European Arrest Warrant
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The Parliamentary Under-Secretary of State, Home Office (Lord Bates) (Con)
My Lords, the Government are close to agreeing a package of 35 measures with the European Commission and other member states that the UK will seek to join in the national interest. That package includes the reformed arrest warrant, with increased domestic powers to block arrest warrants where the offence is disproportionately minor or where the relevant conduct that occurred in the UK is not a crime. The discussions continue in Brussels.
Lord Harris of Haringey (Lab)
Given that nearly 100 foreign criminals are removed from this country under the European arrest warrant every month, can the Minister give us a guarantee that we will have opted back in by 1 December? When will this be put to the House of Commons? When it is, because of the level of opposition to the European arrest warrant by the Taliban majority of the Eurosceptics in the Conservative Party, will the Government be relying on Labour votes for us to opt in, in the national interest?
Lord Bates
My Lords, the noble Lord is right to point to the importance of this; 5,000 foreign criminals have been deported since it came into effect in 2009. Of course the desire is to opt back in by 1 December, but this needs to be negotiated and there need to be agreements. Those negotiations are continuing. Her Majesty’s Government’s position is that we want to be there by 1 December. In terms of when the House will have the opportunity to discuss this, discussions are ongoing between the business managers to make time for that to happen before 20 November.
Lord Deben (Con)
My Lords, does my noble friend accept that the only people who gain from our non-membership of the European arrest warrant arrangements are fraudsters, child molesters and gangs? Should we not say that this is another example of the excellent reasons why we should be full and really committed members of the European Union?
Lord Bates
My noble friend is absolutely right in respect of these measures. To keep a balance, though, let us remember that being part of the European Union is not just about signing up to everything that comes down the track. With regard to justice and home affairs, there were 135 measures in the package, 100 of which we did not feel passed the test regarding our national interest. However, 35 did and those are what we want to rejoin.
Lord Elystan-Morgan (CB)
My Lords, does the Minister accept that committees of this House have heard overwhelming evidence from law enforcement agencies from England, Wales, Scotland and Northern Ireland, as well as the Republic of Ireland, of the wholly invaluable role that the European arrest warrant plays in the war against serious crime? Does he also accept that, although there are minor infractions that can so easily be put right, it would be a severe blow to the administration of justice if, for any reason—particularly in relation to any tactical or political consideration—the European arrest warrant were to be prejudiced in any way?
Lord Bates
The noble Lord is absolutely right. That is why the Government are bringing this forward and seeking urgent agreement on it.
Baroness Smith of Basildon (Lab)
My Lords, the Minister will be aware of the comments in the letter from the Irish Government expressing their concern that if there is any gap between the Government opting out of the international arrest warrant and opting back in again, that will have serious implications for arresting those involved in terrorism. What response have the Government made to this, and what discussions have they had with other countries which may be expressing similar concerns?
Lord Bates
The noble Baroness is absolutely right. That is why we want to ensure that there will be no gap in respect of this, and I am confident that there will not be. Only one country out of the 22 with which we are currently in bilateral negotiations has a concern about this. We believe that that concern can be overcome within a matter of days.
Lord Blackwell (Con)
My Lords, does my noble friend accept that there are serious concerns about the principle of British citizens being arrested on British soil and sent into the custody of foreign judicial systems, where there is no democratic control by other British citizens, without a chance for British courts and British justice systems to take a view on it? Will my noble friend assure us that this House will have a full opportunity to debate and vote on this proposal before it is taken forward?
Lord Bates
We will certainly have that debate and vote. That was one of the important safeguards we negotiated that have been introduced: to say that a crime must be a crime in this country as well as in the country to which the extradition has been sought for a warrant to be agreed to.
Lord Blair of Boughton (CB)
My Lords, is the Minister aware that European arrest warrants are a two-way process, and that should the Government fail to renegotiate an entry back into the European arrest warrant system for Britain, then the criminals of Europe would know that and what used to be called the “costa del crime” would arrive on the shores of Britain?
Lord Bates
My Lords, I am sure that the representatives of the Spanish Government, with whom we are negotiating bilaterally, will of course have noted the noble Lord’s comments carefully.
Baroness Suttie (LD)
My Lords, does my noble friend the Minister agree with Sir Hugh Orde, the president of ACPO, when he said that the European arrest warrant,
“gives us a stronger, more effective means of arresting dangerous criminals across borders and thus keeping our communities safe at home—it is not an instrument which we can afford to lose”?
Lord Bates
My noble friend is absolutely right. I agree with ACPO in respect of this and of course the European affairs committee, the security services and the law enforcement services, whose views the Government have listened to and acted upon.
Lord Low of Dalston (CB)
My Lords, will the Minister say if the Government are willing to reconsider their opt-out from the measure on xenophobia and racism? I think that to opt out of this measure portrays the United Kingdom in a very bad light and sends a very bad signal.
Lord Bates
I will write to the noble Lord on that. He is right to raise concerns about it and I will make sure that he gets an absolutely accurate and speedy reply.
Parliament Square: Occupy Protests
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Lord Berkeley
To ask Her Majesty’s Government what is the daily cost and level of police resources used to police the current Occupy protest in Parliament Square.
The Parliamentary Under-Secretary of State, Home Office (Lord Bates) (Con)
My Lords, London’s police forces receive specific funding in recognition of the additional responsibilities that policing the nation’s capital represents. This includes protests directed at the seat of government, such as the recent Occupy protest.
Lord Berkeley (Lab)
I am grateful to the Minister. I am sorry that he cannot count the number of policemen guarding a fence, but perhaps I can help him. Last week, on several occasions, I counted at least 25 police officers standing around the fence which, on a 24/7 basis, would be 100 officers taken off other jobs. Is this really a good use of police manpower, protecting a nice piece of grass in central London?
Lord Bates
My Lords, the police are doing this not of their own volition but because we asked them to do so. We passed the Police Reform and Social Responsibility Act, which said that that space should be available for peaceful protest and not for Occupy movements. That was something that we asked the police to do, and they did an excellent job in dealing with a very difficult situation.
Baroness Jones of Moulsecoomb (GP)
Does the Minister agree that this is a terrible waste of time, energy and resources for the police force? Part of the problem is that you are asking them to police and enforce laws that are extremely repressive. It was a Labour Government who introduced the police reform Act, and you are now enforcing it. Is it time to ask your ministerial colleagues, perhaps, if they would repeal the worst aspects of that Act?
Lord Bates
The noble Baroness is a Member of your Lordships’ House; she is free as a parliamentarian to propose any laws that she wishes; but the reality is that in 2011 your Lordships decided by an overwhelming majority that they wanted this law and they wanted this space for public peaceful protest.
Baroness Hamwee (LD)
My Lords, I am sure that the Minister will tell us that the number of police is an operational matter for the police, but I am also sure that Home Office Ministers are not entirely uninvolved in the policy. Does he agree that the lightest practicable touch is as much as we would want to see applied?
Lord Bates
I understand the point my noble friend is making, but what is a light touch when you are faced with a protest that begins at 50, grows to 100, and then grows overnight to 150? The potential for that to get out of hand, and the risk to the public, is something which the police clearly take seriously, and they are right to do so.
Lord Harris of Haringey (Lab)
What communications were there between Ministers in the Home Office and the Metropolitan Police on the nature of the policing of this protest?
Lord Bates
The noble Lord will be aware that as a result of passing the Police Reform and Social Responsibility Act 2011, which this House did, the Home Office published specific guidance, which I have here and which I will place a copy of in the Library, stipulating exactly what was permitted, what was not permitted, what approval needed to be sought and even stating on page nine the enforcement actions which we would ask the police to do. Having done that, and having published it in this place, the police deserve our support.
Lord Tebbit (Con)
Will my noble friend take to the police my feelings, at least, of congratulation to them on doing a difficult job rather well? The easiest way to reduce the manpower required would be for these objectionable people to cease their objectionable claim to occupy part of what is public land.
Lord Bates
I am very happy to convey the sentiments of my noble friend to the police on the role that they do, which is incredibly difficult. The point has to be reiterated that one of the reasons that the police are taking the actions that they are, and why we passed the legislation that we did, was to ensure that Parliament Square is available for those who want to come to make a peaceful protest as part of a democratic society in which we want to live.
Lord Paddick (LD)
My Lords, does my noble friend agree that the police should be there as much to facilitate peaceful protest as to prevent it?
Lord Bates
That is absolutely right. In fact, the guidance actually states that the first responsibility is with the Greater London Authority in conjunction with Westminster City Council, and it is the local authority representatives who made the first contact in the first instance; and the police are there only in support of the local authority.
Lord Berkeley (Lab)
My Lords, can the Minister then say when the fence is going to be taken down?
Lord Bates
The decision to erect the fence and the decision to heighten it were gradual decisions taken, in view of assessing the seriousness of the protest, by the Greater London Authority. Therefore, it will judge the situation in the round to see when it is secure to take those fences down. We all hope that it is as soon as possible.
Baroness Tonge (Ind LD)
My Lords, has it occurred to Ministers to invite these people in to find out exactly what their problem is? Has it also occurred to Ministers that they occupy this square at night because they are homeless and have nowhere to sleep?
Lord Bates
I am sure, of course, that the noble Baroness would be perfectly free as a parliamentarian to invite them into the House, but perhaps ensure that they do not stay too long.
Lord West of Spithead (Lab)
My Lords, does the Minister not think that the situation had become unbearable before this was done? For example, when I was being driven past in my car in my full uniform, they came and stood in front of the car and I managed to stop an incident because my Royal Marine driver said, “Shall I re-educate them, sir?” and I said, “Not today”.
Serious Crime Bill [HL]
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Lord Bates
My Lords, I thank my noble friend Lady Walmsley for again bringing this important matter to the House and for her persistence and perseverance in working with us to find a way forward on this issue. As many of your Lordships have said, we are united in our abhorrence of these crimes. We are resolved to lift the stone—in the analogy of my noble friend—and to face and tackle what lies beneath.
This coalition Government are absolutely committed to improving the safeguarding of children and vulnerable adults and to doing all they can to protect them from all forms of abuse. In recent years, we have been confronted all too frequently with the most appalling cases of organised and persistent sexual abuse of children. The public have been justifiably horrified by the historical cases of child sexual abuse that came to light in the wake of investigations into Jimmy Savile, and those raised by the more recent cases of organised child sexual exploitation in Oxford, Rochdale and Rotherham, to name but a few. Some of these cases have exposed a failure by public bodies to take their duty of care seriously and some have shown that the organisations responsible for protecting children from abuse—including the police, social services and schools—have failed to work together properly. The recent report by Professor Jay into the horrific cases of child sexual exploitation in Rotherham also highlighted the failure of many of those involved to recognise the seriousness of the problem, and—perhaps most shockingly—their failure to see the children concerned as victims, rather than the makers of their own misfortune.
Each one of these various reviews and reports makes for deeply distressing reading, and this coalition Government are determined to learn their lessons. As noble Lords will be aware, the Home Secretary announced in July the creation of a new independent inquiry which will consider whether, and the extent to which, public bodies and other non-state institutions have taken seriously their duty of care to protect children from sexual abuse. The inquiry will consider all the information available from the various published reviews and will identify any issues or allegations requiring new or further investigation. It will advise on any further action, which could include any legislative changes, needed to address any of the gaps or failings within our current child protection systems on the basis of the findings and learning from the reviews. The inquiry will take full account of what happened in Rotherham and elsewhere, and it will make recommendations on that basis.
My noble friend asked about the status of the inquiry. As things stand, the inquiry will, like the inquiries into Hillsborough, be a non-statutory panel inquiry, which means that it will not be able to compel witnesses to give evidence. However, the Home Secretary has been very clear that, if the chair of the inquiry deems it necessary, the Government are prepared to convert this into a full public inquiry under the Inquiries Act 2005. This means that, if the panel is converted into a public inquiry, Fiona Woolf will have powers to compel witnesses and subpoena evidence. This power would come to her under provisions in the Inquiries Act, which means that the inquiry does not need to be chaired by a judge.
My noble friend’s amendment would place a duty on providers of regulated activity, and anyone whose services are used by providers of regulated activity, to report known or suspected abuse against children and vulnerable adults to the appropriate local authority within 10 days. Breach of this duty would be a criminal offence punishable by up to three years in prison. That would essentially mean that anyone who works or volunteers in any capacity with children or vulnerable adults would commit a criminal offence if they did not report suspected abuse of any kind.
Since the debate on this issue in Committee, we have given this matter further careful consideration. It has been discussed on several occasions by the national group, and has been raised by the Home Secretary’s ministerial task force on Rotherham. However, we have not yet come to a firm decision on the matter. This is not surprising given the complexity of the issue. Research is inconclusive in determining whether mandatory reporting regimes help, hinder or simply make no difference to child safeguarding outcomes. In the USA, Canada and Australia, mandatory reporting legislation has been accompanied by significant increases in the number of referrals of suspected child abuse and neglect made to the authorities, a large percentage of which have not been substantiated. That was the point made by the noble Baroness, Lady Howarth of Breckland.
There is a real risk that, in introducing a duty, we would divert child protection services from the task of increasing the safety of our most vulnerable children to evidence gathering and investigation of cases that are eventually unsubstantiated and which often lead to significant disruption of family life. Additionally, there is evidence to suggest that existing mandatory reporting regimes can lead to unintended consequences, such as creating a culture of reporting rather than acting—a point made by the noble Lord, Lord Rosser—and dissuading children from disclosing incidents for fear of being forced into hostile legal proceedings. That point was touched upon by my noble friend Lady Benjamin, who talked about the need to give people the courage to come forward and recognise that they are the victims of this and should certainly have no shame in coming forward.
I recognise that there are contrary views on the utility of introducing a statutory duty of the kind set out in my noble friend’s amendment, and some of those views have been raised this afternoon. I firmly believe that, given the conflicting evidence of the impact of such a duty and the concerns expressed by groups such as the NSPCC in its advice on this and the General Medical Council—though taking into account the practitioner’s perspective that the noble Baroness, Lady Finlay, brought to this debate—it would be perhaps a leap in the dark to legislate on this issue right now in this Bill. It is right that, before coming to a final decision on this issue, we listen to the views of the many stakeholders and experts, including victims’ groups, who quite rightly hold strong opinions on this.
I can therefore advise the House that we will now hold a full public consultation on the issue of mandatory reporting. We will consult broadly on the advisability, risk, nature and scope of any reporting duty, including questions on which forms of abuse it should apply to, and to whom it should attach. I should emphasise that the Government will look at all the responses they receive with an open mind. It will be a thorough, open and transparent consultation with a rigorous evaluation of the responses. Although hitherto the Government, like the Opposition, have taken the view that we have concerns about the specific wording of this amendment, we are entering into this consultation in good faith, in our desire to evaluate the evidence that comes forward.
The views of noble Lords will of course be very welcome indeed. There is a tremendous amount of personal knowledge and expertise in this House, and I accept the comments made by the right reverend Prelate the Bishop of Durham in that regard. I would further encourage other Members to make their opinions heard. We intend to launch the consultation as soon as possible. Given the significance of the issue, it will run for the full 12 weeks. We will undertake to report back to Parliament on the results. I hope that this commitment and the spirit in which is it offered to my noble friend will leave her reassured about the Government’s resolve to probe this serious issue by this commitment to consult.
Baroness Tonge
I thank the noble Baroness so much for making that point. The encouragement frequently comes from within the family, as it does for male circumcision. It becomes the law of the family; that is what has to be done. It is not just the grandmothers who perpetrate it. The children themselves are led to believe that it is being done for their good, just as male circumcision is sold to older boys. Therefore, they somehow comply and they certainly do not want to take action against their own parents because it is happening within an otherwise loving family. It is a very difficult and delicate process. The noble Lord, Lord Dobbs, is so right to say that what we need is not more legislation—although I welcome it tremendously and thank the Government for it—but some prosecutions.
Lord Bates
Just to clarify, the Companion states that further interventions should be for clarification purposes only rather than further conclusions.
Baroness Smith of Basildon
My Lords, my noble friend Lord Harris and the noble Baroness, Lady Howe, have undertaken a service to your Lordships’ House by tabling this amendment for debate today. There is no doubt that, alongside the advantages that modern technology brings, it also brings new dangers for children. Looking across your Lordships’ House, I suspect that when any of us went out to play as kids, our parents would tell us, “Careful how you cross the road, and don’t talk to strangers”.
If I am honest, my parents were happiest if they thought that I was safe upstairs in my bedroom with my friends, playing my music or pretending to do my homework. Nowadays, parents have those same fears while the child is at home in their bedroom, on their computer or mobile phone. It is very difficult for parents always to understand or put in the controls that need to be there. The danger has moved; it can now be in the home or in the child’s bedroom. The law has to keep pace with the changes that have come about. The technology has moved, and the law has to move too.
