Anti-social Behaviour, Crime and Policing Bill

Lord Ahmad of Wimbledon Excerpts

Tuesday 14th January 2014 Lords Chamber

Moved by

[Lord Ahmad of Wimbledon]

87ZA: Clause 105, page 76, line 37, after “80” insert “to 85, 86”

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[Lord Ahmad of Wimbledon (Con)]

My Lords, the amendments in this group—namely Amendments 87ZA to 87ZY, 94F, 96A, 96B and 100—make a number of essentially technical and drafting amendments to the provisions in Part 9 of the Bill. These provisions, particularly those to be found in Schedule 5 to the Bill, provide for two new civil orders designed to protect the public from sexual harm, namely the sexual harm prevention order and the sexual risk order.

The substantive amendments relate to three matters. First, youth courts deal with applications for sexual harm prevention orders and sexual risk orders in respect of persons under 18. The amendments to Schedule 5 provide for all such applications to be heard in the youth court. As noble Lords may be aware, the youth court provides a more appropriate setting for juvenile defendants. The magistrates receive specific training and are encouraged to engage in conversation and use plain language with the young person, who is encouraged to respond.

The House has already agreed amendments to Part 1 of the Bill, which enable linked application for an injunction involving respondents aged under 18 and others aged 18 or over to be heard together in the youth court. Amendments 87ZS and 87ZW make like provision in respect of sexual harm prevention orders and sexual risk orders. As in Part 1, the detailed provision will be made in the rules of court and the same test, namely the interests of justice, will apply to the court’s consideration of an application for two or more linked cases to be heard together. This will ensure the effective administration of justice while also allowing cases to be heard in the most appropriate setting.

Amendments 87ZS and 87ZW also make provision for rules of court in relation to individuals who turn 18 after proceedings for an application for an order have begun. The amendments allow rules of court to prescribe circumstances in which proceedings may or must remain in the youth court, or to make provision to transfer the proceedings to the magistrates’ court.

In addition to these amendments, the Bill includes provision for statutory guidance on the new orders and, in developing this, we will continue to work with the police, the Courts Service and others to ensure appropriate guidance on the application of the orders to under-18s is included. This will help to ensure that cases relating to under-18s are treated with the specialist consideration and sensitivity needed.

The second issue addressed by these amendments is to confer powers on the courts in Northern Ireland to vary a sexual harm prevention order or sexual risk order. The new civil order regime will extend to England and Wales only, whereas the relevant provisions in the Sexual Offences Act 2003 currently apply throughout the United Kingdom and will continue to operate in Scotland and Northern Ireland, where they relate to devolved matters. The Bill allows for the prohibitions contained in the new orders to be enforceable in Scotland and Northern Ireland, and for breaches to be prosecuted in the courts in those parts of the United Kingdom.

We have been liaising closely with the devolved Administrations in relation to cross-border enforcement. Amendment 87ZX will allow the court in Northern Ireland to vary a sexual harm prevention order or sexual risk order made in respect of a person who, following the making of the order in England or Wales, now either resides in or intends to come to Northern Ireland. This will be in response to application from the chief constable of the Police Service of Northern Ireland or the defendant. The court may vary an order to impose additional prohibitions if it is necessary to do so for the purposes of protecting the public in Northern Ireland and/or children or vulnerable adults abroad from sexual harm. As in England and Wales, the defendant has a right of appeal against any such variation. Finally, these amendments make consequential amendments to Armed Forces legislation in respect of the operation of the new sexual harm prevention order by the service courts.

Amendment 87ZY enables the service courts to impose a sexual harm prevention order at the point of conviction in respect of an individual who has been dealt with by that court. Under the current regime, service courts may apply sexual offences prevention orders at the point of conviction. This amendment ensures that service courts have the power to impose a sexual harm prevention order where the court considers this necessary for the purposes of protecting the public in the UK, or children or vulnerable adults abroad, from sexual harm.

As with orders imposed by the civilian courts, the defendant may appeal against the making of a sexual harm prevention order to the Court Martial Appeal Court where the order was imposed by the court martial. Where such an order was imposed by the service civilian court, the defendant may appeal to the court martial.

Amendment 87ZY also allows the service court, on application from a provost marshal or the defendant, to vary, renew or discharge a sexual harm prevention order in respect of a defendant who is subject to service law or service discipline at the time of the application. In line with the approach in the civilian court, a service court cannot discharge an order without the consent of the defendant and a provost marshal. Applications to vary, renew or discharge an order may be made by the defendant or a provost martial.

I trust that noble Lords will agree that these are all sensible refinements to the provisions in Part 9 and, on that basis, I beg to move.

Amendment 87ZA agreed.

Moved by

[Lord Ahmad of Wimbledon]

87ZB: Clause 105, page 76, line 38, leave out “136ZB” and insert “136ZD”

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[Baroness Tonge]

I thank the noble Lord for his advice. I was aware of the situation in Scotland, but I was not aware that we could not actually alter the amendment in the way that I intended. However, I thank him for his advice.

