Anti-social Behaviour, Crime and Policing Bill

Lord Harris of Haringey Excerpts

Tuesday 12th November 2013 Lords Chamber

[Baroness Hussein-Ece (LD)]

My Lords, I also put my name to this amendment because this is a matter that needs clarification and warrants a bit of debate. As the noble Baroness, Lady Thornton, said, there have been a number of these cases. I read the same article that she quoted, on the 114 cases that the Government had dealt with, with some concern. In August there was the case of a woman from a Sikh background who was married to a man who had mental disabilities. He did not annul the marriage because she pleaded that that would cause her stigma. It seems that the interests of the man—who was the victim in that case—were not taken into full consideration, and that needs to be looked at. If this amendment were agreed, would that mean that these sorts of cases could be declared void because people did not have the capacity to enter into marriage?

There was an article in the Times last week about another case concerning a girl of 14. Could we argue that that girl, who was forced into a marriage at gunpoint in Pakistan, had the capacity to enter into that marriage, given that it was forced? The local authority, which has now taken her and her child into her care,

“applied to the family court to have the marriage declared void”.

However, Mr Justice Holman said that he could not do that. He accepted that the marriage was,

“‘on the balance of probability void’ under English law. However, he said that he was prevented from making a solemn declaration to that effect by a section of the Family Law Act 1986”.

I am not a lawyer but, as I read it, it does not make sense that in these types of forced marriages where people either do not have capacity because they have a mental disability or they are under age, or whatever the reason may be, they find themselves at a disadvantage when they try to get the marriage annulled and voided. We have to consider that loophole, and it must be taken into consideration.

[Lord Harris of Haringey (Lab)]

My Lords, I declare an interest as chair of the Freedom charity. I apologise to the Committee for not being present for the earlier part of our discussions on these topics due to a commitment at the Department of Health.

This is an important principle. If the Minister is planning to respond by saying that the issue is adequately covered either in the clauses we have before us or elsewhere in legislation, I urge him to think again before giving the Committee that response. It needs to be made absolutely explicit that a forced marriage is not valid where there is any question at all that the person being coerced into marriage and who has entered into it does not have capacity. That capacity may be related to age—elsewhere in our legislation there has been all sorts of discussion about capacity and age, and some of the girls concerned are of a very young age—or it may be related to learning difficulties of various sorts. We therefore need to make it absolutely explicit in the legislation that this is intended to cover those circumstances where the individual concerned does not have capacity.

[Lord Ahmad of Wimbledon]

My Lords, I thank the noble Baroness, Lady Thornton, for her amendment. I also thank my noble friend Lady Hussein-Ece and the noble Lord for their contributions. The noble Lord alluded to the Freedom charity, which carries out notable work in this field, and I acknowledge his work and engagement in that arena.

Marriage without consent or the capacity to consent is totally unacceptable. Clause 108 specifies that an offence is committed if the perpetrator uses coercion and believes, or ought reasonably to believe, that their conduct may cause another person to enter the marriage without free and full consent. A person who lacks capacity to enter into marriage is incapable of providing free and full consent to marriage. In the cases that have come to the attention of the Forced Marriage Unit, some form of coercion has invariably been involved in forcing a person who lacks capacity to consent to a marriage. The new offences would therefore cover this behaviour.

Although I totally understand the noble Baroness’s concerns and those of other noble Lords, the definition of the new offences in Clause 108 already captures in practice the types of cases intended to be covered by this amendment. I take on board the point that the noble Lord made about looking specifically at this issue. Certainly, between Committee and Report we will look at the issue once again in the context of Clause 108. However, I assure noble Lords that Clause 108 is intended to capture that particular element. Marriage is voidable under Section 12(c) of the Matrimonial Causes Act 1973 on the grounds that,

“either party to the marriage did not validly consent to it, whether in consequence of duress, mistake, unsoundness of mind or otherwise”.