I am very grateful to the NSPCC for what I thought was a very helpful briefing. I also agree with the point that my noble friend Lord Harris made about the “slow burn” of these types of offences. I recall dealing with a case some time ago where there was a man in his 30s, who had a family, who was corresponding with an 11 year-old girl in another country, who thought that she was in contact with another 11 year-old girl. In that case, he was stopped before it went too far, but it is easy to see how over a period of time somebody can believe that the person they are in contact with is someone just like them. It is their friend, whether it is a boyfriend or someone of the same gender. This is the grooming that is referred to.
I will not go into the detail of the legislation, because my noble friend Lord Harris explained that, but I am sure that the Minister’s file covers this area. When he took up his post, he was kind enough to meet me. He thought that I had been a Home Office Minister. I was not; I was a Home Office PPS. Part of my duties as a PPS was to run two paces behind my Minister, clutching the file as he went into Committee. On every page, against an amendment put down by a member of the Opposition was a line which read, “Resist, it is covered by other legislation”. I expect that the noble Lord has a very similar file in front of him today.
I will give the Minister the benefit of my experience on this issue. This came up previously when we were debating the anti-social behaviour Bill in your Lordships’ House. I was brought a proposal from the Manchester police and crime commissioner about how to shut down more quickly premises that have been used for grooming young girls for sex. I was told “We do not have the powers”. I had a letter from Norman Baker, the Home Office Minister which said, “Of course you have the powers; this can be done; you can use the prostitution laws”. How could you use the prostitution laws with an 11 or 12 year-old girl? You could not. However, the advice from the Home Office in correspondence after correspondence was that it was already covered by existing law.
We often hear that it is covered by existing law, but our experience when we see offences being committed, but not being prosecuted, is that the existing law is inadequate. On that occasion we tabled an amendment. The noble Baroness, Lady Hamwee, had the same concerns then as she has expressed today about it not being the right kind of legislation and said that it should be in another Bill. Where there is a will, there is a way. If we really want to address some of these problems, we can. The noble Lord, Lord Taylor, was very helpful on that occasion. I withdrew my amendment. The Government came back with their amendment which we were delighted to support and were very grateful to do so.
There is an opportunity here. The wording may not be perfect; I am sure that the Minister has his note saying, “resist”; but there is an issue here that has to be addressed. Failure to address it now will mean that we lose the opportunity until the next Home Office Bill. I know that they are like double-decker buses sometimes, but we have an opportunity here to bring the law up to date. The law exists in Scotland and is used for prosecutions in Scotland when other laws fail. So here is an opportunity. I hope that the Minister can just put his file to one side and not resist, just until Third Reading, to see whether there is a way forward to address what is becoming a pretty serious problem.
Lord Bates
I am tempted by the Baroness’s offer to put my file aside, but I will stick with it a little because, as we have seen through this whole process of discussion in Committee, which she has been following right from the beginning, it is not the case that “resist” is there because it is something that someone just does not want to consider. All the way through, we have seen the openness of officials to have meetings with groups and with Back-Bench Peers. The genuine government amendments that have been brought forward, and the responses, not least today and on other matters, show that we are all very much on the same side on all of the issues, whether it is FGM, mandatory reporting, or indeed this one.
However, there are genuine differences between people in some NGOs about the best way of achieving this. Officials are using their knowledge and expertise of the system to ask whether this is actually something which is going to strengthen our hand. A great forecast was made by the noble Lord, Lord Harris, of what was actually in my speech. I can assure him that I shall not disappoint him in referring to those specific Acts. One reason why I shall not disappoint him is that the Ministry of Justice has met with the NSPCC, as you would expect, and talked to it about its concerns in this area. It has shared its thoughts on the amendment.
I will try to be as helpful as I can, but I need to get some remarks on the record. If the House could bear with me in my responses, I will come back to the specific issues raised. I share the noble Lord’s objective, which is to ensure that we have a robust body of criminal law to tackle predatory sexual behaviour by adults against vulnerable children. The House remains united in its condemnation of the sexual abuse of children, and it is through the work of noble Lords across all parties and none that we have some of the strongest and most respected criminal laws in the world to deal with this dreadful offending.
I thank the National Society for the Prevention of Cruelty to Children, which has proposed this new offence and brought its concerns to this debate. Its efforts, and those of its supporters, have helped to create a tough range of criminal sanctions and provided support to help to protect children. I also thank the NSPCC for engaging in constructive talks with my officials about this new clause. I also mention ChildLine in this context.
The new clause would create a new criminal offence prohibiting an adult from communicating with someone under 16 who they do not reasonably believe to be over 16, or someone who is in fact under 13 years of age, where that communication is sexual or intended to elicit a response that is sexual. The person’s purpose in sending the communication or seeking a response would need to be sexual.
As I said, we have some of the strongest and most robust laws in the world to deal with sexual offences against children. Although we are examining this issue, our preliminary view is that the behaviour targeted by this amendment is already captured under existing law.
I hope that noble Lords will bear with me while I outline some of the existing relevant provisions. If a message is sent by means of a public electronic communications network—that would include the internet—and its content is grossly offensive, indecent, obscene or menacing, it will fall foul of the offence in Section 127 of the Communications Act 2003. Those convicted of this offence who pose a risk of serious sexual harm to the public can be made subject to a sexual offences prevention order. The noble Lord, Lord Harris, mentioned that the situation in Scotland was much better, but in this regard the Communications Act 2003 does not apply to Scotland. It does apply in England and Wales, and there have been 1,314 prosecutions under Section 127 of the Communications Act in 2013 alone. This will cover a range of issues, not the specific ones that he is concerned about, but it is certainly not something that the police feel that they have no opportunity to prosecute under the Communications Act 2003.
I realise that this offence would not apply to non-electronic communication or perhaps private communications networks, but our other laws here are broad enough to capture sexual messages to children in this manner. If the messages, including any sent images, are indecent or grossly offensive, sending them may fall foul of Section 1 of the Malicious Communications Act 1988. I readily acknowledge the point made by my noble friend Lady Benjamin, who talked about 1988 certainly predating the world-wide web in that context, but some of the laws that are in place for offensive materials and activities relating to other media are still relevant to the new media, and we should not just disregard them. They fall foul of the Act provided that they are sent with the purpose of causing distress or anxiety to a person to whom the material is communicated, or intended to be communicated.
Lord Harris of Haringey
I shall try not to intervene too often, given that we are on Report, but I would be grateful for this clarification. The Minister has referred to Section 127 of the Communications Act, which requires the message from the perpetrator to be,
“grossly offensive or of an indecent, obscene or menacing character”.
He also referred to Section 1 of the Malicious Communications Act where the offence is,
“with intent to cause distress or anxiety”.
In the sorts of cases that I have been talking about, there is no intent to cause distress or anxiety. There is no need to be,
“grossly offensive … indecent, obscene or menacing”,
because this is about coaxing the young person through flattery to send a naked image of themselves. Clearly, if it falls into these categories, there is no question that the Act covers it, but these are communications of a different nature.
Lord Bates
I accept that—and this may not endear me to the noble Lord, but I am only halfway through my speech. I will go through some other laws that could catch that particular matter. If it is not the case, I shall certainly come back and address the specific one that he deals with.
It has been pointed out that the Section 1 offence in the Malicious Communications Act is not suitable because it is a summary one and subject to a six-month time limitation on prosecutions. I assure the House that the Criminal Justice and Courts Bill includes an amendment to the 1988 Act, making that offence triable either way, which would have the effect of removing the six-month time limit. The material, depending on the content, could also be caught under the Obscene Publications Act 1959. There was a recent conviction under the Act which captured a paedophilic sexual discussion being held in a private e-mail conversation between paedophiles. This significant conviction demonstrates that the offence can be made out by a publication to one person.
If the contact or messaging involves the creation of indecent photographs of children under the age of 18, legislation such as the Protection of Children Act 1978 could be used against those circulating such images if, for example, an adult is inciting a child to self-produce indecent images. That was a specific issue that the noble Lord focused on. Section 160 of the Criminal Justice Act 1988 covers the simple possession of these images. There are a range of offences under the Sexual Offences Act 2003, including laws on attempting these offences, which would very likely cover this behaviour, its consequences or intended consequences. I shall spare the House a list of all the offences in the 2003 Act that might be engaged, but let me offer one example. Under Section 10 of the 2003 Act it is an offence for a person over 18 to cause or incite a child to engage in sexual activity. This carries a maximum 14-year sentence. Depending on the individual circumstances, this offence would very likely come into play when sexual communications were exchanged with children, or when they were coaxed, or when non-sexual communications were intended to elicit a sexual response.
There are other offences to deal with exploiting children through involvement in pornography and prostitution. I take the point that the noble Baroness took from the example in Manchester. But this is something that is constantly under review, and has to be, as part of wider efforts to tackle this issue. We have had conversations with the Crown Prosecution Service, which does not feel that there is a gap in the law at present. We have had conversations with the national policing lead, who also does not feel that there is a gap at present. These discussions are ongoing, and I will be very happy to include noble Lords—and specifically the noble Lord, Lord Harris, in the context of this amendment, as well as the noble Baronesses, Lady Howe and Lady Benjamin, in some of the discussions with the CPS and the police to see what needs to be done and whether the provisions are sufficiently robust to deal with the specific examples and case studies that they have given.
Even if the messages are not themselves illegal, if their distribution or sending to a child is carried out as part of a course of conduct that alarms the child or causes distress—something raised by a number of noble Lords—this could amount to a criminal offence under the Protection from Harassment Act 1997. On the face of it, therefore, it would appear to be the case that the current law, if applied properly, already does what the amendment seeks to do. We should be very wary of adding new offences to the statute book if to do so would result in an unnecessary and undesirable duplication of the existing criminal law. However, the Government are always open to suggestions that could strengthen the law in this difficult and sensitive area.
I agree with this amendment to the extent that we want to be absolutely sure that offenders who communicate sexual messages to children or elicit sexual replies are appropriately dealt with by the criminal law. We are therefore investigating with the Crown Prosecution Service and the police to ensure that there are no such gaps that could let those who offend against our young people in this manner escape justice. I am very happy to include noble Lords in that discussion. As part of our ongoing consideration of this issue, I have extended that invitation to discuss. I trust therefore that the noble Lord might accept that, in this regard, it is not a “resist” but that the Government are considering carefully what is being proposed, in the light of the existing legislation and to continue that discussion. In the mean time, I ask him to consider withdrawing his amendment.
Lord Harris of Haringey
My Lords, I am grateful for the support that this amendment has had from the noble Baronesses, Lady Howe and Lady Benjamin, as well as my noble friend Lady Smith. The Minister said clearly that he shared its objectives. I have the advantage of seeing his colleagues behind him and I noticed that not only did quite a number of them seem to share the objectives but they were also not entirely convinced by some of his suggestions that these offences were met by the Bill.
I shall deal quickly with the noble Baroness, Lady Hamwee. She did not disappoint us in that she made her usual series of very precise and small points on the amendment. I am clear that this is not a professionally drafted amendment or one that would meet all the best requirements of those who sit in garrets in the Home Office or the Ministry of Justice producing these things. My hope was that the Minister would say that there were sufficient points here that he would come back to us at Third Reading with a beautifully professionally drafted amendment. However, I am not sure that the points that the noble Baroness, Lady Hamwee, made were terribly helpful. She talked about the recent amendment on revenge porn. The issue there was publishing material that had been shared in a private capacity more widely because the relationship had broken up. This does not apply in this instance; this is about eliciting an image from a child, not necessarily to share—although that might happen—but simply to obtain the image. So I am not sure that that change necessarily helps us on this issue. I am sure that we could all struggle with defining age and knowledge of age and we could no doubt find ways in which this proposal could be improved. I hope that the Government can accept that there are at least some points here that need to be looked at.
The Minister then went through, as predicted, some of the various sections that we talked about. Most of them require an intent to cause distress or anxiety, or that the matter is grossly offensive, or of an indecent, obscene or menacing character. As I have said repeatedly—I do not think that the Minister has addressed this issue—those are not the circumstances in which such messages are sent. They are sent not to cause offence to the child concerned, but to make children feel sufficiently comfortable to be able to share naked pictures of themselves.
The Minister referred to the Sexual Offences Act 2003, and causing or inciting a child to engage in sexual activity. I appreciate that there is a fine line to be drawn here, but I wonder whether it would be sufficient to achieve a conviction under Section 10 of that Act if all that the perpetrator has done is to persuade the child to stand naked in front of a webcam. No sexual activity is taking place there, so there are some issues around that.
The provision in the Protection from Harassment Act 1997 depends on whether the sender knows or ought to know that what is happening amounts to harassment of another. Harassment includes alarming a person or causing a person distress—but the child concerned may not be alarmed or distressed at the point when the actions take place. The child may only realise many years later what they have done, and what the implications are. Again, I am simply not convinced that this is covered. Scotland has legislation covering this point; there is a gap in England, Wales and Northern Ireland.
I am disappointed in the Minister’s reply. I take his offer for further consultation at face value, but I am conscious that Third Reading is only just over a week away, and I hope we can make some progress before then. Without that, I would feel that we need to return to these issues at that stage. However, on the basis of the promised discussions, I beg leave to withdraw the amendment.
Lord Bates
“( ) after section 4 insert—“4A Anonymity of victims
Schedule 1 provides for the anonymity of persons against whom a female genital mutilation offence (as defined in that Schedule) is alleged to have been committed.”;”
Lord Bates
“(1A) Insert as Schedule 1 to that Act the following Schedule—
Schedule 1Anonymity of victimsProhibition on the identification of victims in publications1 (1) This paragraph applies where an allegation has been made that a female genital mutilation offence has been committed against a person.
(2) No matter likely to lead members of the public to identify the person, as the person against whom the offence is alleged to have been committed, may be included in any publication during the person’s lifetime.
(3) For the purposes of this Schedule, any consent of the person to an act giving rise to the alleged offence is not to be taken as preventing that person from being regarded as a person against whom the alleged offence was committed.
(4) In any criminal proceedings before a court, the court may direct that the restriction imposed by sub-paragraph (2) is not to apply (whether at all in England and Wales and Northern Ireland, or to the extent specified in the direction) if the court is satisfied that either of the following conditions is met.
(5) The first condition is that the conduct of a person’s defence at a trial of a female genital mutilation offence would be substantially prejudiced if the direction is not given.
(6) The second condition is that—
(a) the effect of sub-paragraph (2) is to impose a substantial and unreasonable restriction on the reporting of the proceedings, and(b) it is in the public interest to remove or relax the restriction.(7) A direction under sub-paragraph (4) does not affect the operation of sub-paragraph (2) at any time before the direction is given.
(8) In this paragraph “the court” means—
(a) in England and Wales, a magistrates’ court or the Crown Court;(b) in Northern Ireland, a magistrates’ court, a county court or the Crown Court.Penalty for breaching prohibition imposed by paragraph 1(2)2 (1) If anything is included in a publication in contravention of the prohibition imposed by paragraph 1(2), each of the persons responsible for the publication is guilty of an offence.
(2) A person guilty of an offence under this paragraph is liable—
(a) on summary conviction in England and Wales, to a fine;(b) on summary conviction in Northern Ireland, to a fine not exceeding level 5 on the standard scale.(3) The persons responsible for a publication are as follows—
Type of publication | Persons responsible |
|---|---|
Newspaper or other periodical | Any person who is a proprietor, editor or publisher of the newspaper or periodical. |
Relevant programme | Any person who—is a body corporate engaged in providing the programme service in which the programme is included, or has functions in relation to the programme corresponding to those of an editor of a newspaper. |
Any other kind of publication | Any person who publishes the publication. |
(a) a senior officer of a body corporate, or(b) a person purporting to act in such a capacity,the senior officer or person (as well as the body corporate) is guilty of the offence and liable to be proceeded against and punished accordingly.(5) “Senior officer”, in relation to a body corporate, means a director, manager, secretary or other similar officer of the body corporate; and for this purpose “director”, in relation to a body corporate whose affairs are managed by its members, means a member of the body corporate.
(6) Proceedings for an offence under this paragraph—
(a) if alleged to have been committed in England and Wales, may not be instituted except by, or with the consent of, the Attorney General;(b) if alleged to have been committed in Northern Ireland, may not be instituted except by, or with the consent of, the Director of Public Prosecutions for Northern Ireland.Offence under paragraph 2: defences3 (1) This paragraph applies where a person (“the defendant”) is charged with an offence under paragraph 2 as a result of the inclusion of any matter in a publication.
(2) It is a defence for the defendant to prove that at the time of the alleged offence, the defendant was not aware, and did not suspect or have reason to suspect, that—
(a) the publication included the matter in question, or(b) the allegation in question had been made.(3) It is a defence for the defendant to prove that the publication in which the matter appeared was one in respect of which the victim had given written consent to the appearance of matter of that description.
(4) The defence in sub-paragraph (3) is not available if—
(a) the victim was under the age of 16 at the time when her consent was given, or(b) a person interfered unreasonably with the peace and comfort of the victim with a view to obtaining her consent.(5) In this paragraph “the victim” means the person against whom the female genital mutilation offence in question is alleged to have been committed.