[Lord Ahmad of Wimbledon]

My Lords, I thank all noble Lords who participated in this debate. I am particularly grateful to the noble Baroness, Lady Thornton, and my noble friend Lady Tonge for setting out the case for their amendments. The noble Baroness, Lady Thornton, talked about the general issue of forced marriage. In Committee, full discussion took place with the noble and learned Baroness, Lady Scotland, who I regret is unable to be with us today. My noble friend Lord Taylor of Holbeach and I had several meetings with her on this issue. I want to put on record my personal appreciation, and that of the Government, for the sterling work that she did in her various capacities as a government Minister, particularly her role in establishing the Forced Marriage Unit. I know that she comes to this issue with great expertise and knowledge, which have been a useful and extremely important part of the debate that we have had.

As was said by the noble Baroness, Lady Thornton, and by my noble friend Lady Tonge, whichever way you look at this particular issue, we are all agreed that coercion in marriage and forced marriage are things that need to be tackled. The previous Government took the issue forward in positive ways, and I fully acknowledge that in the course of our considerations and debate, and in our discussions both in Committee and outside the House, opinions have been expressed on all sides of the argument.

I have heard the reservations, and the noble Baroness mentioned the meetings that my noble friend Lord Taylor of Holbeach will be having in this regard. We hope that all organisations, wherever they stand on the issue of criminalisation, will support and work with the Government to ensure that the implementation of these proposals is effective and—what is most important—will help support those who are the vulnerable victims of this terribly tragic and heinous crime. There is no better way of explaining what this issue is.

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[Baroness Thornton]

I thank the Minister for allowing me to press him on this point. Actually, the point is that there will be no coercion. There does not need to be any coercion as the person lacks capacity. Therefore, they cannot consent, or withhold their consent, because they do not know that they can do either of those things. The parents concerned may think that they are doing exactly the right thing for that son or daughter, whether a young person or not. In other words, the Bill as drafted does not cover that point. No coercion is being used, and no coercion is needed, as the person lacks capacity. I do not think the definition of coercion that the Minister has mentioned at previous points in the Bill covers that.

[Lord Ahmad of Wimbledon]

Again, I totally understand and respect the noble Baroness’s position. She is correct in saying that, often, the people who may be forced into a marriage would be unaware of the situation. The point she raised about parents is also well made. However, as the legislation stands, they would not have given their “full” consent, which means that they had the capacity to give that consent. I see that the noble Lord wishes to speak.

[Lord Harris of Haringey]

The point here is not the consent but whether coercion has taken place. The noble Baroness, Lady Hamwee, put it very clearly: for an offence to be committed, both paragraphs (a) and (b) have to apply. It is not a question of whether consent has been given or not under paragraph (b) but a question of whether or not there has been coercion. This will not necessarily be coercion. It may simply be suggestion, which I do not think counts as coercion. The context is that you have to do both (a) and (b), so there has to be either the use of “violence” and “threats”—which does not necessarily have to happen—

“or any other form of coercion”.

However, this will not necessarily be coercion. I will carry on explaining the point to allow assistance to come from the Box. It is an extremely important issue.

There is the question of coercion, which leads to somebody entering into a marriage, and the question of consent. I think we all agree that people with limited capacity will not be able to give consent. However, that, in itself, does not create an offence, because they may not have been coerced. A highly suggestible person with learning difficulties may simply have been told, “This is going to be nice, you are going to enjoy this and this is going to be fun. So-and-so is going to look after you and take you to the cinema”. I do not know what the form of suggestion might be, or how it might be put, but that is the context in which it would happen. It is not the same as coercion—that is the difficulty. As far as I can tell—the noble Baroness, Lady Hamwee, put it very clearly—you need both coercion and the failure to consent before you have committed an offence. That is why my noble friend Lady Thornton’s amendment is so important.

[Lord Ahmad of Wimbledon]

I thank the noble Lord and the noble Baroness for their interventions and will return to that point before I conclude my comments. The point is well made and understood, but I will continue while I await clarification. My understanding on this issue is that any person taking part in a marriage would have to give their consent. The view is that, if no consent is given, it would not be deemed to be a valid contract. However, as I said, I will clarify that point in a moment.

I turn to Amendments 87A and 87B tabled by the noble Baroness, Lady Tonge. I shall explain that these amendments relate to the process by which a young person aged 16 or 17 may consent to the marriage. Following the Committee stage, I have had the opportunity to meet the noble Baroness and I welcome the opportunity again to discuss this important issue today. These amendments would make it an offence for the parent or guardian to consent to a marriage of a person or persons before the age of 18 unless the written consent of both parties to the marriage has been obtained. The offence would also extend to marriages contracted outside the UK.

I understand that the noble Baroness is concerned that under the current law parents may give consent to force marriage on a 16 or 17 year-old who may not wish to marry. However, I do not believe this amendment is necessary because the law already provides adequate safeguards for children who are aged 16 to 17 and are entering into marriages.

The law in England and Wales, as contained in Section 2 of the Marriage Act 1949, provides that if a marriage, be it civil or religious, is solemnized and either or both of the parties is under the age of 16 that marriage will be void. If the child is aged 16 or 17, Section 3 of the Marriage Act 1949 requires the consent of the child’s parents or guardians, unless the child is a widow or a widower.

