Anti-social Behaviour, Crime and Policing Bill

Baroness Hamwee Excerpts

Tuesday 12th November 2013 Lords Chamber

Moved by

[Baroness Hamwee]

6: Clause 108, page 78, line 43, leave out “violence, threats or any other form of coercion” and insert “coercion by means including violence and threats or other psychological means”

[Baroness Hamwee (LD)]

My Lords, I will also speak to Amendment 9. I thought that after the previous debate on the Bill I would be faced with saying, “Follow that”, but lunch overtook us. However, it is in fact a question of “Follow that”.

Amendment 6 would alter the definition of “force” in the new provision. Noble Lords might wonder why I am worrying about that. In fact, I propose that the definition be the same as the definition in Section 63A(6) of the Family Law Act 1996—in other words, the definition for the forced marriage protection order. I had wondered why different definitions were used in the Bill and existing legislation.

I wonder that even more after the previous debate on the Bill. The noble and learned Baroness, Lady Scotland, referred to psychological means of coercion which are not referred to in the Bill but are referred to in the 1996 statute. She talked about emotional blackmail which might be exerted by members of the very observant part of the Jewish community.

My noble friend Lord Ahmad certainly used the term “psychology”. If there are intentional differences between the grounds for the two different offences—as we are calling both of them—then the Committee ought to be clear that that is intended. If it is not intended that there are differences, then, again, the Committee should be clear that that is the case.

The noble and learned Baroness, Lady Scotland, talked about “emotional blackmail”; I would include that with the term “psychological coercion”. There may be quite porous demarcation lines in attitudes and the way in which one deals with one’s children. However, trying to stand back and look at it objectively, given the emotional blackmail which she described, from what we have heard from other noble Lords and what we know from our own experience, psychological means should not simply be left aside without noble Lords addressing their minds to them.

My Amendment 9 is much more straightforward. Its purpose is merely to obtain confirmation that a habitual residence—“habitually” is the term used in the Bill—is as it is understood under the Hague convention and the case law which has developed from that. It is obviously not defined within the Bill. I believe that it is used elsewhere in legislation, although I have not been able to find it myself—although I found myself going down different byways of reading, looking at reports of cases on the internet. However, if my noble friend could confirm that, I would be grateful. I beg to move.

[Lord Ahmad of Wimbledon (Con)]

My Lords, I am grateful to my noble friend Lady Hamwee for explaining her Amendments 6 and 9 to Clause 108. It is important that we get the definitions of the new offences right and I welcome this opportunity to explore them in more detail.

Amendment 6 would amend the definition of a forced marriage. Clause 108 defines it as including the use of,

“violence, threats or any other form of coercion for the purpose of causing another person to enter into a marriage”.

My noble friend Lady Hamwee proposes that this should be replaced with alternative wording that, as she explains, would mirror the language used in the Family Law Act 1996 in relation to forced marriage protection orders.

The main difference between the two formulations is that the amendment refers to “psychological means”, while Clause 108 refers to,

“any other form of coercion”.

This is intended to make it very clear that the offence recognises the different types of pressure that can be put on victims. Victims are continually faced with different types of pressure in the course of being forced into marriage, including physical, emotional, financial and sexual pressures. It is therefore right that the definition of the offence should fully cover all of the behaviours that could be employed by the perpetrators of this absolutely horrendous practice. That is what Clause 108 does. On that basis, therefore, I do not believe my noble friend’s Amendment 6 to be necessary.

My noble friend’s Amendment 9, as she has explained, is designed to probe the meaning of the word “habitually” as used in Clause 108(5)(b). The clause provides that an offence is committed outside the United Kingdom if either the victim or perpetrator is a UK national or “habitually resident” in England or Wales. This means that the new law will apply, for example, in a situation where someone who lives in England or Wales is taken abroad in order to be forced into a marriage.

The term “habitual residence” simply means the ordinary residence of a person. As my noble friend alluded to, in fact, the term was introduced into English law from the conventions under the Hague Conference on Private International Law, where it was developed due to the perceived problems with establishing the domicile of some persons, in particular children. The term is commonly used in legislation without further definition and I am satisfied that that is the correct approach to adopt here. Based on those clarifications and explanations, I hope that my noble friend will be minded to withdraw her amendment.

[Baroness Hamwee]

My Lords, I will probe the first one a little further. Of course I agree with my noble friend that we have to cover every situation, or as he said, “every type of pressure”. However, as regards the definition, is there a distinction between the provision in the Bill and the provision in the 1996 Act? If there are differences, can we know them? He has not addressed that point. If they are the same, can we know that?

[Lord Ahmad of Wimbledon]

My Lords, as I said about the language to which my noble friend alluded, Clause 108 has been drafted to ensure that it clearly covers the wider range of factual scenarios that exist in forced marriage cases. That addresses why there is a difference between Clause 108 and Section 63A. Clause 108 is intended to be all-encompassing.

