Serious Crime Bill [HL]

Debate between Baroness Smith of Basildon and Baroness Meacher

Monday 2nd March 2015 Lords Chamber

[Baroness Smith of Basildon]

My Lords, what is always clear when we debate FGM issues is how complex they are. I think that the law of unintended consequences has been discussed throughout our debates. I have just read again the letter from the Minister, Karen Bradley, to Seema Malhotra MP setting out why the Government have brought this new clause forward. A consultation was held on 5 December on how to introduce mandatory reporting for FGM. As other noble Lords have said, it is a little strange that we did not have the benefit of that consultation when we held our previous discussions. It would have been helpful to have the consultation and the Government’s response, but they were not made available to us, although the other place did have the benefit of seeing them when it discussed these issues.

The purport of the amendments which have been put forward in your Lordships’ House on this issue is not just to deal with the problem afterwards, but to prevent it happening in the first place. It is also about sending a strong message that FGM is something we cannot tolerate at all. I have some concerns about mandatory reporting, but it is to be hoped that they can be addressed in the guidance and the review process. I think it is clear that we need to ensure that where health professionals are aware of instances of FGM, they should report them so that action, whether that be medical or legal, can be taken. The concerns which have been raised are ones that the Government will want to address when they are considering the guidance. If they find that there is any evidence of women not presenting to medical practitioners for care during pregnancy, it should be examined.

[Baroness Meacher]

I just want to check whether the noble Baroness agrees that reporting to the police could actually deter families from taking these children to the health services. In saying that reporting needs to happen, I am very worried if this goes to the police.

[Baroness Smith of Basildon]

I am not sure that I accept that a family whose daughter had undergone FGM and became seriously ill would not want that to be dealt with. It is quite a big jump to make, to put pressure on a family in that way. The noble Baroness says that they will not, but if that becomes evident, the Government will have to look. As I said, I have slightly conflicted views on this, but the House of Commons, I am sure, had the benefit of the consultation—although that was slightly split. I look forward to the response from the noble Baroness the Minister.

I come back to the point on legal aid. One issue that I raised with the Minister in earlier debates was whether legal aid would be available for FGM orders. At that time, she was unable to confirm that they would. We raised the point that without such legal aid, which is available for forced marriage orders, there would be no FGM orders. The point about prevention, which the noble Baroness made, is that unless you have the orders, there is not going to be prevention of FGM. We have had several conversations; the noble Baroness promised to write to me on several occasions, and I think she was frustrated that no correspondence was forthcoming. I am pleased now that the Government have confirmed that legal aid will be available for FGM orders. So we support the new clause, but I would be grateful if she could address some of the points raised in this debate, because justified concerns have been raised. That does not take away from the fact that the whole purpose of this is to try to prevent FGM from ever occurring and women from suffering such abuse.

Serious Crime Bill [HL]

Debate between Baroness Smith of Basildon and Baroness Meacher

Wednesday 5th November 2014 Lords Chamber

[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.

Serious Crime Bill [HL]

Debate between Baroness Smith of Basildon and Baroness Meacher

Tuesday 8th July 2014 Lords Chamber

[Baroness Meacher]

I regret that the Minister referred to the speech of the noble Lord, Lord Howarth, as incoherent—or words to that effect. It seemed to me that the noble Lord’s arguments were incredibly powerful with regard to the lack of appropriate skills and training of the people in the courts, and the Howard League case he referred to. Obviously, as I said in my own speech, matters are made a great deal worse by cutting somebody off from their support systems and so on. I have to say that many of the comments made by the noble Lord, Lord Howarth, support strongly the case for having a professional tribunal or dissuasion panel to look at these cases, rather than leaving it to the courts, which do not appear to have the skills needed in these very difficult situations. I absolutely agree with the Minister that these are difficult problems; they have to be dealt with, but they have to be dealt with professionally, and I think that is the point the noble Lord, Lord Howarth, was trying to make.

[Baroness Smith of Basildon]

I had intended to speak in this debate. The noble Lord was uncharacteristically quick off his feet to respond to my noble friend. This clause requires some clarification and I am sorry that he seems quite upset about the probing questions that have been asked. I will listen to what he has to say. If the issues I intended to ask him about are not addressed, I will come back to him at the end of his comments, but there are some points of clarification that would be helpful in this debate.

Crime and Courts Bill [HL]

Debate between Baroness Smith of Basildon and Baroness Meacher

Wednesday 4th July 2012 Lords Chamber

[Baroness Meacher]

My Lords, I must first apologise to the Minister and to my colleagues and thank the noble Baroness, Lady Hamwee, very much indeed for stepping into the breach. I completely misjudged the pace of your Lordships’ progress on the previous amendments.

