Criminal Justice and Courts Bill
Baroness Thornton Excerpts(10 years, 4 months ago)
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Lord Mackay of Clashfern
My Lords, as a member of Barnardo’s, I am delighted on this occasion to be able to agree with my noble and learned friend.
Baroness Thornton (Lab)
My Lords, we on these Benches welcome the amendment. I welcome it personally because I took part in the debates in 2003 on the Sexual Offences Act and argued this case on behalf of Barnardo’s, Action for Children, the NSPCC and ECPAT. All the voluntary organisations concerned with child safety had already realised that the law would increasingly not cover the issue of the threat to children through new media. I thank Barnardo’s for its excellent briefing on this, my honourable friend Sarah Champion for leading such an excellent review of the law and the Government for bringing forward the amendment.
Lord Faulks
I am grateful for those brief but welcome interventions by a number of noble Lords, not least of course the noble Baroness, Lady Thornton, whose own interests in this matter she correctly recorded. I am grateful for that short debate. That concludes the debate on this issue.
Baroness Thornton
Baroness Thornton
My Lords, I am pleased to introduce a group of amendments that seek to tighten up Clause 28 and make it more effective. I welcome the clause, as I did at Second Reading. We on these Benches definitely welcome the Government’s efforts in this regard but think that there are some issues that need to be taken account of.
I place on record my thanks to Professors Rackley and McGlynn of Durham University for making their research and commentary available to us all, and to End Violence Against Women for its briefing and campaign. I also thank the British Board of Film Classification for coming to the House last week and giving a presentation—which, it has to be said, at times was really rather horrible—to explain how and why it sometimes does not give a classification to rape and extreme pornography. Several noble Lords attended the presentation, and I think that we all now have a greater understanding of where Clause 28 might not quite do the job that the Government intend. This particularly concerns the issue of context, definitions of penetration and realistic rape. I thank the Minister for his time in starting the discussion about these matters, and have suggested that he and the Bill team might also get the BBFC to come and discuss this clause with them; it is not a pleasant experience but it is very enlightening indeed.
I turn to the amendments. Amendment 36A would remove the requirement that the image be grossly offensive, disgusting or otherwise of an obscene character. The current law provides that for an image to be “extreme”, it must also be,
“grossly offensive, disgusting or otherwise of an obscene character”.
The current amendment would preserve this provision. We urge reconsideration of the use of language regarding obscenity. The use of the term “obscene” has long been criticised on the basis that it is typically deployed to capture material that is not only harmful but causes offence and disgust, and is typically focused on the impact on the consumer of material, rather than the wider consideration of harm, which is what this clause is actually about. We suggest that the Government should explore whether their description is compatible with justifying the original Clause 28 on the basis of cultural harm, not obscenity. We also contend that the criminal law is not used to prohibit material on the basis that it is considered disgusting. We recommend, therefore, the removal of the requirement that an image be,
“grossly offensive, disgusting or otherwise of an obscene character”.
Amendment 36B deletes lines 6 to 42, and the following amendments in the group would replace them. Amendment 36B would replace the existing language of the offence, and state that an image would be covered by this clause if it portrayed,
“sexual activity which involves real or apparent lack of consent or any form of physical restraint which prevents participants from indicating a withdrawal of consent”.
Amendment 36C seeks to clarify the definition of a realistic image, and would replace the requirement that the image portrays rape and assault,
“in an explicit and realistic way”,
with a requirement that the image be of,
“real or simulated depictions of”,
rape and assault by penetration.
The requirement that an image is “realistic” does not require the act depicted to be real, although we know that the clause seeks to cover real rape that has been filmed and made available to people. This is why the law refers to images which are “realistic”, meaning those that resemble or simulate real life. The use of the term “realistic” also mirrors international provisions on pornography, which similarly include real and simulated images. Article 9 of the Council of Europe Convention on Cybercrime 2001, on,
“Offences related to child pornography”,
extends to “realistic images”. The notes in our briefing tell us about the inclusion of real and simulated images.
The current laws on extreme pornography, and the proposed new provision, thus cover both real and simulated images. There is little doubt that Section 63(7)(c) of the Criminal Justice and Immigration Act extends to include “realistic” images of necrophilia where the “dead” person is not in fact dead. Similarly, in the proposed new law, a “realistic” explicit image of rape and/or assault by penetration—that is, an image of a simulated rape—should be covered by our amendment. However, in view of the fact that there has been some debate over the meaning of “realistic”, we suggest that this amendment is included in the Bill for the avoidance of doubt. Obviously, in all these amendments, if the Minister has something better to suggest, that would be even more wonderful. An amendment to the effect I have described was moved and discussed in the House of Commons Public Bill Committee. However, it was withdrawn in light of an explanation that the Bill’s Explanatory Notes would clarify that the offence would,
“cover both staged and real depictions of rape or other penetration”.—[Official Report, Commons, Criminal Justice and Courts Bill Committee, 18/3/14; col. 215.]
This assurance is not sufficient and, for the purposes of clarity, we would much rather see this made clear in the Bill.
Amendment 36D would provide that an image would be caught by Clause 28 if it portrayed any sexual activity involving real or apparent lack of consent. This is also covered by Amendment 36B. This is an important clarification because, as the BBFC showed noble Lords last week, it is possible to have an image that does not involve anyone else except, for example, a woman and no penetration but, because of the depiction and what is being done by binding, gagging, other positioning or other horrible things, this is definitely sexual activity and there is a lack of consent, whether real or apparent. In the terms that the Government have used to justify this clause, the cultural harm of depiction of rape and non-consensual sexual activity would appear to be covered by our amendment. I ask the Minister seriously to consider it.
Amendment 36E would provide that possession of an image of sexual activity would be caught by Clause 28 if it fulfils certain criteria. It refers to sexual activity where a participant,
“is portrayed in such a way as to make them appear under 18”;
where a participant is,
“with someone who is depicted as a member of their immediate family; and … sexual activity incorporating sexual threats, humiliation or abuse”,
which are not part of a “consenting role-playing game”.
Amendment 36F would ensure that the context of an image—the descriptions and sounds accompanying it—is considered when determining whether it is extreme. The BBFC gave us an insight into the need to take context into account, which might include grooming, stalking or other kinds of threatening behaviour that leave no doubt as to what is happening or what is about to happen. Music, sounds, text and banner headlines would also be captured by this amendment.
I ask the Minister to see these amendments in the light in which they are proposed, which is to help to make the clause work better. I beg to move.
The Deputy Chairman of Committees (Lord Colwyn) (Con)
I remind the Committee that if Amendment 36B is agreed to, I cannot call Amendments 36C to 36F; if Amendment 36C is agreed to, I cannot call Amendment 36D; and if Amendment 36D is agreed to, I cannot call Amendment 36E, all by reason of pre-emption.
Lord Faulks
My Lords, I am grateful for the concern shown by the noble Baroness, Lady Thornton, and other noble Lords over these important provisions, which criminalise the possession of extreme pornographic images depicting rape. I appreciate that the intention behind the amendments is to ensure that we capture the appropriate material.
I also thank the noble Baroness, Lady Thornton, for meeting me, just as she thanked me for meeting her, to discuss these amendments. I was not invited to attend the BBFC meeting. I gather that it was a pretty horrific event, but clearly it has influenced all those who attended and I am mindful of that when considering the amendments.
I assure the Committee that I am aware of the sensitivities involved when discussing the sort of images that we are targeting. These images are at the extreme end of the scale and are most disturbing. Alongside the images targeted, however, there are of course depictions that, while deeply distasteful, might not warrant the full intervention of the criminal law. It is a difficult area but we must ensure that our distaste at some of this material is balanced, rightly, against the legitimate personal sexual freedoms of consenting adults.
