HC Deb 03 November 2003 vol 412 cc591-602

'(1) Conduct by a person (A) which would otherwise be an offence under any of sections 17 to 20 against another person (B) is not an offence under that section, if—

  1. (a) B is 16 or over, and
  2. (b) prior to the position of trust existing and the consent of the person or persons specified in subsection (2) below apply.

(2) The consents are—

  1. (a) subject to paragraphs (b) to (d) of this subsection, the consent of—
    1. (i) each parent (if any) of B who has parental responsibility for him; and
    2. (ii) each guardian (if any) of B;
  2. (b) where a residence order is in force with respect to B, the consent of the person or persons with whom he lives, or is to live, as a result of the order (in substitution for the consents mentioned in paragraph (a) of this subsection);
  3. (c) where a care order is in force with respect to B, the consent of the local authority designated in the order (in addition to the consents mentioned in paragraph (a) of this subsection);
  4. (d) where neither paragraph (b) or (c) of this subsection applies but a residence order was in force with respect to B immediately before he reached the age of sixteen, the consent of the person or persons with whom he lived, or was to live, as a result of the order (in substitution for the consents mentioned in paragraph (a) of this subsection).

(3) In this section "guardian", "parental responsibility", "residence order" and "care order" have the same meaning as in the Children Act 1989.'.—[Dr. Evan Harris.]

Brought up, and read the First time.

Dr. Evan Harris

I beg to move, That the clause be read a Second time.

Mr. Deputy Speaker

With this it will be convenient to discuss the following: Government amendments Nos. 118 and 10 to 12.

Amendment No. 185, in page 14, line 14 [Clause 25], at end insert 'and the relationship commenced before the defendant was aware that he would be in a position of trust.'. Amendment No. 181, in page 14, line 17 [Clause 25], leave out subsection (3) and insert— '(3) Subsection (1) does not apply if (A) could have predicted that he would eventually assume a position of trust.'. Government amendment No. 21.

Amendment No. 148, in page 17, line 10 [Clause 31], after 'disorder', insert 'or learning disability'.

Amendment No. 149, in page 17, line 12 [Clause 31], after 'disorder', insert 'or learning disability'.

Government amendments Nos. 22 and 25.

Amendment No. 150, in page 17, line 35 [Clause 32], after 'disorder', insert 'or learning disability'.

Amendment No. 151, in page 17, line 37 [Clause 32], after 'disorder', insert 'or learning disability'.

Government amendments Nos. 26 and 29.

Amendment No. 152, in page 18, line 20 [Clause 33], after 'disorder', insert 'or learning disability'.

Amendment No. 153, in page 18, line 22 [Clause 33], after 'disorder', insert 'or learning disability'.

Government amendments Nos. 30 and 31.

Amendment No. 154, in page 18, line 39 [Clause 34], after 'disorder', insert 'or learning disability'.

Amendment No. 155, in page 18, line 41 [Clause 34], after 'disorder', insert 'or learning disability'.

Government amendment No. 32.

Amendment No. 156, in page 19, line 19 [Clause 35], after 'disorder', insert 'or learning disability'.

Amendment No. 157, in page 19, line 21 [Clause 35], after 'disorder', insert 'or learning disability'.

Amendment No. 158, in page 19, line 39 [Clause 36], after 'disorder', insert 'or learning disability'.

Amendment No. 159, in page 19, line 41 [Clause 36], after 'disorder', insert 'or learning disability'.

Amendment No. 160, in page 20, line 22 [Clause 37], after 'disorder', insert 'or learning disability'.

Amendment No. 161, in page 20, line 24 [Clause 37], after 'disorder', insert 'or learning disability'.

Amendment No. 162, in page 20, line 40 [Clause 38], after 'disorder', insert 'or learning disability'.

Amendment No. 163, in page 20, line 42 [Clause 38], after 'disorder', insert 'or learning disability'.

Amendment No. 164, in page 21, line 8 [Clause 39], after 'disorder', insert 'or learning disability'.

Amendment No. 165, in page 21, line 10 [Clause 39], after 'disorder', insert 'or learning disability'.

