§ 11.8 a.m.
§ Lord Rix
My Lords, I beg to move that this Bill be now read a second time.
First, I must declare my long-standing interest in the world of learning disability as the president of Mencap. The Bill seeks to improve the outdated laws governing sex offences with vulnerable adults, particularly people with a learning difficulty. Its message is that urgent reform is needed to protect them from abuse and exploitation. On several occasions, and in both Houses, the Government have declared their commitment to reviewing sex offences law, including better protection for vulnerable adults. Setting the Boundaries, the Government's own review of sex offences laws, which was published in 1999, received over 700 responses. However, three years have passed and we are still no closer to legislation.
The risks to children of sexual abuse are better understood and better protected then ever before. Noble Lords will agree that horrific cases of child sex abuse, such as the case of Sarah Payne, struck a chord with millions of parents throughout the country. Everyone has been moved by the courage and dignity of Mr and Mrs Payne. We all share their determination to ensure that something positive comes of such a tragedy and that their daughter's death was not in vain. I am pleased that the Home Secretary, David Blunkett, announced further measures to protect children from sexual abuse at the Labour Party conference only last week.
In contrast, much less is known or written about the vulnerability of people with a learning disability to crime and sexual abuse However, the extent and nature of such sexual abuse is disturbing. Behind Closed Doors, published in 2001 by Mencap, Respond and Voice UK—which all support this Bill—also highlights the type and extent of sexual abuse experienced by adults with a learning disability and how poorly the current law serves them. The law offers only limited protection and is not an effective deterrent to abusers. New legislation is urgently needed to protect people with a learning disability and to increase the chances of conviction.
Figures show that incidences of sexual abuse may be as much as four times higher for people with a learning disability than for the rest of the population. There are an estimated 1,400 cases in each year, yet only 1 per cent of those reach conviction. Many cases—many more than 1,400—go unreported. The human suffering behind this statistic cannot be ignored. Respond, the country's leading provider of therapy and counselling to people with a learning disability who have been sexually abused, took more than 1,000 calls this past year from people with a learning disability, their parents and carers. The effects of abuse in all these cases have been catastrophic and long lasting. The experience of sexual abuse is difficult enough for people without a learning disability to recover from, but if one has a learning disability the 553 process of recovery is a far slower and more painful one. They may become clinically depressed, develop eating disorders and end up harming others.
In addition to how best we can protect people with learning disabilities from abuse, we must also consider how best we can help them. The national provision of counselling and therapeutic services for people with a learning disability is extremely poor. It is an alarming fact that mainstream counselling services do not possess the expertise to offer specialist support. Nor do they receive sufficient funding to offer counselling to that vulnerable group. Thus, many a learning disabled person is turned away. Frankly, people with a learning disability are doubly discriminated against.
That claim is supported by Voice UK, a voluntary organisation that provides a telephone support service for victims and their parents. Voice UK agrees that local authorities do not have the finance to pay for specialist counselling. In one case, a local authority paid for the assessment but did not have the money to pay for the counselling recommended by the assessment. That aspect will not require legislation, but I seek assurances from the Minister that he will review availability of resources to ensure that people with a learning disability have the right support. I look forward to hearing his response.
It is also worth reflecting on the reasons behind the unique vulnerability of such people to abuse. Someone who has a substantial learning disability—who has problems with communication, who is not streetwise and whose experiences have not given him or her a strong sense of their own worth—is at particular risk of abuse, especially by those on whom he or she depends. The vulnerability that brings abuse also brings an enhanced risk of the abuse not being reported, not being detected, and, if reported, then frankly not being believed.
Let us consider also the distress that may follow if a case is successfully prosecuted and comes to court. To give evidence is an ordeal for many people who have suffered personal trauma, who find that the right words do not come easily, and are intimidated rather than supported by court routines, to the point of wondering whether they are the victim or are themselves in the dock. Imagine what it is like for an adult with a learning disability who has been sexually assaulted to have to give that evidence in court. Then reflect on what it means to have to relive the experience and then not to be believed at the end of it. The disturbing and horrific cases of abuse bring home the need for extra support for vulnerable witnesses. I hope that the important measures in Speaking up for Justice will help them to regain their confidence in the judicial system and, with the right support, encourage more people with a learning disability to come forward.
I turn to the detail of the Bill. Clause 1 makes it a criminal offence for a person to have sexual relations with an adult who lacks the capacity to consent to them. The intention is to give absolute protection to those who cannot consent to sexual relations. In the case of sexual intercourse, a person will be liable to a maximum term of life imprisonment—which is only 554 equivalent to the current maximum possible sentence for rape—and in the case of sexual activity, a person will be liable to a term of imprisonment not exceeding 10 years.
The current law—the Sexual Offences Act 1956—forbids intercourse with a person who is termed "a mental defective". Subsequent Acts have in no way improved the situation. Frankly, that is demeaning for vulnerable adults and may involve the victims coming to court to test their abilities, effectively putting victims on trial. There have been few prosecutions under the Act and even when they have been successful, the maximum sentence has been no more than two years.
Currently, the law does not classify who can and cannot consent to sexual relations. Subsections (3) and (4) of Clause 1 set out a new test of capacity to consent to clarify whether someone is capable of entering a sexual relationship. It draws on the Law Commission's statutory definition of capacity to consent and the proposed definitions set out in the joint British Medical Association and Law Society proposals. Those proposals, backed by Mencap, are based on the principle that an individual would need to understand the basic elements of sexual behaviour and be able to distinguish that sex is different from non-sexual or medical contact. They should also understand that sex can have foreseeable consequences, such as pregnancy or sexually transmitted disease. If they cannot meet those criteria, they are unlikely to be able to consent to sexual relationships.
