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Baroness Walmsley: My Lords, I thank the Minister for her comments. I regard Amendment No. 22 as simply a belt and braces amendment.

I thank those noble Lords who spoke in the debate, especially the noble Lord, Lord Lucas, who supported my contention that an illustrative list was better than being too prescriptive. I cite in defence my suggestion about a younger boy and an older girl, who would not be protected or be able to be given any advice under the wording of the government amendments.

Like the noble Lord, Lord Skelmersdale, I prefer a positive rather than a negative approach. In this case, I have every intention of being positive. I am not looking a gift horse in the mouth—I am most grateful to the Minister for her amendments.

I would like to say to the noble Baroness, Lady Blatch, that I very much recognise that Mrs Gillick had the best of intentions. I shall make no more comment on that matter. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Baroness Scotland of Asthal moved Amendments Nos. 19 and 20:

    Page 6, line 34, at end insert "or

(d) promoting the child's emotional well-being by the giving of advice,"

On Question, amendments agreed to.

[Amendments Nos. 21 and 22 not moved.]

5.45 p.m.

Clause 17 [Meeting a child following sexual grooming etc.]:

Lord Astor of Hever moved Amendment No. 23:

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    Page 7, line 20, leave out paragraphs (c) and (d) and insert ", and

(c) subsection (1B) applies."

The noble Lord said: My Lords, I shall speak also to Amendment No. 24. The amendments highlight an issue that I raised both in Committee and on Report. I would like to outline why I feel that it is important to extend Clause 17 on grooming to cover those who cannot consent due to a mental disorder or learning disability and why I feel the Government's arguments against widening the clause in that way are not watertight.

First, in considering again the reasons to include this particular category of vulnerable person in Clause 17, I would like to quote the very pertinent point made by the noble Baroness, Lady Howarth, in Committee. She said that,

    "particularly in schools and in special schools, young people, including young people with learning disabilities, are being encouraged to learn how to use computers. Using computers gives them greater confidence and they are often able to use those skills to enhance their quality of life, which otherwise would be even less. That puts them into the same category as others who are vulnerable because they have that access".—[Official Report, 1/4/03; col. 1265.]

Those comments make it clear that people with mental disorders and learning disabilities, like children, may be unable to consent to sexual activity but may be encouraged to use computers. The House has already been told of the practices of those who deliberately seek out for exploitation and eventual abuse vulnerable categories of people who cannot consent to sexual activity

It has been suggested that these amendments would restrict the ability of those with a mental disorder or learning disability from having a normal and healthy preliminary sexual relationship. I do not believe that is the case. The clause is about catching those who prey on vulnerable people who cannot consent. The offence is committed only if the person in question could reasonably be expected to know that B could not consent due to a mental disorder or learning disability. I have discussed the matter at some length with the Metropolitan Police, specifically with those who deal with grooming on the Internet, and they say that they can tell easily enough what is exploitative and predatory grooming behaviour and what is harmless conversational friendship.

A further point made to me on Report by the noble and learned Lord, Lord Falconer, who was then the Minister, was that the later clauses, which introduced the use of inducements, threats or deception to take account of the various ways that mentally impaired people can be pressurised into having sex, could deal with the problems my amendments would tackle. However, why should we wait until an offence has been committed? With children, we have a new clause that allows us to step in before an offence is committed. Why should those who cannot consent but are equally vulnerable because they have a mental disorder or learning disability be offered any less protection by the law? That would seem to be a failure to safeguard the welfare of those who may be most open to exploitation and grooming on the Internet.

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It is wrong to wait until vulnerable people have been harmed before putting an offence in place. There is potential for grooming to take place; that should be sufficient to merit the broadening of the offence. I beg to move.

Baroness Walmsley: My Lords, I support the noble Lord, Lord Astor of Hever. As he clearly said, it cannot be right to wait until harm has been done to people who, although they are not children, are perhaps childlike in their capacity to make judgments and give appropriate consent to unwarranted behaviour.

Baroness Howarth of Breckland: My Lords, I also support the amendment. The noble Lord has already made my speech, so I shall not make it again.

Baroness Scotland of Asthal: My Lords, I should say how well the noble Lord expressed his concerns on this matter. The Government have carefully considered the appropriate response.

The amendments, tabled in the names of the noble Baroness, Lady Noakes, the noble Lord, Lord Astor, and the noble Baroness, Lady Walmsley, would extend the offence in Clause 17 to protect those with a mental disorder who lack the capacity to consent from preparatory, grooming-type activity by those who intend to commit a sexual offence against them. They are effectively virtually the same amendments as were introduced on Report.

The key issue is whether the amendment would be effective and proportionate in better protecting from abuse those who lack the capacity to consent because of mental disorder or disability. We understand the anxiety and fear over that matter. However, it is necessary to consider the effectiveness and consider whether there is any empirical evidence or data to cause us to move on the issue. We have seen no evidence that the proposal responds to a real need that has been demonstrated. That was not the case in relation to the application of the offence to child victims, the need for which was amply demonstrated by real cases. We are anxious about extending an offence which was a specific response to a danger posed to children to adults who, by virtue of a mental disorder or learning disability, lack the capacity to consent. Such adults may be very vulnerable to abuse, but they are not children and their needs are different. Clauses 32 to 46 were specifically designed with those needs in mind, and when we considered the measure, following my noble friend Lord Falconer of Thoroton's undertaking to do so at Committee, we could find no evidence that this measure was needed.

Turning to whether it is a proportionate response, we do not believe it can be, in view of the lack of evidence that it is needed. We do not believe that it is suited to the particular risks posed to those with a mental disorder or learning disability who lack the capacity to consent. In this Bill we are conscious of the balance we must maintain at all times between protection and individual rights. Without persuasive evidence that there is actually a need to extend a

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measure designed to protect children in particular situations of known risk to protect adults in situations in which no risk is known to exist, we do not believe doing so can be justified.

On a personal note, having been involved in a number of cases which dealt with adults suffering from mental incapacity, I can say that there is a real issue because many adults in such situations feel very passionately that they should not be treated as children, that they are often under-estimated. They are able to form relationships on a consensual basis which others find difficult to accept. We are dealing with a very sensitive and delicate area and I assure noble Lords that if there were evidence that would have pushed us to take a different course, we would have looked at that very seriously indeed.

Therefore, to summarise, I believe that the measures contained in Clauses 32 to 46 have been designed on the basis of what we know is needed to provide justice and protection for those with a mental disorder or a learning disability who are subjected to sexual abuse. Clause 17 was designed to deal with a quite separate problem affecting children, and there is no comparable evidence that it should be extended in the way proposed. I must therefore resist these amendments. I do understand the anxiety about this issue but I say to noble Lords that it is an issue that will be looked at in the years to come and will be kept in mind.

Lord Astor of Hever: My Lords, I thank the noble Baroness, Lady Walmsley, and the noble Baroness, Lady Howarth of Breckland, for their support. I was disappointed in the Minister's response; she again used evidence as a reason for not accepting this amendment. The noble Baroness, Lady Walmsley, is correct that it cannot be right to wait until harm has been done. I agree with the Minister that we are dealing with a very sensitive area here. I take heart that she said that this will be looked at closely in years to come. In the light of that, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 24 and 25 not moved.]

Clause 18 [Abuse of position of trust: sexual activity with a child]:

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