[Baroness Hamwee]

My Lords, that begs the question of whether the 1996 Act is not all encompassing. I do not want to make life more uncomfortable this afternoon—I stress this afternoon—for my noble friend, but would he be able to write to me about that, following today’s Committee proceedings? This looks like a lawyer’s point, but it is a very real one. We have already talked today and will continue to talk about the choice between the two routes. Of course, one of the factors in the choice will be if the definitions are different, and therefore if the criteria for choosing one route are not the same as the criteria for choosing the other. I gave notice to my noble friend—although probably not directly to him—of the points that I wanted to raise on these two amendments. I will not tease him about the fact that he has not told us which other legislation the term “habitually resident” is in. However, that is probably enough from me for now, and I beg leave to withdraw Amendment 6.

Amendment 6 withdrawn.

--- Later in debate ---

[Baroness Hamwee]

My Lords, in the Government’s response to the JCHR, they reject the proposal for an annual report but say that they will be,

“happy to update Parliament on the progress of our work in this area in due course, including as part of the normal post-legislative scrutiny of the Act”.

That is a shame. To many parliamentarians, “in due course” means something rather longer than it does in normal language—but maybe I am too cynical.

Like other noble Lords, I think it is important that what is kept under review—that is another phrase I should avoid because it also has connotations—is far more than the narrow impact of the legislation. I have written down “prevention strategy”, “safeguarding”, “professional training”, “update on CPS strategy and outcomes”, “continuing work with stakeholders”—the list could continue. As I have said before today, I am concerned at the overreliance on girls coming forward for help. Another thing that I am sure stakeholders are very aware of is the impact on the whole family, with other family members, siblings of the child in question, being at risk if they do not support the parents’ decision. There is a range of victims as well as perpetrators in this situation, and that is another thing that we need to keep an eye on.

I hope that, having had the advocacy of a number of very effective Members of this House, the Minister can be a little more encouraging than the Government were in their response to the committee.

[Lord Hylton (CB)]

My Lords, earlier today we had an interesting and worthwhile debate on whether it was better to deal with forced marriages by criminal or civil sanctions. In the light of that, there is a need for reporting on the effect of this legislation. I support the intention of the amendment in the name of the noble Baroness, Lady Manzoor, although the precise wording may need to be widened.

--- Later in debate ---

There was much else that I would have liked to say, as said at Second Reading, including how I am perfectly agnostic and relaxed as to whether the burden on the claimant for compensation should be that of establishing his case on a balance of probabilities rather than beyond reasonable doubt. Those, however, are not the critical issues today. The critical issue is: how large should be the category of those who on any view will be truly innocent but refused compensation, and how large the category of those who are truly guilty but get compensation? That is the critical question that eventually this amendment, or its rejection, will decide.

[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.

--- Later in debate ---

[Lord Judd (Lab)]

My Lords, I strongly support the amendment. I remember, on a visit to Holloway, being tackled very forcefully by a prison officer, who said how outraged she was, fulfilling her duties, sometimes quite late at night, of receiving and processing people who were being taken in to that prison after court proceedings, that only at that stage did the staff discover that there was somebody vulnerable at home. It is outrageous in any decent society that there is any possibility of something like this happening. I think sometimes that we just do not think through the consequences. Apart from the possible inhumane results, not that infrequently a vulnerable person in that situation will have been in the care of a woman or a man—it is not exclusively a matter for women—in a home that has had more of its share of disrupting influences on that child. For the child suddenly to be left in this predicament only compounds the insecurity that that child has faced in life and, indeed, could well accentuate a tendency to anti-social behaviour at a later stage.

If we are trying to reduce crime and encourage the young to forgo the possibility of delinquent behaviour, a demonstrable sense of care by society is very important. From that standpoint, it seems to me that this amendment is crucial. I will be very sad if the Minister feels unable to accept it, because I am quite certain that it must be pursued on Report. For a prison officer, who was deeply concerned, to raise the matter with me brought the point home to me all the more forcefully. It is quite shocking that this sort of situation can occur. The sooner we eliminate that possibility, the better.

[Baroness Hamwee (LD)]

My Lords, I can well understand the problem that individuals facing sentence may be in denial about the consequences. In what I think is a parallel example, working on adoption through the Select Committee earlier this year and talking about placements of children and whether it was right for a child to be placed away from its birth parents, we were told time and again that it was at a very late stage that other members of the birth family would come forward offering to care for the child. I do not want to leap to conclusions on how this proposal might operate, so I ask the noble Lord whether he or those involved with this campaign—I regret that I have not seen the detail—have consulted, first, the courts and, secondly, the Local Government Association about the operation of such a scheme.

[Lord McNally]

My Lords—