Clause 2 seeks to ensure that those who owe a vulnerable adult a duty of care should not enter into a sexual relation with that adult. Care workers are entrusted with work of an intimate nature. The overwhelming majority of them are skilled and have an extraordinary commitment to their work. However, too many cases of abuse are still committed by care workers, and abusers often seek employment in intimate caring roles. The current law prohibits sexual relations between teachers and pupils because of the abuse of trust involved. The Bill will criminalise inappropriate relationships between care workers and those who are cared for—in all aspects of care. In the case of sexual intercourse, a person would be liable to a maximum term of life imprisonment and in the case of sexual activity, to a term of imprisonment not exceeding 10 years.
Clause 3 makes it an offence to procure sexual relations with a person with a mental disability. The aim is to provide wider protection to people with a learning disability living in the community. One problem is that people with a learning disability may lack the kind of social functioning that other people take for granted. The average person may dismiss threats such as, "I'll tell your parents if you don't do what I say", but a person with a learning disability may feel genuinely threatened by such an approach. There should be a specific offence to cover such deliberate targeting and pressurising into having sex.
I and all of these organisations respect the right of all consenting adults to have sex, and that includes those with a learning disability. Many people with a 555 learning disability have successful relationships, and many are successful parents. However, it is important that we make sure that people are not pressurised and that those who cannot consent should be safeguarded from abuse. It is clear that the law does not provide people with a learning disability with sufficient protection from sexual exploitation.
I hope that the Government will support the principle behind the Bill. What we really need are specific dates for action. If the Minister can give a guarantee that the Government will introduce a Bill on similar lines or address all our major concerns in a more comprehensive Bill, that would provide significant reassurance to me, to your Lordships' House and, most importantly, to people with a learning disability, their families and their carers. I commend the Bill to the House.
§ Moved, That the Bill be now read a second time.—(Lord Rix.)
§ 11.21 a.m.
§ Lord Carter
My Lords, I congratulate the noble Lord, Lord Rix, on introducing the Bill. As we know, it deals with an extraordinarily sensitive subject and relates to some of the most vulnerable people in society. The noble Lord explained the Bill well, and there is no need to go into great detail on the clauses.
People with a learning disability are at greater risk of sexual abuse or exploitation than the rest of the population. Their condition seems to attract a certain sort of sexual predator. People with learning disabilities trust and rely on those who care for them or befriend them. They are anxious to please them and can be groomed for abuse. As we heard from the noble Lord, Lord Rix, they can be threatened with hints that there will be complaints to their parents or to others in authority, if they do not submit.
It seems extraordinary that there is no legal framework to protect people in such a situation. I ask my noble and learned friend whether it is correct that obtaining sex through the deception of learning disabled people is not, in itself, an offence. There is, of course, the difficulty associated with obtaining evidence from a learning disabled person that would be acceptable in court. I shall return to that point; I am not sure that the Bill deals fully with that problem. The Bill attempts to deal with the problem by defining the offence and defining what constitutes a lack of capacity for informed consent. It also deals with the duty of care taken on by those responsible for learning disabled people.
Only yesterday, I spoke to a solicitor, Mr Paul Bacon, who has a great deal of experience in the field. He asked me, in particular, to draw the House's attention to the position of a learning disabled person when a case is brought but fails. He said that that had an enormously detrimental effect on the learning disabled person and could completely destroy their trust in those who care for them.
I can give an example of how the mind of the Government can be changed on the subject of disability. The noble Lord, Lord Rix, may find it 556 encouraging. We know that it is almost unknown for Private Members' Bills that start in the House of Lords to make any progress in the other place without the backing of the Government. For 10 years, I was Opposition Front Bench spokesman on disability. In almost every Session, there was a Private Members' Bill on disability discrimination. My noble friend Lord Ashley of Stoke introduced more than one; I introduced one; and other noble Lords did the same.
We always received the same answer from the Dispatch Box, which was that education and persuasion were better than legislation. Eventually, however, there came the Disability Discrimination Act 1995.I pay full tribute to William Hague, the Minister who introduced it. I understand that he had to do some hard debating inside the government before the Bill was introduced. As we know, the present Government have built on that foundation. Perhaps, not all the time that we spent on Private Members' Bills on the subject was wasted. I hope that it will not take 10 years in this case.
I shall conclude with another example—not a Private Members' Bill—of something that was done on the subject of learning disabled people. In the late 1980s, I was involved in the production of an ITV documentary concerning the position of learning disabled people who were unfit to plead but who had been charged with a crime. At the time, there was a dreadful case involving a learning disabled daughter, who, after lengthy interrogation by the police, pleaded guilty to the murder of her parent. She was simply anxious to please. The eventual trial showed that she could not have committed the murder.
The campaign that followed the documentary resulted in the passing of the Criminal Procedure (Insanity and Unfitness to Plead) Act 1991. In that case, the Government were able to work on the law to cover the position of a learning disabled person charged with a crime. With this Bill, we are considering the position of a learning disabled person who is the victim and a witness. I say to the Minister that, if it was possible to deal with the first situation, it should be possible also to deal with the obverse situation, in which the learning disabled person is victim and witness.
I hope that the Government will reflect on today's debate and make proposals to deal with such a serious matter. The matter affects some of the most vulnerable people in our society.
§ 11.27 a.m.
§ Lord Astor of Hever
My Lords, I thank the noble Lord, Lord Rix, for introducing the Bill and explaining his objectives so clearly. As president of Mencap, he works tirelessly for those with learning difficulties. As the noble Lord, Lord Carter, said, they are among the most vulnerable in society. It is an important issue, in which, as the father of an autistic daughter, I have a personal interest. I shall concentrate solely on autism-specific needs. The law relating to sexual offences is urgently in need of reform, both in terms of providing a proper deterrent to offenders and 557 protection for people with a learning disability and in terms of handing out punishments that reflect the crime.
