Serious Crime Bill [HL]

Baroness Smith of Basildon Excerpts

Wednesday 5th November 2014 Lords Chamber

[Baroness Butler-Sloss (CB)]

My Lords, there appears to be a gap in child protection for the reasons that the noble Baroness has just given. I do not want to repeat them because everything she said was entirely accurate and always worrying. One has only to look at the stories that we have been getting around the country, not of historical abuse but of current abuse and abuse in the recent past—not just in the north but in other parts of the country. Sexual communications and the opportunity to encourage children to behave in a way that they think that they are doing to their peer group, is something that really needs to be sorted. I am no expert in this area of criminal law but if this area is not covered, as I understand to be the case, it is a serious matter that should be covered. I therefore ask the Government to look again, whether by means of this amendment or amendment of other legislation. It is not a matter to push into the long grass; it is urgent. If it is not covered, then it is urgent to cover it.

Another matter arises when a child finds that an adult is involved. If, say, this is stopped and the child finds that they were communicating not with a friend but with a grown-up, the embarrassment and distress to the child of having shown a tantalising photograph of herself or himself—remember boys are also vulnerable —has led children to commit suicide.

[Baroness Smith of Basildon (Lab)]

My Lords, those who have a sexual, and therefore illegal, interest in children know the law. They know the gaps and complexities in the law and rely on them, given the difficulty and lack of clarity, to set themselves on a path that may not start with, but certainly ends in, abuse. After a typically thoughtful, understated and well argued case from my noble friend Lord Harris of Haringey, I was rather surprised that the Government did not bring back an amendment today, following the meeting with him.

However, today the point was made with absolute clarity across the House: there is a gap in the law; a point is missing. The noble Baroness, Lady Howarth of Breckland, referred to communications between young people. On Report, I referred to a case of which I was aware, in which an 11 year-old girl was communicating with someone she thought was another 11 year-old girl, and sharing the kind of confidences that 11 year-old girls share when embarking on and discovering their own sexuality. However, she found out later that it was a 30-plus year-old man who was communicating with her when the relationship was developed.

There clearly is a gap in the law, which needs to be changed. It needs to catch up with what is happening today. The noble and learned Baroness, Lady Butler-Sloss, and the noble Baroness, Lady Howarth, made the point that abuse is happening now and there is an opportunity here to make changes to the law and do something that will make a difference and protect children today, tomorrow and the day after. I am disappointed that we do not have a new government amendment before us, but I hope that either the amendment from my noble friend Lord Harris will be accepted or we will hear a commitment from the Government to bring something back that addresses this problem, as the noble and learned Baroness said, very quickly indeed.

--- Later in debate ---

[Baroness Williams of Trafford]

My Lords, these drafting amendments simply seek to split Clause 67, which, as amended on Report, now deals with two distinct, albeit related, issues; namely, the extension of the extraterritorial reach of the offences in the Female Genital Mutilation Act 2003 and conferring lifelong anonymity on the victims of FGM.

I look forward to hearing what the noble Baroness, Lady Smith, has to say about her amendment before responding to it. I also understand that the noble Baroness, Lady Meacher, would like to put on the record some further observations about her proposed new offence of encouragement of FGM. For now, I beg to move.

[Baroness Smith of Basildon]

My Lords, I am sorry not to hear further from the Minister about her amendments. We had a very helpful and productive debate on Report, where it was clear that your Lordships’ House was united in a desire to tackle FGM. The government amendment was welcomed, but it was agreed that the issues raised by our amendments, which I have again tabled today, were both valid and reasonable. There was no policy disagreement; the difference was one of approach and what would be most effective in achieving the aims that we all share.

The noble Lord, Lord Lester, emphasised the need to use civil law and family courts. The noble and learned Baroness, Lady Butler-Sloss, agreed with him and said:

“I would like to see what is good in each set of amendments put together”,

and expressed the hope that,

“the Opposition and the Government will get together … and thrash out what would be the best of everything and get that into one list that could go into Third Reading”.—[Official Report, 28/10/14; col. 1092.]

That explains why we have retabled our amendment here at Third Reading. We felt that the House would want to hear what progress we have made in those discussions.