I shall speak to Amendments 154ZA, 154ZB, 154CA and 154DA. I am encouraged by the fact that, perhaps for the first time, an attempt is being made to form legislation that tries to look across from drugs to alcohol and from alcohol to drugs, and to achieve some sort of reasonable comparison in the response to these drugs in relation to driving. Alcohol is of course one of the most dangerous drugs that people take. I endorse the Government’s commitment to try to find a fair and consistent way to control driving under the influence of drugs. This is overdue and important. There is no question that I would suggest that people can drive while under the influence of drugs; that would be inconceivable on my part.

The purpose of my amendments is to ensure that young people are not criminalised unless any drugs in their system really are causing impairment while they are driving. As the noble Baroness, Lady Hamwee, has suggested, there are several reasons why a driver may have a drug in their system but be entirely safe behind the driving wheel. One of my main concerns is that a very substantial minority of young people, as we know, take herbal cannabis. That is a relatively harmless thing to do—I emphasise relatively. It is much better that young people do not take cannabis or drink, or smoke, but we know that the great majority of them will do at least one of those. It is possibly better that they take a bit of herbal cannabis on occasions, so long as they do not do it too often, rather than smoke tobacco or drink alcohol. I must emphasise that skunk is a completely different matter.

I understand that the active ingredient, THC, disappears and has a short life in the body, as the noble Baroness, Lady Hamwee, said, whereas the safe and perhaps even positive ingredients of the cannabinoids, which could improve driving, can remain there for some considerable time—perhaps many weeks. This legislation could lead to the criminalising of considerable numbers of young people who took cannabis at a party several weeks before and are then stopped for some minor reason. Traces are then found in their body of the cannabinoid, which have nothing whatever to do with the quality of their driving. I know that the Minister is perfectly well aware of these problems, and I hope that he will take them into account. I would be grateful for the Minister’s assurance to the House on this matter.

I want to explain my Amendment 154ZA, to leave out the word “controlled” from new Section 5A(1(b) in Clause 27. There are at least two strong arguments for doing this. The distinction between controlled and uncontrolled drugs is not evidence-based. Alcohol and tobacco, as we know, are far more dangerous than some drugs that are controlled under the Misuse of Drugs Act. Any evidence-based legislation—which I understand this is designed to be—should not reference the outdated and discredited Misuse of Drugs Act. I applaud the Minister for insisting that this is road safety legislation; it is not about controlling drugs, it will be evidence-based, and I know that a lot of work is going on behind the scenes to make sure that that is so. However, we do have a problem with cannabis, and we need to hold on to that. In discussing cannabis, I should make it absolutely clear that I support the control of cannabis supply, but I hope that we can reach a point where the method of control—possibly some form of regulation—could be based on the evidence of the relative efficacy of different forms of control.

My second point is that a number of the so-called legal highs, or new psychoactive substances, are the drugs that may prove far more of a risk to drivers. Of course, these are controlled through temporary bans, but as Ministers and everybody else know, as soon as one of these drugs is controlled, the creators of these substances get back into their labs and create some new ones by changing a few molecules, and for a while those substances will be legal. There is, therefore, no rationale for limiting this legislation to controlled drugs, because drugs that are not controlled cause just as many problems, if not more.

I will now turn to Amendment 154ZB, where my objectives are twofold. First, it would ensure that there is a good reason for police involvement, either that the police are responding to a road accident, or that the roadside evidence suggests that the driver is impaired and that this may be due to alcohol or a drug in their system. I understand that as regards any drug where a specified limit within the driver’s blood or urine cannot be identified—above which it would be safe to assume impaired driving capacity—these cases will be dealt with under the existing Road Traffic Act. Nevertheless, I would be grateful if the Minister could give the House an assurance that under this legislation a driver will not be charged for driving under the influence of drugs unless there has either been a road traffic accident or there is roadside evidence of impairment, that the driver is not taking prescribed medication, and if the level of the drug in the driver’s blood or urine is above the level approved in regulations as presenting no threat to road safety.

I will explain paragraph (c) of Amendment 154ZB. I am concerned that the legislation could cause the inappropriate arrest and charging of patients prescribed medications for chronic pain and other long-term conditions. In particular, patients on a stable dose of opioid and analgesia may—according to Napp Pharmaceuticals—have no impairment of their ability to drive safely compared with other drivers who have taken similar quantities, or perhaps even far less, of that opioid. Apparently, the body simply adjusts to higher and higher levels of opioid, so you could be pretty heavily drugged and yet a perfectly safe driver. Therefore, without some way of dealing with these opioid prescriptions and people on those prescriptions, very unwell people who are suffering a lot of pain could be unnecessarily arrested, charged, taken to a police station, put in a cell and left there to wait for a forensic physician to come in and do a full examination, and so on. It would be a huge distress and greatly upsetting, and would also use a lot of police resources. I hope that the Minister can somehow give an assurance to the House that this issue will be very clearly dealt with.