Before I address the amendments, I should like to provide some background to the law as it currently stands and our proposals for reform. First, I should make it absolutely clear that the extreme pornography offence is an offence of simple possession, not one of publication, dissemination or broadcast. That is already covered by the Obscene Publications Act 1959. Section 63 of the Criminal Justice and Immigration Act 2008 makes it an offence to possess some kinds of obscene images. Such images must be pornographic and must explicitly and realistically portray necrophilia, bestiality or violence that is life-threatening or likely to result in serious injury to the anus, breasts or genitals. Clause 28 amends that category of material to include depictions of non-consensual penetration.
The offence was created following a full public consultation. There was considerable concern among respondents, and during the passage of the legislation through the other place, that the offence could have an unwarranted impact on the private sexual behaviour and personal freedoms of fully consenting adults. The offence was deliberately drafted with those sensitivities in mind, and I believe we should bear those in mind here. The offence targets only the most extreme obscene material—for example, images depicting extreme sexual violence and serious physical harm. It was not designed to make it criminal merely to possess every obscene image, however distasteful, although, as I have mentioned, the dissemination of that material will be an offence.
Last year, the Government were contacted by a campaign led by Rape Crisis South London and other women’s groups to extend the existing boundaries of the extreme pornography offence to capture extreme images depicting rape in the same terms as the equivalent Scottish offence. The Government listened to those concerns and agreed to extend the offence.
Against that background, I now turn to consider the amendments in question. Amendment 36A would remove the requirement that images of non-consensual sexual penetration be,
“grossly offensive, disgusting or otherwise of an obscene character”,
in order to be regarded as extreme pornography. Those terms are already well known to prosecutors and courts alike. They were drafted deliberately into the offence, and included in our amendment to that original offence, to ensure that the extreme pornography offence does not criminalise the simple possession of the sorts of images that it would not be illegal to circulate or distribute. To remove this necessity would be inconsistent with other aspects of the criminal law and would result in a possession offence that is too broad.
For convenience, I shall deal with Amendments 36B and 36D together, as they have similar, although not identical, effects. Amendment 36B would replace the Government’s amendments to the extreme pornography offence, including the relevant defence, with a broad provision that would criminalise the portrayal of any sexual activity that involves real or apparent lack of consent or any form of physical restraint which prevents participants indicating a withdrawal of consent. This is very broad. It could have the effect of bringing into the terms of this targeted offence the possession of pornographic images that depict any form of non-consensual sexual activity.
In the light of the balance that this Government have sought to strike with this offence, we believe that such an extension to the offence would be going too far. It would, I believe, widen inappropriately its scope and could make too wide a range of sexual activity subject to serious criminal sanction.
Amendment 36D also seeks to extend the parameters of the existing offence but would retain the necessity that the material be “explicit and realistic”. However, it would still extend the parameters of the offence too far and could capture a wide spectrum of sexual contact.
Amendment 36C seeks to explore the issue raised both at Second Reading and in the other place about the ability of the offence to deal with simulated rape scenes. I assure your Lordships that our provisions as they stand are already capable of covering the depiction of real or simulated non-consensual penetration. Both the amendment and the existing offence cover any portrayal or depiction of the acts in question. While the requirement is that the portrayal is realistic, it does not have to be real. As the noble Baroness, Lady Howe, mentioned, we have clarified this point in the Explanatory Notes to the Bill in response to these concerns.
Amendment 36E seeks to widen the scope of the existing offence to cover depictions that appear to portray incest, underage sexual activity and scenes involving sexual threats, humiliation or abuse. The protection of the country’s children from sexual abuse is a government priority. We have a robust range of offences and sanctions to deal with this truly dreadful offending, and it is a credit to the efforts of this House that our legislation in this area is rightly respected across the world. It is of course right that we keep the law in this area under review to ensure that it is fully equipped to protect our children.
Images of children are not specifically excluded from our extension of the extreme pornography offence, but we already have offences to cover the possession of indecent photographs and films of children. These offences have suitably robust sentencing levels and much lower thresholds in respect of the content of the images than the extreme pornography offence.
Finally, Amendment 36F would add to our provisions a requirement that, when evaluating images for the purposes of the offence, contextual material of certain kinds is taken into account. I appreciate that this reflects the drafting approach taken in the equivalent legislation in Scotland. However, we do not believe that the amendment is necessary: the court is already entitled to take into account all relevant evidence in determining whether material meets, or indeed does not meet, the requirements of the extreme pornography offence. Prosecutors and the courts already take the “context” of images into account when considering the existing extreme pornography offence. I hope that provides some reassurance to the noble Baroness.
The extension of this offence is well structured to ensure that the images we wish to capture fall within its parameters. The extension is in the spirit of the original offence and balances the need to criminalise the most extreme and potentially harmful or damaging material with the need to protect the lawful sexual freedoms and rights of others. Given the sensitivities involved, that balance has not been easy to achieve but I believe that we have achieved it with this reasonable, proportionate and important provision.
For those reasons, while I entirely understand the concerns expressed, the Government do not feel able to support these amendments. I hope that, with those assurances, the noble Baroness will feel able to withdraw her amendment.
Baroness Thornton
I thank the Minister for his considered, if somewhat disappointing, response. The point of the Committee stage of this sort of legislation—the House of Lords is particularly good at this—is to test whether this kind of clause does its job. I appreciate that the Minister thinks it does but I have to say that some of us think that one or two things in this clause need some attention. I am not going to delay the House any further by repeating what they are. The Minister said that the Government thought they had the balance right all the way through. I think there are one or two things to do with context that suggest the Government may not have got the balance right. We do not want to find ourselves in five years’ time with either no prosecutions because we did not get the balance right or with people not being prosecuted because we did not look at the things that experts are telling us are loopholes. Obviously I am happy to withdraw the amendment at this stage—apart from anything else I do not think it and my other amendments are as competent as they should be, for which I apologise—but I fear that we will be returning to this at a later stage in the Bill. I beg leave to withdraw the amendment.
Baroness Barker
My Lords, I will address the point made by the noble Baroness, Lady Kennedy of The Shaws, that the way in which this amendment is worded is of the utmost importance. Our amendment tries to focus not on the definition of what is pornographic but on the act of revenge. That is why, in our amendment, we have concentrated on the initial posting of an image rather than the reproduction or the recommunication of it, because the act of revenge happens in the initial posting.
To respond to the noble Baroness, Lady Berridge, we have no problem with making this a sexual offence. Quite clearly it is. We do have a number of problems with the way in which her amendment is drafted. For example, it requires that the image be of the two people involved, but you can make a very good attempt at ruining somebody’s life by producing pictures of them with somebody else. I did not think that we would get to the headless man today, but we have—the point there was precisely that it was not the two people in the relationship.
The noble Baroness, Lady Kennedy, is right to make us focus on consent. There are a lot of people out there who one would best call amateur pornographers and who actually want to share the lives on the web. I do not know why, and do not ever want to see it or have anything to do with it, but they do. It should therefore be a defence that they had reason to believe that there was consent on the part of the other person. However, if we are going to make this sufficiently robust and—what we really want it to be above all else—a deterrent that makes it absolutely clear to people who are thinking of committing such an act that they may go to prison, she is right that we need to focus on that. Our amendments are not perfect but they take us quite a long way to where we want to go.
Baroness Thornton
My Lords, this has been a very good and interesting debate. We on these Benches support the principle of bringing forward legislation, probably along the lines that my noble friend Lady Kennedy suggested. We do not think that either of these amendments get us to the point where we want to be, as I think those who tabled them would admit, but they take us along that road and I hope we will see something emerge that does get us there.
Images described as “revenge pornography” are indeed a form of harassment and abuse. They constitute stalking and are humiliating. However, as well as a specific offence, what is also needed is the strong political will to tackle the underlying culture that creates and legitimises sexual violence, abuse and harassment in all its forms. That requires not only a government commitment to headline-making legislative reform but to ensuring effective implementation of any new offence and bringing forward compulsory sex and relationship education in our schools. The noble Baroness, Lady Brinton, referred to what goes in our schools. It is not good enough that this is done by voluntary organisations; it should be part of our curriculum. For the protection of our children, it really needs to be mandatory in our schools.