Negative assumptions are often made about the ability of a person with a learning disability to give evidence. As a consequence, evidence offered by people with disabilities has frequently been discounted. However, people with autism spectrum disorders may have an excellent eye for detail and are unlikely to fabricate evidence or give false testimony. However, the adversarial nature of the court acts as a barrier to the delivery of justice. Giving evidence can be an ordeal for many people who have suffered personal trauma. They find that the right words do not come easily, and they are intimidated, rather than supported, by court routines.
In 1998, the Government published a report called Speaking Up for Justice, which included measures allowing an approved intermediary to help a witness to communicate. We now need a commitment to make the new intermediaries available to all witnesses and victims with autism spectrum disorders and people with a learning disability who wish to have their services. Are the Government committed to extending the intermediary service for those who request it?
There are approximately 500,000 people with autism spectrum disorders in this country. Although some adults are looked after by their parents, many are cared for by care staff and support workers, at least some of the time. A National Autistic Society survey found that more than 30 per cent of adults with autism live in a residential setting. All adults with autism will have social and communication impairments that render them vulnerable to abuse. Therefore this group represents a significant number of those needing protection under this Bill.
The nature of autism, as a "hidden" disability, means that people on the spectrum may be perceived as being "normal" and find their impairments ignored—I can certainly vouch for that with my own daughter. They are open to exploitation and may not be able to communicate or understand that they are being abused. People at the lower functioning end of the spectrum may not be able to speak at all, which leaves them particularly vulnerable.
However, those with higher-functioning autism, or Asperger syndrome, are in danger of being ignored because they do not fit under the neat title of "learning disability" and could be, inaccurately, assumed to be able to deal with relationships and therefore unlikely to be exploited.
The terminology of "mental disability" used in the Bill must be inclusive of all people with autism spectrum disorders. The definition of learning disability in Valuing People does not include those with higher-functioning autism or Asperger syndrome. The Bill must not exclude those who have an average, or above average IQ, but are nevertheless vulnerable due to their social and communication impairments.
558 In order fully to protect people on the autism spectrum, I hope that the Bill will be accompanied by generic mental incapacity legislation that sets out a functional test of capacity to consent. This must not focus exclusively on intelligence, but also on the social understanding required to consent to sexual relations. Capacity tests need to take into account the complexity of the process of consent.
For example, a person with Asperger syndrome may be able to give consent in some situations, according to the mood or the environment, but not in others. Therefore legislation for mental capacity is essential but must be able to apply to a wide variety of disabilities and conditions.
In Clause 1(3) the Bill defines a person who lacks capacity to consent based on an inability by reason of a mental disability,to make a decision for himself on whether to consent".This is further defined in Clause 1(4) as an inability to understand,the nature and implications of the sexual relations, and…the reasonably foreseeable consequences".It would be particularly helpful if this clause was applied carefully and with consideration, as it is not the intention of this Bill to criminalise positive sexual relationships between people on the autism spectrum who can demonstrate an understanding of what sexual relations entail and their potential consequences.
I wholeheartedly support the principle, in Part 2, of criminalising any sexual relations between a care worker and a vulnerable adult in his or her care. The procurement of sexual relations with a person with a mental disability, Clause 3, should also be a criminal offence. Finally, I support the terms of imprisonment set out in the Bill as accurately reflecting the severity of the offences it introduces.
§ 11.35 a.m.
§ Lord Morris of Manchester
My Lords, for personal reasons well known to him, I am delighted to be following the noble Lord, Lord Astor of Hever, in this debate. No one is better qualified than him to speak on this important Bill.
There can hardly be an issue more deserving of our attention than that of seeking—as this Bill does—to end the hideous abuses of trust committed in care environments against some of the most vulnerable people in Britain today.
It is, of course, wholly characteristic of my friend, the noble Lord, Lord Rix, that this Bill is of his making. The whole House deeply respects him for his humanity and the constancy of his concern for those he works with such distinction to help.
In one case of which I have details, that of a young woman of 22 who was raped, sexually and physically abused for over a year by a male care worker, the judge ruled that she was not capable of giving evidence and dismissed the case.
Is that not, by any standards, very deeply disturbing? Can it possibly be right that so vulnerable a young woman should have to come to terms with the 559 appalling effects of abuse on that scale while offenders, even if they are punished, can be given the kind of sentence imposed for petty robbery? Never was it more essential to ensure that justice is seen to be done and that the sentencing framework acts as an effective deterrent to sex offenders—whether paid employees or volunteers—in what purport to be protected environments.
With all his customary eloquence the noble Lord, Lord Rix, has persuasively stated in detail the case for the Bill and I know my noble and learned friend Lord Falconer of Thoroton will want to respond for the Government as fully and positively as he can.
Meanwhile I conclude by thanking the BBC for its most helpful exposures of abuse—not least that at the Brompton Care Home in Kent—and congratulate Mencap on continuing its campaign to reform an outdated law that today so grievously piles handicap on handicap for people with learning disabilities.
§ 11.37 a.m.
§ Viscount Tenby
My Lords, perhaps I may begin by declaring an interest as chairman of trustees of a residential home for mentally handicapped and disabled ladies and also as a father whose eldest daughter comes within both these categories.
We should all be grateful to my noble friend Lord Rix for bringing to our attention the very disturbing anomalies which exist in the law in this area and for promoting a short and lucid Bill which would go a long way towards putting things right. Surely, no one has a greater record than he has in this particular field. Those of us involved in it never cease to be grateful to him for all his work.
