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Baroness Scotland of Asthal: My Lords, Amendment No. 90 would extend the list of rebuttable presumptions in Clause 76 to include circumstances in which the defendant has sex with the complainant knowing that he or someone else has intentionally administered a substance to the complainant without the complainant's consent, in order to stupefy them and to facilitate sexual activity, and the complainant is still suffering from the effects of that substance.

The noble Lord is right: he tabled a similar amendment on Report, and the Government undertook to consider it. As my noble and learned friend the Lord Chancellor said at the time, it is extremely hard to imagine how the defendant could successfully argue, in such circumstances, that he believed in consent. However, in the light of the amendments to Clause 76 that we have tabled, which will change the way in which the question of consent and belief in consent is considered in the circumstances covered by the clause, we need more time to think carefully about whether it is appropriate for such circumstances to be covered.

If we decide that it is appropriate, we will not, unfortunately, be able to accept the amendment, as worded. I acknowledge that the noble Lord, Lord Lucas, has changed the wording from that in the amendment tabled on Report, but I still cannot accept the amendment, as it stands. The amendment still refers to a defendant's knowledge of the circumstances, which is already dealt with in subsection (1)(d), and the text switches between the present and past tenses. The fact that the amendment is not drafted in the same way as the rest of Clause 76 is a question for parliamentary counsel, and we would need time to consult him. We will return to the question in Committee in another place.

Lord Lucas: My Lords, I am grateful. I had hoped that the advent of age discrimination legislation would mean that when I got chucked out of this place I could become a parliamentary counsel—clearly not. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 91 not moved.]

Clause 77 [Conclusive presumptions about consent]:

Baroness Scotland of Asthal moved Amendments Nos. 92 and 93:

Page 35, line 29, leave out subsections (1) and (2).

Page 36, line 3, leave out "referred to in subsection (3)"

On Question, amendments agreed to.

Clause 78 [Sections 76 and 77: relevant acts]:

[Amendment No. 94 not moved.]

Clause 79 ["Sexual"]:

Lord Lucas moved Amendment No. 95:

Page 36, line 37, after "consider" insert "in all the circumstances"

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The noble Lord said: My Lords, we discussed this on Report. I did not manage to get any agreement from the noble and learned Lord, Lord Falconer of Thoroton, but I got a long and helpful reply.

I shall explain my remaining concern. The use of the word "sexual" in many places in the Bill troubles me. It is a word that can have many connotations, and ordinary activities can be seen as having a sexual element. If I touch a young girl on her bottom, that can be said to be sexual, whatever my intent, because it is, in common parlance, a sexual gesture or action.

On Report, we explored with the noble and learned Lord, Lord Falconer of Thoroton, how that would be dealt with under Clause 79. He gave me a good deal of comfort about how the logic would flow. However, Clause 79(b) says that an activity is sexual if,

"a reasonable person"—

I am glad to see that the "reasonable person" has not left the Bill altogether—

"would consider that it is sexual because of its nature, its circumstances or the purpose of any person in relation to it".

Touching a young girl on her bottom would be sexual, I think. It would be considered sexual by a reasonable person because of its nature. But it might be that if the reasonable person also considered the circumstances or the purpose, all in all the action might not be considered sexual. What concerns me is that the wording here might allow a court to merely consider some of the circumstances, because the final words of the paragraph allow,

"or all or some of those considerations",

rather than taking into account all the relevant circumstances. If all the relevant circumstances were to be taken into account, I should be happy. Hence, the words that I want to insert. I hope that the noble Baroness will be able to give me comfort that I merely have not read the clause as widely as I should have done. I beg to move.

Baroness Scotland of Asthal: My Lords, I think that the noble Lord can be comforted because Clause 79(b) states,

"its circumstances or the purpose of any person in relation to it".

That is broad indeed. However, if it would assist, I am happy to explain more fully. Clause 79 is fundamental to many of the offences in Part 1 and has been drafted so that it captures only activity that would generally be thought of as sexual.

Our definition requires the jury to use three criteria in its assessment of whether an activity was sexual—namely, the nature of the act itself, the circumstances in which it took place and the purpose of any person in relation to the act. But the first part of the test rules out any activity that a reasonable person would never consider sexual by reason of its very nature—for example, removing a person's shoes. We do not want to capture activity that no reasonable person would consider to be sexual just because the defendant happened to have a secret fetish not known to the victim. Only where the jury thinks that the activity was

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possibly sexual—for example, touching a person's leg—would the jury need to go on to look at the defendant's state of mind to see if that touching was in fact sexual or whether his purpose or other circumstances mean that it was innocent. Therefore, even the touching mentioned by the noble Lord, Lord Lucas, of the young lady's bottom could be argued in certain circumstances not to be sexual. But I appreciate and agree with the noble Lord that it may be an uphill battle trying to satisfy anyone that that was so.

Debates on this issue have centred around concerns that the definition may unintentionally draw within its scope those who are touching the private parts of another person for legitimate, non-sexual reasons, such as an emergency medical purpose or to touch a child on the bottom to push it out of the way of a speeding car. We have drafted the definition carefully so as to exclude such touching. But in each case, although the action would satisfy the first part of the test, in that a reasonable person would think that touching a child on the bottom may be sexual, the second part of the test would clearly rule it out because the circumstances of the action, if it was done to avert an accident, are such that no reasonable person would consider it was sexual.

I trust that the example I have just given explains why Amendment No. 16, tabled by the noble Lord, Lord Lucas, is unnecessary. The definition, as drafted, already requires that where the second stage of the clause needs to come into play, the circumstances can already form part of the consideration of a reasonable person in determining whether the behaviour is sexual.

The noble Lord, Lord Campbell of Alloway, is not here, so I assume that his amendment will not be moved.

Lord Lucas: My Lords, I am grateful for that explanation. I shall certainly read it in Hansard. When the Minister said what the clause stated, she used the word "and" where the clause uses "or". That is the core of my problem with it. As I read the clause, it would be open to the court just to take into account the fact that the action was sexual because of its nature and to disregard the circumstances.

Baroness Scotland of Asthal: My Lords, Clause 79 states:

"For the purposes of this Part, penetration, touching or any other activity is sexual if—

(a) from its nature, a reasonable person would consider that it may (at least) be sexual, and

(b) a reasonable person would consider that it is sexual because of its nature, its circumstances or the purpose of any person in relation to it, or all or some of those considerations".

The "or" which gives the menu is in paragraph (b). It is not in between paragraphs (a) and (b). So there is a two-stage process. Any of those matters in relation to (b) can impinge on any particular sense. I think that the noble Lord has the security he seeks within the way that the clause is now phrased.

Lord Lucas: No, my Lords, he does not. But that may be his fault. I entirely agree that the problem is

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within paragraph (b) and the menu of "ors". The condition is satisfied if any single one of those is satisfied. Therefore, if,

"a reasonable person would consider that it is sexual because of its nature"

and the answer is, "Yes", paragraph (b) is satisfied. It is unnecessary for a court to take the rest of the conditions into consideration too. That is my concern.

Baroness Scotland of Asthal: My Lords, perhaps I may help the noble Lord further. Paragraph (b) states:

"a reasonable person would consider that it is sexual because of its nature".

Under paragraph (b), that must be considered. The circumstances must then be considered. The menu of "ors" includes,

"or the purpose of any person in relation to it, or all or some of those considerations".

The last part of paragraph (b) states,

"or all or some of those considerations".

So all of that menu may be present or just one or two parts of it. Therefore, the noble Lord, Lord Lucas, has everything he needs—I promise.

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