Anti-social Behaviour, Crime and Policing Bill

Lord Faulks Excerpts

Tuesday 12th November 2013 Lords Chamber

[Lord Harris of Haringey (Lab)]

My Lords, the noble Baroness, Lady Manzoor, has put forward an interesting amendment. The principle behind it, that Governments ought to report to Parliament regularly on the effectiveness of pieces of legislation, is one that I am sure that we would all wish to see more widely spread. However, I have a reservation about the terms in which the amendment has been put.

The noble Baroness said that she has reservations over whether criminalisation will have the desired effect. She implied, and I believe that all of your Lordships would agree, that criminalisation is not a panacea as far as this problem is concerned; it will not solve all the issues. Therefore, I would hope that if we were to receive a report to Parliament, it would look at not just the effectiveness of criminalisation but also at the effectiveness of the totality of policies on forced marriage.

My noble friend Lady Thornton moved an amendment earlier that would have broadened the scope of this and placed obligations on various public authorities in terms of the actions that they should take. I hope that the report requested by the noble Baroness would look not just at whether criminalisation makes a difference for good or ill, but also at whether all the other activities that the Government and public agencies undertake to try to eliminate forced marriage are effective. I think that that would be very valuable in terms of taking these matters forward.

[Lord Faulks (Con)]

My Lords, I have little to add to what my noble friend Lady Manzoor said so expertly in moving this amendment. As a member of the JCHR, this was one of the recommendations that we made in our report.

I very much endorse what the noble Lord, Lord Harris, said. I hope that the reporting to Parliament would not just be a dry recitation of the effect of criminalisation in terms of statistics, but would go wider. I am sure that the Minister will reassure us on that. This should not be simply a formality. We are stepping into an acutely sensitive area and, although we said that we approved cautiously of the decision to criminalise forced marriage, it is a matter that must be looked at very carefully for fear that more harm may come than good.

[Baroness Kennedy of The Shaws (Lab)]

My Lords, I, too, support the noble Baroness in her amendment. I saw her nodding at the suggestion that any reporting back should be more comprehensive than simply reporting on the criminal aspects. There should be many other opportunities taken up by Government to press for the changes that underpin what the Government are seeking in criminalising forced marriage.

One factor that I would press upon the Government is that there should be greater discussion in families, for example about marrying close relatives, such as cousins. I used to chair the Human Genetics Commission and there was considerable sensitivity about this kind of discussion and about the implications of marriage within certain boundaries and how it perhaps increased risks for future generations. I think that when people are well informed that often changes social practices.

I also think that imams should be well informed about the ways in which the women in their congregation are disadvantaged by not having the cover of civil marriage so that they have rights that can be enforced in the courts. My clients have sometimes invoked Sharia law as being generous towards women at the ending of marriages or after death. Although that might have been the case in the past, nowadays women are more advantaged by what is available to them through the civil courts in the United Kingdom. I think that such pieces of information should be much more widely disseminated to communities where these issues arise.

--- Later in debate ---

[Baroness Hamwee]

My Lords, I was quite right to wait for others to table the amendment before adding my name, so that they could all go first with the arguments. I tried to canter through them at Second Reading in considerable haste and will try to be quick now. I accept that the new clause is to do with compensation, not the criminal law, otherwise every overturned conviction would lead to a right to compensation and Section 133 makes it clear that that is not the case. However, what has been troubling me is that if you do not have to prove innocence at the original trial and then the matter turns on a new or a newly discovered fact, surely you would not have had to prove that. If the fact had been available at the time of the trial, this would not have changed whether you would have to have proved your innocence, which you did not have to do. I do not see that bringing in a new fact should change that at all. I do not see why that is necessary now.

The noble and learned Lord, Lord Brown, has said that this is about who should be entitled to compensation. The Government say that it is about clarity. They do not argue in any effective way that the amounts involved are such as to require a change in the law in order to save the taxpayer. The impact assessment on this clause says:

“The intended effect is to lessen the burden on taxpayers and reduce unnecessary and expensive legal challenges to Government decisions to refuse compensation”.

Those are two quite separate points. The lessening of the burden on taxpayers is very small, but legal challenges to government decisions are another matter. That goes to clarity and it seems to me—I am not nearly as well qualified as everyone else who has spoken—that the chain of cases we have has produced the clarity. The impact assessment says that we need the provisions to be unambiguous and decisions on eligibility to be more transparent. I should have thought that the cases have taken us to that point.

[Lord Faulks]

My Lords, I fear that I do not share the view just expressed by my noble friend Lady Hamwee that the law is clear at the moment. The number of decisions, one following another, with disagreements between judges in the same tribunal indicates the difficulty of the question and, I conclude, the lack of clarity in the test that should be applied. One of the reasons for this provision is in order to provide clarity. That, I believe, it does. The second question is whether it is appropriate and whether it offends the presumption of innocence. I am part of the Joint Committee on Human Rights and originally I took the view that it did offend the presumption of innocence. I have changed my mind, having thought about it. Although I was not often able to persuade the noble and learned Lord, Lord Brown, of anything, he has contributed to persuading me, on the other hand, of the merits of the arguments he advanced, both at Second Reading and today.

I have also had the opportunity of reading the cases of Allen v the United Kingdom and KF v the United Kingdom and I agree with the noble and learned Lord that they do not in any way require the retention of the law in its current state, or that they offend the presumption of innocence—provided, it seems, that some judge, in declining to award compensation, does not make any comment to the effect that there is any doubt about someone’s innocence.

I also respectfully disagree with the noble Baroness, Lady Kennedy, that the point of these applications for compensation is to hold the state to account. The point of the applications is to obtain compensation, and the difficult question is that of who is entitled to it. It is not an easy question, but in my submission the Government have come to the correct answer. Sadly, a few people who are genuinely innocent will not obtain compensation, which in my view, for the reasons given, is an unsatisfactory element. However, it does not involve people being deprived of their liberty; it is simply a question of compensation.