Amendment No. 188, in page 21, line 11 [Clause 39], at end insert— '( ) A person is not guilty of an offence under this section if—

  1. (a) the touching was for the purpose of sex education, and
  2. (b) B is a person with profound and multiple disabilities such that they require intensive and intimate support to understand and receive sex education, and
  3. (c) the education is necessary to protect B from possible abuse or harm, and
  4. (d) there is no alternative means of delivering this sex education because of the nature of B's disability, and
  5. (e) the education is carried out by qualified specialists or by staff who have received training to meet the specific needs of B, and
  6. (f) the decision to provide such sex education has been recommended by a multidisciplinary team.'.
Amendment No. 166, in page 21, line 13 [Clause 39], after 'disorder', insert 'or learning disability'.

Amendment No. 167, in page 21, line 15 [Clause 39], after 'disorder', insert 'or learning disability'.

Amendment No. 168, in page 21, line 36 [Clause 40], after 'disorder', insert 'or learning disability'.

Amendment No. 169, in page 21, line 38 [Clause 40], after 'disorder', insert 'or learning disability'.

Amendment No. 189, in page 21, line 39 [Clause 40], at end insert— '( ) A person is not guilty of an offence under this section if—

  1. (a) A's action was for the purpose of sex education and,
  2. (b) B is a person with profound and multiple disabilities such that they require intensive and intimate support to understand and receive sex education, and
  3. (c) the education is necessary to protect B from possible abuse or harm, and
  4. (d) there is no alternative means of delivering this sex education because of the nature of B's disability, and
  5. (e) the education is carried out by qualified specialists or by staff who have received training to meet the specific needs of B, and
  6. (f) the decision to provide such ex education has been recommended by a multidisciplinary team.'.
Amendment No. 170, in page 21. line 41 [Clause 40], after 'disorder', insert 'or learning disability'.

Amendment No. 171, in page 21. line 43 [Clause 40], after 'disorder', insert 'or learning disability'.

Amendment No. 172, in page 22. line 26 [Clause 41], after 'disorder', insert 'or learning disability'.

Amendment No. 173, in page 22. line 28 [Clause 41], after 'disorder', insert 'or learning disability'.

Amendment No. 174, in page 22. line 31 [Clause 41], after 'disorder', insert 'or learning disability'.

Amendment No. 175, in page 22. line 33 [Clause 41], after 'disorder', insert 'or learning disability'.

Amendment No. 176, in page 23, line 1 [Clause 42], after 'disorder', insert 'or learning disability'.

Amendment No. 177, in page 23, line 3 [Clause 42], after 'disorder', insert 'or learning disability'.

Amendment No. 178, in page 23, line 6 [Clause 42], after 'disorder', insert 'or learning disability'.

Amendment No. 179, in page 23, line 8 [Clause 42], after 'disorder', insert 'or learning disability'.

Amendment No. 180, in page 23, line 34 [Clause 43], after 'disorder', insert 'or learning disability'.

Dr. Harris

I do not intend to detain the House long, partly because the drafting of the new clause is flawed, as hon. Members will have seen. First, it does not state that it should apply only to same-sex couples, and secondly, as currently drafted it would appear to be covered by the exemption provided in clause 25 for relationships that pre-date the position of trust. I hope that by clearly setting out those flaws I save hon. Members the time and trouble of repeating them.

I think that what I seek to achieve has been communicated to Ministers by officials. In the situation where acts take place where B is older than 16, the same defence should exist for homosexuals as for heterosexuals. I support the Government amendments in this group which restrict the marriage exemption to cases in which B is over 16, and in any event it is more convenient to consider this issue in that context, given that the age of consent is 16 for both heterosexuals and homosexuals.

The marriage exemption in this part of the Bill is very narrow because of the exemption in clause 25, and I accept that. It covers only those areas where a position of trust predates sexual activity, where there is no premarital sexual activity and where marriage takes place where there is a position of trust and is followed by sexual activity that, without the marriage exemption, would not be exempt, as Ministers clearly believe it ought to be. Clearly there needs to be a marriage exemption for those circumstances.

I seek to argue, through the new clause, that the same exemption, albeit narrow, should be available for homosexuals. Ideally, there would be a clause equivalent to that providing the heterosexual marriage exemption. My approach was to recognise that where B is 16 or 17, parental consent for the marriage would be needed, so clearly there could also be parental consent for a relationship that post-dates the position of trust in a same-sex relationship. That is why I have set out in the new clause the same consents that apply for 16 and 17year-olds in the Marriage Act 1949, as amended.