Special rules for providers of information society services4 (1) Paragraph 2 applies to a domestic service provider who, in the course of providing information society services, publishes prohibited matter in an EEA state other than the United Kingdom (as well as to a person, of any description, who publishes prohibited matter in England and Wales or Northern Ireland).
(2) Proceedings for an offence under paragraph 2, as it applies to a domestic service provider by virtue of sub-paragraph (1), may be taken at any place in England and Wales or Northern Ireland.
(3) The offence may for all incidental purposes be treated as having been committed at any place in England and Wales or Northern Ireland.
(4) Nothing in this paragraph affects the operation of any of paragraphs 6 to 8.
5 (1) Proceedings for an offence under paragraph 2 may not be taken against a non-UK service provider in respect of anything done in the course of the provision of information society services unless the derogation condition is met.
(2) The derogation condition is that taking proceedings—
(a) is necessary for the purposes of the public interest objective,(b) relates to an information society service that prejudices that objective or presents a serious and grave risk of prejudice to that objective, and(c) is proportionate to that objective.(3) “The public interest objective” means the pursuit of public policy.
6 (1) A service provider does not commit an offence under paragraph 2 by providing access to a communication network or by transmitting, in a communication network, information provided by a recipient of the service, if the service provider does not—
(a) initiate the transmission,(b) select the recipient of the transmission, or(c) select or modify the information contained in the transmission.(2) For the purposes of sub-paragraph (1)—
(a) providing access to a communication network, and(b) transmitting information in a communication network,include the automatic, intermediate and transient storage of the information transmitted so far as the storage is solely for the purpose of carrying out the transmission in the network.(3) Sub-paragraph (2) does not apply if the information is stored for longer than is reasonably necessary for the transmission.
7 (1) A service provider does not commit an offence under paragraph 2 by storing information provided by a recipient of the service for transmission in a communication network if the first and second conditions are met.
(2) The first condition is that the storage of the information—
(a) is automatic, intermediate and temporary, and(b) is solely for the purpose of making more efficient the onward transmission of the information to other recipients of the service at their request. (3) The second condition is that the service provider—
(a) does not modify the information,(b) complies with any conditions attached to having access to the information, and(c) if sub-paragraph (4) applies, promptly removes the information or disables access to it.(4) This sub-paragraph applies if the service provider obtains actual knowledge that—
(a) the information at the initial source of the transmission has been removed from the network,(b) access to it has been disabled, or(c) a court or administrative authority has ordered the removal from the network of, or the disablement of access to, the information.8 (1) A service provider does not commit an offence under paragraph 2 by storing information provided by a recipient of the service if—
(a) the service provider had no actual knowledge when the information was provided that it was, or contained, a prohibited publication, or(b) on obtaining actual knowledge that the information was, or contained, a prohibited publication, the service provider promptly removed the information or disabled access to it.(2) Sub-paragraph (1) does not apply if the recipient of the service is acting under the authority or control of the service provider.
Interpretation9 (1) In this Schedule—
“domestic service provider” means a service provider established in England and Wales or Northern Ireland;“the E-Commerce Directive” means Directive 2000/31/EC of the European Parliament and of the Council of 8 June 2000 on certain legal aspects of information society services, in particular electronic commerce, in the Internal Market (Directive on electronic commerce);“female genital mutilation offence” means—(a) an offence under section 1, 2, 3 or 3A;(b) an offence of attempt or conspiracy to commit any such offence;(c) an offence under Part 2 of the Serious Crime Act 2007 (encouraging or assisting crime) in relation to any such offence;“information society services”—(a) has the meaning given in Article 2(a) of the E-Commerce Directive (which refers to Article 1(2) of Directive 98/34/EC of the European Parliament and of the Council of 22 June 1998 laying down a procedure for the provision of information in the field of technical standards and regulations), and(b) is summarised in recital 17 of the E-Commerce Directive as covering “any service normally provided for remuneration, at a distance, by means of electronic equipment for the processing (including digital compression) and storage of data, and at the individual request of a recipient of a service”;“non-UK service provider” means a service provider established in an EEA state other than the United Kingdom;“programme service” has the same meaning as in the Broadcasting Act 1990 (see section 201(1) of that Act);“prohibited material” means any material the publication of which contravenes paragraph 1(2);“publication” includes any speech, writing, relevant programme or other communication (in whatever form) which is addressed to, or is accessible by, the public at large or any section of the public; “recipient”, in relation to a service, means a person who, for professional ends or otherwise, uses an information society service, in particular for the purposes of seeking information or making it accessible;“relevant programme” means a programme included in a programme service;“service provider” means a person providing an information society service.(2) For the purposes of the definition of “publication” in sub-paragraph (1)—
(a) an indictment or other document prepared for use in particular legal proceedings is not to be taken as coming within the definition;(b) every relevant programme is to be taken as addressed to the public at large or to a section of the public.(3) For the purposes of the definitions of “domestic service provider” and “non-UK service provider” in sub-paragraph (1)—
(a) a service provider is established in a particular part of the United Kingdom, or in a particular EEA state, if the service provider—(i) effectively pursues an economic activity using a fixed establishment in that part of the United Kingdom, or that EEA state, for an indefinite period, and(ii) is a national of an EEA state or a company or firm mentioned in Article 54 of the Treaty on the Functioning of the European Union;(b) the presence or use in a particular place of equipment or other technical means of providing an information society service does not, of itself, constitute the establishment of a service provider;(c) where it cannot be determined from which of a number of establishments a given information society service is provided, that service is to be regarded as provided from the establishment at the centre of the service provider’s activities relating to that service.””
Lord Bates
“Offence of failing to protect girl from risk of genital mutilation
(1) The Female Genital Mutilation Act 2003 is amended as follows.
(2) After section 3 insert—
“3A Offence of failing to protect girl from risk of genital mutilation
(1) If a genital mutilation offence is committed against a girl under the age of 16, each person who is responsible for the girl at the relevant time is guilty of an offence.
(2) This is subject to subsection (5).
(3) For the purposes of this section a person is “responsible” for a girl in the following two cases.
(4) The first case is where the person—
(a) has parental responsibility for the girl, and(b) has frequent contact with her.(5) The second case is where the person—
(a) is aged 18 or over, and(b) has assumed (and not relinquished) responsibility for caring for the girl in the manner of a parent.(6) It is a defence for the defendant to show that—
(a) at the relevant time, the defendant did not think that there was a significant risk of a genital mutilation offence being committed against the girl, and could not reasonably have been expected to be aware that there was any such risk, or(b) the defendant took such steps as he or she could reasonably have been expected to take to protect the girl from being the victim of a genital mutilation offence.(7) A person is taken to have shown the fact mentioned in subsection (5)(a) or (b) if—
(a) sufficient evidence of the fact is adduced to raise an issue with respect to it, and(b) the contrary is not proved beyond reasonable doubt.(8) For the purposes of subsection (3)(b), where a person has frequent contact with a girl which is interrupted by her going to stay somewhere temporarily, that contact is treated as continuing during her stay there.
(9) In this section—
“genital mutilation offence” means an offence under section 1, 2 or 3 (and for the purposes of subsection (1) the prosecution does not have to prove which section it is);
“parental responsibility”—
(a) in England Wales, has the same meaning as in the Children Act 1989;(b) in Northern Ireland, has the same meaning as in the Children (Northern Ireland) Order 1995 (S.I. 1995/755 (N.I. 2));“the relevant time” means the time when the mutilation takes place.”
(3) In section 4 (extension of sections 1 to 3 to extra-territorial acts)—
(a) in the heading, for “3” substitute “3A” and after “acts” insert “or omissions”;(b) after subsection (1) insert—“(1A) An offence under section 3A can be committed wholly or partly outside the United Kingdom by a person who is a United Kingdom national or a United Kingdom resident.”
(4) In section 5 (penalties for offences)—
(a) for “A person guilty of an offence under this Act” substitute—“(1) A person guilty of an offence under section 1, 2 or 3”;
(b) at the end insert—“(2) A person guilty of an offence under section 3A is liable—
(a) on conviction on indictment, to imprisonment for a term not exceeding seven years or a fine (or both),(b) on summary conviction in England and Wales, to imprisonment for a term not exceeding 12 months or a fine (or both),(c) on summary conviction in Northern Ireland, to imprisonment for a term not exceeding 6 months or a fine not exceeding the statutory maximum (or both).””
Lord Bates
“Female genital mutilation protection orders
(1) After section 5 of the Female Genital Mutilation Act 2003 insert—
“5A Female genital mutilation protection orders
(1) Schedule 2 provides for the making of female genital mutilation protection orders.
(2) In that Schedule—
(a) Part 1 makes provision about powers of courts in England and Wales to make female genital mutilation protection orders;(b) Part 2 makes provision about powers of courts in Northern Ireland to make such orders.”(2) After Schedule 1 to that Act (inserted by section 67(1A)) insert—
Schedule 2Female genital mutilation protection ordersPart 1England and WalesPower to make FGM protection order1 (1) The court in England and Wales may make an order (an “FGM protection order”) for the purposes of—
(a) protecting a girl against the commission of a genital mutilation offence, or(b) protecting a girl against whom any such offence has been committed.(2) In deciding whether to exercise its powers under this paragraph and, if so, in what manner, the court must have regard to all the circumstances, including the need to secure the health, safety and well-being of the girl to be protected.
(3) An FGM protection order may contain—
(a) such prohibitions, restrictions or requirements, and(b) such other terms,as the court considers appropriate for the purposes of the order.(4) The terms of an FGM protection order may, in particular, relate to—
(a) conduct outside England and Wales as well as (or instead of) conduct within England and Wales;(b) respondents who are, or may become, involved in other respects as well as (or instead of) respondents who commit or attempt to commit, or may commit or attempt to commit, a genital mutilation offence against a girl;(c) other persons who are, or may become, involved in other respects as well as respondents of any kind.(5) For the purposes of sub-paragraph (4) examples of involvement in other respects are—
(a) aiding, abetting, counselling, procuring, encouraging or assisting another person to commit, or attempt to commit, a genital mutilation offence against a girl;(b) conspiring to commit, or to attempt to commit, such an offence.(6) An FGM protection order may be made for a specified period or until varied or discharged (see paragraph 6).
Applications and other occasions for making orders2 (1) The court may make an FGM protection order—
(a) on an application being made to it, or(b) without an application being made to it but in the circumstances mentioned in sub-paragraph (6).(2) An application may be made by—
(a) the girl who is to be protected by the order, or(b) a relevant third party.(3) An application may be made by any other person with the leave of the court.
(4) In deciding whether to grant leave, the court must have regard to all the circumstances including—
(a) the applicant’s connection with the girl to be protected;(b) the applicant’s knowledge of the circumstances of the girl. (5) An application under this paragraph may be made in other family proceedings or without any other family proceedings being instituted.
(6) The circumstances in which the court may make an order without an application being made are where—
(a) any other family proceedings are before the court (“the current proceedings”),(b) the court considers that an FGM protection order should be made to protect a girl (whether or not a party to the proceedings), and(c) a person who would be a respondent to any proceedings for an FGM protection order is a party to the current proceedings.(7) In this paragraph—
“family proceedings” has the same meaning as in Part 4 of the Family Law Act 1996 (see section 63(1) and (2) of that Act), but also includes—(a) proceedings under the inherent jurisdiction of the High Court in relation to adults,(b) proceedings in which the court has made an emergency protection order under section 44 of the Children Act 1989 which includes an exclusion requirement (as defined in section 44A(3) of that Act), and(c) proceedings in which the court has made an order under section 50 of the Children Act 1989 (recovery of abducted children etc); “relevant third party” means a person specified, or falling within a description of persons specified, by regulations made by the Lord Chancellor (and such regulations may, in particular, specify the Secretary of State).(8) Regulations under sub-paragraph (7) are to be made by statutory instrument, and any such instrument is subject to annulment in pursuance of a resolution of either House of Parliament.
Power to make order in criminal proceedings3 The court before which there are criminal proceedings in England and Wales for a genital mutilation offence may make an FGM protection order (without an application being made to it) if—
(a) the court considers that an FGM protection order should be made to protect a girl (whether or not the victim of the offence in relation to the criminal proceedings), and(b) a person who would be a respondent to any proceedings for an FGM protection order is a defendant in the criminal proceedings.Offence of breaching order4 (1) A person who without reasonable excuse does anything that the person is prohibited from doing by an FGM protection order is guilty of an offence.
(2) In the case of an FGM protection order made by virtue of paragraph 5(1), a person can be guilty of an offence under this paragraph only in respect of conduct engaged in at a time when the person was aware of the existence of the order.
(3) Where a person is convicted of an offence under this paragraph in respect of any conduct, the conduct is not punishable as a contempt of court.
(4) A person cannot be convicted of an offence under this paragraph in respect of any conduct which has been punished as a contempt of court.
(5) A person guilty of an offence under this paragraph is liable—
(a) on conviction on indictment, to imprisonment for a term not exceeding five years, or a fine, or both;(b) on summary conviction, to imprisonment for a term not exceeding 12 months, or a fine, or both.(6) A reference in any enactment to proceedings under this Part of this Schedule, or to an order under this Part of this Schedule, does not include a reference to proceedings for an offence under this paragraph or to an order made in proceedings for such an offence.
(7) “Enactment” includes an enactment contained in subordinate legislation within the meaning of the Interpretation Act 1978.
Ex parte orders5 (1) The court may, in any case where it is just and convenient to do so, make an FGM protection order even though the respondent has not been given such notice of the proceedings as would otherwise be required by rules of court.
(2) In deciding whether to exercise its powers under sub-paragraph (1), the court must have regard to all the circumstances including—
(a) the risk to the girl, or to another person, of becoming a victim of a genital mutilation offence if the order is not made immediately,(b) whether it is likely that an applicant will be deterred or prevented from pursuing an application if an order is not made immediately, and(c) whether there is reason to believe that—(i) the respondent is aware of the proceedings but is deliberately evading service, and(ii) the delay involved in effecting substituted service will cause serious prejudice to the girl to be protected or (if different) an applicant.(3) The court must give the respondent an opportunity to make representations about an order made by virtue of sub-paragraph (1).
(4) The opportunity must be—
(a) as soon as just and convenient, and(b) at a hearing of which notice has been given to all the parties in accordance with rules of court.Variation and discharge of orders6 (1) The court may vary or discharge an FGM protection order on an application by—
(a) any party to the proceedings for the order,(b) the girl being protected by the order (if not a party to the proceedings for the order), or(c) any person affected by the order.(2) In the case of an order made in criminal proceedings under paragraph 3, the reference in sub-paragraph (1)(a) to a party to the proceedings for the order is to be read as a reference to the prosecution and the defendant.
(3) In addition, the court may vary or discharge an FGM protection order made by virtue of paragraph 2(1)(b) or 3 even though no application under sub-paragraph (1) above has been made to the court.
(4) Paragraph 5 applies to a variation of an FGM protection order as it applies to the making of such an order (and references in that paragraph to the making of an FGM protection order are to be read accordingly).
Arrest under warrant7 (1) An interested party may apply to the relevant judge for the issue of a warrant for the arrest of a person if the interested party considers that the person has failed to comply with an FGM protection order or is otherwise in contempt of court in relation to such an order.
(2) The relevant judge must not issue a warrant on an application under sub-paragraph (1) unless—
(a) the application is substantiated on oath, and(b) the relevant judge has reasonable grounds for believing that the person to be arrested has failed to comply with the order or is otherwise in contempt of court in relation to the order.(3) In this paragraph “interested party”, in relation to an FGM protection order, means—
(a) the girl being protected by the order, (b) (if a different person) the person who applied for the order, or(c) any other person;but no application may be made under sub-paragraph (1) by a person falling within paragraph (c) without leave of the relevant judge.Remand: general8 (1) The court before which an arrested person is brought by virtue of a warrant under paragraph 7 may, if the matter is not then disposed of immediately, remand the person concerned.
(2) Paragraphs 9 to 14 contain further provision about the powers of a court to remand under this paragraph.
(3) Sub-paragraph (4) applies if a person remanded under this paragraph is granted bail under paragraphs 10 to 14.
(4) The person may be required by the relevant judge to comply, before release on bail or later, with such requirements as appear to the judge to be necessary to secure that the person does not interfere with witnesses or otherwise obstruct the course of justice.
Remand: medical examination and report9 (1) Any power to remand a person under paragraph 8(1) may be exercised for the purpose of enabling a medical examination and report to be made if the relevant judge has reason to consider that a medical report will be required.
(2) If such a power is so exercised, the adjournment must not be for more than four weeks at a time unless the relevant judge remands the accused in custody.
(3) If the relevant judge remands the accused in custody, the adjournment must not be for more than three weeks at a time.
(4) Sub-paragraph (5) applies if there is reason to suspect that a person who has been arrested under a warrant issued on an application under paragraph 7(1) is suffering from mental disorder within the meaning of the Mental Health Act 1983.
(5) The relevant judge has the same power to make an order under section 35 of the Mental Health Act 1983 (remand for report on accused’s mental condition) as the Crown Court has under section 35 of that Act in the case of an accused person within the meaning of that section.