I appreciate that Amendment 87A seeks to add additional safeguards to the current law rather than preventing the marriage of 16 and 17 year-olds outright. However, I consider that the additional need for the written consent of parties is unnecessary. If any person is forced into a marriage without their consent, the provisions in this Bill which will make it a criminal offence to seek to force someone to marry will apply regardless of the age of the party concerned. In addition, any forced marriage would be voidable under Section 12(c) of the Matrimonial Causes Act 1973 on grounds of lack of valid consent.

If someone is being forced into marriage, it is foreseeable that they could be forced to provide written consent. Therefore, I do not believe that this provision would achieve the noble Baroness’s desired effect of preventing forced marriages. However, I understand totally the noble Baroness’s concerns and I share her desire to ensure that we do everything we can to protect 16 and 17 year-olds—as well as others—from forced marriage. In regard to the points made by the noble Baroness, I will keep the provisions in the Bill under review and, as we have previously discussed, consider the issue of how the legislation is currently drafted to see whether there is something more that we can return to at Third Reading.

Turning to the application of such a provision to marriages contracted outside the United Kingdom, there is no legislation in England and Wales on this issue and matters of recognition of such marriages in England and Wales are for the courts to determine. However, I consider that the courts already have the necessary powers to provide adequate safeguards for children entering into marriages outside the UK. Generally speaking, the validity of a marriage contracted outside the UK will be governed by the law of the country in which it was contracted. However, if there were questions as to the capacity or age of one or both parties to such a marriage, the courts in England and Wales could refuse to recognise the marriage for the purposes of England and Wales law.

I therefore consider that the need for the written consent of parties is unnecessary in respect of marriages contracted outside the UK. We also do not believe that applying this sort of provision to marriages contracted outside the UK would be practical or appropriate. For example it would, in our view, be extremely difficult to enforce.

Finally, I turn to Amendment 87B, which seeks to make identical provision to Amendment 87A in respect of Scotland. This is a devolved issue, as the noble and learned Lord, Lord Hope of Craighead, underlined.

Perhaps I may turn to the issue just raised on Section 109. The Forced Marriage Unit carried out a full review of the cases dealt with in relation to victims with learning disabilities and mental health issues and could not find any cases in which there was no element of coercion. Where there is an element of coercion, we do not wish to criminalise the behaviour concerned. Rather, the appropriate recourse is for the individual to apply to the court for the marriage to be declared void under Section 12 of the Matrimonial Causes Act.

[Baroness Thornton]

This House has a reputation for dealing with issues to do with mental capacity. We have spent many months discussing the issue of capacity and how best to protect people who lack it. We have a great body of legislation which protects people who lack capacity. I ask the Minister to look again as to whether this really protects people who lack capacity as people in this House believe that it does not. It would be awful if we found, further down the track, that we got this wrong and we were not protecting people who lack capacity.

[Lord Ahmad of Wimbledon]

Hearing what the noble Baroness and, indeed, the noble Lord, have said, with the leave of the House, I will return to this issue. I will consider its practical application with my noble friend. When the noble Lord, Lord Harris, was speaking, I was listening attentively but, as he rightly said, I was waiting for inspiration from the Box. This is too important an issue to deal with in a non-comprehensive way so, as I said, I would like to return to it.

[Baroness Hamwee]

My Lords, when the Minister is considering this with his advisers, on the point about an application to the court, will he consider both the practicality and the legal capacity of the people we are concerned about to make that application?

[Lord Ahmad of Wimbledon]

That is a valid point. I have had discussions with officials on the issue of ensuring assistance. If someone has not had the mental capacity to consent, would they have the mental capacity to take up the issue? That is a point understood and well made.

I hope that, based on the assurances and clarification that I have given that we will look at the issue again, at this juncture the noble Baroness will be prepared to withdraw her amendment.

[Baroness Thornton]

I thank the Minister for his usual comprehensive and comprehensible response. I am very grateful for the fact that the Government have agreed to think about this again and, of course, we will be very happy to help them to do so. I beg leave to withdraw the amendment.

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Moved by

[Lord Ahmad of Wimbledon]

88: Clause 110, page 81, line 21, leave out “2” and insert “7”

[Lord Ahmad of Wimbledon]

My Lords, Clause 110 creates two offences of forced marriage in Scotland that mirror the offences in Clause 109 for England and Wales. The Scottish Parliament is currently considering the necessary legislative consent Motion. The amendment relates to the penalty on conviction on indictment for the new offence. Initially, the Scottish Government opted for this to be imprisonment for a period not exceeding two years, as that was in line with similar penalties in Scotland. The Scottish Government have given further consideration to the issue and concluded that if we are providing consistency across the UK by criminalisation, we should seek to extend the consistency by applying the same maximum penalties on indictment. The maximum sentence of seven years has been set to cover the most serious behaviour imaginable under the offence. We have looked closely at other existing offences, international comparators and related maxima in proposing the new maximum sentence. I beg to move.

Amendment 88 agreed.