Anti-social Behaviour, Crime and Policing Bill Debate
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Baroness Hamwee
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Anti-social Behaviour, Crime and Policing Bill
Baroness Hamwee Excerpts(10 years, 5 months ago)
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Baroness Thornton (Lab)
My Lords, the first thing I need to say is happy birthday to the Minister. I am sure noble Lords will agree with me in wishing him all the very best. I am not sure that this is the best way I would choose to spend my birthday.
As I said at Second Reading, we on these Benches generally support the sexual harm prevention orders and the sexual risk orders as set out in Part 9 of the Bill. The two new orders will replace existing powers, and the threshold for risk will be lowered to cover any case of sexual harm, not just cases of serious sexual harm. These orders seek to improve the protection of vulnerable children at risk of sexual harm. On Report in the Commons, the Minister, Damian Green, provided details of the two new orders. He explained:
“The sexual harm prevention order may prohibit the person from doing anything described in it, including preventing travel overseas. Any prohibition must be necessary for protecting the public in the UK from sexual harm or, in relation to foreign travel, protecting children or vulnerable adults from sexual harm. It lasts a minimum of five years and has no maximum duration, with the exception of any foreign travel restrictions which, if applicable, lasts for a maximum of five years but can be renewed”.
The sexual risk order,
“will be available for those who have not been convicted of an offence but who none the less pose a risk of sexual harm to the public. It may be made by the magistrates court on application by the police or the new National Crime Agency where an individual has done an act of a sexual nature and poses a risk of harm to the public in the UK or adults or vulnerable children overseas”.
Of course, any prohibition in the sexual risk order must be necessary for protecting the public in the UK from sexual harm or for protecting vulnerable adults abroad. Such an order, as I have described it, will last for a minimum of two years. The police are very keen on these orders as their view is that they do not have the right measures at their disposal to intervene to prevent harm to children. We agree with them.
It is also welcome that these orders simplify the current system. In relation to non-conviction behaviour, they reduce the number of acts of harm required for an order to be used from two to one, which means that they can be obtained more easily. Extending the scope of sexual behaviour covered by the orders and lowering the threshold from serious sexual harm will also increase their use. This will help tackle behaviour that poses a risk of sexual abuse to children but which has not yet translated into a criminal offence.
In the Commons, my honourable friend Ann Coffey MP noted:
“The risk of sexual harm orders, which the new sexual risk orders would replace, can be given only to offenders aged 18 and over”.
She asked the Minister:
“Will the new sexual harm prevention orders also only apply to offenders over 18? If they will apply to offenders under 18, what consideration has he given to introducing accompanying rehabilitative provisions for child sex offenders?”.
That is at the heart of what this probing amendment is about. At the time, the Minister, Mr Green, said:
“The two new orders will apply to both over-18s and under-18s”.
He also clarified the situation in relation to the sex offenders register:
“In line with the old order, the new sexual harm prevention order will make the offender subject to the notification requirements for registered sex offenders—it will put them on the sex offenders register. For both new orders, in line with the existing position, breach is a criminal offence punishable by a maximum of five years’ imprisonment. Conviction for a breach of a sexual risk order would also make that individual subject to the sex offender notification requirements”.—[Official Report, Commons, 14/10/13; cols. 472-75.]
Extending the ability to use these orders to protect children under 18, including 16 and 17 year-olds, recognises that older children are still vulnerable and can be subject to child sexual exploitation and abuse. The inclusion of vulnerable adults to the SHPO and SRO is welcome. We know that young adults with learning difficulties or special educational needs are targeted by individuals looking to exploit them.
The amendment seeks to probe how the orders will work for young people under 18 subject to the orders and how they are supported. Some young people who are subject to the orders may also have been victims of sexual exploitation, or become involved as a means of self-preservation, as was the case for a young person quoted in one of the briefs that I received. We are seeking safeguards from the Government for young people under 18 who are subject to the orders, to ensure that they receive the support that they need,
“including an assessment of their emotional, welfare and behavioural needs, therapeutic or educational support”.