We on these Benches have problems with both these amendments, for different reasons, some of which have already been mentioned. For example, the amendment in the names of the noble Baronesses, Lady Berridge and Lady Morris, says that to commit the offence, the defendant must distribute the images,
“with the intention that he or a third person will”,
gain “sexual gratification” from doing so. That provision is problematic. As it is framed, no offence will be committed if the defendant discloses the image with a view purely to humiliate and embarrass the person in it. The motivation behind revenge porn is not typically to distribute pornography but to humiliate, embarrass and harass the victim. We need legislation that emphasises that, not the pornography aspect.
Likewise, with the amendment in the name of the noble Lord, Lord Marks, and his colleagues, we do not see why the offence should be limited to the circumstances where the individual is identifiable. As noble Lords have said, the motivation for this offence is to harass and abuse victims, and the harm will be done whether or not he or she is identifiable to others. There is some work to be done and, because we will have a long summer break before Report, I hope that we have time to undertake it. We on these Benches would be very happy to help to do that.
Lord Faulks
My Lords, this has been a very useful debate indeed. I will deal with Amendments 37, 38, 39 and 40 together, as they are clearly designed to deal with broadly the same issue, albeit in slightly different ways. They all seek to create a new offence banning the uploading or publishing of material that has come to be known as “revenge porn”. First, I will say that I have great sympathy for the intention that lies behind these amendments, as I said at Second Reading. The posting or publication of intimate material is despicable and cowardly, and we must ensure that such behaviour is appropriately dealt with by the criminal law.
Revenge porn is a broad term used to describe a range of offending behaviour. Usually, it involves an individual, often an adult ex-partner, uploading on to the internet sexualised images of the victim to cause them distress. Although revenge porn does not always specifically involve content that would be regarded as obscene, there is no doubt that the online sharing of intimate images without the subject’s consent can cause great distress and upset to the victim. Some of these images are posted widely across the internet and are often extremely difficult to remove.
Criminal Justice and Courts Bill
Baroness Thornton Excerpts(10 years, 5 months ago)
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Baroness Thornton (Lab)
My Lords, I am sure everyone in the House will be most grateful to the noble Lord, Lord Black, for that intervention. I fear I am not going to be quite so brief. I will address Clause 28 of the Bill, concerning the possession of pornographic images of rape and assault by penetration. I will support my noble friends Lord Beecham and Lord Kennedy throughout the passage of the Bill.
The Bill amends Section 63 of the Criminal Justice and Immigration Act 2008 to extend the current offence of possession of extreme pornography to include possession of pornographic images depicting rape and other non-consensual sexual penetration. Possession of such pornography is an existing criminal offence in Scotland. We on these Benches welcome the Government’s intention to extend the extreme pornography offence. I wish to thank Professors Clare McGlynn and Erika Rackley of Durham University for all the research they have done and the excellent evidence and briefs they have prepared at every stage of the Bill. I also thank End Violence Against Women and Rape Crisis South London for the research they have carried out and the work they have done in their campaign to ban rape porn, which involved writing to the Prime Minister in June last year. I will quote some of this letter, which states:
“The vast majority of images depicting rape are lawful to possess, although they are banned in Scotland under its Extreme Pornography legislation”.
It goes on to say:
“We are talking about sites that explicitly advertise sexually violent content and with titles such as ‘Father Raped Drunk Daughter’ and ‘Incest With Daughter at Family Cabin’”.
Fifty of the top accessible rape porn sites can be found through a Google search. Some 78% advertise rape content of under 18 year-olds—in other words, schoolgirl rape. Some 67% advertise rape content involving knives and guns; 44% advertise rape content involving incest; and 44% advertise rape content where the woman is unconscious, drugged or semi-conscious. Of those being assaulted, 100% are female; 82% of perpetrators use restraint by force; 65% of the women express pain; and 71% show signs of visible distress.
The Government have a coherent strategy on violence against women. In the Bill they recognise the failure of the current law to take a strong stand against the normalisation of sexual violence. Indeed, the Joint Committee on Human Rights says in its report on the Bill:
“We welcome, as a human rights enhancing measure, the provision in the Bill to extend the current offence of possession of extreme pornography to include possession of pornographic images depicting rape and other non-consensual sexual penetration. We consider that the cultural harm of extreme pornography, as set out in the evidence provided to us by the Government and others, provides a strong justification for legislative action, and for the proportionate restriction of individual rights to private life (Article 8 ECHR) and freely to receive and impart information (Article 10 ECHR)”.
None the less, criminalising the possession of extreme pornography is a serious matter. Legislative action and any potential restriction of an individual’s rights under Articles 8 and 10 must be taken only if we can be certain that there is sufficient justification. Our liberal democracy rightly champions the values of equality and dignity, which are directly challenged by much violent pornography, especially rape pornography, thus demanding regulatory action. Surely the law has a precautionary role to anticipate, preclude and counter the risk of harm to society and individuals.
There has been in the past a demand for evidence of direct causal links between pornography and sexual violence. I think it is now accepted that that is oversimplistic. Understanding the drivers that lead to the commission of sexual offences is extremely complex and cannot be reduced to simple explanations. Challenging and seeking to prevent sexual violence will require a multifaceted approach, including challenging the normalisation of sexual violence through pornography.
The argument is not that the person who views extreme pornography, such as pornographic images of rape, will then go on to commit rape: rather, it is that the proliferation and tolerance of such websites and images, and the messages they convey, contribute to a climate in which sexual violence is condoned and seen as a form of entertainment. Rape pornography sustains a culture in which a “no” to sexual activity is not taken seriously. It promotes the myth that women enjoy being coerced into sexual activity, and that they enjoy violent, non-consensual sexual activity. The cultural harm posed by such depictions is a strong justification for legislative action and for the proportionate restriction of an individual’s rights.
All this was recognised in the United Nations fourth World Conference on Women report, which refers specifically to depictions of rape as contributing to the context of continuing violence against women. It states:
“Images in the media of violence against women, in particular those that depict rape or sexual slavery as well as the use of women and girls as sex objects, including pornography, are factors contributing to the continued prevalence of such violence, adversely influencing the community at large, in particular children and young people”.
This is also a culture in which, as research for the Children’s Commissioner suggests, young children are turning to pornography for guidance on sex. They are engaging in risky behaviour as a result of viewing pornography. They are uncertain about what consent means and are developing harmful attitudes towards women and girls.
That does not mean that there are not areas which we might hope to explore during the further stages of the Bill in relation to this clause. The first is whether there should be the inclusion of a provision stating clearly that the “realistic” portrayal of acts in question refers to both real and simulated images. We will suggest that we may need an amendment to clarify that exactly. An amendment to this effect was moved and discussed in the House of Commons Public Bill Committee. However, it was withdrawn in the light of an explanation that the Bill’s Explanatory Notes would clarify that the offence,
“would cover both staged and real depictions of rape or other penetration”.—[Official Report, Commons, Criminal Justice and Courts Bill Committee, 18/3/14; col. 215.]
This may not be adequate, and I would appreciate some clarification, which might appear on the face of the Bill.
Secondly, we might consider the inclusion of a provision requiring reference to be made to the context—the description, sounds and narrative—of the image when determining whether it is one of rape. The context of an image is valuable in determining whether pornographic images are “extreme”. Simulated images of rape are widely available on free-to-access pornography websites. The images are often accompanied by banners and text which glorify rape and sexual violence: “These girls say no but we say yes”; “See what happens when men lose control … whether she says yes or no … Damn, the guys enjoy a ‘no’ more”, for example. The narrative of the story similarly conveys such meaning, as does the soundtrack. This contextual material makes it clear that the image is intended to be of rape and other non-consensual sexual activity. The non-consensual aspect, or what makes an image one of rape, is therefore clear from the overall context.
The Criminal Justice and Licensing (Scotland) Act 2010 includes a provision to ensure that the context of the image—the descriptions or sounds accompanying it—is relevant to deciding whether an image is extreme. This ensures that simulated images of rape come clearly within the remit of the legislation, whether or not the act was itself consensual—that is, whether the actors in the image were consenting.