The issue was also raised of a vulnerable person getting a decree of nullity. The procedure to do so is available and a person can apply for a decree of nullity by filing a petition at any time after the marriage ceremony. If the application is not opposed, there is unlikely to be a court hearing and the person will not have to attend court. Following the petition, the court will issue a decree nisi and, following this, the applicant can apply for a decree absolute. The Family Procedure Rules make provision to ensure that these matters are straightforward for unrepresented applicants. However, having said all that, I fully acknowledge the points made by noble Lords about the special circumstances that they have mentioned. Having explained the scope of Clause 108, I hope that the noble Baroness is minded to withdraw her amendment.

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[Baroness Manzoor (LD)]

My Lords, I should start by saying that I am very sorry that I was not able to speak at Second Reading. However, as I am keen to make a contribution, I hope that the Committee will excuse and indulge a new girl. My noble friend Lord Lester of Herne Hill, who has added his name to this amendment, has asked me to apologise for his being out of the country.

My noble friend Lord Lester was, of course, the author of the Forced Marriage (Civil Protection) Act 2007, which has been such a huge success in using the family courts in a sensitive way to address a serious and complicated problem that particularly affects young British Asian girls, women and boys. I pay tribute to him and other noble Lords who have worked so hard on this issue over the years.

Amendment 14 comes from the report of the Joint Committee on Human Rights on the Bill. It requires the Secretary of State to report annually on the effectiveness of the criminalisation of forced marriage. This is only right if we are to ensure that the law has been effective and to aid transparency.

Along with the JCHR, I understand the Government’s reasons for criminalising forced marriage but am concerned about whether criminalisation is a step too far and whether this is the most effective method for dealing with this issue. One needs only to look at the case of female genital mutilation to see that criminalisation is not always sufficient. As the JCHR report points out, there has not been a successful prosecution for female genital mutilation in 28 years—although I take my noble friend Lady Hamwee’s point and am not quite sure what that shows. Can the Minister explain why the Government believe that the criminalisation of forced marriage will be different?

It is very important that nothing is done to undermine the effectiveness of the 2007 Act in enabling the victim to apply to the family courts to obtain a forced marriage protection order. I am concerned that if a young child knows that her parents may be criminalised as a result of such protection, she will be alarmed by the involvement of the police and the criminal courts, as well as by the publicity and the dishonour to her family that the stigma of a criminal offence will bring. Invariably, it will affect, in negative ways, not only the victim but other siblings and family members not party to the forced marriage decision. I hope the Minister can assure the Committee that the civil protection route will remain the preferred way forward and that clear guidance will be given to the CPS and the police that everything should be done to use the family courts for civil protection first and that the criminal process will be used only as a last resort.

Even if the Minister can reassure me on both those points—he has already gone a long way in this discussion to show the Government’s commitment—I believe there remains a real need to monitor the effect of criminalisation to ensure that we can evaluate the progress being made. If the Minister is minded to accept my proposal, the annual report should include, for example, the number of cases going to the family court, to allow benchmarking, the age, sex and ethnic origin of the victims, the number of cases sent to the CPS, the number of people convicted, and what financial or other aid has been given to the victim, including accommodation and legal aid to support individuals through the criminal court process. I also look forward to seeing the Government develop these ideas in their response to the JCHR. I hope that the Minister will be able to explain what steps the department will take, if it is unable to accept the proposals in my amendment for an annual report, to ensure that the effect of criminalisation is kept under review so that, if there are unintended consequences, they are identified quickly and can be dealt with.

Finally, I believe that it is important that we also look at other approaches, including working internationally, and do not just focus on criminalising the practice as the only way forward. As the Forced Marriage Unit knows well, victims can be taken to Pakistan, India or Bangladesh and coerced into so-called marriages. They may be victims of rape and bodily injury; if they do not comply, they may be victims of what are disgracefully called honour killings or of forced suicides. Tackling these issues through working with international partners is, in many ways, more important than criminalisation here in the UK, as we already have laws in place in relation to this heinous crime. I hope that the Minister can reassure me that criminalisation will form only part of our approach to tackling forced marriage, and that Ministers will continue to work internationally to put an end to the practice across the world and ensure a more joined-up approach to the criminal justice system in the UK on this issue. I beg to move.

[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.