Remand: further provision10 (1) Where a court has power to remand a person under paragraph 8, the court may remand the person in custody or on bail.
(2) If remanded in custody, the person is to be committed to custody to be brought before the court—
(a) at the end of the period of remand, or(b) at such earlier time as the court may require.(3) The court may remand a person on bail—
(a) by taking from the person a recognizance (with or without sureties) conditioned as provided in paragraph 11, or(b) by fixing the amount of the recognizances with a view to their being taken subsequently in accordance with paragraph 14 and, in the meantime, committing the person to custody as mentioned in sub-paragraph (2) above.(4) Where a person is brought before the court after remand the court may further remand the person.
(5) In this paragraph and in paragraphs 11 to 14, references to “the court” includes a reference to a judge of the court or, in the case of proceedings in a magistrates’ court, a justice of the peace.
11 (1) Where a person is remanded on bail, the court may direct that the person’s recognizance be conditioned for his or her appearance—
(a) before the court at the end of the period of remand, or(b) at every time and place to which during the course of the proceedings the hearing may from time to time be adjourned. (2) Where a recognizance is conditioned for a person’s appearance as mentioned in sub-paragraph (1), the fixing of any time for the person next to appear is to be treated as a remand.
(3) Nothing in this paragraph deprives the court of power at any subsequent hearing to remand a person afresh.
12 (1) The court may not remand a person for a period exceeding 8 clear days unless—
(a) the court adjourns a case under paragraph 9(1), or(b) the person is remanded on bail and both that person and the other party to the proceedings (or, in the case of criminal proceedings, the prosecution) consent.(2) If sub-paragraph (1)(a) applies, the person may be remanded for the period of the adjournment.
(3) Where the court has power to remand a person in custody, the person may be committed to the custody of a constable if the remand is for a period not exceeding 3 clear days.
13 (1) If the court is satisfied that a person who has been remanded is unable by reason of illness or accident to appear before the court at the end of the period of remand, the court may further remand the person in his or her absence.
(2) The power in sub-paragraph (1) may, in the case of a person who was remanded on bail, be exercised by enlarging the person’s recognizance and those of any sureties to a later time.
(3) Where a person remanded on bail is bound to appear before the court at any time and the court has no power to remand the person under sub-paragraph (1), the court may, in the person’s absence, enlarge the person’s recognizance and those of any sureties for the person to a later time.
(4) The enlargement of a person’s recognizance is to be treated as a further remand.
(5) Paragraph 12(1) (limit of remand) does not apply to the exercise of the powers conferred by this paragraph.
14 (1) This paragraph applies where under paragraph 10(3)(b) the court fixes the amount in which the principal and the sureties (if any) are to be bound.
(2) The recognizance may afterwards be taken by a person prescribed by rules of court (with the same consequences as if it had been entered into before the court).
Contempt proceedings15 The powers of the court in relation to contempt of court arising out of a person’s failure to comply with an FGM protection order, or otherwise in connection with such an order, may be exercised by the relevant judge.
Other protection or assistance against female genital mutilation16 (1) Nothing in this Part of this Schedule affects any other protection or assistance available to a girl who is or may become the victim of a genital mutilation offence.
(2) In particular, it does not affect—
(a) the inherent jurisdiction of the High Court;(b) any criminal liability;(c) any civil remedies under the Protection from Harassment Act 1997;(d) any right to an occupation order or a non-molestation order under Part 4 of the Family Law Act 1996;(e) any right to a forced marriage protection order under Part 4A of that Act;(f) any protection or assistance under the Children Act 1989;(g) any claim in tort.Interpretation17 (1) In this Part of this Schedule—
“the court”, except as provided in sub-paragraph (2), means the High Court, or the family court, in England and Wales;“FGM protection order” means an order under paragraph 1; “genital mutilation offence” means an offence under section 1, 2 or 3;“the relevant judge”, in relation to an FGM protection order, means—(a) where the order was made by the High Court, a judge of that court;(b) where the order was made by the family court, a judge of that court;(c) where the order was made by a court in criminal proceedings under paragraph 3—(i) a judge of that court, or (ii) a judge of the High Court or of the family court.(2) Where the power to make an FGM protection order is exercisable by a court in criminal proceedings under paragraph 3, references in this Part of this Schedule to “the court” (other than in paragraph 2) are to be read as references to that court.
(3) In paragraph (c)(i) of the definition of “relevant judge” in sub-paragraph (1), the reference to a judge of the court that made the order includes, in the case of criminal proceedings in a magistrates’ court, a reference to a justice of the peace.
Part 2Northern IrelandPower to make FGM protection order18 (1) The court in Northern Ireland may make an order (an “FGM protection order”) for the purposes of—
(a) protecting a girl against the commission of a genital mutilation offence, or(b) protecting a girl against whom any such offence has been committed.(2) In deciding whether to exercise its powers under this paragraph and, if so, in what manner, the court must have regard to all the circumstances, including the need to secure the health, safety and well-being of the girl to be protected.
(3) An FGM protection order may contain—
(a) such prohibitions, restrictions or requirements, and(b) such other terms,as the court considers appropriate for the purposes of the order.(4) The terms of an FGM protection order may, in particular, relate to—
(a) conduct outside Northern Ireland as well as (or instead of) conduct within Northern Ireland;(b) respondents who are, or may become, involved in other respects as well as (or instead of) respondents who commit or attempt to commit, or may commit or attempt to commit, a genital mutilation offence against a girl;(c) other persons who are, or may become, involved in other respects as well as respondents of any kind.(5) For the purposes of sub-paragraph (4) examples of involvement in other respects are—
(a) aiding, abetting, counselling, procuring, encouraging or assisting another person to commit, or attempt to commit, a genital mutilation offence against a girl;(b) conspiring to commit, or to attempt to commit, such an offence.(6) An FGM protection order may be made for a specified period or until varied or discharged (see paragraph 23).
Applications and other occasions for making orders19 (1) The court may make an FGM protection order—
(a) on an application being made to it, or(b) without an application being made to it but in the circumstances mentioned in sub-paragraph (6).(2) An application may be made by—
(a) the girl who is to be protected by the order, or(b) a relevant third party. (3) An application may be made by any other person with the leave of the court.
(4) In deciding whether to grant leave, the court must have regard to all the circumstances including—
(a) the applicant’s connection with the girl to be protected;(b) the applicant’s knowledge of the circumstances of the girl.(5) An application under this paragraph may be made in family proceedings or without any family proceedings being instituted.
(6) The circumstances in which the court may make an order without an application being made are where—
(a) any family proceedings are before the court (“the current proceedings”),(b) the court considers that an FGM protection order should be made to protect a girl (whether or not a party to the proceedings), and(c) a person who would be a respondent to any proceedings for an FGM protection order is a party to the current proceedings.(7) In this paragraph—
“family proceedings” has the same meaning as in the Family Homes and Domestic Violence (Northern Ireland) Order 1998 (S.I. 1998/1071 (N.I. 6)) (see Article 2(2) and (3) of that Order), but also includes—(a) proceedings under the inherent jurisdiction of the High Court in relation to adults,(b) proceedings in which the court has made an emergency protection order under Article 63 of the Children (Northern Ireland) Order 1995 (S.I. 1995/755 (N.I. 2)) which includes an exclusion requirement (as defined in Article 63A of that Order), and(c) proceedings in which the court has made an order under Article 69 of the 1995 Order (recovery of abducted children etc); “relevant third party” means a person specified, or falling within a description of persons specified, by order made by the Department of Finance and Personnel (and any such order may, in particular, specify that Department).Power to make order in criminal proceedings20 The court before which there are criminal proceedings in Northern Ireland for a genital mutilation offence may make an FGM protection order (without an application being made to it) if—
(a) the court considers that an FGM protection order should be made to protect a girl (whether or not the victim of the offence in relation to the criminal proceedings), and(b) a person who would be a respondent to any proceedings for an FGM protection order is a defendant in the criminal proceedings.Offence of breaching order21 (1) A person who without reasonable excuse does anything that the person is prohibited from doing by an FGM protection order is guilty of an offence.
(2) A person guilty of an offence under this paragraph is liable—
(a) on conviction on indictment, to imprisonment for a term not exceeding five years, or a fine, or both;(b) on summary conviction, to imprisonment for a term not exceeding 6 months, or a fine not exceeding the statutory maximum, or both.Ex parte orders22 (1) The court may, in any case where it is just and convenient to do so, make an FGM protection order even though the respondent has not been given such notice of the proceedings as would otherwise be required by rules of court.
(2) In deciding whether to exercise its powers under sub-paragraph (1), the court must have regard to all the circumstances including—
(a) the risk to the girl, or to another person, of becoming a victim of a genital mutilation offence if the order is not made immediately,(b) whether it is likely that an applicant will be deterred or prevented from pursuing an application if an order is not made immediately, and(c) whether there is reason to believe that—(i) the respondent is aware of the proceedings but is deliberately evading service, and(ii) the delay involved in effecting substituted service will cause serious prejudice to the girl to be protected or (if different) an applicant.(3) If the court makes an order by virtue of sub-paragraph (1), it must specify a date for a full hearing.
(4) In sub-paragraph (3), “full hearing” means a hearing of which notice has been given to all the parties in accordance with rules of court.
Variation and discharge of orders23 (1) The court may vary or discharge an FGM protection order on an application by—
(a) any party to the proceedings for the order,(b) the girl being protected by the order (if not a party to the proceedings for the order), or(c) any person affected by the order.(2) In the case of an order made in criminal proceedings under paragraph 20, the reference in sub-paragraph (1)(a) to a party to the proceedings for the order is to be read as a reference to the prosecution and the defendant.
(3) In addition, the court may vary or discharge an FGM protection order made by virtue of paragraph 19(1)(b) or 20 even though no application under sub-paragraph (1) above has been made to the court.
(4) Paragraph 22 applies to a variation of an FGM protection order as it applies to the making of such an order (and references in that paragraph to the making of an FGM protection order are to be read accordingly).
Jurisdiction of courts24 (1) For the purposes of this Part of this Schedule, “the court” means the High Court, or a county court, in Northern Ireland.
(2) Sub-paragraph (1) is subject to—
(a) sub-paragraph (3), and(b) any provision made by virtue of sub-paragraph (4) or (5).(3) Where the power to make an FGM protection order is exercisable by a court in criminal proceedings under paragraph 20, references in this Part of this Schedule to “the court” (other than in paragraph 19) are to be read as references to that court.
(4) Article 34(3) to (10) of the Family Homes and Domestic Violence (Northern Ireland) Order 1998 (S.I. 1998/1071 (N.I. 6)) (allocation of proceedings to courts etc) applies for the purposes of this Part of this Schedule as it applies for the purposes of that Order but as if the following modification were made.
(5) The modification is that Article 34(8) is to be read as if there were substituted for it—
“(8) For the purposes of paragraphs (3), (4) and (5), there are two levels of court—(a) the High Court; and(b) a county court.”Power to extend jurisdiction to courts of summary jurisdiction25 (1) The Department of Justice in Northern Ireland may, after consulting the Lord Chief Justice, by order provide for courts of summary jurisdiction to be included among the courts who may hear proceedings under this Part of this Schedule.
(2) An order under sub-paragraph (1) may, in particular, make any provision in relation to courts of summary jurisdiction which corresponds to provision made in relation to such courts by or under the Family Homes and Domestic Violence (Northern Ireland) Order 1998 (S.I. 1998/1071 (N.I. 6)).
(3) Any power to make an order under this paragraph (including the power as extended by paragraph 29(1)) may, in particular, be exercised by amending, repealing, revoking or otherwise modifying any provision made by or under this Part of this Schedule or any other enactment.
(4) In sub-paragraph (3) “enactment” includes Northern Ireland legislation.
(5) The Lord Chief Justice may nominate any of the following to exercise the Lord Chief Justice’s functions under this Part of this Schedule—
(a) the holder of one of the offices listed in Schedule 1 to the Justice (Northern Ireland) Act 2002;(b) a Lord Justice of Appeal (as defined by section 88 of that Act).Contempt proceedings26 The powers of the court in relation to contempt of court arising out of a person’s failure to comply with an FGM protection order, or otherwise in connection with such an order, may be exercised by the relevant judge.
Appeals from county courts27 (1) An appeal lies to the High Court against—
(a) the making by a county court of any order under this Part of this Schedule, or(b) any refusal by a county court to make such an order,as if the decision had been made in the exercise of the jurisdiction conferred by Part 3 of the County Courts (Northern Ireland) Order 1980 (S.I. 1980/397 (N.I. 3)) (original civil jurisdiction) and the appeal were brought under Article 60 of that Order (ordinary appeals in civil cases).(2) But an appeal does not lie to the High Court under sub-paragraph (1) where the county court is a divorce county court exercising jurisdiction under the Matrimonial Causes (Northern Ireland) Order 1978 (S.I. 1978/1045 (N.I. 15)) in the same proceedings.
(3) Provision must be made by rules of court for an appeal to lie (upon a point of law, a question of fact or the admission or rejection of any evidence) to the Court of Appeal against—
(a) the making of any order under this Part of this Schedule, or(b) any refusal to make such an order,by a county court of the type referred to in sub-paragraph (2).(4) Sub-paragraph (3) is without prejudice to Article 61 of the County Courts (Northern Ireland) Order 1980 (S.I. 1980/397 (N.I. 3)) (cases stated).
(5) On an appeal under sub-paragraph (1), the High Court may make such orders as may be necessary to give effect to its determination of the appeal.
(6) Where an order is made under sub-paragraph (5), the High Court may also make such incidental or consequential orders as appear to it to be just.
(7) Any order of the High Court made on an appeal under sub-paragraph (1) (other than one directing that an application be re-heard by the county court) is to be treated, for the purposes of—
(a) the enforcement of the order, and(b) any power to vary, revive or discharge orders,as if it were an order of the county court from which the appeal was brought and not an order of the High Court.(8) This paragraph is subject to paragraph 28.
Appeals: transfers and proposed transfers28 (1) The Department of Justice in Northern Ireland may, after consulting the Lord Chief Justice, by order make provision as to the circumstances in which appeals may be made against decisions taken by courts on questions arising in connection with the transfer, or proposed transfer, of proceedings by virtue of an order made under Article 34(5) of the Family Homes and Domestic Violence (Northern Ireland) Order 1998 (S.I. 1998/1071 (N.I. 6)) as applied by paragraph 24(4) and (5) above.
(2) Except so far as provided for in any order made under sub-paragraph (1), no appeal may be made against any decision of a kind mentioned in that sub-paragraph.
(3) The Lord Chief Justice may nominate any of the following to exercise the Lord Chief Justice’s functions under this paragraph—
(a) the holder of one of the offices listed in Schedule 1 to the Justice (Northern Ireland) Act 2002;(b) a Lord Justice of Appeal (as defined in section 88 of that Act).Orders29 (1) An order made under or by virtue of paragraph 19(7), 24(4) and (5), 25(1) or 28(1)—
(a) may make different provision for different purposes;(b) may contain incidental, supplemental, consequential, transitional, transitory or saving provision;(c) is to be made by statutory rule for the purposes of the Statutory Rules (Northern Ireland) Order 1979 (S.I. 1979/1573 (N.I. 12)).(2) An order made under or by virtue of paragraph 19(7), 24(4) and (5) or 28(1) is subject to negative resolution (within the meaning of section 41(6) of the Interpretation Act (Northern Ireland) 1954 (c. 33 (N.I))).
(3) An order under paragraph 25(1) may not be made unless a draft of the order has been laid before, and approved by a resolution of, the Northern Ireland Assembly.
(4) Section 41(3) of the Interpretation Act (Northern Ireland) 1954 (c. 33 (N.I.)) applies for the purposes of sub-paragraph (3) in relation to the laying of a draft as it applies in relation to the laying of a statutory document under an enactment.
Other protection or assistance against female genital mutilation30 (1) Nothing in this Part of this Schedule affects any other protection or assistance available to a girl who is or may become the victim of a genital mutilation offence.
(2) In particular, it does not affect—
(a) the inherent jurisdiction of the High Court;(b) any criminal liability;(c) any right to an occupation order or a non-molestation order under the Family Homes and Domestic Violence (Northern Ireland) Order 1998 (S.I. 1998/1071 (N.I. 6));(d) any civil remedies under the Protection from Harassment (Northern Ireland) Order 1997 (S.I. 1997/1180 (N.I. 9));(e) any protection or assistance under the Children (Northern Ireland) Order 1995 (S.I. 1995/755 (N.I. 2));(f) any right to a forced marriage protection order under Schedule 1 to the Forced Marriage (Civil Protection) Act 2007;(g) any claim in tort.Interpretation31 In this Part of this Schedule—
“the court” is to be read in accordance with paragraph 24;“FGM protection order” means an order under paragraph 18;“genital mutilation offence” means an offence under section 1, 2 or 3;“the relevant judge”, in relation to an FGM protection order, means—(a) where the order was made by the High Court, a judge of that court;(b) where the order was made by a county court, a judge or district judge of that or any other county court; (c) where the order was made by a court in criminal proceedings under paragraph 20— (i) a judge of that court, or (ii) a judge of the High Court or a judge or district judge of a county court.””