We have already heard that Sections 6 and 7 of the Sexual Offences Act 1956 set out that to have sexual activity with a defective, presumably a mental defective—I digress for a moment in saying how far, praise be, we have come in the past 45 years in our descriptive techniques that it is almost as though one was reading something from the darker periods of the Middle Ages—is a criminal offence carrying a maximum penalty of two years. Compare that, if you will, with a maximum of life for an offender committing rape against someone who has a capacity to consent or not through reasoned judgment. I must add, in fairness, that although sentencing maxima are always used by the media to beef up their particular arguments of the day, in practice sentencing, especially for this offence, is often seen by the public as being light and inconsistent more than anything else. Be that as it may, the fact is that under present arrangements we are legally loading the dice against the most vulnerable in our society and it is not a minor concern. We have already heard that there may be some 1,400 new cases of rape or some other form of sexual abuse per year although, of course, owing to the particular circumstances of the offences and the victims themselves, many such will go unrecorded. So the figures are probably very much higher than that and, as we have also heard, the number of convictions are minuscule.
560 Even allowing for the practical difficulties where the plaintiff may be incapable of securing a successful prosecution, I ask the Government whether it is a remotely satisfactory state of affairs that someone who is most in need of our compassion and care can be denied those comforts at a time when they have perhaps been subjected to a traumatic experience of truly awful proportions?
I am aware of some of the current thinking in relation to those with learning disabilities—not least the current emphasis on individual empowerment so that such members of our society can lead as full a life as possible, including sexual activity where appropriate—but my own view, which is probably regarded in some circles as, how can I put it?—unreconstructed—is that the nature of sexual relations cannot be turned off and on at will like a tap without causing some emotional damage, particularly perhaps to women. But these are deep moral waters in which it is not the business of government to paddle.
We are not, however, dealing with empowerment in the Bill. It is important to emphasise that at the outset. The concern is solely that those with learning disabilities should receive the full protection of the law. I have already mentioned that the present 1956 law makes it an offence to commit an act of an indecent or sexual nature against a mental defective. So, arising from that, plaintiffs must go to court to be cross-examined to see whether or no they fit the description. In other words, having gone through what has probably been a terrible ordeal, they then have to be humiliated in open court to establish their credentials as mental defectives. One wonders at the levels of imagination and sensitivity of the drafters of the 1956 act. They would perhaps have been at home in some of the more unusual medieval courts.
I know that, regrettably, on occasions—only rarely of course—the law in matters of establishing fact likes to make mountains out of molehills. But, in the matter of establishing whether a plaintiff is fit to comprehend whether certain offences have been committed against his or her person, I would have thought it would have been comparatively straightforward. Certainly, speaking as a former magistrate, when someone was up before the Bench for, say, shoplifting, it would become apparent in very short order whether there were special circumstances with the defendant as to normality.
Setting the boundaries, the government paper of 1999 recommended that there should be a new specific offence relating to sexual attacks on vulnerable people with learning disorders, and the Bill seeks to follow this course. However, that particular document again falls into the trap inherent in the 1956 Act of seeking to create a difference in magnitude between an attack on a normal non-consenting party and an attack on someone who lacks the capacity to consent.
The Bill—and we are coming to the crux of the matter here—seeks to make such attacks bear a similar range of penalties to those on a normal person. Accordingly, I have one question only for the noble and learned Lord the Minister, but it is a critical one 561 in relation to the Bill: do the Government share, at least in principle, the aim of the Bill to level this particular playing field?
The Government of which the noble and learned Lord is a member have a good record of listening in matters of social concern. I am therefore looking forward to their proposals in relation to these matters. It may be an incorporation of the main points of this Bill in a new sexual offences Bill in the new Session, or giving the Bill a fair wind in the coming months, or some other acceptable formula. The one unacceptable option, however, would be to do nothing and to kick the proposals into the long grass. That would be a betrayal of all those innocent and frail members of our society who trustingly depend on us. We must not fail them.
§ 11.45 a.m.
§ Lord Ashley of Stoke
My Lords, I should like to add a few words to the many fine speeches that have been made. Speaking last from the Back Benches places me in a similar position to the noble Lord who, some time ago, after a long, tedious, repetitive debate, stood up and said, "My Lords, everything that can be said on this subject has been said, but not everyone has said it". I must try to avoid the repetition that is endemic in a situation where one is speaking last.
The first thing I want to do is to add my very warm congratulations to the noble Lord, Lord Rix. He made a fine speech, delivered as usual in his lovely, mellifluous voice. It was very persuasive. He and all of us are seeking to persuade the Government that the whole House is behind this Bill. We believe that it is very important because it seeks to protect people with learning disabilities, to deter offenders and to establish appropriate punishments for those who do offend.
The present provision would be laughable if it was not so tragic. Its inadequacy goes a long way towards explaining the figures given by the noble Lord, Lord Rix, and why sex abuse among disabled people is four times higher than among the rest of the population. Those are shocking figures by any standards. The fact that they concern vulnerable people means that successive governments have failed, time and time again, to protect these people.
Forcing these people, as the present law does—this was referred to by the noble Viscount, Lord Tenby, in his eloquent speech—to go to court to prove that they are defective is to force them practically to incriminate themselves because they label themselves as unreliable witnesses.
To describe the originators of this particular law as "medieval" was being rather kind and generous to them. A sentence of a mere two years for the equivalent of rape goes to show the failure of successive governments. The lack of definition of "capacity to consent" makes the task of the prosecuting authorities all the more difficult.
The omissions and inadequacies of the present law amount to a rogues' charter and must be swept away. This admirable Bill will do exactly that. By defining 562 offences, by establishing proper punishments for offenders and by providing better training within the criminal justice system, it sends a message which is loud and clear. It is long overdue. Again, I warmly congratulate the noble Lord, Lord Rix, and wish the Bill Godspeed.
§ 11.48 a.m.
§ Lord Addington
My Lords, the remarks of the noble Lord, Lord Ashley, summed up my thoughts on the debate. Any point I considered to be vaguely original has been covered by other noble Lords. However, I am in the position of being supposed to sum up and so I shall, very rapidly, make some concluding remarks.
There are absolutely no grounds for argument with Clause 2 of the Bill and beyond. Abuse of a position of trust by someone caring for a vulnerable person should invoke the same penalties as the abuse of a child. That is absolutely unarguable.