Thirdly, we need to think about whether we clarify the defence of “participation in consensual acts”. The target of the extreme pornography legislation is not, and should not be, private depictions of consensual sexual activity. Consideration might be given to clarifying the scope of this defence so that it permits the possession of images which are taken of those participating in consensual acts and which are for private use only.
We might also have the inclusion of a “public good” defence. Section 4 of the Obscene Publications Act 1959 includes a defence where the material in question is for the public good. The absence of a “public good” defence in the extreme pornography law reinforces the fear that the provisions could be used to criminalise the possession of legitimate works of art, film and such-like. The introduction of a “public good” defence might demonstrate that there is no intention of bringing educational, legitimate artistic or similar works within the scope of the legislation, and it would help to ensure that only harmful material is covered by the provisions.
Your Lordships’ House may also wish to consider the issue of an image being obscene. The current law provides that for an image to be extreme, it must be one which is,
“grossly offensive, disgusting or otherwise of an obscene character”.
The use of the term “obscene” has long been criticised on the basis that it is typically deployed to catch material which is not only harmful but causes offence or disgust. I would appreciate a discussion on that because I am not clear whether that is an expression that we should continue using.
On the other hand, my honourable friends Diana Johnson, Helen Goodman and Dan Jarvis in the Commons brought forward an amendment which used that description. They proposed it in response to the fact that the Prime Minister has promised to equate online and offline restrictions to regulate pornography. It was a promise that we in the Opposition welcomed and we would like to see it implemented. We think that the Government’s proposals in this Bill are a welcome step forward, but they are quite a small step forward and we would like further clarification.
The Government’s proposal is to ban the possession of pornography which is deemed to be,
“grossly offensive, disgusting or otherwise of an obscene character”,
and a realistic depiction of rape or assault by penetration. Both elements of this test are complex and open to wide interpretation. Therefore, we may propose an amendment which leaves in place the first part of this test and replaces the second part with the description of rape employed by the British Board of Film Classification—that is, content depicting,
“sexual activity which involves real or apparent lack of consent. Any form of … restraint which prevents participants from indicating a withdrawal of consent”.
This simplifies the law in two ways. First, it makes it clear that we are criminalising the possession of porn depicting rape scenes, even if they are staged. Secondly, our amendment would ensure that content was banned if it showed sexual assaults and maybe even rapes but not the act of penetration. Has the Minister had any discussions with the British Board of Film Classification on this matter? I should say that I intend to invite the board to come to the House to discuss these matters with any noble Lords who may be interested.
I am looking forward to the discussions and I am very grateful to the Minister for agreeing to see me to talk about these matters.
Anti-social Behaviour, Crime and Policing Bill
Baroness Thornton Excerpts(11 years, 1 month ago)
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Baroness Thornton
“( ) A person also commits an offence under the law of England and Wales if he or she causes another person to enter into a marriage and that other person lacks the capacity to consent to that marriage.”
Baroness Thornton
My Lords, this amendment, in my name and those of my noble friend Lady Smith and the noble Baroness, Lady Hussein-Ece, seeks to test whether the Bill adequately covers the issue of capacity; in other words, the capacity of a vulnerable adult who may be forced into a marriage. Almost by definition, they are very often not in a position to give free or full consent to a marriage, or otherwise. We are looking at Clause 108(1)(a) and (b). Paragraph (a) says,
“A person commits an offence … if he or she … uses violence, threats or any other form of coercion for the purpose of causing another person to enter into a marriage, and”,
paragraph (b) continues,
“believes, or ought reasonably to believe, that the conduct may cause the other person to enter into the marriage without free and full consent”.
Both those points assume that the person has capacity either to resist or to consent to a marriage. Of course, we know that a proportion of the cases dealt with by the Forced Marriage Unit concern people who have not given consent to a marriage. An article published in the Guardian in August which quoted the Forced Marriage Unit said that,
“The government dealt with 114 cases of forced marriage last year that involved mentally disabled people”.
However, the Forced Marriage Unit recognises and admits that that is probably only the tip of an iceberg and does not reflect the full scale of the abuse. I think that everybody would agree that we should be concerned that disabled or mentally disabled people are protected in this legislation and do not suffer forced marriage.
My second question, which is linked to but is not only about capacity, is: how can marriages be voided in these circumstances? When is a forced marriage voidable? How does it go forward and, in particular, if there is no capacity to agree to the marriage, how can it be ended? In recent times there was a judgment in which the courts decided not to end the forced marriage of somebody who they admitted lacked capacity. That has troubled many people who are concerned about this area. That is the issue we would like to probe, and I would like to know whether the Government have taken that into consideration. I beg to move.
Lord Ahmad of Wimbledon
My Lords, I thank the noble Baroness, Lady Thornton, for her amendment. I also thank my noble friend Lady Hussein-Ece and the noble Lord for their contributions. The noble Lord alluded to the Freedom charity, which carries out notable work in this field, and I acknowledge his work and engagement in that arena.
Marriage without consent or the capacity to consent is totally unacceptable. Clause 108 specifies that an offence is committed if the perpetrator uses coercion and believes, or ought reasonably to believe, that their conduct may cause another person to enter the marriage without free and full consent. A person who lacks capacity to enter into marriage is incapable of providing free and full consent to marriage. In the cases that have come to the attention of the Forced Marriage Unit, some form of coercion has invariably been involved in forcing a person who lacks capacity to consent to a marriage. The new offences would therefore cover this behaviour.
Although I totally understand the noble Baroness’s concerns and those of other noble Lords, the definition of the new offences in Clause 108 already captures in practice the types of cases intended to be covered by this amendment. I take on board the point that the noble Lord made about looking specifically at this issue. Certainly, between Committee and Report we will look at the issue once again in the context of Clause 108. However, I assure noble Lords that Clause 108 is intended to capture that particular element. Marriage is voidable under Section 12(c) of the Matrimonial Causes Act 1973 on the grounds that,
“either party to the marriage did not validly consent to it, whether in consequence of duress, mistake, unsoundness of mind or otherwise”.
The issue was also raised of a vulnerable person getting a decree of nullity. The procedure to do so is available and a person can apply for a decree of nullity by filing a petition at any time after the marriage ceremony. If the application is not opposed, there is unlikely to be a court hearing and the person will not have to attend court. Following the petition, the court will issue a decree nisi and, following this, the applicant can apply for a decree absolute. The Family Procedure Rules make provision to ensure that these matters are straightforward for unrepresented applicants. However, having said all that, I fully acknowledge the points made by noble Lords about the special circumstances that they have mentioned. Having explained the scope of Clause 108, I hope that the noble Baroness is minded to withdraw her amendment.
Baroness Thornton
I thank the noble Lord for that explanation, which was a good attempt to describe the position. However, I am not convinced that capacity is covered in the Bill. Therefore, I will ask a lawyer what they think. Depending on what they think, and perhaps after further discussions with the Bill team, we shall see whether we need to return to this at a later stage. I beg leave to withdraw the amendment.
Lord Hope of Craighead (CB)
My Lords, I had not intended to say anything about this amendment, but two points occurred to me in listening to the noble Baroness, Lady Berridge, which I mention in case they might be of any assistance to the Minister in looking into the matter. First, I should have thought that it would be plain that if the individual is not capable of entering into a marriage at all, because he or she was underage or simply did not have the mental capacity to agree, one could not treat that as a valid marriage for the time being until it was annulled. There may be something to be said for some categories which are not in that very stark situation; where there was initially the capacity to marry, but there has been enforcement or something like that which has persuaded the individual to enter into it. It is rather as in the law of contract: there are some contracts which are void ab initio and some which are voidable. There may be room for that distinction: no doubt the Minister will wish to research that further.