Lord Bates
My Lords, the noble Baroness is absolutely right again, in the sense that technology is the problem and therefore technology needs to offer the solution. Simply put, the numbers and the scale—of course, she has had those briefings and I have had them, too—are both distressing and mind-blowing in terms of their reach. As the technology is not limited to, and does not respect, geographies or jurisdictions, the matter is a global one. Therefore, we need to work very closely with the industry to ensure that this can be done.
I want to cover some of the issues that are being addressed at present which noble Lords may not be aware of. We recognise the concerns that the noble Lord has raised about the use of the internet to store and circulate indecent images of children. We fully accept that more needs to be done to address this issue, but I hope to be able to persuade the noble Lord that legislation is not required at this point, although we continue to keep that option under review.
We believe that the internet industry operating in the UK has taken significant steps, on a self-regulatory basis, to tackle the availability of indecent images online. The internet industry in the UK has worked closely for many years with the Internet Watch Foundation and the Child Exploitation and Online Protection command of the National Crime Agency to tackle illegal images. We recognise the support that responsible internet service providers have given to the Internet Watch Foundation, both financially and through taking action on the Internet Watch Foundation’s list of web pages identified as containing illegal images by either taking down such sites, if they are hosted in the UK, or blocking access to them if they are overseas.
The public and businesses can report images to the Internet Watch Foundation, which assesses them and determines whether they are illegal. Indeed, the Internet Watch Foundation took more than 51,000 reports from all sources last year. If the site containing the image is hosted in the UK, the details will be passed to law enforcement agencies, and the ISP will be asked to take down the web page using the “notice and take down” process. In 2013, the Internet Watch Foundation found that 47% of UK child abuse web pages were removed within 60 minutes. Thanks to the work of the Internet Watch Foundation, and the internet industry, less than 1% of the global total of indecent images of children is hosted in the UK.
However, we are not complacent, and we recognise the need to adapt to changing uses of technology by paedophiles. As the Prime Minister made clear in his speech to the NSPCC in July last year, we need to do more to eradicate these images from the internet and, in particular, ensure that the internet industry plays its full part in doing so. We have been working closely with the industry, and with its support we believe that significant steps have been taken towards removing these images. We have asked internet search engine providers such as Google—which was referred to by the noble Baroness and also by the noble Lord—and Microsoft to make changes to their search mechanisms, and these measures have been effective in preventing access to child abuse images.
We are also creating a new child abuse image database, using much of the same technology that the noble Lord, Lord Harris, referred to in setting out and introducing his amendment. This will enable the police to identify known images more quickly on suspects’ computers and will improve their ability to identify and safeguard victims from the images. A key part of this is not just about lining up prosecutions by identifying these images or getting the images taken down; it is about realising that the children behind them are vulnerable victims and need to be protected and get the help and support that they need.
Not only do we want the industry to remove such images, we want it to use its technical skills and capability to help develop the technical solutions to prevent the dissemination of these images online. The Home Office and the US Department of Justice have created a taskforce that provides a platform for industry to develop technical solutions to online child sexual exploitation. This work is ongoing under the chairmanship of my noble friend Lady Shields.
The UK will host a summit in December on online child exploitation. We have invited representatives of key partner Governments and organisations, including the internet industry, to participate in the summit, which will focus on protecting the victims of online child abuse and examine how we can work internationally to prevent children being exploited online.
The Government are very clear that those who provide services online, particularly those where images can be stored—a point that the noble Baroness, Lady Howe, made—have a responsibility to take action to prevent those services being used for the purposes of storing and sharing indecent images of children. In that regard, as she rightly said, we should have zero tolerance. We believe that internet service providers operating in the UK have a good record in this respect, both through their support for the Internet Watch Foundation and through the actions that they are taking to support the Prime Minister’s call for action.
Against this background of good co-operation and progress at present, we believe that the current system of self-regulation has been effective, and we are not persuaded at this time that more would be achieved by placing a legal requirement on these companies. In that regard I hope that, having heard the progress that has been made and our undertaking to keep this under review, the noble Lord will feel sufficiently reassured to consider withdrawing his amendment.
Lord Harris of Haringey
My Lords, I am grateful to the noble Baroness, Lady Howe, and my noble friend Lady Smith for the support that they have given to this amendment. To the noble Baroness, Lady Hamwee, I say that, as I am not doing this on behalf of the Government or anyone else, I am not engaged in a lengthy process of consultation with internet service providers, but I would make the point that this is a very soft change. It is simply asking them to consider and, where they think there is a material risk, to take reasonable steps. It is difficult to imagine any internet service provider, unless it wants to provide a service for expressly illicit purposes, finding this difficult.
I am of course encouraged by what the Minister has described. Most of it does not in fact apply to the issues that I have raised, because this is about images stored for private purposes rather than public purposes. The web page stuff and the work of the Internet Watch Foundation, with which I am very familiar—I think I am an ambassador or a champion; I cannot quite recall what the certificate says—are clearly about public-facing material which people may access. All that work is extremely good. I accept that many internet service providers are extremely responsible and are operating as one would hope in a self-regulatory way. I think this would have helped encourage those that are not being quite so public-spirited or sensitive to these issues to be more so in the future.
However, in the light of the Minister’s undertakings that this is something that will continue to be looked at, I beg leave to withdraw the amendment.
Baroness Stedman-Scott (Con)
My Lords, I, like my noble friend Lord Dobbs, have not been involved in the conversations during this Bill, but I speak because of the importance of the issue and our debating it in full. I am very glad to be discussing whether domestic abuse, including psychological abuse, coercive control and a pattern of abuse should be seen in the eyes of the law as a serious crime. The impact of domestic violence on women and their children can be devastating and long lasting, yet its essence of power and control is not criminalised.
My noble friend will be aware of surveys which show the strength of support for change. The Victims’ Voice survey found that 98% of victims feel that reform of the law is needed. A survey of front-line domestic violence professionals found that 97% agree that coercive control should be recognised in law, with 96% agreeing that patterns of behaviour and psychological abuse should be recognised in law.
I welcome the Government’s consultation and appreciate that it will take time for my noble friend and colleagues to consider the 700 or so responses before deciding whether legislation would provide better protection to victims, but, like other noble Lords, I look forward to hearing the outcome of the consultation. Changing the definition of domestic abuse in March last year was obviously a very important step, but there is a clear need to create a culture where victims report much earlier, are believed when they do and the dynamics and patterns of abuse are recognised and understood. Will my noble friend also look at other countries which have successfully criminalised psychological abuse, coercive control and clear patterns of behaviour, because this could be the catalyst which will not just save money but save lives?
Lord Bates
My Lords, first, I will make a brief response to my noble friend Lady Stedman-Scott. One of the things which struck me very much when I was preparing for this debate was the final page of the HMIC report into domestic abuse, which contains some of the statistics. It lists that in the 12-month period to 31 August 2013, the period which was reviewed, 1.01 million calls for assistance were as a result of domestic abuse. There were 269,700 crimes of domestic abuse. This figure goes to the heart of what my noble friend was saying: there were 57,900 individuals at high risk of serious harm or murder. On average, every 30 seconds, someone contacts the police for assistance with domestic abuse.
I think that those statistics show the importance of the issue which the noble Lord, Lord Wigley, has brought before the House this evening. I am sure that we are all very grateful to him for doing so, and also to the noble Lord, Lord Rosser, and the noble Baroness, Lady Smith. I am glad to have this opportunity. I entirely agree with the sentiment behind Amendment 49. Domestic violence and abuse are unquestionably serious crimes and must be treated as such. It is an appalling violation of the trust that those in intimate relationships place in each other. Last year, an estimated 1.9 million people were abused at the hands of those with whom they were closest.
The Government recognise that domestic abuse has not always been treated as the serious crime that it undoubtedly is. That is why, in September last year, the Home Secretary commissioned Her Majesty’s Inspectorate of Constabulary to conduct an all-force review of domestic abuse. HMIC published its findings in March and highlighted serious failings in the police response to these issues, which my noble friend Lady Hamwee touched on under the heading of “It’s a domestic” in terms of giving the seriousness to calls for help in this way that they would in any other circumstance in any other public place when somebody is under threat.
Moreover, the Home Secretary has initiated a number of other measures to improve the police responses to domestic abuse. This includes the establishment of a new National Oversight Group, which she chairs. While further legislation may have its place, new laws cannot be a substitute for the vital work of driving improvements in the response from the criminal justice agencies themselves.
In addition to the important operational improvements, the Government want to ensure that front-line agencies have the tools they need to provide the best possible protection for victims. In March, we announced a national rollout of the domestic violence protection orders, to which, again, a number of noble Lords have referred, that can prevent the perpetrator from having contact with the victim for up to 28 days, and the domestic violence disclosure scheme, which enables the police to disclose to the public information about previous violent offending by a new or existing partner. This, I felt, went to the heart of the issue raised by the noble Baroness, Lady Howe, when she raised that harrowing case study of Laura and the inability to take action. Clearly, this was something where the domestic violence protection orders may not be the solution but they are certainly an indication of a recognition of the problem.
Lord Bates
“Visiting Forces Act 1952 (c. 67)In the Schedule to the Visiting Forces Act 1952 (offences referred to in section 3), in paragraph 1(b)(xi), before “the Female Genital Mutilation Act 2003” insert “sections 1 to 3 of””
Lord Bates
“( ) An order under section 97B(2) of the Proceeds of Crime Act 2002 (inserted by section (Orders for securing compliance with confiscation order)) may be made in respect of any confiscation order (within the meaning of Part 3 of that Act) that is made on or after the day on which section (Orders for securing compliance with confiscation order) comes into force.”
Lord Bates
“( ) In relation to an offence committed before the commencement of section 154(1) of the Criminal Justice Act 2003, a reference to 12 months in the following provisions is to be read as a reference to 6 months—
(a) section 66(3)(a);(b) in the Prison Act 1952, subsection (4)(b) of the section 40CA inserted by section (Knives and offensive weapons in prisons) above;(c) in the Female Genital Mutilation Act 2003, paragraph (b) of the subsection (2) inserted in section 5 by section (Offence of failing to protect girl from risk of genital mutilation)(4)(b) above;(d) paragraph 4(5)(b) of the Schedule inserted in that Act by section (Female genital mutilation protection orders)(2) above.”
Lord Bates
“( ) section (Knives and offensive weapons in prisons).”
Lord Bates
“( ) paragraphs 11A and 26 to 33 of Schedule 4 (and section 70(1) so far as relating to those paragraphs).”
Lord Bates
Foreign National Offenders
Lord Bates Excerpts(9 years, 6 months ago)
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The Parliamentary Under-Secretary of State, Home Office (Lord Bates) (Con)
My Lords, with the leave of the House, I shall now repeat in the form of a Statement the Answer given earlier today by my right honourable friend the Home Secretary to an Urgent Question on foreign national offenders. The Statement is as follows:
“I am grateful to the National Audit Office for its report on managing and removing foreign national offenders. As the report makes clear, this is a problem which has beset successive Governments. Let me begin by being clear that foreign nationals who abuse our hospitality by committing crime in this country should be in no doubt of our determination to remove them from it. We removed more than 5,000 foreign criminals from the UK last year and we have removed 22,000 since 2010. I also want to make it plain that, as in so many other areas, it falls to this Government to tackle the problems of the past. Quite simply, the Home Office did not prioritise the removal of foreign national offenders before 2005.
It will take time to fix the problems we inherited. Chief among them, as the NAO report makes clear, are the legal barriers we face. The countless appeals and re-appeals which have been lodged by criminals attempting to cheat the system cost us all money and are an affront to British justice. That is why we passed the Immigration Act to clamp down on such abuse. New powers from that Act came into force this week to cut the number of grounds on which criminals can appeal their deportation from 17 to four and to end the appeals conveyor belt in the courts. From this week, criminals can no longer appeal against a decision that their deportation is conducive to the public good.
These reforms build on other measures we introduced in the summer which are already speeding up the deportation process. In July, we introduced new powers to stop criminals using family life arguments to delay their deportation. We have also changed the law so that, where there is no risk of serious irreversible harm, foreign criminals will be deported first and have their appeal heard later. For those that do have an appeal right, they will be able to appeal only once. These new powers are radically reforming the deportation process by rebalancing human rights law in favour of the British public rather than the criminal.
We are also pursuing joint working between the police and Immigration Enforcement. Operation Nexus has helped us remove more than 2,500 foreign nationals during its first two years, including 150 dangerous immigration offenders considered by the police to represent a particularly serious threat. Alongside tougher crime-fighting measures, improved protection at the border and greater collaboration between the police and immigration enforcement officers, the Immigration Act is helping us to deliver an immigration system that is fair to the people of this country and legitimate immigrants and tough on those who flout the rules. The Home Office will look at the NAO’s recommendations carefully and work with the other agencies involved to ensure that we continue to build on that system”.
Lord Bates
I accept the view of the noble Baroness that the Opposition share our desire to see progress in this area, and the systems have to be robust to deliver that. It was clear that the UK Border Agency, which was introduced by the previous Government, was not delivering the effectiveness we wanted, and that is the reason we now have an Immigration Enforcement command with search teams that go out looking for people who abscond. It is also why the Human Rights Act, which forms the basis of many of the appeals and re-appeals, has been built upon by the Immigration Act. It now narrows down the number of routes for appeal from 17 to four. Of course, these measures have all taken time to come into effect, but as the NAO reports in its opening summary, over the past two years—since these measures have come in—the number of deportations is once again increasing, so they are beginning to have an effect. That is not to suggest any complacency whatever. We need to make sure that we continue to build on the measures so as to keep the British public safe.
Lord Paddick (LD)
My Lords, the Liberal Democrats want a fair immigration policy; clearly, we believe that foreign criminals who should be deported should not remain in this country. Will the Minister say how many of these dangerous foreign criminals are at large as a result of multiple appeals against deportation, and how many are at large due to Home Office incompetence?
Lord Bates
My Lords, my noble friend, of course, has great expertise in this area and will know that the basis on which we collect data is not quite as finely siloed as that. We recognise that there is a major problem here: it is a cause for public concern and it needs to be addressed. The measures that we are putting forward—to reduce and replace the appeal/re-appeal conveyor belt, by which many of these prisoners are attempting to work the system; and to ensure that we have better information at the point of entry into this country by signing up to the Schengen information system and the European Criminal Records Information System—are the approach that we should emphasise.
Lord Ramsbotham (CB)
My Lords, in 1999, as Chief Inspector of Prisons, I recommended that anyone who was ordered deportation as part of a sentence should have that deportation processed while they were in prison, starting on the day that they arrived there, so that on the day that they finished their sentence they went straight to the air field and out. That is what is practised in other places such as the UAE, as I saw. If they can do it, why can we not? When are we going to start acting properly? Furthermore, there is also a practice of sending people who are sentenced to deportation to immigration detention centres at the end of their sentence. That is precisely where they should not be, because they infect the people in the immigration centre with the wrong ideas, having been in prison.
Lord Bates
The noble Lord puts his finger on a very pertinent point. One of the problems is that, through the immigration appeals process, hearing a case in the immigration tribunals can actually be longer than the sentence. Therefore, the prisoners can sometimes be released; they are released on bail in certain circumstances. We have to be very careful of that. One of the provisions in the new Immigration Act is the ability to be able to say, “The appeal process does not take place in the UK. It should actually take place in the country from which they came”. That is a positive step forward, along the lines that he suggested.
Lord Dholakia (LD)
My Lords, we have bilateral arrangements with a number of countries about prison transfers. Is it not possible to look again at these arrangements to make sure that foreign nationals serve their sentences in the country of their origin, thus relieving pressure on resources and staffing in the United Kingdom?
Lord Bates
My Lords, my noble friend makes an important point. We are now taking part in the European prisoner transfer agreement; it relies on the country being willing to take the offender back into the prison system. There is another element to consider, in relation to non-EU countries: we need to make sure that the prisoner will actually serve in that country the sentence handed down to them and that they will not be allowed out early, as has happened in some countries when prisoners have been returned.
Lord Richard (Lab)
Will the Minister help me on one point? Could he emphasise a little more clearly than he has done that it is firmly the policy of the Government to re-enter—that they now wish to go back into—the 44 matters that they opted out of from the 144 on the original list for opting out? Things like the Schengen information exchange and the European arrest warrant are fundamental to the operation of any sensible system as far as deporting foreign criminals is concerned.
Lord Bates
I hear that. The Government will make their announcements in due course. Of course, just because we are not part of the Schengen agreement in terms of the movement of people does not mean that we cannot share information. That will be helpful not only to this country but to the countries in the Schengen area.
Lord Harris of Haringey (Lab)
My Lords, my noble friend Lady Smith told us that on occasion people have not been deported because the airline tickets have not been booked. Will the Minister tell us how many cases of that have taken place, and whose responsibility should it be to book those tickets?