However, there is an area in Clause 1 of the Bill where we should tread carefully—I believe that the noble Lord, Lord Rix, has done so, but we need confirmation—and that concerns the question of consent and who can give it. I hope that the noble Lord, Lord Rix, and the Minister will be able to confirm that the decision on whether or not a person is capable of giving consent—if it is contested—will not be left to one person. I hope that that will be the case.
§ Lord Addington
My Lords, I thank the noble Lord for that confirmation. I hope that the Minister will be able to confirm that that will be the way forward in a decision of this nature.
It is a human right to have a consensual sex life—a point that we should not overlook. There is always a danger of becoming overly protective towards certain groups in society. It is a basic human right to be able to live your own life to the greatest extent that you are capable of—that was probably rather inelegantly expressed, but I hope that my sentiment was not misconstrued by anyone.
The noble Lord, Lord Carter, mentioned a further problem with the Bill; namely, bringing such a case to trial. I totally concur with him. Such problems will arise, and there will be ways forward. Major steps have been taken, for example, to stop the intimidating process in terms of children giving evidence in court. I hope that this will be taken on board. It is a problem that we should embrace. The fact that something is difficult does not mean that we should not attempt it; indeed, it must be done.
The principle is unanswerable: when someone has effectively committed rape, the capacity should exist to punish that person. I do not think there is any dispute about that. I could continue at considerable length but I should be repeating what has already been stated. 563 This is a further example of where we should seek to extend the rights of all disabled people. The comments of the noble Lord, Lord Astor, on this aspect were highly appropriate. I appreciate that the inspiration of the noble Lord, Lord Rix, may come principally from Mencap, but it should be borne in mind that other types of disability may need other approaches. We must bear that in mind. We must attempt to extend the rights of disabled people and, where required, protection for disabled people in the outside world. The subject is difficult—it is multi-faceted—but we should not draw back from it. If this Bill does not make significant progress, I hope that the intentions behind it will soon be encompassed in law.
§ 11.52 a.m.
§ Baroness Anelay of St Johns
My Lords, I, too, thank the noble Lord, Lord Rix, for introducing the Bill, and for explaining in so authoritative a manner why it is important to accord the protections he described to a variety of people with mental impairment. As always, his presentation was very persuasive.
It is a legitimate use of a Private Member's Bill to call the Government to account with regard to the delay in bringing forward their proposals, which were the subject of consultation some two years ago in the document, Setting the Boundaries. I join the noble Lord in asking the Government what their timetable will be in bringing forward those proposals.
We all hope that a government Bill on this subject will be before the House soon. In the light of that—and of the fact that this Bill is unlikely to progress to Committee stage or beyond as we are so near to the end of the Session—I thought it important to pay more attention to the contents of the Bill than one might have the luxury of doing in the normal course of a debate on a Private Member's Bill on a Friday.
It is important that we get the proposals on this issue right, within the context of a wider review of the reform of legislation on sexual offences. I can say straightaway that they will not be the subject of partisan political debate. That is not to say that we shall agree one-hundred per cent with everything that the Government are likely to include in a White Paper. We shall need to give their proposals proper parliamentary scrutiny. If the Government are misguided, we shall not be afraid to say so. But I certainly hope that we shall be in agreement with the principles set out in the Bill and that we shall be able to agree as regards their practical implementation.
I believe that all support the argument advanced earlier that clear and coherent legislation is required to protect children and vulnerable adults from abuse and exploitation and to ensure that abusers are appropriately punished.
The Bill exposes the underlying tensions in the current criminal law. On the one hand, there is a need to protect the most vulnerable people in society; on the other, we need to protect citizens against unjust conviction and punishment. A balance has to be struck. The question, as ever, is how to find the right 564 balance. When we consider the imposition of a severe penalty such as life imprisonment for a strict liability offence, we should always take one step back and think even more carefully before we proceed as legislators to enact such provisions.
The key issues to be considered in relation to the Bill are complex. The noble Lord, Lord Addington, referred to the European Convention on Human Rights and to the universal right to a private life. We have to have regard to Article 8 stating that everyone has a right to respect as regards his private and family life. We need to achieve a balance between the right of the individual to sexual autonomy and a private life and, on the other hand, the duty of any society to protect vulnerable people from abuse by those who wish to exploit them. I should be grateful if the Minister and the noble Lord, Lord Rix, can explain how they believe that the provisions of this Bill affect the right of vulnerable people under Article 8.
We have heard a persuasive explanation of how the current law is failing. We shall have to look into the detail of that when the Government present their own Bill. Setting the Boundaries recommended that when vulnerable people do not consent to sex, charges of rape and sexual assault by penetration can and should be used where possible. However, it noted that these offences rely on proof of consent. The noble Lord, Lord Rix, and others have carefully addressed that point. This could be particularly difficult for vulnerable people. Some may not have sufficient ability, knowledge and understanding to be able to consent to sex. The report properly discussed how the law could define capacity for consent as regards very vulnerable people.
The proposals in the Bill make it essential that we arrive at an objective and reasonable test of what constitutes incapacity to consent. The danger if we get that wrong is that the police could be deterred from charging an alleged offender or that a jury could be deterred from convicting an offender.
In the definition of incapacity to make a decision in Clause 1(4), the Bill follows the recommendations of the Law Commission in its paper, Consent in Sex Offences—a definition accepted by the Government in their document, Setting the Boundaries.
Subsections (2) and (4) of Clause 1 also adopt the review's approach of applying the test of capacity only to the most severely disabled people, rather as the definition of "defective" does in present law. Therefore, I was intrigued to note the provision in Clause 1(3)(b) that the intention is to protect people who are able to make a decision about consent but unable to communicate their lack of consent. I find that an interesting proposal. I listened with great care to the remarks of my noble friend Lord Astor of Hever with regard to those who have autism spectrum disorders. He is an expert in these matters. From long experience, I know that I shall have to listen to him carefully when we debate a sexual offences Bill.
