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Baroness Scotland of Asthal moved Amendment No. 39:

Page 13, line 8, leave out from "29," to end of line 22 and insert—

"( ) A knows or could reasonably be expected to know that his relation to B is of a description falling within that section, and
( ) either—
(i) B is under 18 and A does not reasonably believe that B is 18 or over, or
(ii) B is under 13.
(1A) Where in proceedings for an offence under this section it is proved that the other person was under 18, the defendant is to be taken not to have reasonably believed that that person was 18 or over unless sufficient evidence is adduced to raise an issue as to whether he reasonably believed it.
(1B) Where in proceedings for an offence under this section it is proved that the relation of the defendant to the other person was of a description falling within section 29, it is to be taken that the defendant knew or could reasonably have been expected to know that his relation to the other person was of that description unless sufficient evidence is adduced to raise an issue as to whether he knew or could reasonably have been expected to know that it was."

On Question, amendment agreed to.

Clause 28 [Inciting a child family member to engage in sexual activity]:

Baroness Scotland of Asthal moved Amendment No. 40:

Page 13, line 37, leave out from "29," to end of line 8 on page 14 and insert—

"( ) A knows or could reasonably be expected to know that his relation to B is of a description falling within that section, and
( ) either—
(i) B is under 18 and A does not reasonably believe that B is 18 or over, or
(ii) B is under 13.
(1A) Where in proceedings for an offence under this section it is proved that the other person was under 18, the defendant is to be taken not to have reasonably believed that that person was 18 or over unless sufficient evidence is adduced to raise an issue as to whether he reasonably believed it.
(1B) Where in proceedings for an offence under this section it is proved that the relation of the defendant to the other person was of a description falling within section 29, it is to be taken that the defendant knew or could reasonably have been expected to know that his relation to the other person was of that description unless sufficient evidence is adduced to raise an issue as to whether he knew or could reasonably have been expected to know that it was."

On Question, amendment agreed to.

Clause 31 [Sections 27 and 28: sexual relationships which pre-date family relationships]:

[Amendment No. 41 not moved.]

17 Jun 2003 : Column 735

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

Lord Adebowale moved Amendment No. 42:

Page 15, line 33, leave out "refuse" and insert "consent"

The noble Lord said: I shall start by doing something that I forgot to do last night. Now that I have slightly more than four minutes in which to speak, I congratulate the noble Baroness, Lady Scotland, and the noble and learned Lord, Lord Falconer, on their promotions. I do not wish to embarrass the noble Baroness, Lady Scotland, by saying that she is an ample role model to many in my community. I wish her every luck in her new post.

In moving Amendment No. 42, I shall speak also to Amendments Nos. 43 to 57, the other amendments in the group. I was most grateful to the noble Lord, Lord Astor, for speaking to the amendments in relation to these very important clauses on Report. I have studied very carefully the response of the noble and learned Lord, Lord Falconer, and feel duty bound to raise the points again, because I remain deeply worried that using the terms "refuse" and "choose" would leave people with learning disabilities without sufficient protection and would not deliver justice. When I raised the point in Committee, it drew support from noble Lords who shared many of my concerns.

I understand that in response to the amendments tabled on Report, the Government have committed themselves to look at the definition of "capacity", and that that consideration would include the framing of these clauses. I therefore seek assurance from the Minister that the concerns raised by noble Lords about the clauses throughout the passage of the Bill will be given due weight, and that the term "refuse to choose" will be removed from the Bill.

Furthermore, the organisation of which I am chief executive, Turning Point, has brought together a coalition of organisations with an interest in these clauses. I expect that the Minister, and the Minister responsible for the Bill in another place, might find it terribly helpful to meet with them over the summer to ensure that those concerns are properly considered. I would also be grateful if the Minister could make a commitment to meet officials from the coalition so that their concerns can be properly considered.

I have not tabled an amendment to any other clauses because I do not want to provide any opportunity to dilute this very important matter. The key argument of the noble and learned Lord, Lord Falconer, against amending the clause was that it would make the definition in Clause 75 circular. We can resolve that separately. The amendments that I have tabled are more fundamental than technical drafting problems; they are a matter of principle. It is crucial that the Bill provides the same level of protection for people with learning disabilities against sexual abuse as it does for the offences of rape and sexual assault. I do not think that the Bill provides that protection.

My key concerns remain those that I raised in Committee. First, the term "refuse to choose" holds very different meanings in law from "inability to consent". Capacity to consent is pivotal to

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determining whether a relationship is appropriate for a person with a learning disability. But the word "choice" used in the Bill does not reflect consent; it reflects compliance and a lack of freedom. That was highlighted in Committee and on Report by the Jenkings case. We heard then how the judge was able to hold that the woman involved could consent through her animal instincts. The woman, therefore, could be held to have chosen to have sex, but not, in any of our estimations, have consented to sex. None of us would want to be responsible for repeating the worst anomaly of law with the accompanying painful consequences. It is therefore clear that the Bill must be amended in the way I propose so as to deliver sufficient protection for people with a learning disability.

My second concern is that using the language "refuse to choose" has a wider impact than questions of legal effect. For adults, it is only in relation to people with mental disorders and learning disabilities that the term "consent" is not used. The offences of rape, assault by penetration, and sexual assault all use the term "consent". I see no reason for using a different term. To do so implies that there is a difference in seriousness between those offences and the offences of rape, assault by penetration, and sexual assault. Anything in the Bill that could be taken as meaning that there is a difference risks implying that offences against someone with a learning disability are not as serious as those committed against any other adult. That is not acceptable. It also fails to respect the integrity of adults with learning disabilities and does not provide parity of esteem with the other offences.

As we know, the noble and learned Lord, Lord Falconer, argued that the definition of consent would be circular if the clauses were amended as proposed. I was pleased that he made a commitment to look at the definition of "capacity". In doing so, the Government must ensure that it is defined in such a way as not to create a circular definition so that we can use the term "unable to consent" in these clauses.

I cannot emphasise enough the importance of these amendments. They are matters of principle fundamental to the integrity of the Bill and that of people with learning disabilities. I should be grateful for assurances from the Minister that the Government will amend the Bill to remove the phrase "refuse to choose", which will address the significant concerns that I have raised. I beg to move.

7.30 p.m.

Lord Astor of Hever: My Lords, the noble Lord, Lord Adebowale, raises again an important issue. We argued for the replacement of "refuse" with "consent" at Report stage. We support the principle that "choosing" and "consenting" are not the same. We do not understand why other clauses all use the term "consent", while only these specific clauses use "refuse". The drafting here is confusing: people with a mental disorder or learning disability are "unable to refuse" because they "lack the capacity to choose". The point is, they simply cannot consent. This overrides whether they refuse, choose or anything else.

17 Jun 2003 : Column 737

The noble Lord, Lord Filkin, kindly wrote to me on this point and explained that the latter wording had been chosen so as not to provide a second definition since Clause 75, which contains the definition of consent, refers to "capacity to consent". I do not think that that is an adequate explanation. Clause 75 gives a full definition of what "consent" means in this Bill. This does not mean that the term "consent" cannot be used in clauses 32 to 35.

The Government should look again at the drafting of these clauses in another place. The current drafting has worrying implications and adds inconsistency, confusion and a lack of uniformity to the Bill.

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