There were two issues of difference between us and the Government. I say “difference” rather than “disagreement”, as the whole approach on this matter has been consensual. Our intention in tabling amendments is to ensure that the legislation, and its application, is the best it can be. That is why we sought advice not just on policy but from leading practising lawyers in this area. I put on record my thanks and appreciation to Kirsty Brimelow from Doughty Street Chambers and the Bar Human Rights Committee and Zimran Samuel from 42 Bedford Row Chambers. Their considerable practical experience and expertise have been of enormous assistance in understanding all the implications of the proposed legislation. We are grateful to them also for attending the meeting we had with the Minister and her officials. I am also grateful to Catherine Meredith of Doughty Street and Dexter Dias of Garden Court Chambers. I am not a lawyer, but I felt that I needed to be absolutely clear on the implications of the amendments before us—not just how they would be implemented in theory but how much difference they would make in practice. There is old saying: in theory, theory and practice are the same, but in practice they are often different.

As legislators, we must be concerned about practice— the very point made by the noble Lord, Lord Lester, and the noble and learned Baroness, Lady Butler-Sloss— when debating the use of civil law. There are two issues of difference, both relating to the Female Genital Mutilation Act 2003. We welcomed the Government’s support for our calls for FGM protection orders and were grateful to them for bringing forward their own amendment on Report. The issues of difference that merited further consideration were highlighted by the Bar Human Rights Committee, whose members proposed such an order in the first place and are experts in this area.

The first issue relates to where the orders sit in relation to civil and criminal law, and which Act the amendment relates to. It might seem just an academic argument, but if that were that case, I would not raise it today in your Lordships’ House. The 2003 FGM Act, which the government amendment seeks to amend, is a criminal statute and not necessarily familiar to family law practitioners. The Family Law Act 1996, on the other hand, is their first port of call. Forced marriage protection orders, which are used all the time in the family court, are in the Family Law Act and have been successful. Having FGM orders also in the Family Law Act would mean that they would sit beside and complement the existing regime for the protection of children in the Children Act 1989.

I appreciate that the Government’s proposal remains a civil order, but it is a civil order within criminal legislation. Those who are involved in family courts told us of the practical reasons why not all family court lawyers would know, understand or appreciate that they should also look to criminal law statutes for civil measures.

There is the issue of the deterrent factor for those whom we want to come forward, when a civil measure lies within criminal law. The difference may be understood by criminal lawyers or across the Dispatch Box in your Lordships’ House, but it is not necessarily understood by those whom the orders seek to protect.

I totally understand that from the Government’s point of view it makes policy sense to have all the legislation relating to FGM in one place. It sounds logical. But when those who will use this law, and who really care that we get it right, tell us that it could make application for and gaining of an FGM order harder and therefore less likely, I feel obliged to take their views and experience into account. What matters is what works in practice.

The second issue is about the definition. As I explained in Committee, the government amendment uses the definition in the 2003 Act. The Government believe, as was the intention when we reintroduced the legislation in 2003, that this covers reinfibulation. I am not going to test your Lordships’ House again with an exact explanation of what is involved. Last time, “Today in Parliament” put out a warning before I spoke, and gave the programme a G certificate, standing for guidance. I think that is the first time that that has happened, but it does convey some of the brutality and horror of what we are talking about.

The law was intended to include reinfibulation. Any definition or interpretation should include reinfibulation, which involves unnecessary and non-medical restitching to reclose the female genital mutilation following childbirth. However, the Bar Human Rights Committee and Doughty Street lawyers tell us that there is some misinterpretation. That is why we use the World Health Organization definition instead. That would ensure that our law is consistent with recognised international standards and understandings and clarifies any existing confusion around offending conduct such as reinfibulation.

I was reassured on Report by the willingness of Ministers to discuss this further and, as a result, I agreed to withdraw our amendments. The lawyers who advised us attended the meeting with the noble Baroness and her officials. We were looking forward to the meeting, and we were optimistic that we would make the kind of progress that the noble and learned Baroness, Lady Butler-Sloss, and others, had wanted us to make. However, I have to tell your Lordships’ House that we are very disappointed with the outcome. It appeared to us in that meeting that the Government were not prepared to take on board any of the points raised by us or, more importantly, by the barristers who deal with this issue on a regular basis. On the issue of definition the Government are now concerned that such clarification as we have called for could affect any existing or current cases. I am surprised that that was not mentioned on Report. That assessment is questioned, including by senior lawyers who we have spoken to. Perhaps the noble Baroness and I could pursue that at another time.