If we have the luxury of a Committee stage on this Bill, we shall need to consider in some detail the problems raised by the drafting of Clause 1. We shall 565 want a definition of "material time" in Clause 1(3). We shall need to resolve what appears to be the circular reasoning of Clause 1(4)—whereby a person who is unable to make a decision is apparently defined as "a person who is unable to make a decision".
As a result of the provisions of Clause 1, we are faced with the problems that flow from introducing a specific offence of strict liability, where the defendant cannot claim any defence. How do we protect a person who has sexual relations with someone whose vulnerability is not in doubt but does not know, and could not be expected to know, that the victim has a severe disability? The noble Lord, Lord Rix, referred to a team arriving at an appropriate definition in individual cases; but there will be a problem for the individual in terms of knowing whether the person falls into that category.
We need to address the position of a person who "lacks capacity to consent" but who is engaged in a non-exploitative sexual relationship. That must be considered in relation to the Bill. How can we protect such people against prosecution? To be specific—I am not a lawyer; this is simply a practical question—will persons who lack the capacity to consent to sexual relations find themselves liable to prosecution under Clause 1 if they engage in sexual activity with another person who lacks the capacity to consent to sexual relations? That conundrum has to be resolved. I note that in Consent in Sex Offences the Law Commission stated:Should Parliament choose to recognise that lawful sexual activity may take place between a person who lacks capacity to consent due to mental disability and one who does not, a limited exemption to criminal liability will be needed".The government report Setting the Boundaries noted the Law Commission's recommendations and agreed with its suggested principle that when neither person had capacity there should be criminal culpability only where there was evidence of abuse or exploitation. This Bill does not follow that course, and I wonder why that is the case.
I appreciate that in the event of a conviction the judge could decide whether the offence was not so serious as to warrant a custodial sentence. Is that really a good enough reason for exposing an individual to an absolute offence and a criminal record? We will have to address that very sensitive question when the government Bill is brought forward.
The Bill addresses very properly the important issue of abuse of trust, which worries all noble Lords. Clause 2 raises complex problems regarding the impact of the offence of abuse of trust and the definition of vulnerability, together with serious questions about its potential impact on care services. The consideration of a person's position of trust in connection with sexual offences legislation is not itself new. The government review was not convinced that the present regime of good practice and the professional code were adequate to provide protection. It did see a strong case for the law to reflect the serious abuse of the implicit relationship of trust between vulnerable people and those who provide medical, therapeutic or intimate 566 care services to them. I hope that the Minister can confirm today that that is still the Government's position.
Clause 2 covers a much wider group of people with disabilities than Clause 1, including those with the capacity to consent to sexual activity. I would be grateful if the Minister and the noble Lord, Lord Rix, can explain whether Clause 2(3) covers volunteers who offer their services in residential care or nursing homes, hospitals or the personal home of an individual who is receiving care. Do they believe that volunteers should be so covered? I heard the noble Lord, Lord Rix, say that all aspects of care would be covered, but I ask whether volunteers in particular are covered.
The Government's report recommended that there should be offences of breach of relationship of care, which would include actions by unpaid persons. However, that does not seem to have been translated very carefully into Clause 2.I would be grateful if the Minister and the noble Lord, Lord Rix, can explain whether the definition of a vulnerable adult in Clause 2(4) covers people who will be required to be resident in accommodation centres that the Government plan to set up to process the applications of asylum seekers. If not, do they intend that those persons should be so covered?
Is Clause 3 intended to cover cases where people in a position of trust who are not themselves committing an offence as defined in Clause 2 nevertheless facilitate sexual activity between a disabled person and somebody else who is not in a position of trust, and who is unpaid? The noble Lord, Lord Rix, referred to grooming, as did other noble Lords. However, there are people who, without any payment, facilitate contact between disabled people and others in the knowledge that they will be abused.
The problem remains that whatever the penalties for offences introduced by this Bill, in each individual case we are bolting the stable door when it is too late. It is important in this society that we prevent the commission of the offence in the first place, in addition to trying to follow the admirable example of the noble Lord, Lord Rix, of dealing with the offence appropriately when it has happened.
I am grateful to the noble Lord for giving us this opportunity to have a preliminary debate about this sensitive and complex issue. I certainly do not wish to make up my mind fully on the detail at this stage. I simply say that I agree wholeheartedly with the noble Lord's objectives in this Bill, and I hope that we can deal with them fairly speedily in a government Bill and that we can ensure that the people who need protection receive it very quickly.
§ 12.7 p.m.
§ The Minister of State, Home Office (Lord Falconer of Thoroton)
My Lords, I join everyone else in the debate in paying tribute to the noble Lord, Lord Rix, for introducing this Bill, for his work with Mencap, and the work that he has done for years and years in championing the vulnerable people that this Bill seeks to help. Everyone in the House will wish to pay tribute to the noble Lord in that respect.
567 The debate has been incredibly powerful and moving, and it can be divided into two stages. First, has the case for reform been made? It has been emphatically made in the most powerful way imaginable. Secondly, what do we do about it now? That is the critical question. On the first issue, the details of the case, it reiterates that the Government support the following propositions. Vulnerable people with learning disabilities are particularly susceptible to certain sorts of abuse, including sexual abuse. The size of the problem is both unknown and hidden. The current law is patently inadequate to deal with it. It is not simply a question of the detail of the substantive law; it is also one of how the law acts in practice. The noble Viscount, Lord Tenby, my noble friend Lord Carter, and the noble Lords, Lord Rix, Lord Astor of Hever, and Lord Morris, all made the point about the process and its effect on people who must go through it. I endorse and agree entirely with the point by the noble Viscount, Lord Tenby, that both the form of the law and its jargon are straight from the Middle Ages. The law is offensive and degrading, not just in how it is expressed but in what it requires people to do—for example, going to court and, using the jargon of the current law, proving that they are a defective, which is humiliating and degrading.