Secondly, when I was at the Bar in my junior days I used to do cases in Scotland which were described as “nullity of marriage cases”. The ground of nullity in those cases was lack of capacity to consummate the marriage. An individual who found that the husband or wife could not consummate the marriage was entitled to come to court and if that fact could be proved—it was very often not disputed, which was just as well—the marriage would be set aside. I do not know how the law is in England, but there must be a similar process where the marriage cannot be consummated. It may be that those cases are precisely in the category that Amendment 11 is talking about, where somebody has a choice. An individual who finds that the marriage cannot be consummated may feel that the marriage should go ahead for other reasons—simply because they enjoy living with each other. Nobody forces them to apply to the court to have the marriage set aside. It may be that there is an analogy there which can be drawn upon, to follow up the point that the noble Baroness is making.
Baroness Thornton
The noble Baronesses, Lady Berridge and Lady Cox, have raised very valid but different points. The issues to do with property and assets and differential treatment are very valid indeed, particularly with regard to Amendment 11. I look forward to hearing what the Minister has to say because these issues need to be addressed.
Lord Ahmad of Wimbledon
My Lords, I thank my noble friend Lady Berridge and the noble Baroness, Lady Cox, for raising these important issues, which I shall address in turn. As both noble Baronesses will know, I take this issue very seriously: it needs to be addressed and the issues that have been raised are perfectly valid, as the noble Baroness, Lady Thornton, has said. I also thank the noble and learned Lord, Lord Hope of Craighead, for his contribution. He has raised one or two matters which I shall certainly take back to officials to discuss further.
As my noble friend has explained, it is crucial for victims of forced marriage to be able to ensure that the marriage that they have been forced into is subsequently rendered void as a matter of law. While I agree that this is important, especially to the victims of this crime who rightly want clarity on where the marriage stands in the eyes of the law, there are reasons why the Government feel that this amendment is unnecessary. Under the current law, if a forced marriage takes place, victims can apply to the court to end the marriage by divorce or annulment. If a victim wishes to apply for an annulment, it must be shown that the marriage was either void or voidable. The grounds on which a marriage is void or voidable are set out in the Matrimonial Causes Act 1973.
A forced marriage is voidable by virtue of Section 12(c) of the 1973 Act, which provides that a marriage will be voidable on the grounds,
“that either party to the marriage did not validly consent to it, whether in consequence of duress, mistake, unsoundness of mind or otherwise”.
If a victim wishes to apply to the court for an annulment on these grounds, and the court grants the decree of nullity, the annulment will take effect on the date on which the decree of nullity is issued. This amendment would mean that if a conviction for an offence of forced marriage occurred, the court would be required to issue a decree of nullity. The date on which that decree of nullity would take effect would be the date on which the perpetrator was first charged with the offence. I understand totally the sentiments behind the amendment tabled by my noble friend, but I do not agree that the process by which a victim can seek to end a forced marriage, and the date on which that marriage ends, should be determined by reference to whether a conviction for forced marriage has taken place. Such an approach provides no flexibility for victims whose perpetrators are convicted of an offence of forced marriage to choose how they wish to end their marriage. It would also be unfair to those victims whose perpetrators are not found guilty of the offence of forced marriage, and who would have to continue to rely on the current law to end their marriage.
Victims of forced marriage experience a range of specific extenuating factors, as a consequence of which they may wish to have a divorce rather than an annulment. For example, there may be children involved, as my noble friend pointed out, and property rights to consider. As a result, they may prefer a specific legal route to end their marriage. Preserving a victim’s choice is the intention behind the Government’s proposals. We are seeking to provide flexibility to victims who, on seeking legal advice, can end their marriage as and when they see fit. I hope that, having heard this explanation, my noble friend is reassured about where the Government currently stand on this issue.
Perhaps I may now turn to religious marriages, the issue focused on by the noble Baroness, Lady Cox. I pay tribute to her because I know that she represents women’s interests very widely and that this is an issue on which she does not seek to target any particular faith or community. However, she recognises fully that many, if not all faiths, protect such marriages. Unfortunately, it is the case that some of the practices do not live up to the theology. As the noble Baroness has explained, the purpose of her proposed new clause is to create a new criminal offence, under Section 75 of the Marriage Act 1949, of solemnising a marriage according to any religion so that the couple getting married believe they are validly married when in fact the marriage is not valid under that Act. This proposed new offence clearly arises from a desire to help couples who have a religious marriage ceremony that they think is perfectly valid, but which has no legal status because the requirements of the law in England and Wales have not been complied with.
The legal position in respect of religious marriages in England and Wales is that anyone who wishes to contract a religious marriage and acquire a legal marital status has two options. They can either have a religious marriage and a separate secular civil ceremony or they can choose to solemnise their religious marriage in a place of worship registered to conduct marriages, thus removing the need for a separate civil ceremony. Where a marriage is invalid for want of the appropriate formalities or other elements, this does not necessarily leave the parties without any remedies. If the marriage purports to be in accordance with the provisions of the Marriage Act but does not fully comply with those provisions, it may be void under Section 11(a) of Matrimonial Causes Act 1973. This section enables a party to the marriage to apply to the court for a decree of nullity and the court is able to make orders in respect of children and the division of property in the same way as on divorce. We believe that this will provide protection for some of the couples whom the noble Baroness seeks to protect with her amendment.
The Government accept that there will be some religious marriages to which Section 11(a) will not apply. In such cases, the courts may be able to view the marriage as being valid in principle and, as such, susceptible to a decree of nullity. The court will determine such issues on a case by case basis and will consider issues such as whether the ceremony or event set out or purported to be a lawful marriage, whether it bore all or enough of the hallmarks of a marriage, and whether the parties acted in good faith. If the court is not able to make such a finding, again, that does not mean that the spouse will be left without any form of redress. For example, it would still be possible for the court to make an order for financial relief in respect of any children under Schedule 1 to the Children Act 1989. While the Government are keen to ensure that any person who enters into a purported religious marriage in good faith has adequate protection before the law, we do not consider that making the solemnisation of purported religious marriages a criminal offence is the correct way forward. This would, in our view, involve unjustified interference in people’s private and religious lives.
However, the Government take these matters, as raised by the noble Baroness, Lady Cox, very seriously. Even though we may differ in how best to deal with it, the sentiments are certainly much the same. We want to ensure that couples seeking a religious marriage are aware of the need to have a civil marriage as well. If this is to be achieved, it must be with the support of religious leaders and must not be seen as an attempt to dictate to them or undermine them.
Lord Hylton (CB)
My Lords, earlier today we had an interesting and worthwhile debate on whether it was better to deal with forced marriages by criminal or civil sanctions. In the light of that, there is a need for reporting on the effect of this legislation. I support the intention of the amendment in the name of the noble Baroness, Lady Manzoor, although the precise wording may need to be widened.
Baroness Thornton
My Lords, I added my name to that of the noble Baroness, Lady Manzoor, on this amendment because we think that if we end up criminalising forced marriage, we need to look very carefully at how that works out. I very much agree with my noble friend Lord Harris that this should be about the totality of the work of the Forced Marriage Unit. How the Government decide to do it is not the point. It is important that these things are monitored regularly, so I think that “in due course” is probably not a satisfactory answer on this occasion.
Lord Ahmad of Wimbledon
My Lords, first, I thank my noble friend Lady Manzoor for her amendment. I welcome her to what I think is her first contribution to legislation in this Parliament. As has been demonstrated today and in her maiden speech, her contributions are always welcome and based on her great expertise and experience, of this issue in particular.
The proposed new clause would place a duty on the Secretary of State to report to Parliament annually on the effectiveness of the criminalisation of forced marriage under Part 10 of this Act. The Government are indeed happy to update Parliament on the progress of our work in this area. I hope that the various exchanges and discussions we have had, which I have certainly found very valuable, as I am sure all members of the Government and, I hope, the House have, underline the Government’s commitment to look at this issue very seriously.
Noble Lords are correct: this is not about coming back “in due course”. I say to my noble friend Lady Hamwee that I will not be saying that. What I will say is that the Government are concerned that this issue is addressed and dealt with appropriately and that the appropriate debates, discussions and questions take place as and when, but the issue remains one of Parliament. Parliament has open access here. Questions and debates can be tabled as appropriate. I do not, however, believe for a moment that an issue as important as this will be left, for us to return to at some future point. I am sure that the Government will be seeking to update Parliament regularly on work in this important area.
