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Lord Falconer of Thoroton: I feel that I am being drawn into the most unhelpful legal debate about particular words. The perfectly well-intentioned amendment of the noble Lord, Lord Astor, seeks to replace "possible consequences" with "reasonably foreseeable consequences". It seems to be based on the Law Commission definition of capacity to consent, as proposed in Setting the Boundaries. Unlike the Law Commission's definition, our definition refers to a person who lacks sufficient understanding of the possible consequences of what is being done. The Law Commission definition referred to a person who is "unable to understand" the reasonably foreseeable consequences of the Bill.

The effect of the amendment would be to refer to a person who lacks sufficient understanding of the reasonably foreseeable consequences of the act. I am not sure that it is any different from a provision which refers to a person who lacks sufficient understanding of the possible consequences of the act. The definition in the Bill is clearer and more straightforward. One could find a million lawyers who would give a million definitions of the proposal made by the noble Lord, Lord Astor. I believe that it is right to take straightforward words, put them in the Bill and leave it for the court to decide on the facts of the case, rather than adopt a range of words that are selected from various other parts of the law which might be over-complicated. Unless a good reason is given for departing from the simple words, we are minded to stick with our own. However, we will of course consider any arguments that are advanced.

Lord Astor of Hever: I do not wish to draw the Minister into unhelpful debate, as we were trying to be

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constructive. As he said, the amendment was based on the Law Commission definition. I am grateful for that response. We will consider it. In the meantime I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Astor of Hever moved Amendment No. 214:


    Page 16, line 4, leave out ", or for any other reason"

The noble Lord said: Amendment No. 214 is a probing amendment. I have been wondering what other reasons could be invoked in relation to capacity which the inclusion of the phrase "or for any other reason" would be designed to cover.

I almost feel that this vague wording is a result of drafting legislation on consent. If the wording is too loose it will create trouble in the courts. We would welcome a more tightly-worded specific phrasing in the clause.

Amendment No. 215 continues in that vein. The Bill leaves open the possibility that a defendant may be charged with offences because he has sexual relations with a person who, he knows, has a mental disorder or learning disability. Not all mental impairments are constant conditions, affecting someone to the same extent and degree continuously. The Bill should make it clear that the defendant's knowledge of the subject's mental disorder or learning disability relates to the time at which the alleged offence took place, rather than to the general knowledge that the subject has been diagnosed as suffering from a mental disorder or learning disability. I beg to move.

3.30 p.m.

Baroness Blatch: I do not want to argue with my noble friend about the amendment. He said that it was a probing amendment, so I speak to it in that vein.

I am concerned about the narrowing of the test. My noble friend said that he would prefer to see a tightening of the wording. However, if there were a tightening of the wording, it would have to be more comprehensive and inclusive. Anything that fell outside the tightened-up wording would not be caught by the phrase,


    "or for any other reason".

It would be difficult to draft a law that covered all eventualities. The Bill leaves the courts freer to make a judgment about whether something is caught by the provisions. If B lacks the capacity to choose or—I would prefer to use the word used by the noble Lord, Lord Adebowale—to consent for any reason other than not understanding the nature or consequences of what is happening, it could be that there was another reason. There could be another reason that would be just as valid and prove that something undesirable had happened to the victim, B. The catch-all phrase,


    "or for any other reason"

leaves the courts with some welcome flexibility.

I hope that my noble friend will agree that person B should receive the protection of the court from sexual assault on the basis of a reason that is accepted by the

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court after due process as valid but falls just outside the wording of the subsection as it would be if we took away the words,


    "or for any other reason".

The difficulty is that, if we narrowed the wording, we would have to consider more closely how we described all the possible eventualities. That might be too difficult.

Lord Falconer of Thoroton: We accept the reasoning of the noble Baroness, Lady Blatch, about the matter. The basic thing that must be established is that B is unable to refuse. He is unable to refuse, if he lacks the capacity to choose whether to agree to the touching; that is what must be proved. He might lack that capacity because he lacks,


    "sufficient understanding of the nature or possible consequences of what is being done, or for any other reason".