The substantive law and how it works in practice must be changed. We did not set up the sex offences review solely to deal with the problem but it was intended in part to do so because we recognise that the whole law on sexual offences, including this aspect, is out of date. One of the principal themes of the review was to identify legislation that would better protect children and the more vulnerable. Noble Lords throughout the House referred to the report of the review, Setting the Boundaries, which is a report to the Government. It proposed a range of offences designed to achieve this across the board. It also recognised the importance of addressing the specific need to protect people with a mental disability, including learning disabilities.
We also welcomed the report produced by Mencap and others entitled Behind Closed Doors. We were pleased to note that it reinforced the recommendations made in Setting the Boundaries.
The noble Lord, Lord Rix, raised a specific point about counselling and support for people who find themselves in difficulties, rather than about the substance of the law. He will know that the Department of Health launched guidance entitled No Secrets on 20th March 2000 under Section 7 of the Local Authority Social Services Act 1970. No Secrets deals with developing and implementing multi-agency policies and procedures to protect vulnerable adults from abuse. Multi-agency codes of practice had to be implemented by 31st October 2001. The guidance was drafted by a steering group funded and led by the Department of Health, which included representatives from the Home Office, the Wales Office, the police, social services, health and the voluntary sector. I have answered on the process, which represents a cross-government commitment to dealing with the problem.
568 The noble Lord also said that there was insufficient funding for counselling and support services for people with learning disabilities. There have been substantial increases in the level of funding provided for social services in recent years. He referred in particular to the agony of a care assessment being done by a local authority, but the authority then not having the funding to put in place the conclusions of that assessment. When a care assessment has been undertaken, the local authority has a duty to provide the service. Incidents of the kind that the noble Lord mentioned should never have happened.
The Department of Health has funded Voice UK for the past 10 years and has funded Respond for the past 8 years to support people with learning disabilities and their families who have been victims of abuse. I hope that that goes some of the way to dealing with the point that the noble Lord, Lord Rix, made about help and assistance in practice.
The Bill deals with the criminal justice system. An underlying theme of the debate was that people with learning disabilities have just as much right to justice as those who do not have such disabilities. I agree. We need to put that into practice. We share the noble Lord's concern that the criminal justice system should enable victims of offences who have learning difficulties to get justice. It must be highly traumatic for an adult with learning difficulties to have to speak in a court full of strangers about the sexual abuse that they have suffered.
I am grateful for the widespread support for the principles in Speaking up for Justice. We are committed to putting that into practice. As noble Lords will know, from 24th July 2002, a range of measures has been phased in to improve the treatment of vulnerable or intimidated witnesses. The measures will benefit both children and adults. They include special measures in court, such as screens around the witness box, television links, video-recorded evidence, clearing the public gallery and—a point made specifically by the noble Lord, Lord Astor or Hever—assistance with communication, including the use of intermediaries. In his powerful speech, the noble Lord effectively said that we should commit ourselves to being serious about that. We must recognise that it is very important for vulnerable people giving evidence. We have committed ourselves to that and have started to roll it out as much as possible. It is incredibly important to make the process easier.
We have already taken other measures. For example, for people suffering from Alzheimer's who are the victims of sexual or other abuse the process of going to court is a nightmare. The courts now accept that a video taken of the victim at the outset can be played in court without the need for the victim to go to court. We need to put that sort of policy into effect.
The law on competence is also being changed. From July a person who is unable to understand the implications of taking the oath will be allowed to give unsworn evidence provided they can understand the questions asked of them in court and can answer in a way that can be understood. These provisions will 569 enable some of the most vulnerable people in society, including those who suffer from a mental or physical disorder or who have a disability or impairment that is likely to affect their evidence, to give evidence for the first time. That builds on the earlier introduction of provisions protecting victims in rape cases.
The Bill's first specific proposal is that it should be a criminal offence to have sexual relations with a person who lacks the capacity to consent to sexual relations. Setting the Boundaries proposed a very similar offence.
Secondly, the Bill sets out a new test of capacity to consent to sexual relations based on principles relating to understanding the basic elements of sexual behaviour and the reasonably foreseeable consequences of it. Setting the Boundaries recommended incorporation into the law of a definition of the capacity to consent to sexual relations, with reference to a definition proposed by the Law Commission, to which the noble Baroness, Lady Anelay, referred. This definition contains key elements that are consistent with those proposed by the Bill. The Bill would criminalise those providing particular forms of care for individuals with learning disabilities who engage in sexual activity with them. Setting the Boundaries proposed a very similar offence.
Part 3 contains an offence of procuring sexual relations with a person with a mental disability. My noble friend Lord Carter made the point about the susceptibility and suggestibility of people with a learning disability to threats and inducements that might not look threatening in other circumstances. He rightly asked whether it is right that the framework of the law does not adequately deal with that. The law does not deal with the issue adequately, because it focuses too much on the concept of vitiating consent, which is a difficult concept to deal with in this context. Setting the Boundaries proposed an offence of obtaining sex with a mentally impaired person by threat or deception to address the deliberate targeting and pressurising of people with learning disabilities into having sex.
I trust that my comments show that the matters covered by the Bill and the serious issues underlying them have already been brought to our attention by the recommendations in Setting the Boundaries. The noble Viscount, Lord Tenby, asked a direct question that goes to the heart of the debate: do the Government share the Bill's aims in levelling the playing field to provide proper protection for mentally impaired people? The answer is, "Most certainly, yes". Of course we can disagree about the precise detail of how it may be done and many of the questions that the noble Baroness, Lady Anelay, asked in her helpful and powerful speech need to be addressed and answered. However, I say unhesitatingly that we support the aims of the Bill and that we understand the urgent need to deal as quickly as possible with the problems that the Bill is intended to address.
