstances under which it can be presumed that someone has not consented to sex. I do not really see the difference in that context between saying to a woman, "If you don't have sex with me now, I will stick this knife in you", to saying, "If you don't have sex with me now, I will stick a knife in you tomorrow". I really do not see that one is a substantially lesser threat than the other. If it is proved that violence was threatened in the future, I cannot see that that is any less a circumstance under which the absence of consent should be presumed than if immediate violence is threatened.

Secondly, I do not see that violence is necessarily the only thing to threaten someone with. There are many things in life that one holds dear over which someone else may have power. If that is sufficient to trigger the provisions in my amendments or in some similar amendments, if that is sufficient to cause a man or woman to fear to such an extent that they would rather have sex than risk those things happening to them, I cannot see any great difference from the threat of immediate violence. If we are going down this road, we should not allow the inventive rapist to escape from the effects of the clause by slightly shifting the ground of that threat. We should seek to capture a threat of that magnitude and nature in whatever form it comes. I beg to move.

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