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Baroness Howarth of Breckland: I support one half of the proposal put forward by the noble Lord, Lord Astor of Hever. I do not want to enter a debate about definitions regarding disability, because the noble Lord, Lord Rix, is an expert in that field. However, I am the vice-chair of John Grooms charity for disabled people. It would be a pity if we did not explore the argument that if people with physical incapacity were not included at this point in the Bill it would leave a gap. This is a most complicated area. Real questions arise as to whether or not one can communicate consent in these circumstances.

There needs to be a definition about levels of capacity to communicate and about conditions in order to get the legislation right. It would be useful to hold further discussions on the matter to ensure that this group of people who are abused are included in the legislation. I have experience of advocating for physically disabled people who have been abused.

Lord Falconer of Thoroton: It is incredibly important for us to ensure that the basic definition of the group covered by Clauses 33 to 51 is the right one. There is not much doubt about the fact that we are all trying to

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arrive at the same conclusion. I thoroughly agree that the Government should keep their mind open between now and the Report stage on the issue of the right way to deal with this form of words. I shall set out our current thinking. However, I should tell the Committee that I shall carefully consider all the comments made today.

I shall refer to Amendments Nos. 205, 206, 209 and 210, but also mention the next group—Amendments Nos. 207 and 211—because they raise a similar issue. The first proposition, under Amendments Nos. 207 and 211, is that "learning disability" should be dropped from the definition. The noble Lord, Lord Astor of Hever, supports that proposal, but the noble Lords, Lord Rix and Lord Adebowale, are against it.

I can see the force of the proposal put forward by the noble Lord, Lord Astor of Hever. We believe that "learning disability" comes within the definition of "mental disorder". For that reason, it does not need to be dealt with separately. If we took that approach, it would have to go right across the board in relation to all these clauses, which means that we would need to bring forward an amendment to deal with the whole position. That is our current thinking, but that is not in line with the view expressed by the noble Lord, Lord Rix. Therefore, before we make a final decision on the matter, we need to discuss the matter with the various groups to ascertain whether we are right or wrong in that respect.

The second proposal in this group of amendments is to replace "mental disorder" with "mental disability". I know that the this has been proposed by the Law Commission, and that it is being considered for the Incapacity Bill, as well as the new Mental Health Bill. However, it would be unwise at present to connect oneself to a definition that has been put forward only in draft form because it may be amended before it becomes law. We believe that the right course of action is to wait for the later Bill. If the definition is adopted at that stage, or adopted in a changed form, we can then amend what would be the Sexual Offices Act 2003 in the subsequent Bill.

The third issue is the important proposal of whether "physical incapacity" should be included within these clauses. As a group, those with a physical incapacity have the capacity to consent, whereas these clauses are intended to protect those who lack that capacity. Some people, along with a mental disorder, also have a physical incapacity—

Lord Addington: If a person has a communication difficulty with a physical incapacity, he may well be denied any communication ability. That really does not follow.

Lord Falconer of Thoroton: One can see that the types of vulnerable victim with whom these clauses seek to deal are different from the types of victim we shall seek to deal with in other parts of the Bill. Therefore, people in a coma, for example, who have been identified or those unable to communicate by reason of a physical disability are covered by the presumption in Clause 78. When people suffer only from a physical disability as opposed to a combination

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of a physical disability and mental incapacity, is it right that they should be brought within the provisions of this part of the Bill? Our current view is that if a person has a mental disorder and physical incapacity, he is already covered; if he has only physical incapacity, then that is better dealt with by the existing provisions. Would such people want to be covered by these parts of the Bill?

Baroness Walmsley: I thank the Minister for giving way. I am still unclear about the situation of a person who has a serious verbal communication difficulty—perhaps a serious speech impairment—who is unable to communicate, is perhaps frozen with fear and cannot communicate in any other physical way. Perhaps the Minister can explain how such a person would fare under this provision.