Not wishing to let the Government off the hook, the noble Viscount went on to say that doing nothing is not an option. We agree. He said that the one thing we must not do is kick the problem into the long grass. Again, I entirely agree.
570 However, I hope that what I have said shows that we are thinking along the same lines as the Bill. We have been considering the large number of responses to the period of public consultation on these and the other offences proposed in Setting the Boundaries. My right honourable friend the Home Secretary has announced that we will publish our plans to reform sex offences, including the offences that deal with the issues that we have been talking about today, later this autumn. My right honourable friend confirmed that in a PQ in June. We shall introduce legislation as soon as parliamentary time allows. I notice my noble friend Lord Carter looking at me. He will have heard that phrase many times and knows that it could mean tomorrow or some time in a future in which none of us will participate. For the reasons that the noble Baroness, Lady Anelay, gave, I am not in a position to give a precise time by which we will do it, I assure the House that the issue will be dealt with urgently. We recognise the urgency of it. The House can hold me to account if it is not dealt with within a time that the House finds satisfactory.
In the light of our intention to introduce reform of the law on sexual offences, the Government do not believe that it is prudent to take forward the measures proposed in the Bill at this time. They introduce piecemeal change when we believe that comprehensive change is needed to deliver the outcomes that the noble Lord seeks. Some matters, such as the proposed definition of the capacity to consent to sexual activity, have particular relevance to those with learning disabilities, but also have broader significance. The framework of laws on sexual offences needs to be considered as a whole for the sake of ensuring their coherence, leaving no gaps that abusers could exploit and enabling appropriate punishments to reflect the nature and severity of the harm caused.
I repeat my assurance to the noble Lord and all those who have spoken that the case for providing better protection is overwhelming and its urgency is accepted. The ways in which we must deal with this are to be set out in the answer given in November. We are committed to taking action on the issue.
I have not answered every question raised. In particular I have not dealt with the penetrating questions raised by the noble Baroness, Lady Anelay, on the precise legal consequences of the Bill, partly because many of the questions were too difficult and partly because it may not be appropriate to go through the detail of the Bill at this stage.
I shall pick up a few points to finish. I entirely agree with my noble friend Lord Carter that the sorts of learning disabilities that we are talking about attract a certain sort of predator. That is why action is urgent. He also made the point about it being a "both ways" problem: both in relation to being the victim and in relation to being over-persuaded into admitting things that are not appropriate. We need to examine that issue as well.
The noble Lord, Lord Astor of Hever, dealt with the particular problems of people suffering from autism. I entirely agree with that point. He also mentioned the 571 inappropriateness of the adversarial nature of court in dealing with these types of matters. Again we agree. That is why the measures introduced on 24th July seek to some extent to address that issue.
The noble Lord, Lord Astor, also made the point that we have to address the issue as a generic mental health issue rather than as one based solely on intelligence level. We entirely agree with that.
My noble friend Lord Morris of Manchester raised the issue not only of the ability to give evidence but of the fact that in many cases there is a very long history of abuse that never comes to light. I agree with that. He also raised the issue, as did a number of noble Lords, of the importance of sentencing in this sphere.
One of the points that comes out loud and clear is that current law downgrades the crime by the sentences passed, treating it as less important than other types of crime in this sphere. That point is germane to the one made by the noble Viscount, Lord Tenby, about levelling the playing field. I very much agree with him. I think that I have already dealt with most of the other points made by the noble Viscount, Lord Tenby.
The noble Lord, Lord Ashley of Stoke, made the point—with which I entirely agree—that the current position is laughable. He also referred to the inadequacy of sentences and put his very considerable weight behind the required reform.
The noble Lord, Lord Addington, very modestly said that he supported all that had been said. As I said, I have ducked most of the questions asked by the noble Baroness. Lady Anelay. I hope that, in the light of what I have said, the noble Lord, Lord Rix—in hearing the enthusiastic report that we give—will consider whether the right thing to do is to wait for the wider Bill.
§ 12.22 p.m.
§ Lord Rix
My Lords, I am most grateful to all your Lordships for turning up on this Friday morning and being so eloquent, thoughtful, and indeed thought-provoking. You have all contributed to a wonderful debate on the Second Reading of this Bill, and you have offered many practical suggestions on how the clauses could be implemented or improved. I agree entirely with the noble Lord, Lord Astor, that there is a need to protect all vulnerable adults and not only those with a learning disability. However, I am sure that that will be made quite clear in any future legislation.
The noble Baroness, Lady Anelay, made many points and asked many questions. So I hope that she will allow me to hide under the Minister's skirts, as it were, and perhaps to respond—in that well-worn phrase—in writing. However, as the Bill is likely to be subsumed into a larger Bill, I think that the questions will be more appropriately addressed to the government of the time.
I am extremely grateful to the Minister for his comments on the issue of specialist counselling services. No doubt Mencap will be able to follow up his advice.
572 I also welcome the Minister's commitments on this matter as a priority for the Government, and his assurance that all concerns voiced today will be dealt with in a more comprehensive Bill—which I think is probably correct—concerning sexual offences. I only hope that the Government do introduce this more comprehensive Bill, perhaps in the gracious Speech, including all the salient points in today's Bill, and then proceed to pass that legislation without further delay. However, I am sure that the Minister will forgive me if I still regard this Bill as a safeguard measure if the government legislation is not forthcoming. I am sure that noble Lords in the Chamber would encourage me in that.
My Lords, you have all given us a great deal of hope today that a dreadful wrong in the justice system is soon to be put right, and I am in your debt. I commend the Bill to the House and invite the House to give it a Second Reading.
§ On Question, Bill read a second time, and committed to a Committee of the Whole House.