We are concerned that a breach of the child SHPO without conviction or the SRO can result in five years’ imprisonment when a child has not actually committed a criminal offence. We know that custody may not be the most effective way to tackle children’s criminal behaviour, and I am sure that we all agree that custody for under-18s should only be used as a very last resort in the most serious and violent offences, so we must question whether this is appropriate where children have not been convicted of an offence. We are very concerned about the use of custodial sentences for under-18s subject to SROs or SHPOs obtained without conviction. That is why we have put forward this amendment.
What measures do the Government propose for under-18s subject to these orders? Will the Government consider prescribing the use of therapeutic support and/or education and an assessment of needs in guidance when the orders are applied to under-18s? Will the Government review and evaluate the effectiveness of the orders, such as through rates of reoffending and the effectiveness of any assessment of needs, when they are applied to under-18s? It is important that we question the detail of how this will work for under-18s.
The Minister very kindly wrote to me on this matter and in his letter he mentioned that the Government will be,
“working closely with the Ministry of Justice on applications for orders relating to under-18s and will ensure that guidance is available to the courts and others to ensure that such cases are heard in the youth court as appropriate”.
Will that draft guidance be available before the Bill has completed its passage through your Lordships’ House? I beg to move.
Baroness Hamwee (LD)
My Lords, the Government have moved forward a great deal, as have the police and the CPS, in understanding that in some cases, particularly in cases of trafficked people, those who may at first be seen as a perpetrator—often of relatively small crimes, but sometimes of bigger ones—are in fact victims and have done what they have done as a result of the way that they have been treated. It seems to me that what the noble Baroness proposes is absolutely in line with that thinking.
Lord Ahmad of Wimbledon (Con)
My Lords, I thank the noble Baroness for her comments and join with her and the rest of the House in wishing my noble friend a very happy birthday. My appearance at the Dispatch Box may be one of the best presents that I can give my noble friend, who is doing a gallant job as my Whip today. This may well be part of the Conservative birthday present allocation.
As the noble Baroness, Lady Thornton, has explained, Amendment 1 would require a court making sexual harm prevention orders in relation to under-18s to have regard to,
“their emotional, welfare and behavioural needs, therapeutic or educational support”.
Schedule 5 makes provision to replace the current sexual offences prevention order, foreign travel order and risk of sexual harm order with sexual harm prevention orders and sexual risk orders. The new sexual harm prevention order can be applied where an individual has had a conviction for a specific sexual or violent offence and the court is satisfied that the prohibitions are necessary to protect the public in the UK or children or vulnerable adults abroad from sexual harm. The new sexual risk order can be applied to individuals without a conviction but who have committed an act of a sexual nature and, as a result, the court is satisfied that prohibitions are necessary to protect the public in the UK or children or vulnerable adults abroad from sexual harm.
Baroness Hamwee
Baroness Hamwee
I hope that neither this amendment nor the two that I have in the next group will cause the Minister to run to and from the Dispatch Box. I see that he is already confident enough that that will not be the case. Amendment 2 takes us to violent offender orders, and my noble friend will, I hope, already know what my point is.
Clause 106, the new clause to be inserted in the 2008 Act, will allow the Secretary of State by an affirmative order to amend the list of specified offences, either by adding to or subtracting from the list—the specified offences being those which can trigger the order. It seems to me that this is a very wide power. As I said, it would require an affirmative resolution, and the Delegated Powers and Regulatory Reform Committee has not chosen to share any concern about this because it is an affirmative power. However, I think that it would be helpful to understand how the Secretary of State will be expected to go about making such a change. Of course, we always have to remember that, although there may be a benign Secretary of State this month, next month or next year the Secretary of State may be less benign in the eyes of some Members of the House.
In order to probe this, my amendment would provide for consultation, before an order is made, with such persons as the Secretary of State considers appropriate. I cannot believe that any Secretary of State would undertake such an act without consultation, but you never know. It would be good to have confirmation on record as to the means that would be followed. I beg to move.
Lord Ahmad of Wimbledon
My Lords, I thank my noble friend for raising this issue. Amendment 2 would, as she has outlined, require the Secretary of State to consult those deemed appropriate prior to making an order to amend the list of specified offences for a violent offender order.
Clause 106 gives the Secretary of State the power to amend the list of specified offences through secondary legislation, subject to the affirmative procedure. Models of offending change over time, and this change will help to ensure that the legislative powers for managing violent offenders can be updated to reflect changes with the appropriate parliamentary oversight.