I will quickly turn to amendment 154CA. My concern here is that new Section 5A(9) of Clause 27 appears to respond to the North report recommendation that:

“If … it should prove beyond scientific reach to set specific levels of deemed impairment, the Government should consider whether a ‘zero tolerance’ offence should be introduced in relation to”—

a list of controlled drugs. I would be grateful if the Minister could assure the House that a zero-tolerance approach will not be introduced in relation to cannabinoids—because this would be the temptation. It will be difficult to establish this limit for these drugs, because of the longevity of the survival of the cannabinoid in the blood. It would be helpful at this stage if the Minister can give us some assurance of that, and also give some indication, if possible, about the drugs that the Government have in mind for zero-tolerance treatment.

Finally, Amendment 154DA is a consequential amendment, and I will not say anything about that. In conclusion, I hope very much that the Minister will accept the principles behind these amendments—although I fully recognise that I put them together myself, and I am certainly no lawyer. If I brought them back on Report I would undoubtedly wish to change the wording therein.

[Baroness Smith of Basildon]

My Lords, on this clause the Committee has benefited from the contributions of the noble Baronesses, Lady Hamwee and Lady Meacher. Looking through the clause, I found this issue difficult. It is very easy to identify the problem, and we want to address it and resolve this issue. No one wants to see people driving under the influence, whether of drink or drugs, or in an impaired state or the problems that that can cause, but we have to construct legislation that addresses that issue but at the same time does not penalise unnecessarily strictly or inconvenience those at whom it is not aimed. There is a danger that this legislation could have an impact beyond what is intended. Both noble Baronesses indicated that.

When I looked at this clause, what struck me—and listening to the debate has reinforced that feeling—is that this is work in progress. We fully support what the Minister is trying to achieve. I know that he is not particularly wedded to this wording and would be happy to look at ways of making sure that it achieves its aim. Our amendments are probing amendments, but they deal with significant issues. They provide an opportunity to look at the wider concerns. I was able to let the Minister know of some of my questions, and I apologise that I have others because while I looked at the clause more questions arose—I had more questions than answers when looking at it. I would be very happy to have some responses this evening and some in writing so that when we get to Report, we can give this further consideration.

Clause 27 introduces the new offence of drug-driving above a specified limit. It will sit alongside the offence of being unfit to drive while under the influence of drugs in the Road Traffic Act, as has already been mentioned. The difference is that that offence requires proof of impairment to be guilty, but this new offence does not. It relates only to controlled drugs because we specify those drugs in secondary legislation, not in this legislation. The limits for each drug covered by the new offence have to be specified in the regulations. If I understand subsection (9) of the new section, which the noble Baronesses, Lady Meacher and Lady Hamwee, referred to, the limit could be set as low as zero, which creates some difficulties. The BMA stated:

“Drugs have a variable impact upon the measurable skills needed to drive safely, between individuals and at different blood levels”.

Yet the Explanatory Notes state:

“For some controlled drugs … it may not be technically possible to determine a level which impairs most people’s driving. This may be, for example, because tolerances vary widely in the population, or because the drug is often taken in conjunction with other drugs and is associated with abuse or risk-taking behaviour”.

The Explanatory Notes highlight some of the difficulties in getting this right.

The noble Baronesses spoke about the problem with the zero-tolerance approach—the difficulty of determining the appropriate impairment level risks decoupling the defence from the crime. A blanket ban on certain drugs that can be medicated could also seriously impact the standard of life of people on long-term medication as well as on people’s attitudes towards, and their compliance, with the treatment they require should they be prohibited from driving as a result of it. The difficulty is to look beyond the immediate offence to the impact it would have if somebody was worried that they would not be able to drive if they took certain controlled drugs on prescription. They might, therefore, on occasion not take their medication in order to drive.

In relation to medication classified as a controlled substance, as the legislation stands, individuals would be required to prove that they had a medical or dental prescription and that they took the drug in accordance with the doctor’s and the manufacturer’s or distributor’s directions. In reading the Bill, I was unclear about whether individuals who are unable to prove that they have a prescription for their medication would be required to attend a police station or would have a number of days in which to produce that evidence.

The Government have not been able to indicate how they intend to prove whether an individual has taken a drug in accordance with the medical directions—that is subsection (3) of the new section proposed in Clause 27. Would an individual be guilty of an offence if they have deviated, even only slightly, from the instructions? For example, the prescription may say to take the drug every five hours and on that occasion the patient took them within two hours because they had been out and had dinner or had forgotten. If we have it in legislation that they have to take the drugs according to the manufacturer’s and prescriber’s instructions, any deviation from those instructions could be a criminal offence.