Lord Falconer of Thoroton: Let us assume the person to be an adult. Let us assume that he has no mental incapacity of any sort but that he is unable to communicate his wishes. If, without his consent, he was subjected to a sexual act, that, without any doubt, would plainly be caught by the first 11 provisions of the Bill. Therefore, I ask myself why it is also necessary to raise questions in relation to this part of the Bill with regard to such a person.

We also seek to provide additional protection for such people in Clause 78 by saying that there is a presumption that there is not consent unless the relevant burden is satisfied. We believe that that is the right way to deal with this issue. Obviously protection is in place, and I ask whether such people want protection under this heading. That is our basic position. As I said, our minds are open, but I set out what we consider to be the right approach. In the light of that, I hope that the noble Lord will not press his amendment now. Obviously we need to have further discussions about the way forward.

Lord Astor of Hever: I thank the Minister for that reply. I agree with him and with all the other speakers that it is absolutely vital that we get the definition right. I had hoped that this group of amendments would relate more to physical incapacity but, as other Members of the Committee have addressed the definition issue, I shall touch on that.

As always, I am grateful to the noble Lord, Lord Rix, for, both inside and outside the Chamber, putting me right on all these very technical terms. It is entirely thanks to him that I understand most of them now. I say to him that we must all work together to try to get the right definitions in the Bill. I believe that in the past we have worked very well on that.

As the noble Lord, Lord Adebowale, said, this is a very complicated issue and we must all try to find the right form of words. I certainly think that MIND, Mencap and Turning Point need to get together.

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So far as concerns physical incapacity, there has clearly been a difference of opinion as to whether there is sufficient protection. We want to read Hansard very carefully and consider that before Report stage. In the meantime, I beg leave to withdraw—

Lord Campbell of Alloway: Before the noble Lord sits down, perhaps I may intervene briefly. I put my name to this amendment largely as a result of my experience at the Bar in learning disability cases.

"Learning disability", as the noble Lord, Lord Rix, knows probably far better than I, is a somewhat technical and narrow definition. My noble friend Lord Astor, on the Front Bench, seeks to remove a narrow definition and extend it in a way which will include the lesser. Looking at the matter from that point of view, I am absolutely with him. That is only one aspect of the issue.

If one looks at the words "mental disorder or learning disability" and squares them against "mental disability or physical incapacity", the latter is the more comprehensive concept that embraces the former, without importing difficulties of construction. One is using words that can be clearly understood. What a learning disability is cannot be so clearly understood because that has been the subject matter of a considerable amount of case law. One wants to get away from case law if one can. One cannot always escape. We are looking for the right definition which will work best in practice. One wants really to try to find the wider definition, using words that have not been treated with a form of technical interpretation and constraint. That is why I put my name to the amendment. I would not have done so if I did not support my noble friend.

Lord Rix: Before the noble Lord withdraws his amendment, perhaps I may respond to the noble Lord, Lord Campbell of Alloway. He has put his finger on a particularly sore point so far as I personally am concerned. I have always realised that "learning disability" was a difficult definition of the condition of learning disability. But we want to get away totally from the use of the word "mental". Therefore, "mental disability", "mental defect", whatever it may be that has been used in the past or that which it is likely could be used in the future, is a total anathema not only to me as a parent and as a grandparent but to all people connected with the world of learning disability. We are talking about a constituency of 1½ million people in this country with a learning disability, which is a large proportion of the population.

I agree though that "learning disability", as such, is not a particularly adept description. I believe those in the Antipodes have probably put the matter better. They talk about "intellectual impairment", "intellectual disability" or "intellectual handicap". I believe that the use of the word "intellectual" probably sums up the condition more accurately and does not confuse the position with "learning difficulty", which of course is a separate issue. Learning difficulty can be from physical causes or dyslexia

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or sensory conditions, such as short sight, hearing impairment or whatever. Those conditions cause learning difficulties.

It is a sine qua non that a person with a learning disability also has a learning difficulty. So one sees that the arguments could rage across these Benches for the next 24 hours and I do not think I would be very popular if I continued. However, I throw this response to the noble Lord, Lord Campbell, as perhaps a challenge for the Government as something that should be looked at for the future, which is using the term "intellectual".


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