My noble friend asked specifically about the consultation. I reassure her and the Committee that any changes to the list of specified offences will be considered in close consultation with the police, the National Offender Management Service and others to help to ensure that the police and NOMS are able to manage the risk posed by serious violent offenders. Specialist input will be sought as a matter of course. We do not consider that specific requirement to consult is required on the face of the Bill. I hope that this reassures my noble friend that appropriate consultation will take place and that she will be prepared to withdraw her amendment.
Baroness Hamwee
My Lords, that is helpful. It has only just occurred to me that I should have asked whether any change is in mind at the moment. I do not know whether the Minister’s briefing allows him to answer that question.
Lord Ahmad of Wimbledon
As I have highlighted, there is NOMS and the police will be involved. Additional experts will be sought as part of that process.
Baroness Hamwee
Baroness Hamwee
My Lords, I shall speak also to Amendment 4. This is a very low-key group of amendments as we start the part of the Bill on forced marriages. Many noble Lords will have far more to say on this issue than is appropriate to this little group. I will confine my remarks very narrowly to the points of which I have given the Government notice.
These are two probing amendments. Amendment 3 would take out new subsection (2). The intention is to probe the meaning of “aware” in it, where it says that,
“a person can be guilty of an offence … in respect of conduct engaged in at a time when the person was aware of the existence of the”,
forced marriage protection order. What is the burden of proof as to whether an individual is aware of an order? I assumed on first reading that this meant actually aware as distinct from having been served with an order, which is rather more particular. Is there scope for judicial discretion in dealing with this? As I said, this is just intended to understand what is meant by “aware” in this context. My noble friend Lord McNally accuses me of being too curious about this sort of terminology.
Amendment 4 probes the relationship between criminal proceedings following a forced marriage protection order and contempt of court if an order is not complied with. I agree with what I understand the Bill to provide—that it should be one or the other—but I hope that my noble friend can explain to the Committee how decisions will be taken about which enforcement route will be followed. What criteria will be used? I am not challenging the content; I simply wish to understand how the matter will be approached. I beg to move.
Baroness Thornton
I was not completely clear what these amendments concerned when I read them and I assumed they were probing. They are both legitimate questions and I look forward to hearing what the Minister has to say about them.
Baroness Hamwee
My Lords, I am grateful for that and will of course withdraw my amendment. With regard to my first amendment, the clause refers to awareness,
“of the existence of the order”.
My noble friend said that one can be aware of the existence of the order without knowing what it prohibits, and so awareness of its existence is not the same as being aware of its content. I would like to think about whether “without reasonable excuse”, to which he referred, is an adequate protection in that situation. Obviously a range of circumstances could be covered by that.
On the two distinct remedies, if that is the right term for them, I believe the Minister is saying that the decision is very much in the hands of the victim. That, of course, is completely in line with what I have read about the Government’s approach to this and the rest of the Bill. This may perhaps be an issue for us later in today’s debates. On a later amendment, I will be looking to understand what guidance the police may have as to the advice they give. On paper, it looks easy for a potential victim—I would like to start calling them “survivors”—to take that decision, and it may look easy to us sitting in this Chamber, but when one is caught up in the situation, how does one assess the right course to take? That is a sort of trail for some of the points which may come up later. Unless the Minister wants to come in again, I beg leave to withdraw the amendment.
Baroness Butler-Sloss (CB)
My Lords, I declare an interest as chairman of a forced marriage commission which is currently hearing evidence. An interesting aspect of that is that we went to visit the Karma Nirvana organisation just outside Leeds and the victims to whom we spoke were all very anxious that forced marriage should be criminalised. I have had my doubts about that. I took part, with the noble Lord, Lord Lester, in the original initiative on this issue, which led, I am very glad to say, to a government Bill being produced some years ago under the previous Government. I know that the noble Lord is very opposed to the criminalisation of forced marriage. However, there is no doubt that all the victims to whom members of the commission spoke considered that this was an essential next step, which I thought was very interesting.
