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Baroness Walmsley: I have great sympathy with the problem described by the noble Lord, Lord Rix, of finding a suitable platform for raising this important issue. I had a similar experience with regard to services for young people who abuse. It is disgraceful if the situation is as the noble Lord described. These are very vulnerable people in the most terrible situation and very much in need of highly qualified, experienced persons to provide appropriate services. The training of such people takes a long time, as does developing the range of experience necessary to do such specialist work. Producing enough people requires long-term planning, so I hope that the Minister listened carefully to the noble Lord, Lord Rix. The sooner something is done, the better. Maybe it will take five or seven years to produce enough people to fill the gap that the noble Lord identified.

The Earl of Listowel: I listened with concern to my noble friend Lord Rix, whose remarks brought to mind earlier debates in Committee about therapeutic services for vulnerable young people. Does the Minister expect anything in the Green Paper Children at Risk to address the issue of developing a workforce to work with such children? Will the noble and learned Lord bring to the attention of his colleagues working on the Green Paper the concerns raised today?

There is concern at the delayed publication of part of the national service framework for children. Money is being passed to services throughout the country, yet the framework—particularly a document entitled The Emerging Findings—has not yet been published, so service commissioners will not be fully informed about how best to spend their budgets. Perhaps the Minister can convey my concerns. We would be interested to see the document coming forward soon, so that the right sort of therapeutic services are provided.

Lord Adebowale: I support my noble friend Lord Rix. The organisation Respond, like Turning Point, is very concerned about the lack of clarity on the critical issue of therapy for victims of sexual abuse who have learning disabilities. As the law stands, there is great uncertainty about whether a person with a learning disability will receive therapy, even though therapy can actually help people to deal with the legal process better and with the incredibly emotional pain of abuse.

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For too long, people who have been terribly hurt have been denied treatment for dealing with that hurt—an absurdity that must change. We know that abuse wrecks people's lives, yet often therapy is not made available to the victims of abuse. The treatment of people with learning disabilities is characterised by weak assessment procedures, uneven availability of treatment and lengthy delays. Poor service planning and low levels of commissioners' expertise prevent organisations such as Respond from doing their job properly. Funding is often too short term, rather than being matched to individual needs. This critical issue deserves our attention and I thank the noble Lord for bringing it to our notice.

Baroness Blatch: My understanding is that the noble Lord's opposition is a device to raise certain issues because I would not want to lose Clause 33—which does offer protection to some very vulnerable people. That does not, nevertheless, make the points raised by the noble Lord any less valid; it seems an excellent way of doing things. This is a very wide issue—it is not just about resources but about the quality of the services made available to people who suffer from a mental disorder or learning disability.

My noble friend Lord Astor spoke about how this will work—the practice of making very sensitive judgments, what the tests will be and whether there will be a code of practice. They are very real issues.

This is an ingenious device, but I would not like to see Clause 33 disappear from the Bill, because the protection it provides is very important.

3.45 p.m.

Lord Falconer of Thoroton: What the noble Baroness, Lady Blatch, says is widely understood around the Committee. The noble Lord, Lord Rix, was kind enough to give me warning of the purpose of this provision. We have had equally legitimate and parallel debates on the position of the victims and the perpetrators of sex crimes, particularly those who are underage.

One of the key principles underlying the offences in the Bill is that the provisions should offer better protection to the vulnerable. The sex offences review heard very disturbing evidence about the extent and nature of the sexual abuse of vulnerable people. The noble Lord, Lord Rix, has been drawing that to our attention in this House for a very considerable time. It included evidence that these vulnerable individuals are deliberately targeted for abuse by predatory offenders who calculate, all too often rightly, that they are less likely to be convicted than if they abuse somebody with no such disability.

Existing legislation has offered inadequate redress because of the inadequate nature of the criminal offences. These provisions try to make the criminal law better and more effective as a means of seeking to reduce the level of abuse.

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The noble Lord, Lord Rix, is right when he says that that is only part of the story. What support is provided not just for victims who have a case brought in the criminal justice system but for those who are abused without proceedings being brought?

I appreciate fully why the noble Lord has raised this issue. I sympathise with his concerns that those victims of crime who are in this situation need specialist help in very many cases in terms of counselling and other services to aid their recovery. I fear that I may not be able to give him the assurances that he seeks. There are two sources of funding. First, there is local authority social services funding. Funding for social services has gone up generally. Relationships with local authorities require that the discussions with them determine how much they give. In addition, the Department of Health provides support to voluntary sector organisations which play a part in providing the sort of counselling to which the noble Lord referred.

The noble Lord knows better than I that for the year 2003–04, voluntary organisations in the learning disability field received approximately £1.4 million in Section 64 grant funding. That is made up of £496,000 paid in the current year and £898,000 that they applied for in previous years. The organisations that received this funding include his own organisation, Mencap, as well as VOICE UK, Respond and ARC. I anticipate that the noble Lord, Lord Rix, will say politely, "I know all that. It is not nearly enough; there is no over-arching strategy, it is patchy throughout the country because some local authorities do this and some do not". We would all share the view that provision needs to be much more focused and less patchy. That needs to be done as soon as possible. I cannot stand here and say that I can give an assurance that that will happen but we all agree that it should. I will take back what has been said today to my colleagues in the relevant departments.