Lord Bates
I think that the figure was taken from a couple of case studies mentioned in the NAO report; they are not actually grouped. But we absolutely recognise that there needs to be better co-ordination across government and that is why we now have a cross-government team that comes under the National Security Council taking this issue seriously, taking it forward and introducing the measures that we have put forward.
Lord Martin of Springburn (CB)
My Lords, when I served as a Member of Parliament, I had a large proportion of asylum seekers in my constituency of Glasgow Springburn. What would happen was that the asylum seeker would say, “I seek asylum” and therefore they were looked at. Can I get the assurance that when asylum seekers are seeking asylum, they are checked to see whether they have been serious offenders in their previous country?
Lord Bates
That is certainly the intention and the process. If I may, to make absolutely sure that I have given the noble Lord the accurate information, I will check on that and write to him. But that is certainly the case and nothing we are putting forward at present will mean that the genuine asylum seeker who is at risk of serious and irreversible harm will be deported while their case is being heard.
Baroness Farrington of Ribbleton (Lab)
My Lords, if the Minister is unable to answer the question posed by my noble friend, will he please write and put a copy in the Library? We need to know accurately how many people were involved.
Lord Bates
We will certainly make investigations into that and get the information required, and do as the noble Baroness suggests.
Baroness Smith of Basildon
My Lords, I am grateful to the Minister, who has been very helpful in his answers. But the point that I made in my original question, and was made by the noble Lord, Lord Richard, was about the Schengen information system that the Minister himself referred to as being important and the fact that the Government have not signed up to that; we have been having a debate about opt-in, opt-out again. I repeat the question: does the Minister consider that the Government’s obsession with opting out of EU criminal justice measures has had an impact on tackling this problem, particularly in relation to the Schengen information system that he referred to?
Lord Bates
I do not accept that that is the case. We are already, and have been for some time, part of the European criminal information system, which carries a lot of information; in fact, the UK is one of the heaviest users of that system. We now want to strengthen it further and it seems a very sensible step to be part of the Schengen information system as well.
Rape
Lord Bates Excerpts(9 years, 6 months ago)
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Baroness Hussein-Ece
To ask Her Majesty’s Government what is their strategy for dealing with the increase in reported cases of rape shown in the recent Office for National Statistics report on crime in England and Wales.
The Parliamentary Under-Secretary of State, Home Office (Lord Bates) (Con)
My Lords, the Government remain committed to tackling sexual violence, as set out fully in our violence against women and girls action plan, updated in March 2014. Supporting victims is at the heart of this approach, which includes giving victims more confidence to report crimes that have gone underreported for far too long. It is encouraging that the police recorded crime figures show more victims are having the confidence to come forward.
Baroness Hussein-Ece (LD)
I thank my noble friend for that reply, but does he share my concern that, given there are more reported cases or incidents of sexual violence and rape, the conviction rate is still quite low? It has not improved in the last six or seven years. Can he tell the House what steps the Government will take to ensure that more victims will be encouraged to come forward and have confidence in the criminal justice system, so that they feel that they will be taken seriously and conviction rates will go up?
Lord Bates
I am grateful to my noble friend for raising this vitally important issue. Conviction rates have increased year on year, but rape remains a massively underreported crime. We estimate that there are between 60,000 and 95,000 victims, resulting in only 22,166 reports. This is something that needs to be taken seriously. Rape referrals from the police to the Crown Prosecution Service rose by 8.3% last year. We want to see that figure continue to increase.
Baroness McIntosh of Hudnall (Lab)
My Lords, given these rather depressing statistics on the incidence of rape, does the Minister believe that the Government are right to continue to pursue their proposed reforms to the taxi and PHV licensing regulations, as proposed in the Deregulation Bill that is coming before the House in Committee this afternoon? Is he aware that taxis and minicabs have been significantly implicated in recent incidences of abuse and rape, for example in Rotherham, and that these reforms are strongly opposed by a number of organisations concerned with women’s safety, such as the Suzy Lamplugh Trust?
Lord Bates
I am not fully aware of the issue that the noble Baroness raises relating to the Deregulation Bill. I will look into it and report to her today.
Baroness Smith of Basildon (Lab)
My Lords, I suggest that the Minister looks quickly, as the vote on that issue will take place this evening. Perhaps he will choose to vote with us. He said that the number of rapes and sexual attacks is increasing, but in fact the percentage of convictions is going down. It is clear that there are serious delays in acting on information in certain sexual crimes. The National Crime Agency tells us that it has evidence of more than 50,000 people downloading abusive pornographic photographs of children, but it is unable to act on them all and will arrest only those—to date around 600—who place children at physical risk. How can the police tell from downloaded photographic images who is more likely to sexually abuse children unless they interview them? Surely the Government have a responsibility to these children to make it a greater priority.
Lord Bates
My Lords, it is indeed a top priority of this Government to tackle child exploitation, particularly on the internet. That is why Operation Notarise is under way, and it has resulted in convictions. More needs to be done, particularly in engaging with the industry and finding technical solutions to the problems so that we get the evidence to ensure that people are brought to justice for these serious crimes.
Baroness Howarth of Breckland (CB)
My Lords, pressure on the police is also seen when they try to deal with human trafficking and young girls caught up in prostitution whose career was started by continuous rape. I wonder what the Minister might like to say about that and about what we might do when we come to the legislation.
Lord Bates
In fact, that was one of the things highlighted in an excellent report into rape carried out by the noble Baroness, Lady Stern, back in 2010. She also made the point that, as well as focusing on increasing the conviction rate, which it is absolutely right to do, we also needed to make sure that we provided enough support and care to the victims of crime. That is one reason why we have ring-fenced £40 million to provide that kind of care to the victims of crime.
Lord Laming (CB)
My Lords, will the Minister assure the House that everything is being done to encourage young people to understand that relationships are best conducted not through the use of power but, rather, through the use of respect for each other?
Lord Bates
The noble Lord is absolutely right in this respect, and education has a key role to play in this. The Home Office has been sponsoring a programme called This is Abuse, which goes through the schools programme. It makes it absolutely clear that young people need to understand that consent is critical to sexual relations and that, when it is absent, a serious crime has been committed.
Children: Online Privacy
Lord Bates Excerpts(9 years, 6 months ago)
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Baroness Thornton
To ask Her Majesty’s Government what assessment they have made of the online privacy of children in the light of recent social media hacking.
The Parliamentary Under-Secretary of State, Home Office (Lord Bates) (Con)
My Lords, the Government are concerned by recent reports about the hacking of social media and have established the Child Exploitation and Online Protection Command of the National Crime Agency, with the powers and international reach to tackle these types of crime. The National Crime Agency offers advice to children and parents, and our Cyber StreetWise campaign also advises individuals and businesses on how to stay safe online.
Baroness Thornton (Lab)
I thank the Minister for that Answer. As he will know, many of the more than 100,000 pictures leaked online in the so-called Snappening incident were of young children, and many of those pictures would constitute child pornography. What are the Government doing to ensure that social media companies tighten up their security? Are the Government considering tougher penalties for social media companies that have not taken sufficient action to protect their customers from data hacking, including pictures? Indeed, why are the Government not taking a harder line on protecting children online?
Lord Bates
Obviously, I recognise the expertise and the consistent interest that the noble Baroness has shown in this important issue. I reassure her and the House of the absolute seriousness and determination that I am sure that we all share to protect children against this type of event. For the benefit of the House, it should be said that the Snapchat incident was not in relation to the messaging application itself but in relation to Snapsave, which was an online website that was hacked into. The scale of that, with some 700,000 images per day uploaded by children, also affects the challenges that we find. As for what the Government are doing, one thing that we have done is to establish a joint US and UK taskforce to look at this whole issue. We are delighted that today the noble Baroness, Lady Shields, who heads that taskforce, has been introduced into your Lordships’ House, and can help us in developing and strengthening further the protection that we all seek.
Lord Laming (CB)
Will the Minister assure the House that the Government will encourage all of us—parents, grandparents and relatives—to do all we can to help young people and children to understand the enduring harm that the use of social media can do if they use it in particular ways?
Lord Bates
The noble Lord, Lord Laming, is absolutely right: there is, of course, a role for government and a vital role for the industry but there is also an essential role for parents, and even for children themselves, to be aware of the dangers in which they place themselves when they place these images online.
Lord Storey (LD)
Does my noble friend the Minister accept the notion that children’s images and messages go into a so-called cloud and can be hacked, leaked and spread? Should those images not be allowed to be stored? I very much agree with the point that this is about ensuring that young people themselves in our schools are made aware of the dangers. That should be part of PSHE.
Lord Bates
My noble friend makes an important point. From this September, e-safety guidance must be taught in our schools at all key stages. It is vital that children are made aware of this. We shall need to look very carefully at the issue of storing images online given that the Snapchat application is attractive to young people because images can be uploaded and then disappear, allegedly after a period of up to 10 seconds.
Baroness McIntosh of Hudnall (Lab)
Will the Minister expand a little on the underlying points in the contributions of the previous two noble Lords who have spoken, because fundamental to this issue is that children are educated to understand what privacy is and what it is to have boundaries about what you are prepared to share with other people and what you really should not? Can he say with confidence that the way that the current PSHE syllabus is set up is robust enough to take that into account?
Lord Bates
The noble Baroness is absolutely right that we need to keep this matter constantly under review. We cannot be at all complacent about it and the relevant advice will need to be strengthened as the technology advances. The Government have set up a website through the National Crime Agency called Thinkuknow, which is aimed specifically at young people—indeed, children as young as five—and has specific information on this issue. In the context of this Question, new guidance is available there to young people who feel that they may have been a victim of this particular hacking incident.
Baroness Miller of Chilthorne Domer (LD)
My Lords, as the shocking case in Indonesia showed, not only are children in this country at risk, but adults in this country are preying on the privacy of children in countries which may not have the same capacity as we do to ensure the privacy of their children.
Lord Bates
Yes, indeed, my noble friend is absolutely right. That is why the child exploitation unit command within the National Crime Agency is now able to tap into the National Cyber Crime Unit. There are officers in some 40 different countries around the world. It is also why the Prime Minister will host a conference in December with representatives and partners from more than 50 countries to see what more can be done.
Lord West of Spithead (Lab)
My Lords, has the National Cyber Crime Unit now developed tools through the high-tech crime units to enable this sort of hacking to be tracked down more rapidly, because at the moment it is very difficult to attribute it?
Lord Bates
The noble Lord is absolutely right. The child abuse image database seeks to convert images into a string of data, which can then be checked across the industry to identify the victims of these crimes to make sure that they are safeguarded. However, the need to develop new technology further is absolutely critical and the work is ongoing.
Serious Crime Bill [HL]
Lord Bates Excerpts(9 years, 7 months ago)
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Lord Bates
“( ) After that section insert—
“18A Provision of information as to defendant’s interest in property
(1) This section applies if the court—
(a) is considering whether to make a determination under section 10A of the extent of the defendant’s interest in any property, or(b) is deciding what determination to make (if the court has decided to make a determination under that section).In this section “interested person” means a person (other than the defendant) who the court thinks is or may be a person holding an interest in the property. (2) For the purpose of obtaining information to help it in carrying out its functions under section 10A the court may at any time order an interested person to give it information specified in the order.
(3) An order under this section may require all or a specified part of the information to be given in a specified manner and before a specified date.
(4) If an interested person fails without reasonable excuse to comply with an order under this section the court may draw such inference as it believes is appropriate.
(5) Subsection (4) does not affect any power of the court to deal with the person in respect of a failure to comply with an order under this section.
(6) If the prosecutor accepts to any extent an allegation made by an interested person—
(a) in giving information required by an order under this section, or(b) in any other statement given to the court in relation to any matter relevant to a determination under section 10A,the court may treat the acceptance as conclusive of the matters to which it relates.(7) For the purposes of this section an allegation may be accepted in a manner ordered by the court.
(8) If the court makes an order under this section it may at any time vary it by making another one.
(9) No information given by a person under this section is admissible in evidence in proceedings against that person for an offence.””
The Parliamentary Under-Secretary of State, Home Office (Lord Bates) (Con)
My Lords, in Committee there was a helpful debate on the provisions in Clauses 1 to 4, which relate to third-party interests in assets subject to a confiscation order. There was general agreement that the current arrangements for considering third-party interests are not sufficiently robust, allowing defendants to drag out and frustrate the enforcement of confiscation orders. The Bill addresses this by bringing forward the determination of third-party interests from the enforcement stage to the confiscation hearing and conferring new powers on the court to make binding determinations as to the extent of any third-party interests.
As part of this process, Clause 2 creates a requirement for the prosecutor to detail any known third-party interest in property associated with the defendant in their statement of information. That includes any interests that the defendant may have in companies, trusts, bank accounts and property. The defendant will then be under a duty to respond to every allegation in the prosecutor’s statement for which information has been supplied and the extent to which each allegation is accepted. Where an allegation is disputed, the defendant must provide full details of any matters relied on.
That is a very wide-ranging power, and the court may order the provision of any information from the prosecutor or the defendant that it believes it requires. The court may then use that information to make a determination at the confiscation stage as to the defendant’s interest in property. In making such a determination, the court will, by extension, also be ruling on the extent of any third-party interests in the relevant assets.
As my noble friend Lord Taylor said in Committee, there was general welcome for the provisions, but the noble Baroness, Lady Smith, questioned whether more could be done to address the problem. Having reflected on the debate, we agree that there is one further step that can usefully be taken further to enhance the court’s powers. Amendments 1 and 14 now provide the court with the power to order an interested person, such as someone making a claim against the defendant’s property, to provide the court with any information that the court believes necessary to determine the defendant’s interest in the property.
Conferring such a power on the courts will further strengthen the provisions to tackle bogus third-party claims. It is unlikely to be necessary for a court to order an individual with a legitimate claim to provide information—it is in that person’s interest to do so on their own initiative. The amendments are, however, aimed at individuals who are attempting to make spurious claims on behalf of—in all likelihood, in collusion with—a defendant to protect an asset from confiscation. Those individuals are unlikely to want to co-operate with the court by providing a witness statement unless compelled to do so. If a person fails without reasonable cause to comply with an order to provide information to a court, it may draw such inference as it believes is appropriate. Thus, for example, if a third party fails to provide information substantiating their alleged interest in property that the prosecution believes is wholly owned by the defendant, the court will be able to draw the conclusion that the property in question is indeed 100% owned by the defendant.
I trust that the House will agree that that represents a sensible addition to the court’s powers to ensure that the effective and timely enforcement of confiscation orders is not deflected by spurious third-party claims.
I will respond to Amendment 4, which is grouped, once the House has had the opportunity to hear from the noble Baroness, Lady Smith. For the time being, I beg to move Amendment 1.
Baroness Butler-Sloss (CB)
My Lords, the Proceeds of Crime Act has been inadequately applied. There is no doubt that it could be better dealt with. As far as they go, the Minister’s amendments are to be supported—but they by no means go far enough. As a member of the Joint Committee on the Modern Slavery Bill, I strongly support the speech of the noble Lord, Lord Warner. However, it goes further than that. The Modern Slavery Bill is an important part of getting the proceeds of crime, but all of us in this House want to see criminals dispossessed of their assets. The Proceeds of Crime Act and all of the amendments go further than the Modern Slavery Bill. We do need something.
I am not entirely certain, having listened to the noble Baroness, Lady Hamwee, that we need it in Amendment 4, but we certainly need either this amendment or a very strong undertaking from the Government that—side by side with implementing the government amendments to the Bill—they will consult. If there was a strong commitment to consultation before the Modern Slavery Bill comes in—bearing in mind that it is much broader than the Modern Slavery Bill—I would be content with that. However, if the Government are not going to give a strong commitment, I would find myself supporting Amendment 4.
Lord Bates
My Lords, first, I thank the noble Baroness and also my noble friend for their warm welcome to me in this role. I will do my very best to try to ensure that I answer as fully as possible the very serious points which they made.
I will commence with the points raised by the noble Lord, Lord Warner, and to some extent the points raised by the noble and learned Baroness, Lady Butler-Sloss, in relation to the Modern Slavery Bill. As these Bills were drafted and conceived, and as they move through the legislative process, they are seen very much as two parts of an attempt to address the problem of human trafficking and the gangs that seek to profit from that. They also seek to ensure that those gangs are unable to hide away the funds which they amass from the misery they afflict on others. On that we are absolutely united. I would also say to the noble Lord, Lord Warner, that we set out a number of points in a detailed letter which was drafted and sent to his noble friend the noble Baroness, Lady Smith of Basildon, on 7 October. A copy has been placed in the Library but it might be helpful, as part of my response to the debate, if I place some of the remarks from it on the record in this House.