No one is suggesting that the law is wrong; there is a problem with interpretation. When the Royal College of Midwives and the Royal College of Obstetricians and Gynaecologists say that the definition does not include reinfibulation, that seems to me to be an excellent case for clarification. Despite the clear will of your Lordships’ House that such discussions should take place with the intention of ensuring that whatever was brought forward works well in practice, I deeply regret that I do not consider that we had productive discussions. The Government clearly have no intention of making any modifications or improvements in this area.

I do not intend to press the amendment to a vote. The government amendments are not wrong, but they could be better. We believe that this is a lost opportunity, and I ask the following questions.

First, can the Minister tell us what the Government will do to raise awareness among practitioners and the public that these orders exist? Secondly, will she agree to report to Parliament on the number of orders that have been made after, for example, one year of operation —although that might of course be under a different Government—so that the effectiveness can be considered? Thirdly, will she clarify the legal aid position? My understanding is that legal aid will be made available because these are civil FGM orders, even though they sit within criminal legislation. Without such legal aid, these orders would fail. How does the Minister intend to make that clear, or is my understanding of legal aid wrong? Fourthly, will the Government consult on the interpretation of the definition of FGM?

While we are disappointed that we do not have the best outcome, we feel that we have done all we can to make the case. The proposals from the Government are important, they are a significant improvement and we want to see them be as effective as possible.

[Baroness Meacher (CB)]

I am most grateful to the Minister for tabling Amendment 7, which enables me to speak briefly about the need to create an offence of encouragement of female genital mutilation, which we discussed on Report. I want to thank the Government for agreeing to have further discussions about the new amendment, drafted by Dexter Dias QC, and about the new evidence from our QC adviser. To be frank, that evidence is extremely powerful and it is a pity that we did not have access to these arguments earlier in our debates. I hope the Government will table the Dias amendment, or something very like it, in the other place, but I understand that they are in no position to make any commitment of that kind at this stage.

I will not repeat the arguments we rehearsed on Report in favour of focusing attention upon those who encourage the practice of FGM rather more than upon the families who practice this appalling form of child torture. I want to put on record only that the Dias amendment would provide an effective legal intervention because it is modelled on what is known to work: comparable powers used to combat the dissemination of encouragement to commit acts of terrorism. FGM is of course an entirely different crime from terrorism but the model for the two types of crime is similar.

The Dias amendment recognises the awful social pressure that parents are placed under by some communities. In traditional societies, which are intensely hierarchically structured, elders and preachers exert enormous influence. I think that most of us are not familiar with that or have not experienced it. We believe that the encouragement amendment will complement the important community work being done to dissuade preachers from encouraging FGM.

Mr Dias QC refers to our international obligations, which more than justify the creation of an offence of encouragement of female genital mutilation to cover anyone who makes a statement that is likely to be understood by some or all of the members of the public to whom it is published as direct or indirect encouragement or other inducement to them to mutilate the genitalia of a girl. That is the essence of his amendment. These international obligations include: the Convention on the Elimination of All Forms of Discrimination against Women of 1979; the UN Convention on the Rights of the Child of 1989, under which the UK has positive obligations in international law to ensure that children are not subjected to cruel, inhuman or degrading treatment; and, finally, the UN Convention Against Torture of 1984, which has been ratified by the UK.

Mr Dias presents four pages of powerful arguments in support of the amendment he has drafted, which I hope very much that the Government will consider most seriously, as I have indicated. I will not repeat all these arguments here today—this is, after all, Third Reading—although I believe that your Lordships’ House would find them extremely persuasive. The only remaining point I want to make is that I am advised that our strong international obligations justify overriding Article 10 of the Convention on Human Rights, the right to freedom of expression. This is a very important point, particularly because we all wish to preserve that right whenever it is appropriate. All that we are saying is that in this very specific case, it is appropriate to override it.

Again, I give my thanks to the Minister for providing this opportunity for me to reiterate certain points. I hope that the Minister can confirm to the House today the Government’s agreement to have further discussions on this important issue.