The phrase,


    "or for any other reason"

would include the matters referred to in the amendment moved by the noble Lord, Lord Astor of Hever, but I imagine that a significant number of lawyers could think of variations that do not quite fall within the bracketed words but which, none the less, a sensible person would think showed that the victim lacked the capacity to choose whether to agree. It would not be helpful to restrict the basic definition of whether somebody lacks capacity. Although I fully understand the reasons for moving the amendment, which is only a probing amendment, we think that we would give the best protection by including the words,


    "or for any other reason".

That is why we did it.

Lord Astor of Hever: I am grateful to the Minister for that response. I take on board what he said, as well as what my noble friend Lady Blatch said, and, in the light of that, we will want to consider the matter again before Report. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 215 not moved.]

Lord Falconer of Thoroton moved Amendment No. 216:


    Page 16, line 7, leave out subsection (3).

On Question, amendment agreed to.

On Question, Whether Clause 33, as amended, shall stand part of the Bill?

Lord Rix: Originally I drafted an amendment which sought to insert a new clause after Clause 116. It was headed, "Orders of court: therapeutic or counselling services for victims". Unfortunately, I was informed that such a clause would not find a happy home in this Bill, and that the best I could hope for would be to receive assurances from the Minister by pursuing the route of opposing the Question whether this clause should stand part of the Bill. This I am now doing, and I trust that I shall not detain noble Lords for very long.

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The issue is the lack of specialist counselling and therapeutic services for people with a learning disability who become victims of sexual abuse and for whom the process of recovery can be painfully slow and, of course, painfully difficult. Therefore we must consider how best we can help them.

The national provision of counselling and therapeutic services for people with a learning disability is extremely poor. These services possess neither the expertise to offer specialist support, nor do they receive sufficient funding to offer counselling to this vulnerable group, which may well contain those with profound learning and multiple disabilities, thus making communication and counselling even more difficult.

I raised this matter last October when I introduced my own Bill on sex offences, supported by Mencap, VOICE UK and the Ann Craft Trust, all organisations deeply involved in supporting victims of these heinous crimes. Alas, as yet I do not feel that I have received a satisfactory answer or, indeed, any answer.

I hope that the Minister will review the availability of resources to ensure that victims with a learning disability are at last given the right and proper support. If it would help to resolve matters, I would gladly beat a path to the Minister's door to explore the way ahead. On the other hand, a cast-iron, copper-bottomed commitment—if that is possible—made now might well provide the solution. I look forward to the Minister's response.

Lord Astor of Hever: I fully support all that has been said by the noble Lord, Lord Rix, concerning the provision of support and counselling for those people with mental disorders or learning disabilities who have to go through the legal processes or give evidence in a trial. I agree entirely with the noble Lord that the national provision of counselling and therapeutic services for people with a learning disability is extremely poor. We believe fundamentally that specialist services should be provided with adequate funding for these circumstances, a point also made by the noble Lord.

The criminal justice system is daunting for anyone, let alone those suffering from a mental disorder or a learning disability. Problems have arisen in the past because their evidence does not stand up in court under the scrutiny and interrogation of the defence counsel. I understand that provisions cannot be included in this legislation, but I would welcome assurances from the noble and learned Lord that steps are being taken to address these problems.

The Bill admits that different rules apply for people with mental disorders or learning disabilities, in particular those who are incapable of giving consent. Other legislation dealing with how the criminal justice system works should similarly reflect and address those differences.

On other grounds, Clause 33 is worrying. We would like to know why no functional test of capacity is included. How is a prosecution to be pursued under

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Clause 33? Who will be responsible for assessing the capacity of victims, questioning them, and providing them with access to the right support facilities and experienced care workers who can handle the inquiry? I shall certainly require a degree of persuasion from the Minister that these matters have been considered fully and that the procedure which would result from a prosecution brought under Clause 33, although not on the face of the Bill, has been thought through in detail and is appropriate to provide for the needs of these most vulnerable people.

Legislation on mental capacity would help to clarify cases involving people who lack the capacity to consent to sex and should therefore be a priority in order to complement the provisions of this Bill.


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