In responding to Amendment 4, let me first say that we share the objective underpinning this amendment— namely, to further strengthen the effectiveness of the asset recovery regime provided for in the Proceeds of Crime Act. It is also worth noting at this point that, under this Government, more than £746 million of criminal assets have been seized through all four current methods of recovery, which in itself is a record amount. I know it is not getting anywhere near to addressing the full scale of the problem but it shows that the law enforcement of the courts is having some effect. Of course we want to do even better. One of the aims of the Government’s serious and organised crime strategy is to crack down on those who do not pay their confiscation orders. As part of this, the criminal finances improvement plan aims to look at ways to improve the recovery of the proceeds of crime.
The amendment calls for consultation on ways to strengthen the legal framework as set out in the Proceeds of Crime Act. Part 1 of this Bill is the product of just such a consultation. It already includes significant reforms to the asset recovery regime. I do not for a moment suggest that these provisions are the last word in terms of changes to POCA—if I may use that acronym for the Proceeds of Crime Act. We remain open to further constructive suggestions, which was very much what the noble Baroness asked us to do. We remain open to suggestions and to having a constructive dialogue over what improvements can be made with, among others, the National Crime Agency, police forces, the Crown Prosecution Service and Her Majesty’s Courts and Tribunals Service.
Let me turn to the specific proposals contained in Amendment 4. First, the amendment calls for a change in the test for securing a restraint order. Clause 11 already reduces the legal test for obtaining such an order from “reasonable cause to believe” that the alleged offender has benefited from his criminal conduct to “reasonable grounds to suspect”. This was a point that the noble Lord, Lord Warner, also touched upon. That will enable restraint orders to be secured earlier in an investigation. We remain at this stage unpersuaded of the case for removing the requirement to show that there is a real risk that the defendant will dissipate his or her assets. Such a test goes to the heart of the purpose of a restraint order. If there was no such risk, there would be nothing to be gained from seeking a restraint order.
Lord Warner
My Lords, before the Minister sits down, I have a question for him about his answer to me on restraint orders and third parties, which left me extremely puzzled. If he does not have the answer today, perhaps he could write to me. As I understood what he said—and I do not, in any way, disagree with it—restraint orders may well be taken certainly before someone is charged and possibly before they are arrested, because the investigation may give the police and the prosecution reason to believe that the people have considerable assets which may disappear at the point of arrest. However, as I understood him, he then said that it made no sense to make that restraint order deal with dissipation of assets to a third party. If the person does not know that the restraint order has been taken out because they have not been arrested or charged, what is to stop the courts including a provision about dissipation of assets which the person may have or subsequently engage in dissipation of? If the chap or woman does not know they have actually got a restraint order on them, I cannot see at the moment why it should not be drawn more widely to cover dissipation at the point when restraint is introduced. However, the Minister seemed to be saying that was not possible. If I have got it wrong, he can answer me now; if I have not, could he explain what the Home Office lore is on why that does not make sense?
Lord Bates
I will, of course, take very seriously what the noble Lord said. I do not think that was exactly what I said, but I will check the record and clarify it if necessary. The point I was making was that if it was necessary to identify third-party interests at the restraint stage, which Amendment 4 seeks to do, that might alert people who are not unconnected to the person of interest that an investigation is under way. This might damage the prospects of bringing a successful prosecution. I was seeking to make a point of argument rather than a point of law or lore. However, I will read the record and clarify this, if need be, for the noble Lord.
Lord Bates
Lord Bates
“Orders for securing compliance with confiscation order
After section 97A of the Proceeds of Crime Act 2002 (inserted by section (2)) insert—15“97B Orders for securing compliance with confiscation order
(1) This section applies where the court makes a confiscation order.
(2) The court may make such order in relation to the accused as it believes is appropriate for the purpose of ensuring that the confiscation order is effective (a “compliance order”).
(3) The court must consider whether to make a compliance order—
(a) on the making of the confiscation order, and(b) if it does not make a compliance order then, at any later time (while the confiscation order is still in effect) on the application of the prosecutor.(4) In considering whether to make a compliance order, the court must, in particular, consider whether any restriction or prohibition on the accused’s travel outside the United Kingdom ought to be imposed for the purpose mentioned in subsection (2).
(5) The court may discharge or vary a compliance order on an application made by—
(a) the prosecutor;(b) the accused.(6) For the purposes of any appeal or review, a compliance order is a sentence.
“97C Breach of compliance order
(1) This section applies where—
(a) a compliance order has been made in relation to an accused, and(b) it appears to the court that the accused has failed to comply with the compliance order.(2) The court may—
(a) issue a warrant for the accused’s arrest, or(b) issue a citation to the accused requiring the accused to appear before the court. (3) If the accused fails to appear as required by a citation issued under subsection (2)(b), the court may issue a warrant for the arrest of the accused.
(4) The unified citation provisions (as defined in section 307(1) of the Procedure Act) apply in relation to a citation under subsection (2)(b).
(5) The court must, before considering the alleged failure—
(a) provide the accused with written details of the alleged failure,(b) inform the accused that the accused is entitled to be legally represented, and(c) inform the accused that no answer need be given to the allegation before the accused—(i) has been given an opportunity to take legal advice, or(ii) has indicated that the accused does not wish to take legal advice.(6) If the court is satisfied that the accused has failed without reasonable excuse to comply with the compliance order, the court may—
(a) impose on the accused a fine not exceeding level 3 on the standard scale,(b) revoke the compliance order and impose on the accused a sentence of imprisonment for a term not exceeding 3 months,(c) vary the compliance order, or(d) both impose a fine under paragraph (a) and vary the order under paragraph (c).(7) The court may vary the compliance order if the court is satisfied—
(a) that the accused has failed to comply with the order,(b) that the accused had a reasonable excuse for the failure, and(c) that, having regard to the circumstances which have arisen since the order was imposed, it is in the interests of justice to vary the order.(8) Evidence of one witness is sufficient for the purpose of establishing that an accused has failed without reasonable excuse to comply with a compliance order.
“97D Appeals against variation or discharge of compliance orders
The prosecutor or the accused may appeal against a decision of the court under section 97B(5)—(a) to vary or refuse to vary a compliance order, or(b) to discharge or refuse to discharge a compliance order.””
Lord Bates
My Lords, these amendments follow up the debate in Committee on the new offence of participating in the activities of an organised crime group. Noble Lords will recall that in response to various amendments tabled at that stage by my noble friend Lady Hamwee and the noble Baroness, Lady Smith, my noble friend Lord Taylor undertook to consider further the potential for the offence to capture the naive or unwitting participant.
I am pleased to say that discussions between Home Office officials and the Law Society, the Institute of Chartered Accountants in England and Wales and the Local Government Association have continued over the summer. As a result of those deliberations, I have tabled Amendment 20, which is similar but not identical to Amendment 21 put forward by the noble Baroness, Lady Smith. Both amendments would change the “reasonable cause to suspect” limb of the mental element of the offence. In Committee, noble Lords were concerned—
Lord Bates
Lord Bates
My Lords, my apologies to the House for the slight mix-up in the order. It is one of the things that happen when you take people out of the Whips’ Office and put them in a departmental office—they forget their day job. We were sharply reminded of it and I am grateful to noble Lords for their patience.
These amendments follow up the debate in Committee on the new offence of participating in the activities of an organised crime group. Noble Lords will recall that, in response to various amendments tabled at that stage by my noble friend Lady Hamwee and the noble Baroness, Lady Smith, my noble friend Lord Taylor undertook to consider further the potential for the offence to capture the naive or unwitting participant. I am pleased to say that discussions between Home Office officials and the Law Society, the Institute of Chartered Accountants in England and Wales and the Local Government Association continued over the summer. As a result of those deliberations, I have tabled Amendment 20, which is similar but not identical to Amendment 21 put forward by the noble Baroness, Lady Smith. Both these amendments would change the “reasonable cause to suspect” limb of the mental element of the offence. In Committee, noble Lords were concerned that “reasonable cause to suspect”, as an objective test, could capture the unwitting or naive and that there might be instances where the “reasonable cause to suspect” became clear only with the benefit of hindsight.
In providing for a threshold of “suspects” without qualification, Amendment 21 certainly deals with the concerns about inadvertently capturing the naive or unwitting. By definition, these individuals will genuinely not have suspected, when they took part in the relevant activities, that they were participating in organised criminal activities, even if they had reasonable grounds to do so. But this threshold might also capture the paranoid who suspected that their conduct was contributing to the activities of an organised crime group, despite the fact that there were no reasonable grounds for such suspicion. Amendment 20 therefore also requires the suspicion to be reasonable. This adds an objective test—there were reasonable grounds for the suspicion—to the subjective test that the individual genuinely suspected, and it requires both to be met for the offence to have been committed. It therefore provides some further additional protection against overcriminalisation. The approach in Amendment 20 has been welcomed by the stakeholders whom we consulted over the summer.
I will respond to the other amendments in this group once the House has had an opportunity to hear from the noble Baroness, Lady Smith, and my noble friend Lady Hamwee. For now, I beg to move.
Baroness Hamwee
I welcome the Government’s response to this. My amendment seeks further clarity on the provision in Clause 44(8) which makes it,
“a defence … to prove that the person’s participation was necessary for a purpose related to the prevention or detection of crime”.
“Necessary” is narrow, which is right, but a,
“purpose related to the prevention or detection of crime”,
seems to me very wide. The example that came to mind at the previous stage was undercover policing, which is a contentious activity, although we heard from a report in the last day or two some good news on how it is conducted.
I am still puzzled about whether the phrase,
“participation … for a purpose related to”,
and not just,
“necessary for … the prevention or detection of crime”,
takes it beyond something that is acceptable. My amendment invites my noble friend to amplify the provision, if he is able to do so.
Lord Bates
I am grateful for the welcome that the amendment has received. I am mindful of the two questions, which I shall do my best to address. In response to the noble Baroness, Lady Smith, the Bill already provides for a defence when the,
“participation was necessary for a purpose related to the prevention or detection of crime”.
We considered that that, together with raising the threshold for the offence to “reasonably suspects” and a requirement for any prosecution to be in the public interest, provided that additional safeguard. We therefore concluded that the general defence of acting reasonably is unlikely in practice to add any additional protection from overcriminalisation of this offence. However, in the light of particular concerns expressed about the position of the regulated sector specifically, we looked again at the need for a bespoke defence for the regulated sector.
Two aspects of the Proceeds of Crime Act have been raised in this context. The first relates to the obligation that members of the regulated sector have to report money-laundering carried out by another. This aspect is addressed in Amendment 22, which would provide a partial defence that would apply to a member of a regulated sector who took part in activities that he did not know or suspect to be criminal activities as part of an organised crime group. We believe that the additional dimension is there and that it provides a further protection for those who are involved in financial services. I am sure that is why the Law Society, the Institute of Chartered Accountants in England and Wales and the Local Government Association have welcomed the amendment as far as it goes.
On the point raised by the noble Baroness, Lady Hamwee, I covered that in the previous answer to the noble Baroness, Lady Smith, but I will come back to her with more detail in writing if necessary. I beg to move.
Lord Bates
“( ) In subsection (1)—
(a) after “ill-treats” insert “(whether physically or otherwise)”;(b) after “ill-treated” insert “(whether physically or otherwise)”.”
Lord Bates
My Lords, we now turn to the amendments relating to Clause 65, which clarifies and updates the law on child cruelty in Section 1 of the Children and Young Persons Act 1933. We had an informed debate on Clause 65 in Committee, during which a range of issues were raised in relation to Section 1 of the 1933 Act. In responding to that debate, my noble friend Lord Taylor undertook to reflect further on some of those issues over the summer. Having done so, we propose to make two further changes to Section 1.
The first is to clarify that the behaviour necessary to establish the ill treatment limb of the offence can be non-physical. In Committee the noble and learned Baroness, Lady Butler-Sloss, argued that as well as clarifying that the offence can be committed where the consequences of the behaviour in question are psychological, as Clause 65 already does, further amendments should be made to clarify that the offence can be committed by way of non-physical—for example, emotional—ill treatment and neglect. The Government’s view is that a failure to provide for a child’s emotional needs is beyond the neglect element of the offence, as a result of the House of Lords judgment in R v Sheppard. However, we consider that the ill treatment limb of the offence can relate to non-physical cruelty and Amendment 39 makes this explicit.
Lord Rosser (Lab)
My Lords, we have come back to a clause that was much debated in Committee. While we very much welcomed Clause 65 and the change to make clear that it is a crime to inflict cruelty which is likely to cause psychological suffering or injury to a child, we also supported amendments tabled at the time by the noble and learned Baroness, Lady Butler-Sloss, and called for by various children’s organisations, to further update the offence. As I understand it, those organisations, and indeed we ourselves, welcome the amendments that the Government have tabled and the explanations they have provided.
However, I would like assurances on a couple of issues. First, our original amendment further defined the scope of the offence by adding the words “physically or emotionally ill-treats, physically or emotionally neglects”. As the Minister has said, the Government have now tabled an amendment to clarify that the behaviour necessary to establish the ill-treatment limb of the offence can be non-physical, and we welcome this.
Another change relates to Section 1(2)(b) of the 1933 Act which makes specific provision about liability for the child cruelty offence in circumstances where a child under the age of three has suffocated while in bed with a drunken person. Again, the Government have listened to the Committee amendment and extended the provision to cover circumstances where the person is under the influence of illegal drugs, and it applies also where an adult suffocates an infant while lying next to him or her on any kind of furniture or surface. Again, this is welcome.
The Committee amendment would also have removed the reference to unnecessary suffering, which somehow suggests that the suffering of children may otherwise be necessary, and replaced it with a reference to serious harm. We understand the Government’s concerns that the overall impact of the amendment would be to raise the threshold of unnecessary suffering to serious harm, but we would like to hear more of the Government’s thinking after having given further consideration to the Committee amendment. We would like assurances that the difficulties with the term “unnecessary suffering” will be sufficiently addressed while also making sure that the threshold for harm is not raised.
Finally, the Committee stage would have defined the word “wilful”, which many have criticised as too difficult to interpret. Here, the Minister said that the Government felt that the concerns raised would be best dealt with through guidance rather than by amending the legislation. In the light of that, we would like reassurances on the following points: namely, that the police and others within the criminal justice system will be made fully aware of the change in law so that they understand the impact of psychological abuse; that guidance and directions will directly address the case-law definition of “wilful” to secure absolute clarity, including on the inclusion of “reckless state of mind”; and that that will be communicated to all parties. I hope that the Minister will be able to provide the assurances that I seek.
Lord Bates
My Lords, I thank noble Lords for their contributions to this debate. I will seek to answer all the points they have raised as best as I am able. I will be mindful as I do so that I am relatively new to this field, in which many of your Lordships have immense and deep personal knowledge and experience. We therefore want to give that every possible attention and consideration. I will follow no particular order, but will try to follow through some of the points that were raised.
The first point was raised by my noble friend Lady Walmsley, who asked about Section 1 of the Children and Young Persons Act; in fact the amendment is directed at any person who,
“has responsibility for any child”,
or is otherwise “legally liable to maintain” them. It therefore goes beyond that narrow definition of parental supervision to something much wider: to those who have responsibility for the child.
I turn to the extreme religious practices that were referred to by my noble friends Lady Walmsley and Lady Benjamin, and other noble Lords. As my noble friend Lady Walmsley explained, Amendment 41 seeks to amend Section 1 of the 1933 Act to make it an offence for any person to allege that a child is possessed by evil spirits or has supernatural harmful powers—the unacceptable practice sometimes referred to as “witch branding”. I am aware that my noble friend proposed similar amendments during the passage of last Session’s Children and Families Bill and has been in correspondence with the Department for Education regarding her concerns.
I share my noble friend’s commitment to safeguarding children from this and all other forms of abuse. A belief system can never justify the abuse of a child. We need to ensure that children are not subjected to abuse, or left vulnerable to potential abuse, because someone alleges that they are possessed. However, the Government believe that the current law is sufficient for this purpose. It provides adequate protection for children from the type of abuse that this amendment is trying to prevent. While the existing legislation does not specifically mention communication of a belief that a child is possessed by evil spirits, the current offence of child cruelty already captures ill treatment or other conduct by a parent or carer that is likely to cause a child unnecessary suffering or injury to health.
The Government are amending Section 1 through Clause 65 to make it absolutely clear that physical and psychological suffering or injury is covered by the offence. In addition, we are now making one further clarification in respect of the “ill treatment” limb of the offence to make it explicit that the behaviour amounting to “ill treatment” can be non-physical as well as physical. Those changes will make it even clearer that conduct of the type described by my noble friend’s amendment is capable of being dealt with, as we believe it is, under the Section 1 offence.
Where the conduct in question could not be covered by the offence of child cruelty or is not committed by a parent or carer, it could be caught by other criminal offences depending on the circumstances of the case. I am aware that Department for Education officials had earlier discussed the issues around witch branding with the Crown Prosecution Service, which makes any decision on whether a prosecution should be pursued. I understand that my noble friend has been sent a copy of the CPS guidance for prosecutors; this is an area with which the noble Lord, Lord Rosser, is also concerned. The guidance illustrates which legislation and which offences could be considered in different circumstances. I believe that it covers all the situations where a child might face potential harm, including those situations where the perpetrators of potential harm are third parties, such as “rogue pastors”.
