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Lord Bassam of Brighton: My Lords, I completely agree with that. We have a robust system. Our Government have upheld the processes very firmly. The Prime Minister has made that very clear. By and large, I think it is fair to say that Ministers stick by the rules.

Lord King of Bridgwater: My Lords, does the Minister not recognise that if he accepts the comment of the noble Lord, Lord Stratford, we will soon not have the least corrupt political system in the world? It is precisely because these matters should be vigilantly observed and monitored that we ever manage to maintain the standards that are so important to public life in this country.

Lord Bassam of Brighton: My Lords, the noble Lord is a member of a party that found the need to introduce
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this system. We believe it works well. We are greatly indebted to the committee. All of its members are distinguished Members of your Lordships' House, led by the noble and learned Lord, Lord Mayhew of Twysden. They do a first-rate job. We have one of the best political systems in the world, and I would have thought that it is clear to all of us that we do not have corruption within that system. The noble Lord, Lord Stratford, made a perfectly valid and important point. I do not think it was about complacency at all.

Finally, when we came into office, our Government decided to extend the system so that it covered special advisers.

Lord Goodhart: My Lords, is it not about time that the Government imposed a rule that ex-Ministers are required not only to consult the committee, but also to accept its recommendations in the same way that outgoing civil servants are?

Lord Bassam of Brighton: My Lords, it is clearly desirable that they give fair consideration to the views expressed by the committee. I am not aware that there are manifest abuses of the advice given. However, while the noble Lord, Lord Goodhart, may have an important point, how then do you ensure effective policing of that advice? It is a very difficult relationship. On balance, I feel that the committee works well and has got things about right.

Lord Soley: My Lords, can we make it clear that Parliament polices Parliament and we should not ask the Government to police it? It does not work that way. If it did, the Liberal Democrat Party could be asked questions about money coming from overseas and I do not think it would like that. So let us be very clear: Parliament is responsible for the way it polices its Members. Governments are not responsible for that.

Lord Bassam of Brighton: My Lords, I agree with the noble Lord and I suspect he is right that Members on the Liberal Democrat Benches would feel extremely uncomfortable if the system were to operate in the way the noble Lord suggests.

Rape: Definition of Consent

3.05 pm

Lord Dubs asked Her Majesty's Government:

Whether they will put forward proposals at the earliest opportunity to amend the Sexual Offences Act 2003 to clarify the definition of consent in cases of rape.

The Minister of State, Home Office (Baroness Scotland of Asthal): My Lords, the Sexual Offences Act 2003 was the result of a lengthy consultation and
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represented a major overhaul of sexual offending legislation. The Act clarified the law on consent and provided a list of circumstances in which it is presumed that a complainant did not consent, although it remains for the courts to decide guilt on the facts of each case. The Act is kept under constant review.

Lord Dubs: My Lords, I am grateful to my noble friend for the Answer. Does she agree that the low rate of conviction in rape cases and the low rate of reporting in rape cases will only get worse as a result of the recent case in Swansea? Does she further agree that the statement made in the court and apparently accepted by the judge that drunken consent is still consent is surely at variance with the Sexual Offences Act, which I understand established the principle that no one can consent to sex except by choice, with the freedom and capacity to make that choice? Does my noble friend still feel that the legislation is right and adequate? If so, was the court's decision perverse or was it the other way round?

Baroness Scotland of Asthal: My Lords, it would be improper for me to comment on the case in Swansea without having the full facts in relation to it. I can agree with my noble friend that the changes we made to the Sexual Offences Act 2003 were very important. They made it clear that consent had to be a part; they included presumptions as to when consent would clearly not be considered to have been given; and they placed a burden on the defendant. The Solicitor General is looking at this issue in relation to how we should review rape law and is due to report early next year. Noble Lords will know of the rape action plan which we hope will be able to address more vigorously the low conviction rate and the lack of appropriate redress that is currently felt in relation to the number of rape victims.

Lord Thomas of Gresford: My Lords, given that the sentencing guidelines recommend a five-year term of imprisonment for a single offence of rape of an adult victim with no aggravating features, would the Government ever countenance that a defendant should be sent to prison for such a term when the complainant agrees that she may have consented but cannot remember through drink?

Baroness Scotland of Asthal: My Lords, the whole point is whether the alleged victim did or did not consent. The noble Lord will know that often that is an issue of fact that has to be determined by a jury which has all the facts and circumstances laid before it.

Lord Ackner: My Lords, would your Lordships allow me to agree with the Minister? There is no need for any further clarification. This was a case where alcohol had been consumed and it is common knowledge that alcohol can dull the inhibitions. As a result, consent can be given which otherwise would not occur. A good example of a non-sexual kind occurred in Cambridge where an undergraduate of Magdalene dived off Magdalene Bridge without first satisfying
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himself that there was water running under it. I would respectfully suggest that the same occurs in this type of case—the inhibitions, which have been reduced, still enable the complainant to consent and in those circumstances the prosecution cannot prove its case.

Baroness Scotland of Asthal: My Lords, I am grateful to have the noble and learned Lord's assent to anything that I say from this Dispatch Box. As he has indicated, the important issue is whether consent was given. If the person, for whatever reason, lacked the capacity to give consent, that would be for the jury to determine.

Lord Clinton-Davis: My Lords, would it not be better to await the results of the inquiry before jumping recklessly to any conclusions?

Baroness Scotland of Asthal: My Lords, my noble friend is right if he is referring to the facts of this case. Therefore, I was clear in saying that I do not comment on the facts of the case, because we do not know whether consent was given, whether it was inappropriate for the case to be withdrawn from the jury or, if it had been left to the jury, whether it would have come to a different decision. We will have to wait and see. The law in relation to this area has recently been clarified. We believe that the review of rape being undertaken by the Solicitor General will be helpful. Some of these knotty, difficult, legal questions can be looked at again, if necessary.

Baroness Gardner of Parkes: My Lords, can the Minister clarify whether consent under duress is not consent?

Baroness Scotland of Asthal: My Lords, it would not be consent because consent has to be freely given. Duress can, in certain circumstances, vitiate consent because the person must be able to say, "I agree". If one is under duress, consent is not freely given.

Lord Dholakia: My Lords, despite the tremendous effort being made by the police and the Crown Prosecution Service in the training aspect of such cases, why has the conviction rate dropped to 5.3 per cent, the lowest-ever figure? What has gone wrong?

Baroness Scotland of Asthal: My Lords, the figure is going up slightly as a result of the change in the law. At the moment, it is just under 6 per cent. The noble Lord makes a good and valid point when one compares prosecutions for rape with those for other offences. Through the rape action plan, we are looking to better identify the reasons that seem to undermine our ability to prosecute successfully those who appear to have committed this horrific offence, in the hope that we will be able to find a better methodology to protect and support individuals who are subjected to it.
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