I made a similar proposal during the passage of the Sexual Offences (Amendment) Bill a number of years ago. That amendment was not accepted in both Houses of Parliament because at that point there was no likelihood of civil partnerships being just around the corner. At that time it was the intention of Liberal Democrat Members, but not, perhaps, of the Government, to ensure that equality between people of different sexualities was as complete as possible, and a clause such as this would have been necessary.

The Government have started a consultation on civil partnerships for same-sex couples in which people would be able to register their relationship. If those civil partnerships apply, as the Government intend, only to same-sex couples, they will provide an opportunity for an equivalent exemption in these narrow circumstances. The consultation does not explicitly refer to this issue. and I seek to give the Solicitor-General an opportunity to explain the Government's position on providing equality here, to state whether there will be an equivalent exemption for relationships that are committed, just like marriages, but post-date a position of trust, and to say whether civil partnerships would be the way forward.

I hope that the Solicitor-General will be able to provide some reassurance that, despite the tendency that we have seen in other debates for marriage to be set aside, there is an ability to ensure that the same defences apply to same-sex couples as to opposite-sex couples above the age of consent, which is the same for both. To be honest, even if the right hon. and learned Lady cannot provide that reassurance, I do not intend to press the new clause, but I hope that I am not enabling her to sell the pass, because there is some interest in the Government's intentions for equality in criminal law in the context of civil partnerships. Many people inside and outside the House will be interested to hear what she has to say.

Sandra Gidley

I want first to talk about amendments Nos. 181 and 185, which repeat the slightly flawed attempt that I made in Committee to try to reassure myself that there are no loopholes in clause 25.1 shall try to explain the case a little more clearly than I did in Committee, by relating a number of scenarios to which the clause may relate.

I apologise in advance for not being gender-neutral, but it gets very complicated when one is talking about A and B. The first possibility that occurred to me was that of a 16-year-old girl in a developing relationship with a young teacher. The teacher decides to move and obtain a teaching post at the sixth-form college to which the girl has applied. If the relationship was sexual before the girl goes to college, the Bill does not criminalise the couple. People have an opinion as to whether teachers should be in such relationships with students, but this is not the place to get into a moral and ethical argument. If the relationship was not sexual before the girl goes to college, the Bill criminalises the relationship if it then becomes sexual.

That seems rather perverse because most relationships are on a continuum, and there will come a point in any relationship at which it may become sexual. It seems fairly arbitrary to decide that if that point comes after the girl in question attends sixth-form college, there is suddenly something wrong with that. The clause could have another effect because, in practice, the girl could come under considerable pressure. The chap could legitimately argue, "Come on, if we don't have sex now we can't for the next two years." If the girl was wavering, that could affect her decision—[Interruption.] Members are laughing, but there is a serious point—something that puts young people under pressure to have sex when they do not want to is not necessarily a good thing, particularly given the high rate of STD infection. The Bill is therefore flawed in its current form. The defendant may also insist that the sexual relationship commenced before the position of trust arose, while the accuser states that that is not the case. That scenario is much more likely to arise if there is potential to excuse the offence by backdating the sexual intimacy.

Finally, there may be cases in which, because of a learning disability or suchlike, a young person is targeted by an authority figure and befriended or even groomed. The relationship is not initially sexual—it is merely friendly—but when the circumstances change and contact between the two becomes more regular an abuser could press for sexual relations. An outsider might find it difficult to establish exactly when the relationship became sexual, but the reality might be that a form of grooming had taken place before the abuser manoeuvred himself into a position of sexual opportunity. In Committee, the Minister urged me to withdraw my amendment, but promised further consideration of the matter. However, I am not aware of any such consideration, so I would be grateful for clarification of the clause, which is not perfect in its current form.

A number of my amendments try to reinstate the phrase "or learning disability" throughout the Bill. Instead of simply referring to someone "with a mental disorder", we would use the phrase "a person with a mental disorder or learning disability". I do not intend to repeat at great length the arguments that we had in Committee, but the crux of the matter is that the Government apparently consider that anybody with a learning disability is automatically regarded as having a mental disorder. Organisations such as Mencap have worked long and hard to establish learning disability as a separate entity and they regard the Government's thinking as offensive and belittling.

