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Lord McIntosh of Haringey: My Lords, I am simply not qualified to follow the noble Earl, Lord Russell, down those byways of history. They are probably not byways; they may be highways. I certainly cannot go back to the Holy Roman Empire or the kingdom of Sussex.

Europe is changing. Fifteen nations will be 25 nations, which will inevitably bring about change in the institutional arrangements of the European Union. That is reflected in the convention. I shall not start to comment on the details of the changes that the convention will make, except to say in broad terms that there will clearly not be the establishment of a European super-state. When we come to what is actually put before the intergovernmental conference, and when we come to the processes that we will have to adopt in considering that conference's proceedings, the position will be even further from that of those whom the noble Lord, Lord Saatchi, so enthusiastically quotes.

Lord Higgins: My Lords, the fundamental question is whether Britain should give up for all time the main

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means of adjusting for differential movements in costs and prices between this country and the other European countries, given that we cannot be sure that convergence is permanent. The Chancellor's box of tricks includes a paper on the United States as a currency area.

Would not a more interesting comparison be between what would have happened if after years of convergence the Canadian and US economies had reached the decision that they should have a single currency? If that is analysed, it is clear that there would have been fundamental problems in Canada as regards unemployment. We have to consider the extent we believe that convergence is likely to be permanent.

Secondly, surely it is apparent in the existing euro-zone that there are considerable strains of having a policy of one size fits all. Is it not therefore clear that if we were to join, which would be a substantial increase in the total size, the strain would be likely to be great indeed and may result in the whole enterprise breaking down?

Lord McIntosh of Haringey: My Lords, we are a very long way from that—and we are a very long way from it on a permanent basis. There were strains at the beginning and looking at the inflation rates in Ireland and Greece, to take two examples, one sees that they experienced difficulties. But the strains tend to converge and to reduce as time goes on. The position of this Government has been entirely consistent: we have always recognised that entry into the third stage of monetary union is an irreversible process. That is why we have been so determined to look at long-term convergence and not simply at short-term convergence; in other words, to resist the siren voices of those who would not have taken that into consideration in 1999.

Lord Stoddart of Swindon: My Lords—

Lord Carter: My Lords, before the—

Lord Davies of Oldham: My Lords, I think it is the turn of the Labour Party.

Lord Stoddart of Swindon: My Lords, the Independent Labour Party.

Lord Carter: My Lords, I think the House wants to hear me. Would my noble friend agree that of all the variables in the modern economy, the three key variables are the exchange rate, the interest rate and the employment rate? If the interest rate and the exchange rate are fixed, would my noble friend agree that distortion in the real economy between regions and countries will have to be corrected by substantial transfers of resources, including labour, if the employment rate is not to be the variable that takes the strain?

Already, the gap between the highest and lowest employment rates in the euro-zone is 8.1 points—3.4 per cent in Luxembourg and 11.5 per cent in Spain—and the gap between average unemployment

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in the euro-zone and the accession countries is 6 points—8.7 per cent in the euro-zone and 14.7 per cent in the accession countries. Does the Treasury assessment take full account of the transfer of resources that would be required if the economies in the euro-zone are to converge?

Lord McIntosh of Haringey: My Lords, yes, I can give my noble friend Lord Carter that assurance. If he reads the assessment volume, he will see that that is taken fully into account. But it leads me to say that people are expecting a lot from monetary union if they believe that all countries will be equally successful in their economic policy.

Clearly, that is not the case. With the distance that exists between the European Union and the superstate which the noble Lord, Lord Pearson, and others fear, there will always be different economic, fiscal, monetary judgments made by member states. Some of them will be right and some will be wrong and there will be differences. The important issue from our point of view is that we should be entering, as is anticipated here, from a position of strength.

Sexual Offences Bill [HL]

5.4 p.m.

Lord Falconer of Thoroton moved Amendment No. 105B:

    After Clause 31, insert the following new clause—

(1) Conduct by a person (A) which would otherwise be an offence under section 28 or 29 against another person (B) is not an offence under that section if—
(a) the relation of A to B is not within subsection (2) of section 30,
(b) it would not be within that subsection if section 67 of the Adoption and Children Act 2002 (c. 38) did not apply, and
(c) immediately before the relation of A to B first became such as to fall within section 30, a sexual relationship existed between A and B.
(2) Subsection (1) does not apply if at the time referred to in subsection (1)(c) sexual intercourse between A and B would have been unlawful.
(3) In proceedings for an offence under section 28 or 29 it is for the defendant to prove the matters mentioned in subsection (1)(a) to (c)."