The noble Earl, Lord Listowel, raised the question of the Green Paper Children at Risk. That will obviously deal with a different category of children rather than the vulnerable people whom these provisions are intended to deal with. It will cover issues about how they are to be supported when they become victims of crime in the kind of circumstances with which the Bill is intended to deal.

I appreciate that I have not dealt with the matter in a way which might satisfy all Members of the Committee. We are very mindful of the problem and recognise that the Bill can be part of the story.

As regards the final issues raised by the noble Lord, Lord Astor of Hever, and supported by other Members of the Committee, it is not possible for me to give definitive indications of the precise circumstances in which this clause will be used. But it is absolutely right that it has to be dealt with incredibly sensitively having particular regard to the interests of the victim in the context of proceedings and in considering whether or not it is in the interests of the victim in every

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case to bring proceedings. That will occur and it will very often require advice and assistance to the CPS way beyond the normal advice which is given.

Lord Rix: I thank the Minister for that response. I am obviously disappointed that he has not got his hand in the Treasury's pocket. I hope that he will allow me to make further overtures to his department so that we may discuss possible ways of increasing the funding from perhaps other departments which are wealthier and more inclined to be able to distribute funds.

Lord Falconer of Thoroton: I agree to that, but with no expectation of success.

Clause 33, as amended, agreed to.

Clause 34 [Causing a person with a mental disorder or learning disability to engage in sexual activity]:

[Amendments Nos. 217 and 218 not moved.]

Lord Falconer of Thoroton moved Amendment No. 219:

    Page 16, line 34, leave out subsection (3).

On Question, amendment agreed to.

Clause 34, as amended, agreed to.

Clauses 35 to 37 agreed to.

Lord Astor of Hever moved Amendment No. 220:

    After Clause 37, insert the following new clause—

The Attorney General shall issue guidance to supplement the code for crown prosecutors when deciding whether to prosecute those with a mental disorder or learning disability for sexual offences."

The noble Lord said: In moving this amendment I shall also speak to Amendment No. 221 in the name of the noble Lord, Lord Rix. As Members of the Committee will be aware, there is concern that protection is provided for vulnerable adults without impinging on their right to a private sex life.

This amendment aims to safeguard the achievement of this balance. Clauses 33 to 37 of the Bill could see two adults without capacity to consent prosecuted for engaging in sexual relations. That is clearly not the intended purpose of the Bill, but in its current form it poses a threat to the rights of vulnerable adults.

However, situations may arise where two adults with differing levels of capacity are sexually involved leaving the party with less capacity open to exploitation. It is necessary, therefore, that some form of amendment be introduced to guard against both of these risks without diminishing the protection provided by these clauses. It is my view that regulations would be the best means of resolution as they would provide clear enforceable guidance on the proper usage of the Bill without curtailing potential protection.

The prosecution of two adults equally lacking in capacity to consent could be avoided while the possibility of abuse by an adult with a learning disability or a mental disorder could still be accounted

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for. Regulations would hold the advantage of carrying statutory force, allowing parties to be prosecuted if they were found to be in breach and would serve as a strong preventive measure against misuse of the Bill. Redress therefore would not be limited, but the right to a private sex life for vulnerable adults would be maintained.

Regulations are needed if the full protective potential of the Bill is to be realised. However, I should like to emphasise the need for regulations to have statutory force, in view of recent developments concerning the Mental Health Act 1983. There is a code of practice for the Act, but there has been much legal debate over whether it carries the weight of law. As a result, two recent breaches of the code have effectively been ruled lawful by the judge concerned. Those cases are now going to appeal. That clearly illustrates the grave danger that guidance or regulations can be wilfully ignored if they lack statutory force. I hope that the Government learn by experience and introduce regulations that explicitly carry statutory force and clearly set out guidance around the implementation of the Bill.

After what I have just said about requesting comprehensive guidance under Amendment No. 220, I should make it clear that I fully support the principle upheld by the amendment tabled by the noble Lord, Lord Rix. It should be possible for two people with a mental disorder or learning disability to have a sexual relationship without fear of prosecution. That applies to those who are aware of their actions and can give consent and those who are not and cannot. Currently, the former can undertake a relationship without fear of prosecution so long as neither party uses threats, deception, inducement or exploitation, as covered by Clauses 38 to 42. However, no sexual activity is permitted between those with a mental disability who cannot consent, and there is a risk that someone engaging in such an activity could theoretically be liable to prosecution.

Anyone who lacks the capacity to consent may not have a proper understanding of what behaviour is appropriate. It is not acceptable that they are dealt with by criminal prosecution, in the same way as someone who is not mentally impaired. I beg to move.

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