The Government's approach is inconsistent. The Youth Justice and Criminal Evidence Act 1999 makes separate provision for people with a mental disorder and people with a learning disability. Section 16 states that special measures apply to witnesses with a mental disorder, as defined in the Mental Health Act 1983, and, separately, to witnesses with a significant impairment of intelligence and social functioning". It is therefore possible for legislation to use different terminology to describe people with a mental disorder and people with learning disabilities.

Page 21 of the explanatory notes to the draft Mental Incapacity Bill states: This could cover a range of problems such as psychiatric illness, learning disability, dementia… ". A clear distinction is therefore made between psychiatric illness and learning disability.

In a briefing with the Minister and her advisers before Report, I asked which part of the Department of Health dealt with the issue raised in amendments Nos. 188 and 189, which are backed by Sense. I was told it was the part that dealt with learning disability, so other people appear to think that there is a distinction to be made. It would be helpful to establish a definition of learning disability and use it throughout the Sexual Offences Bill. If there are any changes to such a definition in the Mental Incapacity Bill, the Sexual Offences Bill could be changed retrospectively.

Finally, amendments Nos. 188 and 189 are backed by Sense and apply to people who are deaf and blind and may need sex education either because they are displaying inappropriate behaviour, perhaps in public, or are self-harming. That problem was raised on Second Reading and in Committee. The Minister has claimed that the charities involved did not agree on the way forward. There was also an understandable reluctance to include a loophole in the Bill. As a result, Sense arranged a meeting with the other charities concerned to try to reach a consensus. Unfortunately, I could not make that meeting because I could not find a parking space at a Hampshire station, but I understand that there is now consensus. The amendments tabled by the Liberal Democrats therefore have the support of those other organisations.

7.15 pm

The amendments suggest that the following factors all need to be taken into account when providing an exemption. The touching must be for the purposes of sex education, and the recipient must have profound multiple disabilities. The education must be deemed necessary because of a problem of abuse or harm—in other words, it is fundamentally about providing protection. It should also be clear that there is no alternative. If there is another way of delivering such education, it should have a priority. The education should be carried out by qualified staff who have received training, a ad a decision must be made by a multidisciplinary team whose members are familiar with the person who will be receiving treatment—we cannot put such decisions in the hands of one person alone.

That is a stringent set of criteria and I challenge the Minister to come up with a loophole. If the Government are still minded to reject the amendments, I should like to know how they are going to deal with the issue. They have conceded that there is a problem and, having done so, they have a duty to act. I would therefore welcome an explanation of the way in which the problem will be dealt with in future.

While noting the slight flaw that my hon. Friend the Member for Oxford, West and Abingdon (Dr. Harris) noted in one of his amendments—

Dr. Evan Harris

It was a major flaw.

Sandra Gidley

I was trying to be charitable to my hon. Friend. Given the fact that the equality and civil partnership issue is rising rapidly up the political agenda, it would be useful to know the Government's thinking on the matter.

Ms Munn

I should like to speak briefly to the amendments that raise the use of the term "learning disability" and ask the Minister to respond. I, too, have spoken to at least one organisation that works with learning-disabled adults and believes that not using the term "learning-disabled" in the Bill would be a matter of great regret. I should like to focus or genuine difficulties of definition and echo what the hon. Member for Romsey (Sandra Gidley) said about the term "mental disorder", which does not include learning-disabled people. Its use to describe people with a learning disability can be considered offensive, but we must reflect on whether people would consider themselves to be covered by the Bill if the term is not included.

I may be wrong, but I understand that the term "mental disorder" is defined in the Mental Health Act 1983 and relates to the term "mental impairment". I studied the legislation as a former practitioner, and my understanding is that mental impairment refers to something over and above a learning disability. It is generally taken to mean a state of arrested or incomplete development of mind that includes significant impairment of intelligence and social functioning, and is associated with abnormally aggressive or seriously irresponsible conduct on the part of the person concerned. If that is the case, using only the definition of mental disorder has serious implications for people with learning disabilities. I want the legislation to be introduced as soon as possible. It is enormously important and takes forward the current position of learning-disabled adults, who are some of the most vulnerable people around. Rightly, we are struggling to get the legislation right, and the inclusion of the term would help.