I will allude briefly to the issue of female genital mutilation. I accept that although a law has been enacted, prosecutions have not followed, but let me again reassure my noble friend, the Committee and the wider House that the Government take this seriously. My right honourable friend the Foreign Secretary has made this a personal priority. I will talk about it in a moment.
Once this piece of legislation receives Royal Assent, there is a period of three to five years for post-legislative scrutiny. As I have indicated, the Government accept that, on an important issue such as this, we will be returning to it earlier than that. In the case of the forced marriage provisions, the Government’s Forced Marriage Unit, through its direct work in assisting victims and those at risk of forced marriage, has the capacity and function to monitor the difference that legislation will make to victims of forced marriage. The unit, as many noble Lords will know, runs a helpline providing confidential advice and support to victims and to practitioners charged with the responsibility for safeguarding children and vulnerable adults, ensuring they are fully informed on how to handle such cases. The number of reports to the helpline has steadily increased since the unit was established in 2005. In 2012 the Forced Marriage Unit provided advice and support in almost 1,500 cases. It will regularly update Ministers on any issues identified with the new laws and make recommendations on any necessary policy changes.
My noble friend Lady Manzoor referred to the lack of prosecutions for FGM and asked whether forced marriage will be different. I would like to reassure my noble friend that we will also monitor the number of prosecutions brought, and we will want to understand the reasons why cases are either not referred to the CPS or not proceeded with by the CPS if that should prove to be the case. That said, it is important to remember that the Government’s priority in criminalising forced marriage is prevention, a sentiment I know is shared across the House. This legislation has been designed to send the clear message that forced marriage is unacceptable, it is a breach of human rights, and perpetrators will be punished.
My noble friend talked about options. We know that legislation alone is not enough to address issues, and we will endeavour to work with partners across government, with non-government organisations and other experts in the field to ensure that victims and potential victims of forced marriage are aware of the support and options available to them. As I said to my noble friend Lady Hamwee in an earlier debate, it is important that a civil remedy remains available to victims. This means that victims could choose to take a civil route or go to the police, as they can now. I reassure my noble friend that, in respect to FGM, the Government will do everything in their power to ensure that victims can come forward and their abusers face the full force of the law.
The Department of Health is working to improve the information collected by the NHS on FGM. The Home Office has recently announced it will help fund a new study into the prevalence of FGM in England and Wales. The Department for International Development has established a £35 million programme to address FGM in Africa and beyond, with the ambition to end FGM in one generation. The level of international co-operation to which my noble friend alluded is certainly working well there.
The Government have also joined forces this year with the NSPCC and the Metropolitan Police to establish a dedicated FGM helpline. But as we know, there is much more that needs to be done, which is why the Home Office is working closely with the CPS to ensure that the Government are doing everything they can to help secure a prosecution. I am greatly encouraged by the assessment of the Director of Public Prosecutions that it is only a matter of time before a perpetrator is brought to justice.
I will just pick up on one or two other issues that were raised. The noble Lord, Lord Harris of Haringey, and my noble friend Lord Faulks mentioned the importance of coming back to Parliament on this. As I have already said, the Government take this issue seriously. I hope that has come across in today’s debates. I also acknowledge the very important point made by the noble Baroness, Lady Kennedy, that education must be a major component of how we start to address some of these issues of marriages, particularly those that take place in certain communities. As for marrying into families and that continuing, my noble friend Lord Hussain talked about how clans and tribes work. He used the word “brathries”—I am not sure Hansard needs a translation, but it generally means within a brotherhood. I hope that clarifies that for the Hansard writers.
This is the last amendment in the group on forced marriage. I share my noble friend’s desire—and that of all noble Lords—to ensure that new legislation is effective. I will be happy to update the House on the progress of our work in this area. The Government would of course expect to be held to account through the usual parliamentary oversight channels.
Before I ask my noble friend to withdraw her amendment, I just say this: forced marriage is a terrible act; it is a heinous crime. Coercion in marriage has no place in our or any society. The Government seek ultimately to strengthen a victim’s access to justice. I know that is a sentiment we all subscribe to. Our country is an incredible place, one that encompasses all people, all communities and all faiths, but we must hold those who commit these crimes to account and help those who suffer as victims to ensure that they have the opportunity to take to task those who commit these crimes. On that basis, and with the explanation I have given on this issue, I hope that my noble friend will be minded to withdraw her amendment.
Inheritance (Cohabitants) Bill [HL]
Baroness Thornton Excerpts(12 years, 1 month ago)
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Baroness Thornton
My Lords, I thank the noble Lord, Lord Lester, for his able, comprehensive and indeed brief introduction to the Bill. I am not going to speak for long because most of the things that need to be said on this issue have already been said. However, I want to say that these Benches support the Bill; we did in Government and we do so now. Indeed, I agree with Professor Elizabeth Cooke, the commissioner who led the review, when she said:
“When a family member dies the process of grieving and of adjustment to change can be made far worse by uncertainty and anxiety about money or belongings. It is vital that the law remains relevant and up to date, reflecting the reality of modern society and reasonable expectations of those who have been bereaved”.
The words of my noble friend Lady Kennedy, the noble and right reverend Lord, Lord Harries, and the noble Lord, Lord Marks, are the right, compassionate and fair way to look at this issue.
It would be amazing if there were agreement in your Lordships’ House about such an issue, and I respect the fact that noble Lords have concerns, which they have expressed today. However, I confess that I was saddened by the tone and content of the remarks by the noble Baroness, Lady Deech, which seemed to unnecessarily overstate the effect and exaggerate the malign purpose of this, I think, rather modest Bill; I agree with the noble Lord, Lord Marks.
The first thing that needs to be said on the whole issue is that we have to emphasise the importance of people drawing up wills. I think that the whole House would agree with that, and it is important that we do everything that we can to encourage people to do that. We do not oppose the extension of the qualification to cohabitants under intestacy. I thank the noble Lord, Lord Lester, for introducing the Bill, and we wish it well.
Legal Aid, Sentencing and Punishment of Offenders Bill
Baroness Thornton Excerpts(12 years, 10 months ago)
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Baroness Northover
(d) accommodation, or accommodation of a description, for the time being specified by order under section 107(1)(e) of the Powers of Criminal Courts (Sentencing) Act 2000 (youth detention accommodation for purposes of detention and training order provisions).”
Baroness Northover
My Lords, this is a substantial group of amendments, many of which are minor and technical. However, there are a number of substantive amendments which the Committee will be interested in and which I will go through briefly. These relate predominately to the functions of the Secretary of State and the Youth Justice Board and are set out in Clauses 95, 96 and 97.
Amendment 178ZAE expands the definition of youth detention accommodation currently set out at Clause 95(2) to include any new form of youth detention accommodation specified by the Secretary of State under Section 107(1)(e) of the Powers of Criminal Courts (Sentencing) Act 2000. In recent years we have seen a significant reduction in the number of young people sentenced to custody. Although the number of those remanded has not shown the same reduction, we believe that the remand proposals contained within Chapter 3 have the potential to bring about a fall in the level of secure remand to youth detention accommodation also. If this occurs, and demand on the secure estate continues to fall, this may provide further opportunities to plan and pilot new forms of youth detention accommodation. Such accommodation would be developed with the aim of improving outcomes for children and young people, and this amendment would allow it to be used to accommodate remanded young people as well as those who are detained post-sentence.
Amendment 178ZBC extends the power in Clause 96 that gives the Secretary of State the power to make arrangements with providers of secure children’s homes to accommodate remanded young people so that the Secretary of State may also make such arrangements for the use of newly specified types of accommodation.
