Senior Judiciary: Women

Debate between Lord Faulks and Baroness Scotland of Asthal

Tuesday 1st April 2014 Lords Chamber

[Lord Faulks]

The noble and learned Baroness is of course right. That is probably a significant reason why more are not applying for the higher judiciary. There is flexible part-time working as a result of the 2013 Act, and I think that more people should be encouraged to sit part-time earlier in their career in order to develop the career pattern that will then make them more inclined to apply, and of course it is important that women who otherwise might not apply do so. I entirely accept that. It is something that the sub-committee on diversity and the judicial diversity task force, which are both concerned with this, are looking at very carefully.

[Baroness Scotland of Asthal (Lab)]

My Lords, has the Minister undertaken any analysis of those who have applied but who have not succeeded? Is there any support for any such applicants to make them better able to make a successful application on the next occasion?

[Lord Faulks]

I think I have already given the answer regarding the percentage of applicants to the High Court Bench. One of the ways of fulfilling what the noble and learned Baroness has said is the system of mentoring. This is one of the suggestions being considered by the judicial diversity task force. The Lord Chief Justice is particularly keen to encourage diversity, and I know that the suggestion that the noble and learned Baroness makes is one that is very much on his mind.

Anti-social Behaviour, Crime and Policing Bill

Debate between Lord Faulks and Baroness Scotland of Asthal

Tuesday 12th November 2013 Lords Chamber

[Lord Faulks (Con)]

Would not the answer to the dilemma that the noble and learned Baroness quite rightly identifies be for the prosecuting authorities to have different counts on indictments so that they include, for example, Section 18 or Section 20 and the offence of forced marriage?

[Baroness Scotland of Asthal]

My Lords, that, of course, is the way forward. However, the question that I pose is this: how are the prosecutor and the police officer to decide which offence to go for? Criminal prosecutions, as the noble Lord will know, will be carried out on the basis of proving things beyond reasonable doubt. If you look at the forced marriage provision, you have to identify a course of behaviour that is coercive. In so doing, the prosecutor will have to identify what criminal act was alleged against the defendant. For example, is it alleged that the accused hit the person or that they threatened the person? It seems to me that in order to prove the forced marriage provision, you have to identify a substantive criminal act which it is asserted that person committed. If one then has a jury, what will we say to the jury? How do we differentiate the forced marriage allegation from the substantive allegation made in relation to the other offence? I am asking this probing question to understand how the Government expect this to be done, because you cannot have an alternative in the way that we have just debated unless there is clarity about what the prosecutor is seeking to establish. In the case of a kidnapping, in order to satisfy the jury that a forced marriage offence was committed, how do you differentiate between those two if the accused is found not guilty of the kidnapping but guilty of the forced marriage based on the kidnapping? There is an inherent difficulty.

The only element of this offence that seems not to be currently covered is coercion on an emotional basis. I take as an example a devout Jewish family which discovers that one of its children wishes to marry outside the faith. A matchmaker has arranged a marriage within the community and the child rejects the suggestion made by the parent. The parent then says, “If you do not do this, I will rend my garments, I will sit shiva for you”—which means, in effect, “I will treat you as if you were dead”—“and you will break my heart”. That is coercion inasmuch as it is emotional blackmail, perpetuated for the sole purpose of making the child change their mind, but it is genuinely felt by the parent, who believes that to refuse will be detrimental to the child’s long-term being. Looking at this offence, it seems to me that it would be possible to prosecute such a parent under this legislation. I want to be clear as to whether the Government believe that such a prosecution would be merited and is what they wish to achieve.

The whole question of forced marriage is a very delicate and difficult issue. If emotional blackmail, which is not yet on the statute book, is the only offence, do the Government intend this provision to apply to parents who use it? Emotional blackmail can be devastating; if you think your mother is going to kill herself, that the family are going to be shamed, that your father will never again be able to raise his head and that you will be thrown out of your community, that is very powerful coercion, directed specifically to cause the child to comply with the request. It seems to me, looking at the offence created, that that behaviour could be caught by this provision. I would very much like to know from the Minister whether that is the Government’s intent. Let us be clear. If a loving parent disagrees with a child and seeks to persuade them to do something, which the child does not want to do but which the parent believes to be right—no matter how wrong that parent is and if they do it lovingly—they could find themselves in difficulties. I need to understand from the Minister whether that is indeed his intent.

The other issue is to see how the legislation is currently working. From the evidence that I have been able to cull, the forced marriage protection orders appear to be a very effective tool. Between November 2008 and the end of 2010 there were 257 applications for forced marriage protection orders, of which 181 had power of arrest attached. By June 2011 339 orders were recorded. A study carried out in 2011 at Roehampton University shows that of the 74 written responses received from a range of groups, including local authorities, organisations concerned with domestic violence, faith groups, police and lawyers, 50% of respondents thought it should not be criminal, 38% were in favour, 13% were unsure, 57% thought it would be more difficult for criminals to come forward, and 64% thought that the existing legislation was enough. So 64% thought that what we have now is enough. The real issue that came forward strongly was the enforcement of the forced marriage protection orders.

Before we step into an area where there may be unforeseen consequences, I should like to hear from the Minister how it is proposed that this offence will operate and what guidance the enforcement agencies—the police and the CPS—should be given. If, however, as my amendment proposes, the Government were minded to make it an “aggravating feature”, that would be a very useful tool for the courts. Forced marriage involves a breach of trust. It is not just that you kidnap, falsely imprison or assault someone you are supposed to love, it is that you do so to force them to enter into a relationship that will have lasting impacts on their lives, and maybe negatively so.

Just as we punish more severely those who breach our trust if they steal from us as an employer, it is equally important to say that if you commit any of these substantive offences which are grievous and egregious in their own right, and you do so for the express purpose of forcing someone for whom you have responsibility directly or indirectly into a marriage or otherwise, you deserve more trenchant punishment than if you did it to a stranger—somebody that you did not know. We would be able to keep all the substantive offences, punish them appropriately in accordance with the gravity of what was done, using the legislation that is already there, but we could do so more trenchantly because they did it in the framework of forcing someone into marriage. We would do what the Government want, which is to make it very clear that it is a criminal offence, will be taken seriously and needs to be punished, but we may be able to do it within a context that will not bring about some of the unforeseen consequences that some of us foresee now.