The Solicitor-General

Further to undertakings made in Committee, we have tabled Government amendment No. 118 to bring further categories of adults within the scope of the abuse of trust offences. Perhaps I can explain it before I deal with the issues raised by the amendments moved by the hon. Member for Romsey (Sandra Gidley), which I shall get to in due course.

Connexions personal advisers are already covered in clause 22(7) by virtue of the fact that they fulfil their duties under section 114 of the Learning and Skills Act 2000. Such persons can also fulfil those duties under sections 8 to 10 of the Employment and Training Act 1973. It is clearly necessary to refer to both Acts to avoid a loophole that would enable a defendant to claim that he did not fall within the scope of those offences, and Government amendment No. 118 achieves that purpose.

Government amendment No. 118 also brings within the scope of the Bill those who have unsupervised contact with children in the context of their duties under sections 20 or 21 of the Children Act 1989 and equivalent legislation in Northern Ireland. Such persons arrange accommodation for children who, for whatever reason, are not being looked after by those who have parental responsibility, and check that their welfare is being looked after once such accommodation has been found. They include local authority staff such as social workers and family centre staff who visit the accommodation in which a child has been placed to oversee the child's welfare. The amendment also fulfils an undertaking given by my noble Friend Baroness Scotland to Baroness Blatch when the Bill was debated in another place.

Government amendments Nos. 10 and 11 remove the requirement that unsupervised contact between children and those who fall within the scope of the offences by virtue of their employment as children and family reporters, children's guardians and guardians ad litem must take place with the child alone. We have become concerned that the requirement for the contact to take place while the child is alone would create a loophole in the legislation that would apply where, for example, another person is present and that person has no role in supervising the defendant. For example, we would not want the presence of the complainant's younger sibling to allow the defendant to claim that a meeting did not take place with the child alone and that he does not therefore fall within the scope of the abuse of trust offences.

We are satisfied that the requirement for the defendant to have unsupervised contact with the child is sufficient to bring him within the scope of these offences. It will be for the courts to decide, on the individual facts of each case, whether the defendant's contact with the child was unsupervised. In practice, the addition of the word "alone" adds little but creates a potential loophole, and I hope that hon. Members will support our decision to remove it from the statute.

Government amendment No. 12 amends the definition looks after on an individual basis in clause 23 by replacing the words has unsupervised contact with B alone with has unsupervised contact with B". That addresses the same potential loophole identified in the previous two amendments, whereby a person could argue that they fell outside the scope of the offence because, for example, a younger sibling was always present at the meetings with the complainant.

Amendments Nos. 181 and 185 were tabled by the hon. Members for Mid-Dorset and North Poole (Mrs. Brooke), for Romsey and for Winchester (Mr. Oaten). Amendment No. 181 would amend clause 26 by removing subsection (3), which includes a reverse burden of proof ensuring that it is for the defendant to prove that a pre-existing relationship existed. We can see no justification for removing that requirement because the evidence is within the particular knowledge of the defendant and the fact of a pre-existing relationship is a true exception to the offence. A legal burden of proof on the defendant is therefore justified and proportionate in those circumstances.

Amendments Nos. 181 and 185 would restrict the preexisting sexual relationship defence in clause 25 so that it would not apply if the defendant were aware at the inception of the relationship that he would be in a position of trust or that he could have predicted that he would eventually assume a position of trust. That relates to the example raised by the hon. Member for Romsey. There are various drafting difficulties in the amendments. For example, the terms "predicted" and "eventually assume" are, as I am sure she is aware, too vague to be included in statute. What criteria would be used to determine whether the defendant could have predicted something, and what exactly is meant by "eventually"?

I also note that the amendments do not require knowledge that a position of trust would arise specifically between the defendant and the child concerned. Nor do they require knowledge on the part of the child of the potential future position of trust. The hon. Lady mentioned that point in her example, but it does not feature in the amendment. The defendant's knowledge, or rather prediction, of that alone is not sufficient to create a situation in which a position of trust could be used to enter into an exploitative relationship.