I am very concerned about how the immigration authorities, or emigration authorities, can cope with this problem. I talked to an immigration official at Gatwick and asked him what he did about girls going out to Pakistan with their parents and those coming back, or a young man coming into this country, where a girl is waiting with her parents to welcome him as her intended husband. The official told me that he had spoken to these girls on many occasions. One such girl was waiting for an intended husband to come through the airport and the official took her aside and asked her whether she wanted to marry that man. She replied, “No, I do not”. When he asked her whether it was a forced marriage, she replied, “Yes, it is”. He said that he could stop the forced marriage by preventing the young man entering the country but that the girl would have to declare publicly that she was being forced into a marriage. The girl replied, “I cannot do so in front of my parents”. This is a major problem. We know that a lot of girls and some young men, many of whom are under 18, are being forced into marriage in Pakistan, Bangladesh and India and, indeed, other places. This is by no means only a Muslim problem. It is also a Sikh problem and occasionally a Jewish problem, but it is a problem across the world. One of the major problems in this regard I have been told about concerns disabled young people, particularly those with learning difficulties, as the parents think they are doing the young woman concerned a favour by marrying her off as she will be protected for the rest of her life. Nevertheless, she does not want the marriage and this is a very real problem.
I very much support Amendment 5, particularly because I think it is time that everyone, from the Government through to the Department for Education and schools in particular, should do as the noble Baroness, Lady Thornton, suggests and treat this as a child protection issue. If you force a girl or boy to marry under the age of 18, particularly under 16, when they do not want to marry, this is a very real child protection issue. However, another extremely worrying issue arises. These girls—it affects particularly the girls—are being married in other parts of the world with an Islamic ceremony. That ceremony is not registered overseas and it is not registered in this country. Therefore, the girl is not married according to English law. The husband can divorce her under Islamic law and she can obtain no redress in this country for herself. She does not have to be married to get financial help for her children but she gets no financial help whatever for herself because she is not married according to English law. Interestingly, there is a law that gives the second wife in a polygamous marriage some financial assistance.
I have not tabled an amendment in relation to forced marriages that are not considered valid marriages, but I hope that the Government will look at that as there is no shortage of women in this country and abroad who are not considered married according to English law although their marriage ceremonies are considered perfectly adequate in some communities. I particularly underline what the noble Baroness, Lady Thornton, said about child protection. I am not at all sure whether Amendments 5A and 6 are entirely necessary, although the Government should certainly look at them, but Amendment 5 is vital.
Baroness Hamwee
My noble friend Lady Berridge is not in her place at the moment, but I know, from a very short conversation I had with her yesterday, that her Amendment 11 is intended to address the second problem to which the noble and learned Baroness referred. When I first read it, I thought it was simply about annulment but she tells me that it is, in fact, about property.
Lord Ahmad of Wimbledon
My Lords, I thank the noble Baroness, Lady Thornton, and my noble friend Lady Hussein-Ece for tabling the amendment. The noble and learned Baroness made a point about forced marriages. As I said when we moved on to this part of the Bill, there is evidence to suggest that this is a reality and we have to deal with it. I can assure her that the Government take this very seriously. The issue of unregistered marriages which take place abroad or even on home soil, and which do not provide the protections afforded by the rule of law, is one that must be looked at and the Government are looking at how this can be done. An example of good practice within Muslim communities is where the nikah—one aspect of Islamic marriages—is not performed by the imam until a registration certificate is provided. Many Muslim communities adhere to that principle and we should be encouraging that kind of practice across the board.
I turn to the amendments which concern the publication of guidance for front-line professionals working in this area. We know how important guidance is if the new legislation is to work effectively. I join other noble Lords in saying that this must not just be issued but, as the noble and learned Baroness, Lady Scotland, said, adhered to as well. I align myself with the comments of the noble Baroness, Lady Thornton, on the Forced Marriage Unit and pay tribute to the work done in this field, over many years, by the noble and learned Baroness, Lady Scotland.
First, I will explain the existing statutory provisions in relation to guidance. These are contained in Section 63Q of the Family Law Act 1996, which was inserted into the 1996 Act by the Forced Marriage (Civil Protection) Act 2007. I join noble friends in paying tribute to my noble friend Lord Lester of Herne Hill whose Private Member’s Bill resulted in the 2007 Act and provided a widely used civil remedy for victims and potential victims of forced marriage. Subsection (1) of Section 63Q of the 1996 Act provides that the Secretary of State may, from time to time, prepare and publish guidance to such descriptions of persons as the Secretary of State considers appropriate about, first, the effect of Part 4A of the Family Law Act 1996, and, secondly, about other matters relating to forced marriages.
