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Lord Rix: My Lords, perhaps I may add my voice in support of these amendments. My name already enjoys third billing on Amendments Nos. 106, 107, 109, 110, 113, 114, 118, 119, 120, 121 and 172. Having reflected on the debate at Committee stage, I am inclined to think that the noble Baroness, Lady Noakes, and the noble Lord, Lord Astor of Hever, have the balance about right.
In response to my noble friend Lord Adebowale's amendments at Committee stage, which raised similar concerns, the Minister did not seem to argue against their principle, but more on a technical drafting point. However, his reply did not give us the required assurances. The amendments of the noble Lord, Lord Astor, get over those technical hurdles by changing the definition of consent by making it much tighter and more specific.
My concern is that, as currently drafted, the capacity test in the second subsections of Clauses 32 to 36 is not sufficiently specific and, therefore, there is a real danger that the offence will be too broadly interpreted. This may lead to unnecessary prosecutions being brought in cases where the sexual activity is actually consensual.
I look again to answers offered at Committee stage and my nagging concern is the wording "for any other reason". Echoing the noble Lord, Lord Astor of Hever, I am still unclear what the "for any other reason" refers to, as in terms of a capacity test, the key issue is the individual's ability to understand the sexual activity and its reasonably foreseeable consequences.
I do not want to move away from the principles behind those new offences. They seek to improve the outdated laws governing sex offences and to protect vulnerable adults from sexual abuse. That is absolutely crucial. Nor do I share the rather exaggerated concerns expressed in some quarters about protection being thinly veiled oppression. However, we have to get the right balance and, as I said in previous debates, Mencap respects the right of all consenting adults to have sex. I believe that the amendments of the noble Baroness, Lady Noakes, and the noble Lord, Lord Astor, find the right balance. I am not sure that assurances will do in this instance, but I am happy to listen to what the noble and learned Lord has to say.
Baroness Walmsley: My Lords, I rise to speak to Amendment No. 173, standing in my name and that of my noble friend Lord Thomas of Gresford, and to comment on Amendment No. 172. While we do not believe that every normal English word that is readily understood in the Bill requires definition, we feel that the words "consent" and "capacity" require definition. So much in the Bill depends on a clear understanding of those two words. We already have a definition of "consent", but we do not have a definition of "capacity", which is why we have tabled our amendment.
Having said that, we would have been just as happy to accept Amendment No. 172 in the name of the noble Lord, Lord Astor of Hever, which achieves much the same outcome and perhaps more as it mentions the word "freedom". Therefore, we hope that the noble and learned Lord will consider the importance of a definition of a word that is key to a clear understanding of the law in the case of sexual offences.
Lord Falconer of Thoroton: My Lords, these amendments address the issue of the definition of the inability to refuse or to consent and go to the core of the clauses where the balance between protection from sexual abuse and freedom to engage in sexual activity is set.
I do not believe that Amendments Nos. 106, 109, 113, 118 and 120 would make a substantive change to those clauses. Capacity to consent is defined in Clauses 32 to 36 inclusive, as "unable to refuse" rather than "unable to consent" because if the latter phrase were
I shall go through each of the points that has been raised. Amendments Nos. 107, 110, 114, 119 and 121 propose a number of changes to the definition of inability to refuse. I recognise that there is real concern that because of prejudices that exist about learning disabled adults engaged in sexual activity, those clauses may be interpreted as meaning that some individuals were unable to consent for the whole of their lives. This afternoon I was grateful for the opportunity to discuss that with the National Forum of People with Learning Difficulties, a number of whose members spoke to me about it and whom I am glad to see sitting in the Public Gallery today listening to the debate.
I believe those concerns are unfounded. I am clear that they can apply only "at the material time". Throughout the Bill it is implicit that consent relates to a particular incident rather than applying generally and capacity to consent is drafted on the same basis. I would like to make it absolutely clear that capacity to consent relates to the particular time at which the sexual activity, about which there is a complaint, took place. Therefore, I do not believe that the proposal to add "at the material time" is necessary.
I note that the amendments would replace "possible consequences" with "reasonably foreseeable consequences" and would remove "for any other reason" from the same paragraph. I appreciate that there is a concern that the test of capacity is set at such a level that those with a learning disability may be required to be more aware of the implications of sexual activity than others. The amendment is intended to provide a lower test: awareness of the consequences that are reasonably foreseeable as opposed to those that are possible. But I am not sure that the amendment is necessary. The clause as drafted requires sufficient understanding of the possible consequences of the sexual activity in question. The level of understanding required therefore is qualified so I do not believe that there is any need to refer to "reasonably foreseeable consequences" as opposed to "possible consequences".
I turn to the proposed deletion of "for any other reason" from Clause 32(2)(a). We were concerned to ensure that those who genuinely lack the capacity to consent were protected by the law. However, we are aware that there are concerns that "for any other reason" might wrongly draw people into the scope of the offence because it is so broad.
I shall explain the thinking behind the conclusion. We have received advice that there are people with a mental disorder or learning disability who have sufficient understanding of the nature and consequences of the sexual activity to consent, and who could communicate their consent but nevertheless
Unconsciousness is dealt with by means of a rebuttal presumption in Clause 77. That will apply regardless of whether the individual has a learning disability. We do not believe that it is necessary or helpful to make a specific reference to unconsciousness in those clauses. Clause 32(2)(b) is intended to protect people who, because of a mental disorder, cannot communicate whether they consent. That does not mean that people with speech difficulties are drawn within the clause. The issue is whether they can communicate consent by any means, not simply speech.
Clauses 172 and 173, which were referred to earlier, are intended to create a generic definition of the capacity to consent that could be used whenever the prosecution seeks to establish that the complainant did not have the capacity to consent at the time of the alleged offence. Amendment No. 172 is based on a Law Commission definition, and Amendment No. 173 is based on the definition that we have adopted in the clauses in Part 1 relating to offences against those with a mental disorder. That is the wording that we would prefer. I am not fundamentally opposed to including in the statute a generic definition of capacity to consent, but we need time to consider the consequences of such a definition, and, if we choose to include one, the best way to formulate it.
Perhaps I may return to the issue at Third Reading, as it is quite important. I repeat that we are very aware of the need in those clauses to balance the need to provide protection with recognising the civil rights of those with a mental disorder or learning disability. For the reasons that I have gone through in, I suspect, tedious detail, I do not feel able to accept the amendments. But I have listened very carefully to the debates on the issue and in my discussions with people outside the House also. It is a very difficult issue to resolve. We will take into account the matters raised as part of our further deliberations on the question of the definition of consent and the other issues raised. I shall return to the matter, if I may, at Third Reading. In the light of what I have said, I hope that the noble Lord, Lord Astor, will feel able to withdraw his amendment.
Lord Astor of Hever: My Lords, I am grateful to the noble and learned Lord for his response, which heartened me. I am particularly grateful to him for his explanation of the Government's thinking on the "any other reason" issue. I am also grateful to the noble Lord, Lord Rix, for his support. In the light of the Minister's very positive response, I beg leave to withdraw the amendment.