There are two points on which there is certainty: when the sexual relationship started and when the position of trust started. The hon. Lady was right to remind us that there is sometimes a continuum in such matters. However, the law must try to be as certain as possible. The two certainties are when the sexual relationship started and when the position of trust started, and I think that is probably the best we can do.

Leaving those specific points aside, I do not believe that alleged knowledge of a potential future position of trust that would arise between the parties, whether that information is known only to the defendant or to both parties, is sufficient to bring that relationship within the scope of the offences, which is the point that we are discussing. Not only would it be extremely difficult to draft such a requirement with sufficient clarity, as is evidenced by the hon. Lady's attempts, but it would not be right in principle to do so. The purpose of the abuse of trust offences is to protect young people over the age of consent from being manipulated into an exploitative relationship because of the imbalance of power that exists in a relationship of trust. Until that relationship of trust has been formed, I do not see how such a causal link can be made.

The amendments have been tabled out of genuine concern for child protection, but where two persons who are over the age of consent have willingly entered into a sexual relationship before a relationship of trust exists between them, I cannot see that it would be right to bring the relationship within the scope of the criminal law. Where such a preexisting sexual relationship is subsequently continued after a relationship of trust has been formed between the parties, the matter may fall to be regulated by professional guidelines and employment codes of conduct, but I continue to believe that it would be unreasonable to bring such a relationship within the scope of the criminal law. For those reasons, we cannot accept the amendments.

Although new clause 9 seeks to create a new defence on the basis that a same-sex relationship existed prior to the onset of the position of trust, which is unnecessary because such a defence already exists in clause 25, I understand that the real intention of the hon. Member for Oxford, West and Abingdon (Dr. Harris) is to create a same-sex relationship exception that would mirror the marriage exception at clause 24. I agree with the sentiments that he expressed, but he has put the civil partnership cart before the horse. None the less, his point has been well flagged up.

I appreciate the efforts made in the new clause to ensure that the exception would apply only where the relationship had the approval and consent of those who have parental responsibility for the child concerned. However, I remain concerned that such provisions would not create the same level of reassurance as a marriage contract o r indeed a civil partnership.

7.30 pm

As I have explained, the Government have been involved in the consideration of proposals relating to a civil partnership registration scheme and intend to introduce legislation as soon as parliamentary time allows. Instructions are already in place to ensure that, if such a scheme is introduced, sexual offences legislation will be amended by that legislation to provide an equivalent to the marriage defence for persons who have entered into a registered civil partnership. I hope that that meets the point that the hon. Gentleman has done the House a favour in raising, and that that can be flagged forward into the civil partnership Bill. In the circumstances, I consider that new clause 9 is unnecessary and I hope that he will agree to withdraw the motion.

I turn to the mental disorder clauses 31 to 34, which give specific protect on to those with a mental disorder who lack the capacity to consent. The amendments seek to loosen but not sever the causal link between the mental disorder and inability to refuse in subsection (1)(c).

Someone who has a severe mental impairment may not have the capacity to consent, and that can be seen to result entirely from the severity of their mental impairment. There is a direct causal link. However, there are others with a mental disorder who also would not pass a test of capacity. Their lack of capacity may result in part from circumstances other than the fact of having a mental disorder but which relate to their mental disorder: for example, someone taking medication for a mental disorder, or who has spent all their lives in an institutional environment and become perhaps very compliant with requests that staff make of them but who may have had no opportunity to become aware of what sexual activity entails, or may not know that there is a choice to be made when it comes to engaging in sexual activity. They have a mental disorder, they lack the capacity to consent, they are equally vulnerable and they need our protection. However, their mental disorder may have combined with their environment in producing someone who lacks the capacity to consent.

We are concerned that a strict causal link would call into question the applicability of the clauses to such persons, and lead to challenges as to the link between the mental disorder and the capacity to consent, which, in many cases, may be very difficult to prove. Consequential amendments are included to subsection (1)(d), which deals with the mens rea of the offender. It is for those reasons that I am proposing the amendments.

I turn to amendments Nos. 188 and 189, which reintroduce a change allowing the provision of hands-on sex education, such as teaching a person with profound and multiple disabilities to masturbate, or getting them to masturbate themselves, in strictly limited circumstances—the hon. Member for Romsey set those out—where there is no alternative way that sex education can be provided. In Committee, we made it clear that we were aware of certain differences among the learning disability charities as to the legitimacy of sex education that involved any form of sexual touching. My hon. Friend the Minister met with Sense. He spoke to it about those differences and suggested that it should meet with the charities that had reservations to see if together they could achieve some consensus on the issue.