Amendments 178ZBA and 178ZBE provide for the Secretary of State’s functions in Clauses 95 and 96 to be exercisable concurrently with the Youth Justice Board. That is, both the Secretary of State and the YJB may exercise the power. They also allow the Secretary of State by order to provide that these functions should be exercisable solely by him or her. This order-making power is subject to the affirmative resolution procedure, as set out in Amendment 178ZBG.
In tabling these substantive amendments, the Government have responded to Parliament’s decision not to abolish the Youth Justice Board. These amendments ensure that the Youth Justice Board can continue to carry out its placement and estate management functions in relation to remanded young people. These amendments also provide a concurrent power, with the Secretary of State, for the Youth Justice Board to make payments to and recover costs from local authorities. Payments will be made to local authorities to enable them to take on greater financial responsibility for the costs of secure remand and to invest to help ensure that remands to custody occur only when appropriate. The clear intent is that this funding will be used only for the provision of youth justice services.
The last set of substantive amendments in this group, Amendments 178ZBJ, 178ZBK, 178ZBL and178ZBM, amend the test set out in Section 3AA of the Bail Act 1976 that a court must apply when deciding whether it may impose electronic monitoring on a child or young person as a condition of their bail. The amendments allow for imprisonable offences committed by a child or young person while remanded in custody under existing provisions or remanded in youth detention accommodation under the provisions of the Bill to be taken into account by the court when determining whether a child or young person has a history of offending. This change is consistent with the equivalent condition in Clause 87 relating to electronic monitoring of a child remanded to local authority accommodation.
Amendments 178ZBB, 178ZBH, 178ZBN, 178ZBP, 178ZBQ and 178ZBR are minor and technical amendments associated with the provisions in Chapter 3.
I should mention that we will arrange for the letter that my noble friend Lord McNally recently sent to all Peers regarding the Government’s youth justice amendments, to which I referred earlier, to be placed in the House Libraries. I beg to move.
Public Bodies Bill [HL]
Baroness Thornton Excerpts(13 years, 11 months ago)
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Baroness Thornton
“Food Standards Agency.”
Baroness Thornton
I realise that putting down an amendment to add something to this hotchpotch Bill may seem perverse in the extreme but assure the Committee that there is method in my madness. This is a probing amendment, designed to achieve what we seem to have signally failed to achieve so far with this Bill: that is, to gain some understanding of the rationale, the explanation or the philosophy that lies behind (the arm’s-length institutions that are included in the Bill and those that are not). I use the Food Standards Agency as an example of a body that is not in the Bill but about which reform is being proposed.
The Food Standards Agency, is, as it says on its website,
“an independent Government department set up by an Act of Parliament in 2000 to protect the public's health and consumer interests in relation to food”.
What has already been announced is that some of its functions will be taken away and given to Defra, and nutrition and dietary health will be moved back to the Department of Health. That is a very retrograde step in the view of many people concerned with diet and health. I think we can safely say that the Food Standards Agency was specifically formed after the BSE food scandals to try to re-establish public confidence in food advice by creating an arm’s-length body and an independent organisation. If the Government wish to change that fundamentally, they have to have some justification for addressing those issues specifically. Even if they wish to make the FSA a leaner and more cost-effective body, as they have done and to which the FSA has responded very well, cost-cutting is not the point here. It would seem that the FSA can be changed and its powers taken away without recourse to Parliament, without consultation and without this Bill.
Why is the FSA not included in this Bill? I was tempted to table an amendment for all the non-departmental government bodies that are not included in this Bill just to try to make sense of the Bill, and I have not ruled out that idea. For example, we will address later the other health bodies that are included in this Bill: the HFEA and the HTA. They were created with a similar motivation to that behind the Food Standards Agency—the need to have an arm’s-length body independent of government that could be trusted by the public to give good advice.
So far, the passage of this Bill has resembled a familiar song that we may all know, “The Hokey Cokey”. You put Channel 4 or Ofcom in the Bill, then you take them out of the Bill—or you think about it—and maybe shake them all about a bit. In the case of the recent government amendments on the Criminal Procedure Rule Committee, and a host of the other judicial-sounding bodies, they are out, but why? Perhaps we should rename this Bill the Hokey Cokey Bill.
Since tabling this amendment, the Public Administration Select Committee in another place has very obligingly published, Smaller Government: Shrinking the Quango State. I had intended to use the Treasury’s admirable publication, Reforming Arm's Length Bodies, and the Institute for Government’s document, Read Before Burning, as a theme for this discussion, because both contain a sensible description of the different kinds of arm’s-length bodies, what they do and how they might be reviewed and reformed. However, I think that they have been overtaken by the admirable report from the committee under Mr Bernard Jenkin MP about the dog’s breakfast that is not just this Bill but the whole process of reforming arm’s-length bodies.
To go back to basics, the coalition agreement merely said:
“We will reduce the number and cost of quangos”.
I have to say that my own Government’s policy was along the same lines. The Reforming Arm's Length Bodies document outlined how to do this in an orderly fashion over a period of time and save money in the course of doing that. So the Government started a cost-reduction exercise. Shortly after the election, they undertook to review public bodies sponsored by departments, including executive agencies. The stated aim of the review was primarily to increase the accountability of government. To achieve this, the review attempted to indentify functions that could be transferred from public bodies to central departments. The Government argued that Ministers could then be directly responsible for those activities and could be held to account by Parliament for the discharge of those activities. Indeed, Francis Maude, the Minister in the Cabinet Office—I particularly like this bit—said:
“I have led an intensive review into public bodies, subjecting each to four tests. The first test was existential and asked, does the body need to exist and do its functions need to be carried out at all?”.—[Official Report, Commons, 14/10/10; col. 505.]
I think that existential is a really good word to use in the process of these discussions. Those tests were whether,
“a precise technical operation needs to be performed to fulfil a ministerial mandate”.
The second area was,
“where it may be right to delegate power to an independent body … when there is a need for politically impartial decisions”.
The third area was,
“where there is likely to be a need for independent action … when facts need to be transparently determined”.
The fourth area, of course, was the existential test.
Added to that, we have another test, which appeared slightly late in the day: transparency. According to the report:
“The Ministry of Justice has retained bodies on the grounds of ‘transparency’”,
so we know now that we have at least four or five tests that the Government have said need to be applied to arm’s-length bodies.
The report goes on to say:
“It is also unclear whether all three of the tests the Government set were necessary in determining whether a function should remain at arm's length from Government”.
The report adds that the Institute for Government,
“during its research for its report, Read Before Burning, conducted its own evaluation of public bodies and the level of independence they need to discharge their functions properly. Their evidence states that: The key issue for deciding to put a function at arm's length is the degree of independence from day-to-day ministerial intervention needed to enable the body to command public confidence that it can perform its function in the public interest”.
That test applies completely to the FSA, and indeed to several bodies that are included in this Bill. We therefore have the importance of the independence test.
The additional test that is brought to bear is that of value for money. As well as the four or five tests that I have already outlined, the Select Committee says that the Government,
“are silent on a range of other issues, such as the implication of changes on the wider public policy framework, value for money, or current performance of organisations”.
The report concludes:
“The Government did not consult properly on these proposals. When undertaking such a fundamental review of the machinery of government it is desirable and sensible to do so”.
Our own Merits Committee did, as I recall, agree with that.
The report goes on to say that the Government do not apply the tests consistently and have declined, in some cases,
“to provide an explanation for why it intends to retain a body”.
It seems to me that asking for an explanation of why the Food Standards Agency is not included in this Bill is exactly the point of this Select Committee report. The Government have been inconsistent about what is in the Bill, what is out of the Bill, and what tests should be applied to the bodies that they intend to keep and to reform. The conclusion of this very critical report says:
“We are not convinced that the Government has applied its tests consistently. Neither can we find any evidence to suggest that it took any steps to ensure a uniform approach was taken. We recommend that the Cabinet Office publish details on how the tests have been applied to all public bodies that are still under review, so we can ensure that in future these tests are applied consistently.
The lack of consultation and inconsistent application of the tests, which are themselves confusing”—
I would agree with that—
“have led us to conclude that there was no coherent and consistent process for reviewing public bodies”.
