Serious Crime Bill [HL]

Debate between Baroness Hamwee and Lord Bishop of Rochester

Tuesday 28th October 2014 Lords Chamber

[The Lord Bishop of Rochester]

My Lords, I hesitate slightly, as a male religious leader, to speak in your Lordships’ debate on this matter, but it may be important that I do so. I also hesitate to plunge into the legal niceties that have been raised so clearly by those with more knowledge of such matters. I added my name to Amendment 44A largely because of a phrase in subsection (5) of proposed new Section 63T of the Family Law Act. It states that,

“it is immaterial whether she”,

that is, the girl or woman concerned,

“or any other person believes that the operation is required as a matter of custom or ritual”.

The context for that subsection is the possibility that an operation might be justified on the grounds of the physical or mental health of the person concerned and that wording makes it clear that custom and ritual cannot be used as support for such an argument.

We are rightly proud of our national values, whereby we respect and indeed treasure the richness of many and varied cultural and religious traditions, beliefs and practices within the life of our national society. But that proper respect for a wide range of such beliefs and practices does not mean that they are all either good or commendable. It is my view that in female genital mutilation we have a practice that we simply cannot condone, even when it is done out of respect for a particular cultural or religious tradition. FGM is at heart, as has already been graphically described, an act of violence and abuse. It is one that is often associated with control—sadly, male control over women. For somebody from my tradition, it is actually an interference with our human createdness in a way that carries no benefits for health or anything else. It is, indeed, the physical removal of the potential for sensual pleasure which is part of our human and sexual createdness. The Church of England’s marriage service, or at least its current version, speaks of the “joy” of bodily union. FGM removes that possibility. For that reason and others, I support this amendment and its intent. Whatever emerges from this debate, I hope that the reference to custom or ritual will remain within whatever emerges as an Act.

[Baroness Hamwee (LD)]

My Lords, I do not need to reiterate the feelings of abhorrence at the practice of FGM and the enormous number of girls and women who are affected by it. The right reverend Prelate has a very important role in this debate. He should not have hesitated to intervene.

I wish to address a couple of points before I speak to my amendments, which are minnows and just seek clarification. I agree very much with what the noble and learned Baroness said. As one who has been in the lower orders of the legal profession, I am impressed by the way in which members of the judiciary have specialised and gained expertise in a number of areas over the years. I hesitate to make my next remark, and should tug my forelock in doing so, but it is hugely important to ensure that certain members of the judiciary have considerable knowledge and experience of the areas in which they pass judgment. Practice and practical arrangements are also enormously important.

I do not want to argue that this amendment is better than that amendment. However, if there is to be further discussion, which I would never discourage—we talked about consultation on the previous amendment—let us not forget that it need not happen by Third Reading. If there is to be further consideration, it needs to be done well and carefully. The Bill has further stages to go through in the Commons. We are all accustomed to Members of the Commons saying on the record in Hansard, “Let’s send it to the Lords and let them sort it out”. On this occasion, there is time for sorting out to be done, if that needs to happen, before the Bill completes its passage through Parliament. As I say, it need not be done by Third Reading, which is not very far away. However, it is important to have something in the Bill on which any further consideration can build. Therefore, I suggest to the House that we should support the government amendments so that we have them as a basis.

As I said, my amendments are minnows. Nevertheless, I will speak to them. The first is Amendment 46C, which seeks to amend government Amendment 46B on anonymity. I seek to understand the import of “substantially” at line 23 of government Amendment 46B. My amendment suggests replacing “substantially” with “significantly”. It is obviously for the court to decide whether a defence would be prejudiced and to what extent it would be prejudiced. Are there any comparable provisions containing this sort of balance elsewhere in the criminal justice system, given the presumption of someone’s innocence until they are proved guilty? I also ask for confirmation that the restriction here applies on an appeal to a higher court.

My second amendment, Amendment 46D, is to the same amendment, dealing with the second condition in the court’s consideration, where it is provided that the effect would be to,

“impose a substantial and unreasonable restriction on the reporting of the proceedings”.

What might a substantial restriction be that is not an unreasonable restriction and why is the extent of the restriction relevant?

My third amendment is an amendment to Amendment 46E, which is the offence of failing to protect. Again, in order to probe, I am seeking to leave out from proposed new Section 3A(1) the words “under the age of 16” as describing a girl. Indeed, should it be “a girl” or “a girl or woman”? Does girl include a woman? I have not got the words quite right, but that is the import of the provision in the 2003 Act. Why 16? It may in practice be very rarely necessary to seek an order in respect of girls aged 16 and over, but it seems it is not completely irrelevant. The 2003 Act does not have that age limit on a girl and indeed provides for women to be covered as well.

In proposed new Section 3A(4) we are told that a person is responsible in one case where that person has parental responsibility and has frequent contact with the girl. Is frequent contact necessary and, indeed, is it appropriate? How frequent is frequent? I would guess that we expect case law to grow up around this, but I would be grateful for any comments that my noble friend might have. Does parental responsibility extend to care as under Section 3(5) of the Children Act? How does that definition of parental responsibility fit with proposed new Section 3A(5) where there has to be an assumption of responsibility for caring for a girl in the manner of a parent.

I hope that none of this is thought to be too pedantic and too picky. Like others, I am very keen to see these provisions work. If I have by chance lit on anything which needs more explanation than I have been able to apply to it in my own head, then it would be useful to have it on the record.