Our approach should be to ensure that the scope of the current legislation is better understood to ensure that it works as it should. We will certainly engage in conversation with colleagues in the Department for Education and with other officials to do this. We must also raise awareness among the relevant communities and faith groups. That is a very important part of combating this problem: not only catching the offences when they happen but supporting work to raise awareness. I am sure my noble friends are aware that the Department for Education is part of the national working group on the issue, which published an action plan in 2012.
The department is funding two organisations, AFRUCA and the Victoria Climbié Foundation, which work with black and minority ethnic communities on safeguarding issues. In addition, part of the Department for Education grant to Children and Families Across Borders has been used to produce an online application to raise awareness of issues relating to witchcraft and spirit possession, which was launched earlier this year. This issue is an ongoing concern for the Department for Education and the Home Office, and I know that they will value enormously my noble friend’s input into developing an appropriate response.
My eagle-eyed noble friend Lord Swinfen spotted a potential gap in the existing law. The relevant wording is that the person would need to have been in possession of the drug that they had taken and of which they are under the influence. There would need to be evidence that the person was in illegal possession of that drug immediately before taking it. My noble friend highlighted that point and thought that it could be an area that a skilful barrister might be able to argue his way round. That may be the case and we will have to see how it is tested. However, that is the test which is required under existing law.
I am grateful to the noble Lord, Lord Rosser, for his welcome of the amendment. He asked about replacing the reference to “wilfully” with the word “recklessly” or defining it as meaning that a person with responsibility for a child foresaw that an act or omission regarding that child would be likely to result in harm, but nonetheless unreasonably took that risk. There is a well established body of case law that sets out the meaning of the term “wilful” in this context. It clearly provides, among other things, that “wilful” already implies an intentional or reckless state of mind.
We are concerned that inserting a definition of “wilfully” into Section 1 of the 1933 Act would risk creating uncertainty in respect of the significant number of other existing offences subject to the “wilful” mental state; for example, the offence of wilfully neglecting a person lacking mental capacity under Section 44 of the Mental Capacity Act 2005 being taken forward in the Criminal Justice and Courts Bill. For these reasons, the Government cannot agree to the proposed changes. That said, I reiterate the assurance given by my noble friend Lord Taylor in Committee—namely, that Ministry of Justice officials are liaising with the Department for Education, the Crown Prosecution Service and the police on whether any updates or revisions to the relevant guidance would be necessary to ensure that the effect of Section 1 of the 1933 Act, as amended, including the correct understanding of “wilfully”, is clearly understood and appropriately applied by front-line professionals.
The noble Lord, Lord Rosser, made another point about whether the term “unnecessary” actually needed to be there as some considered it archaic and not relevant to modern times and wished for it to be deleted. Others want to use “serious or significant harm”, with “harm” defined broadly, to include “the impairment of physical, intellectual, emotional, social or behavioural development”. It seems to us that the overall impact of such a change would be to raise the threshold of “unnecessary suffering” to “serious harm”.
Lord Rosser
I think I had accepted what the Government had said: if you use the words “serious harm”, it would raise the threshold. However, I asked for assurances that the difficulties with the term “unnecessary suffering” will be sufficiently addressed rather than just being left. I had accepted the Government’s point that if you put in “serious harm” you might end up raising the threshold, but that still does not address the issue of the reference to “unnecessary suffering” with the implication, almost, that there can be such a thing as necessary suffering as far as children are concerned.
Lord Bates
I am grateful to the noble Lord for his clarification of his position, which I certainly accept. In this context, I refer him back to the reassurances given by my noble friend Lord Taylor in Committee, to which I referred previously. That guidance, and the understanding of how the rules should be applied by front-line professionals, will, of course, be taken very seriously indeed. We want to make sure that people understand that thoroughly.
In response to the point made by the noble Baroness, Lady Howe, about the age of 16 or 17, young people aged 16 or over are lawfully able to be married, and are generally deemed capable of living independently of their parents. Those under the age of 16 are generally more vulnerable and dependent on those who care for them. For this reason, we believe it is right that Section 1 of the 1933 Act is focused on protecting persons under the age of 16. I realise that there is a campaign—if I may call it that—or movement that seeks to change that through the UN convention but, at the moment and in this context, we feel that 16 is the right threshold.
I have tried to address most of the points raised by noble Lords in response to my moving the amendment. I beg to move.
Lord Bates
“( ) In subsection (2), in paragraph (b)—
(a) after “to bed” insert “or at any later time before the suffocation”;(b) after “drink” insert “or a prohibited drug”.( ) After that subsection insert—
“(2A) The reference in subsection (2)(b) to the infant being “in bed” with another (“the adult”) includes a reference to the infant lying next to the adult in or on any kind of furniture or surface being used by the adult for the purpose of sleeping (and the reference to the time when the adult “went to bed” is to be read accordingly).
(2B) A drug is a prohibited drug for the purposes of subsection (2)(b) in relation to a person if the person’s possession of the drug immediately before taking it constituted an offence under section 5(2) of the Misuse of Drugs Act 1971.””
Lord Rosser
I certainly do not intend to repeat the arguments that have already been made in Committee and on Report in favour of this amendment. As the Minister will well know, in his response in Committee, the noble Lord, Lord Taylor of Holbeach, accepted that proposals to strengthen the impact of child abduction warning notices had the support of the police, legal experts, representatives of local agencies, young people who had been affected by sexual exploitation, children’s charities and others. The then Minister undertook to consider carefully the benefits of putting these notices on a statutory footing and how such a statutory scheme might operate. He indicated that the Government were committed to examining the case for placing child abduction warning notices on a statutory footing but said that, while the Government may not have completed their review by Report stage, he would update the House on progress. I may have missed a letter but I am not aware of the Government having completed their review.
Among the issues that the then Minister felt needed to be considered were whether it was appropriate for the police to impose an order or injunction, breach of which is a criminal offence; the test for the grant of an order; the prohibitions or restrictions that might be attached to an order; the penalty for breach of an order; and the reference in the amendment requiring a child to have been found two or more times in the company of the person to be made the subject of an order. On these issues, which were raised by the then Minister in Committee, as far as I am aware, we await the Government’s conclusions. I am assured that all those groups and bodies interested in this specific issue are happy to work with the Government to resolve these points.
Lord Bates
My Lords, I thank the noble and learned Baroness, Lady Butler-Sloss, for tabling this amendment and for giving me the opportunity to put on the record some of the developments that have occurred over the summer, since my noble friend Lord Taylor addressed this issue in Committee on 15 July. I also congratulate my noble friend Lady Walmsley on the work of the committee that produced the report. I have had an opportunity to see and to review it. It produced some disturbing material and we need to get that material and that evidence into the policy process. I will set out what we are doing in response in my remarks.
We can all agree that child sexual exploitation is a horrendous crime; the Government are determined to stamp it out. We have seen this from the dreadful events in Rotherham, as highlighted by Professor Alexis Jay’s report, where there were appalling failures by the council, the police and other agencies to protect vulnerable children. We were all sickened to read about the victims in Rotherham and the horrific experiences to which they were subjected. Many have also suffered the injustice of seeing their cries for help ignored and the perpetrators not yet brought to justice. Our priority must be the prosecution of the people behind these disgusting crimes. Where there has been a failure to protect children from abuse, we will expose it and learn from it. I am grateful to the noble and learned Baroness, Lady Butler-Sloss, for again articulating the case for putting child abduction warning notices on a statutory footing. We note that there is support for this position from the police, legal experts, children’s charities and others.
Police forces are tackling child grooming for sexual exploitation. This is clear from the increasing number of these cases before the courts and the significant sentences being handed down to perpetrators. There will always be more to do. The Home Secretary has written to all chief constables to ask them to take on board the lessons from the Jay report into the failings of Rotherham, and from the rolling Her Majesty’s Inspectorate of Constabulary inspections into how forces are protecting children.
Amendment 42 is an important contribution to this debate. The existing non-statutory child abduction warning notices are issued by the police. That is entirely appropriate where breach of a notice is not, of itself, a criminal offence. As the noble Lord, Lord Rosser, reminded us, in Committee, my noble friend Lord Taylor undertook to examine further the case for placing child abduction warning notices on a statutory footing. I am grateful to the noble and learned Baroness, Lady Butler-Sloss, for affording me this opportunity to update the House.
Over the summer, Home Office officials have worked with policing colleagues to examine the issues in more detail. Discussions have taken place with colleagues representing the National Policing Lead for Child Protection, the national policing co-ordinator on child sexual exploitation, the CEOP—Child Exploitation and Online Protection Centre—command of the NCA and the College of Policing. While, in some cases there may be merit in the statutory offence of breaching child abduction warning notices, it has become clear through these discussions that the effectiveness of the current system is in its simplicity and non-bureaucratic process. Such notices are intended to disrupt predatory behaviour and stop access to a vulnerable child. They are often a useful step along the path towards more formal orders, and it is suggested that the immediacy of these notices could be inhibited by the need to apply for an order from the court.
Existing non-statutory child abduction warning notices are issued by the police. That is entirely appropriate where breach of a notice is not, of itself, a criminal offence. As my noble friend Lord Taylor indicated in Committee, it would be an unusual step to invest directly in the police—rather than in the court—a power to impose what amounts to a restraint order or an injunction, breach of which is a criminal offence. Compare, for example, restraining orders under the Protection from Harassment Act 1997, which are granted by the courts. Other civil preventive orders such as serious crime prevention orders and gang injunctions, which are dealt with elsewhere in the Bill, are also subject to judicial oversight. We will continue to consider carefully with policing colleagues their views on the potential use of a statutory notice and whether, in their view, further changes are required better to protect children.
It is important to note here the wider work taking place across government to protect children. The Home Secretary is chairing meetings with other Secretaries of State to look at what happened in Rotherham. We will consider the findings of Professor Jay’s report and consider what the state at every level should do to prevent this appalling situation happening again. The meetings will build on the existing work of the Home Office-led national group to tackle sexual violence against children and vulnerable people, which is bringing the full range of agencies working in this area together better to protect those at risk and create a victim-focused culture within the police, health and children’s services. In July, the Home Secretary made a Statement about the sexual abuse of children, announcing the establishment of an independent inquiry panel of experts in the law and child protection to consider further whether public bodies and other non-state institutions have taken seriously their duty of care to protect children from sexual abuse. The inquiry panel will be chaired by Fiona Woolf.
Given what I said, there is still more work to be done on this issue to find a position that balances the need of police forces to be able to take appropriate, effective and timely action when required and the need for safeguards, including appropriate judicial oversight. On this point, we still need to be convinced that making the change does not affect the simplicity, speed and unbureaucratic nature of the existing process. I hope and expect that we will have completed our consideration of this proposal before the Bill completes its passage through the House of Commons. I will, of course, notify the noble and learned Baroness and other noble Lords who have spoken in this debate of the outcome of our consideration of this issue. Indeed, I would add that, given the level of expertise in this House, it would be extremely useful if interested noble Lords would join me in a discussion with officials and other representatives so that they can see some of the responses we have already had about data, and the number of notices that have been issued and their effect, soon after the conclusion of our deliberations today, and certainly in the next few weeks. That will ensure that we can draw on the input and expertise of this House.
I know that the noble and learned Baroness would have liked to hear something more definitive in my response today, but I ask her to bear with us and accept that the intentions of Her Majesty’s Government are those of all noble Lords: we are absolutely resolute in respect of this heinous crime. I hope that she will agree to withdraw her amendment at this stage.
Baroness Butler-Sloss
My Lords, I thank all those who have taken part in this short debate and the Minister for setting out the thought processes of the Government, together with those who have been advising them. I am not entirely happy, as the Minister would expect. Perhaps I may start by saying that it is not the police in Rotherham who I was talking about because they failed the children. It is the police who do not fail children in other parts of the country and are issuing the child abduction notice who are concerned about its ineffectiveness. That, I think, is the point. I understand the advantages of an immediate notice and I can see that it is a disadvantage that an immediate notice necessarily has a statutory backing. But I wonder if the Minister could take away what I was thinking about while I listened to what he said. It may be that if the notice is immediately disregarded, one ought then to be looking at some sort of statutory notice that would make it a requirement to go to the magistrates’ court because it would be the second time. What you want to do is catch the groomers before they become child abductors and rapists. It is this early stage that the noble Baroness, Lady Walmsley, and I are particularly concerned about. However, I would welcome the opportunity to take part in any discussions, as I am sure would the noble Baroness—she is nodding—so do please ask us to take part. On that basis, I beg leave to withdraw the amendment.
Anti-social Behaviour, Crime and Policing Bill
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Lord Bates (Con)
My Lords, it might be helpful if I remind noble Lords that there are a number of speakers in this debate and the time limit is three minutes. The noble Lord, Lord Soley, has 10 minutes, my noble friend Lady Warsi has 12 minutes to wind up and remaining speakers have three minutes. I remind noble Lords that when the clock shows “3”, time is up.
North Wales Abuse Allegations
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Lord Taylor of Holbeach
I am sure that any new inquiry will have access to all relevant papers, including that original report.
Lord Bates
I commend my noble friend on the report that he has brought forward. The noble Baroness, Lady Smith, touched on the potential dangers of having multiple inquiries going on at the same time. Will my noble friend reflect on the possibility of consulting the right reverend Prelate the Bishop of Liverpool on the best way forward, the Lord Bishop having delivered a widely respected and thorough investigation into highly complex issues, illuminating a great tragedy and bringing out truth that previous investigations had failed to do?
Lord Taylor of Holbeach
As someone who holds the right reverend Prelate the Bishop of Liverpool in the highest possible regard, I would always be happy to consult him. I am not suggesting for one moment that there are not lessons to be learnt from these different inquiries that will need to be pulled together at some stage, but the House and the broader public would not thank us for failing to deal with the immediate issues facing us in order to get to the bottom of this.
International Women’s Day
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Lord Bates
My Lords, it is a great privilege to take part in this debate, although it can be a little intimidating, particularly as I look around the Conservative Party Benches and reflect on the fact that many of those who are here have played a leading role in making progress for the advancement of women within the party. Although I am intimidated by that, I am also very proud to be in their company. When I thought about the contribution that I could make to a debate such as this, I decided to focus on one specific issue, which I believe—should the Minister wish to take up the invitation that I am about to present—could make a significant contribution to advancing the case of women around the world, about which many noble Lords have spoken.
It is not just International Women’s Day today, but an Olympic and Paralympic Games year. Later this year, the world will assemble in London to take part in those fantastic Games and that great sporting occasion. It will be the world, except for one nation; namely, the Kingdom of Saudi Arabia. Currently, it is refusing to allow a female team of athletes to compete. I am assisted in this issue by the recent Human Rights Watch report, which has made a very compelling case and has raised the veil—perhaps I may use that term—on what is happening as regards women and girls taking part in competitive sport in that country.
We all need to be very sensitive about these things but I raise the issue because the situation does not seem to be getting any better. It seems to be getting worse. Whereas we are looking at progress for women and girls in many parts of the world, in the Kingdom of Saudi Arabia it does not seem to be working. Private gyms where women were allowed to exercise have been closed down and physical education for girls in private schools, which was on the curriculum, has now been removed. Even exercise as gentle as walking is frowned upon and, according to the report, can lead to people falling foul of the Orwellian-sounding Commission for the Promotion of Virtue and the Prevention of Vice because they are appearing in public unnecessarily. I am very careful about saying that because obviously the Kingdom of Saudi Arabia is a very powerful and influential country, and a very important ally of this country in many areas of foreign policy. It is a vital trading partner for us but that should not hold us back from speaking the truth.
In 2000, when the Taliban banned a female athlete from attending the Sydney Olympic Games, there was a hue and cry from all quarters of the world, and rightly so, because everyone felt that that fell foul of the fundamental principles of the Olympic Charter. People used that argument then, but there seems to be something of a silence when it comes to the treatment of women in competitive sport in the Kingdom of Saudi Arabia. That country is a member of the International Olympic Committee and is therefore bound by the Fundamental Principles of Olympism. It is not as if we are talking about a piece of legislation where you can fall foul of subsection (6) on page 94. There are only six principles, and I will give noble Lords three of them:
“The practice of sport is a human right. Every individual must have the possibility of practising sport, without discrimination of any kind and in the Olympic spirit”.
The next one states that:
“Any form of discrimination with regard to a country or a person on grounds of race, religion, politics, gender or otherwise is incompatible with belonging to the Olympic Movement”.
The final principle states:
“Belonging to the Olympic Movement requires compliance with the Olympic Charter and recognition by the IOC”.
That is not to slightly trip over one of the principles—it drives a tank through them. How the Kingdom of Saudi Arabia can still be allowed to be a member of the international Olympic community while holding to its position is a mystery to me. I urge my noble friend the Minister, who has immense international understanding and influence within the Government, to consider taking up this case and mentioning it in a sensitive and sympathetic way to a friendly nation. We would like Saudi Arabia to participate, but as male and female.