I return to the Food Standards Agency, which I would not wish to include in this Bill. Whether or not I proceed to add a whole host of other bodies into the Bill in a desperate attempt to understand the rationale is dependent on the Minister’s explanation. I would really appreciate him addressing the very important issues that are raised in this report—and this is the first opportunity we have had to say this. I would like an explanation of the broader implications that this report has for the Bill. Obviously, it involves not just the Food Standards Agency but many, many bodies.
Finally, we on these Benches are not opposed to modernising arm’s-length bodies. Indeed, in March last year we published a document about the reform of arm’s-length bodies that said that we intended to reduce their number by 123 and to save money by doing so. However, we intended to do it in an orderly fashion with consistent and consistently applied criteria. This Government have not done that, and we need an explanation of what they intend to do next. I beg to move.
Lord Hunt of Kings Heath
My Lords, I am grateful to my noble friend Lady Thornton for raising three very substantive matters with this amendment: first, what is to happen to the FSA; secondly, the process by which the Government have undertaken this review; and, thirdly—coming back to the debate on the first group of amendments—the architecture of the Bill.
I was the Department of Health Minister who, with the noble Baroness, Lady Hayman, as the Defra Minister, took through the legislation that created the Food Standards Agency. The noble Lord, Lord Newton, and I are singing off the same hymn sheet here. I remind the noble Lord that the reason for this was that there was a great deal of public distrust, it would be fair to say, arising out of the BSE issue along with some concern about the advice that the relevant government departments had been giving to the public. Therefore, the decision was taken to create an independent agency sponsored not by Defra but by the Department of Health.
Overall, that agency has worked very well indeed. I pay particular tribute to the noble Lord, Lord Krebs, and to Mr Geoffrey Podger, the first chair and chief executive of the FSA—and, indeed, to their successors—for doing what I think has been an outstanding job. It has certainly advanced the credibility of the advice that that body gives to the public and, importantly, has also enhanced the credibility of the British food industry. I therefore have some reservations about the changes that are now being proposed to the FSA. I understand that there will be a transfer of some of its responsibilities to the Department of Health. I must declare my interests in relation to the health service and to public health as they are recorded in the Register. The FSA has a tremendous reputation and, in the Government’s place, I would hesitate before making substantive changes.
However, the second point raised by my noble friend relates to the rationale for the Government’s approach both to those bodies that are contained in the Bill and those that are not. It is still not clear to many noble Lords what the rationale is. This is a good opportunity for the Minister, who, as noble Lords have already remarked, has been very helpful to the House, to explain some more about the rationale for the bodies contained in the Bill and those that are not, even where those that are not are actually to have substantive changes made to them.
The noble Lord, Lord Taylor, will be a little tired of having Select Committee reports quoted back to him because it would be fair to say that all of the Select Committees that have so far looked at the Bill and at the review undertaken by the Government have been not exactly complimentary. The noble Lord, Lord Taylor, has to answer the central charge of the Public Administration Select Committee, chaired by Mr Bernard Jenkin, which said:
“This review was poorly managed … no meaningful consultation, the tests the review used were not clearly defined and the Cabinet Office failed to establish a proper procedure for departments to follow”.
Apart from rejecting the Select Committee’s report out of hand, the Government have been rather silent in responding so far. We are entitled to some comment on the review process itself.
My noble friend Lady Thornton referred to the Bill as being the “Hokey Cokey Bill”. I think it is more Gilbertian myself. The noble Lord, Lord Taylor has a little list. In fact it is a very big list that is gradually becoming smaller. I note that the Jonathan Miller production of “The Mikado” is back at the Coliseum yet again. The noble Lord might take care and reflect by going to see it.
It brings us back to the architecture of the Bill. In an earlier debate the noble Lord, Lord Lester, raised the question of Amendment 175, which is consequential on the paving Amendment 1 that the House passed. That is a very important amendment because it sets very clearly the restrictions on ministerial powers to be used in the Act. If, as a result of the discussions that I know that his officials are having with noble Lord, Lord Lester, tomorrow and other discussions, the Government were able to accept the principle of Amendment 175, while making it clear that they do not intend to reverse this in the other place, then we would make more progress.
There are other substantive issues in relation to the architecture. I have already mentioned the use of the supra-affirmative procedure and the deletion of Schedule 7. Some reassurance that public consultation will take place when it is proposed to deal with any of the bodies in this order would go some considerable way to reassuring noble Lords. In the absence of the House understanding what changes the Government are prepared to make to the architecture, we go inevitably through these bodies one by one and, in a sense, in a vacuum—a point made earlier by the noble and learned Lord, Lord Mackay of Clashfern. We are due a Committee day next week when, no doubt, we will hear when further Committee days are to take place. I hope that in a fairly short time the Government will be able to make a little clearer their sense of where they are on the Bill and whether they are prepared to make the kind of changes to its construct that would reassure noble Lords considerably.
Lord Taylor of Holbeach
My Lords, I thank the noble Baroness, Lady Thornton, for tabling this amendment. I know that she has done so with good intentions but we have enough on our plate without adding an extra dish to the menu. I thank the noble Lord, Lord Hunt of Kings Heath, for his recommendation to see “The Mikado”. I saw it when it was previously on at the Coliseum. In fact, I have tickets. Should time allow, I hope to see it in revival.
As your Lordships are aware, the Public Bodies Bill exists to take forward the review of public bodies undertaken across the Government in 2010 to enable changes to be made. I acknowledge the report of the Select Committee produced by another place and no doubt we will be replying to that report in due course. However tempting it might be, I do not want to use this debate as an opportunity for expanding on arguments that the Government will bring forward in their discussions with that committee. We are negotiating with the opposition Front Bench and the Select Committees of your Lordships’ House to try to improve the Bill. It is interesting that, as the noble Baroness said, there is a determination across the House to ensure that we have a public bodies sector that is fit for purpose.
Perhaps I may address the changes that have occurred within the Food Standards Agency in the context of the recent history of the department. The previous Government announced in their public health White Paper, published shortly before the election, that they would bring dietary health and nutrition away from the FSA into the Department of Health. That is the background against which, under the new Government on 20 July 2010, the Department of Health announced its decision to retain the Food Standards Agency as an independent regulator, while transferring some of its functions to the Department of Health and Defra. I shall shortly put those into the context of the size of the organisation. These changes are non-statutory in nature and do not therefore require the use of the Public Bodies Bill, or any another legislative vehicle, to bring them into effect.
The proposed changes to the role of the FSA are designed to contribute to the Government’s objectives to improve efficiency and are paramount to the key priority of improving the health of the nation by creating a public health service. To achieve this coherence, some policy-based functions are to be brought in-house to give a more co-ordinated approach on health and food issues. These changes affect approximately 5 per cent of the 2,000 staff employed by the Food Standards Agency. About 25 labelling policy posts will move to Defra and 85 nutrition policy posts will move to the Department of Health. These proposed changes reflect the Department of Health’s desire to bring together all the policy levers to enable it to deliver a coherent public health strategy. This will allow the FSA to focus on its key core remit of food safety underpinned by scientific expertise. It has been mentioned that the noble Lord, Lord Krebs, in establishing the Food Standards Agency, provided a foundation of science which has greatly benefited that organisation. The proposed changes will enable government food policy to be communicated and delivered in a coherent and consistent manner. The Department of Health, Defra and the FSA—we must not forget that the Food Standards Agency is classified as a government department—will work together to ensure that this structure protects consumer interests, reinforces efforts to improve the public’s health and supports a competitive food industry.
I acknowledge that the last thing the noble Baroness seeks is the extinction of the Food Standards Agency. On the basis of the assurances I have given, I hope that she will feel able to withdraw the amendment.
Baroness Thornton
I thank the Minister for that Answer. I assure him that we are in agreement about not adding the FSA to the Bill. I will read his remarks and consider how we might usefully take forward the process of injecting coherence into this modernisation. However, I shall not do so now. Therefore, I beg leave to withdraw the amendment.