I understand that Sense met the other charities on 2 October and that a level of agreement was reached. As the hon. Member for Romsey said, there is a consensus in the voluntary sector. Since then, the proposals have been under consideration by the Department of Health, which in turn is having discussions with Sense. We can say that there is now, as a result of the discussions that were initiated by my hon. Friend the Minister in response to the hon. Lady's amendments, consensus in the voluntary sector. We are not quite there yet in terms of consensus between the Government and the voluntary sector. The process is ongoing, so I do not believe that we are yet in a position to decide whether a sex education exception should be legislated for and, if so, precisely what form it should take.

Mr. Grieve

If that is the case, can that still be done if the Bill goes back to the House of Lords unamended? Will there not be a procedural difficulty if this part of the Bill has not been touched or hand led in this House? There would be no scope for the Government to bring in such an amendment.

The Solicitor-General

I think that this Bill would not be the legislative vehicle for that amendment, but the hon. Gentleman can rest assured that there are always more legislative opportunities, which he constructively engages in, trundling along, whether it be from the Home Office or the Department of Health.

I say absolutely genuinely that this is not a fobbing-off exercise. These are immensely difficult areas. We want to ensure that people with learning disabilities have as many rights and as full opportunities as they possibly can, but we also want to be very careful not to expose them inadvertently to sexual abuse. We must get it right. We are on our way there and have made a lot of progress, but we are not there yet. We are not in a position yet to decide.

I will not pretend that there are not significant areas of concern about such an exception, so I am not guaranteeing that there will be agreement between the voluntary sector and the Department of Health; I hope that there will be agreement but I am not guaranteeing it. We must be extremely careful not to open a loophole for abuse. However, the Government are committed to continue considering the issue and, if it is resolved in favour of an exception, to legislate when a suitable opportunity becomes available. For the reasons that I have given, I must resist the amendments.

I turn to amendments Nos. 148 to 180. My hon. Friend the Member for Sheffield, Heeley (Ms Munn) also participated in the debate on them. I understand the reasons and the strong feelings behind the amendments, as they were expressed in Committee. Again, as with civil partnerships registration and hands-on sex education, this is perhaps not the right Bill to have these discussions: while I sympathise with those views, I do not believe that the Bill is the right place to legislate on the issue.

A new approach to defining those who should be included in the new mental health Bill is being considered, and similar consideration is taking place in relation to the mental incapacity Bill. That is the context in which all these decisions should be made. We need to have consistency across the board. Primary mental health legislation is the place to have the discussion, and that is indeed taking place.

I reiterate that the amendments in no way affect the scope of the protection afforded by the clauses: we are not talking about changing that through the amendments. They cover that which we want to cover. We are talking about the language, and I do not say "only the language", because I understand very well that the language and how we define things is crucial. Mental disorder as defined in the Mental Health Act 1983, to which the Bill has been linked, includes those with learning disabilities. Therefore, the scope of the protection is assured. For those reasons, I must resist the amendments.

I acknowledge that there is a separate reference to those with learning disabilities in the Youth Justice and Criminal Evidence Act 1999 but just because there is an anomaly there, it does not mean that we should create loads more in the Bill. What we need to do is get it sorted, amend all previous legislation across the board and get it dealt with in the right context-primary legislation. That is the place we should do it. I do not want us to be out of line, not least because there are concerns about challenges to detention under the Mental Health Act 1983 that may arise out of the Youth Justice and Criminal Evidence Act terminology, so we want to be consistent in that respect.

Dr. Evan Harris

I am grateful to the Solicitor-General for her comments on new clause 9, particularly in respect—she went as far as she could—of the Government's intention that, should there be civil partnerships legislation, registered civil partnership should apply as marriage applies. Indeed, in that respect, it was encouraging to hear her say that she thought that that would be a more suitable vehicle than going just with the consent, as set out in the new clause. In the light of that, I beg to ask leave to withdraw the motion.

Motion and clause, by leave, withdrawn.

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