On Question, amendment agreed to.

Clause 32 [Sexual activity with a person with a mental disorder or learning disability]:

Lord Astor of Hever moved Amendment No. 106:

    Page 16, line 15, leave out "refuse" and insert "consent"

The noble Lord said: My Lords, in moving Amendment No. 106, I shall speak also to the other amendments in the group. These flag up a number of issues raised in Committee by the noble Lord, Lord Adebowale, and myself. The amendments have been put forward by a combined group of organisations involved in helping those with mental

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disorders and learning disabilities. They have concerns about the drafting of Clauses 32 to 37, which they believe are essential in preserving the basic rights of those with a mental disorder or learning disability.

Amendments Nos. 106, 109, 113, 118, 120 and 172 focus on the issue of capacity to consent, which is pivotal to determining whether a relationship is appropriate for a person with a learning disability. However, there is an inconsistency in the Bill as the drafting of Clauses 32 to 37 speaks of "refusing" or,

    "choosing to engage in sexual activity",

rather than "consenting". Why do the Government prefer the wording "inability to choose" rather than "inability to consent"? This is not a matter of semantics—we must get these concepts right.

To be able to consent to sexual activity, there are well-established concepts that must be understood for that consent to be valid. These include that sex is different from personal care; that penetrative vaginal sex can lead to pregnancy; and that sex is associated with risk of sexual transmitted infections. I do not think that Clause 76, nor Clause 32 and its related clauses, adequately reflect these principles. Therefore, I am not convinced by the argument used by the Minister in Committee that we should not consider amending the Bill because it might create a circular definition, particularly when the definition in question is not a particularly strong one.

The effect of the clause, as drafted, would mean that some people, like the unfortunate young woman in the Jenkins case, would be regarded as being able to choose to have sex even though they clearly lack the capacity to consent to sexual relations. On that occasion, the judge held that the woman involved had chosen to engage in sex and had consequently consented to the sexual activity because of her "animal instincts". In Committee, my noble friend Lady Blatch pointed out very well this problematical lacuna in the Bill by making clear that where someone was propositioned, but had not consented, and it was shown that she had not refused, there would be no recourse in the courts.

The amendments I proposed would make it absolutely clear that these cases would come within Clause 32 because it is clear that the person could not consent to the sexual activity, even if that person "chose" to have sex with the perpetrator. I hope that I have managed to convince the Minister that "choosing" is not the same as "consent". "Consent" involves understanding what the decision is about and the impact of that decision. Consent must also be freely given. This is not adequately reflected in Clause 76.

Amendments Nos. 107, 110, 114, 119 and 121 aim to avoid implying that people with learning disabilities cannot consent to sexual activities, or that there is a test that must be passed before a person with a learning disability can engage in sexual activity. This Bill must be about protecting people from abuse and not preventing consensual adults from engaging in sex. It is essential that the Bill makes explicit that the capacity test is a functional one. The ability of the individual to

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consent must be in relation to a specific decision and whether the individual understands at that time the nature and effects of that sexual activity. That recognises that a person may lack the capacity to consent to sexual relations with one person on one occasion, but may be able to consent to have sex with a different individual on a later occasion. That is why my amendment follows the Law Commission's proposal to make it clear that the test is a functional one by inserting the words "at the material time".

Our amendments do not use the term,

    "or for any other reason",

which is in the current drafting of the Bill in subsection (2)(a). As it stands a prosecution could be brought against someone even though that person with a learning disability understood the nature of the act and understood the reasonably foreseeable consequences, because for some other undefined reason they were deemed incapable. That is the point that I raised at Committee stage. I appreciate the Government's attempt to ensure that these cases receive protection. However, I feel that by retaining this wording the clause will inadvertently set too high a test for capacity to consent and that that may in practice constrain the freedom of people with a learning disability to engage in consensual sexual relations. I am also still unclear what "other reasons" refers to, as in terms of a capacity test, the key issue is the individual's ability to understand the sexual activity that he or she may engage in and its reasonably foreseeable consequences—not anything else. Otherwise, once again, there is a risk that the Bill may prevent adults with a learning disability, who have the capacity to consent, from engaging in sex.

On a final note, it is important to ensure that the inability to communicate relates to the individual being unconscious or other similar situations, but not to people who would be able to communicate their decision with appropriate support. Our amendments reflect that and provide greater clarity to the principle behind subsection (2)(b). I beg to move.

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