Clause 107 amends Part 4A to make the breach of a forced marriage protection order a criminal offence, so the preparation of guidance about the new breach offence is already covered by the power to issue guidance provided for in Section 63Q. Clause 108 creates a new offence of forced marriage which is undoubtedly a matter relating to forced marriages, so the preparation of guidance about the offence in Clause 108 is also already covered by Section 63Q.
Baroness Hussein-Ece
I accept what the noble Baroness says. I have worked in the past with Southall Black Sisters on domestic violence issues in the Turkish and Kurdish communities when I was setting up a women’s refuge for them. Indeed, I worked very closely with them; I know the work the women do and I pay tribute to them. However, I think that we need some sanctions in order to prevent this. I am sure that the same arguments were deployed in the debates on the proposal to criminalise FGM. Perhaps that is not a good example because there have been no convictions, but it is illegal. Whatever we may think about it—which is obviously for another debate—that sends out the message that FGM is wrong. If something is wrong, it should be against the law. I have listened carefully to the debate and I have thought long and hard about the issue. I have not come to this view over the past few days. It is something that I have considered for many years, and of course there needs to be far more education.
Let us look at the facts. No religion supports forced marriage and it is not a religious requirement. It is also a barrier to integration. These girls, when they behave in what is perceived to be too pro-western a fashion and perhaps are friendly with members of the opposite sex, are considered to have lax morals. The barriers then come up and the pressure starts. I go into schools and talk to girls whose families do not want them to move on into further education. They do not want them to go into further education because they then start to lose control. They think, “Oh, they will have boyfriends and get into relationships where they have sex before marriage”. That is when the oppression starts. It is a barrier to integration and goes against the opportunity for girls to reach their full potential. That is something I feel very strongly about. Moreover, it is a form of slavery and rape. I will be clear on this because that is what happens in many cases. It is about being held against your will in a marriage, which is slavery and rape, and I have no other form of words to describe it.
At the moment, many families feel that their young girls, particularly those under the age of 18, are their property. They belong to the family and the honour of the family rests on them, so the family feels that it has the right to impose its will. I shall quote what I think I might have said, and what one young girl who is a survivor and very much in favour of this legislation said to me: “I wish I had been able to say to my parents at the age of 14, ‘You can’t do this to me because it is illegal’”.
Baroness Hamwee
My Lords, I am at the cautious end of the spectrum as well. Being cautious, I noticed in the fact sheet on this issue published by the Home Office the lines:
“Victims of forced marriage, their families, and society may feel better served by a specific criminal offence. There may also be a deterrent effect”.
I read into the second sentence that that might also cover a reluctance to approach the health and other authorities simply because they are authorities.
I share the concern that has been expressed about stigmatising one’s own family and the ostracism of not just the family, but of the whole community. However, as I have said already today, I am not yet convinced that this would be answered by there being a choice between civil and criminal proceedings. Indeed, the fact sheet also makes it clear that choice is a key message of engagement. That is because there is still the dilemma of how one’s family and community will react to either type of proceedings. I then asked myself whether, conversely, it could produce the reaction of, “Well, they are civil proceedings, not pursuing the criminal route, so it is not that serious”. That worries me as well. I have said to my noble friend that I am concerned about training in this issue for the police and prosecution authorities, although that probably goes to the guidance: how will they put to those who are victims in this situation the choice they have and yet not put pressure on them?
Finally—at this point at any rate—my noble friend said that female genital mutilation is not a good example. I think that it is a good example because the criminal route has not been chosen. I am not sure what we have learnt from that; I have not picked up that we have learnt anything.
Baroness Thornton
My Lords, this has been a remarkable debate and I thank my noble and learned friend Lady Scotland for introducing what is a very serious and important issue to our discussions. I want to make a point about the legislation on female genital mutilation. The reason we had to create an offence was because our law was silent on the matter of female genital mutilation at the time. We created an offence because it was the only thing we could do.
We should not be in any doubt at all that forced marriage is an offence. We need to be clear about that, and I do not think that my noble and learned friend’s—