Anti-social Behaviour, Crime and Policing Bill

Baroness Hamwee Excerpts

Tuesday 14th January 2014 Lords Chamber

[Lord Harris of Haringey (Lab)]

My Lords, I declare an interest as chair of the Freedom Charity, which works to provide education and support for individuals who may be at risk of forced marriage. The noble Baroness, Lady Tonge, is right to highlight that many organisations believe that the Government are correct in trying to make forced marriage a criminal offence. The Freedom Charity is precisely one of those organisations and, in my view, the Government’s approach to this is right.

However, the amendment moved by my noble friend Lady Thornton, as opposed to the general principle which seems to have been aired, raises another, separate and extremely important issue—the circumstances in which an individual who has been forced into marriage lacks proper capacity to consent to that marriage. I have no doubt that we will be told by the Minister that somehow that is covered by the phrase at the end of Clause 109(1)(b) about a person entering into a marriage,

“without free and full consent”.

I understand that argument, but it seems to me that nothing is lost and rather a lot is gained by specifically highlighting the problems of those who may not have the capacity to consent to a marriage.

I am in no doubt that there are instances where young people, or not so young people, who have limited capacity are being forced into marriages, perhaps from benign motives—that is, to protect or support them—but perhaps also from less benign motives. Forced marriage is pretty abhorrent in itself, but the implications of forcing into marriage somebody who does not even understand what is happening to them seems to me particularly vile and is something that I hope this legislation will address.

That is why the amendment moved by my noble friend Lady Thornton is important, and I hope that the Government will be prepared to accept and support it. As I said, I understand that they will no doubt say that,

“without free and full consent”,

covers the point but, unless it is highlighted and unless the particularly vulnerable state of people with limited capacity is made clear, a great opportunity is being lost. Making it a specific and separate criminal offence is important, and I hope that the Minister will be able to accept the amendment.

[Baroness Hamwee (LD)]

My Lords, when I first saw the amendment, I thought that, as the noble Lord, Lord Harris, has just said, it was covered by Clause 109(1)(b). However, I realised that it is not, because paragraph (b) comes into play only if paragraph (a) applies. Therefore, my question to the Minister is: what does “coercion” in paragraph (a) mean? If the argument is that it is covered, I think that we need to understand the extent of coercion and whether that covers the situation that the noble Baroness has set out.

While I am on my feet, perhaps I may say that I hope my noble friend Lady Tonge will seek the leave of the House to speak to her amendments in this group. She got so carried away with enthusiasm for the noble Baroness’s amendment that she forgot to cover them. I am intrigued by my noble friend’s amendments. We were all left floundering somewhat listening to the debate on their predecessor amendments in Committee, knowing that there were good intentions behind them but not quite finding the means to support them because we were rather doubtful about them. These amendments are much more comprehensible.

[Baroness Tonge]

My Lords, with the leave of the House, I should like to carry on with my remarks, as I had intended to introduce Amendments 87A and 87B. They seek to make it an offence under the law of England and Wales if someone is,

“the parent or guardian of a child, and … gives consent for that child to enter into marriage before the age of 18 unless the written consent of both parties to the marriage has been obtained”.

The reason we have tried to clarify this is due to a lot of experience from all around in our all-party group. I must emphasise that we also want these provisions to apply to marriages contracted abroad, not just in this country. I must apologise for not being present at Committee stage; I was abroad at another conference so my noble friend Lord Rea spoke on my behalf.

We have good laws in place to make forced marriage illegal and these are strengthened by this Bill. I would like to commend the excellent work being done by the Forced Marriage Unit at the Home Office, which really is commendable. These amendments seek to close a loophole which I think still exists concerning children between the ages of 16 and 18. In general, not every forced marriage is a child marriage, but every child marriage is usually forced; hardly any take place with the agreement of the participants, who are often tricked into marriage by their families on the pretext of going on holiday or some treat or other.

According to the international Convention on the Rights of the Child, to which the UK is a signatory, a person is a child until the age of 18. I notice that in Committee some noble Lords felt that, if children could vote at 16 and join the Armed Forces at 18, they should be allowed to marry at 16 with the consent of their parents. However, I would contend that marriage is a very binding contract indeed, from which it is very difficult to escape. A young person can leave the Armed Forces and can refuse to vote, but they cannot easily get out of a marriage that was contracted sometimes without their consent.

If young people want to have, hopefully protected, sex—which many do; I was not born yesterday—they can do so legally after the age of 16. If they want to live together in many cultures now, they can do so legally after the age of 16. So what is wrong with asking them to delay the legally binding step of marriage until they are 18? That, however, is not the point of my amendment, but I had to say that because I feel very strongly about it. I know that noble Lords rejected that in Committee.

At present, any parent who wishes to force a marriage on their son or daughter can do so by claiming that consent has been given if the child is between 16 and 18. In Clause 109(1)(b), the Bill mentions the “full and free consent” of the individuals concerned. However, it does not specifically mention this group between 16 and 18, who can marry with parental consent. I think this needs clarifying. We must make as certain as possible that children involved have given their consent too.

I was horrified years ago, when I worked among Indian and Pakistani communities as a doctor, at how many of my patients were whisked away from school and married as soon as they were 16 years old. I remember two girls in particular, who were twins, who had done absolutely brilliantly in their O-levels. They were crying as they told me that it was now time to go back to the subcontinent to be married to men whom they had never seen, one of whom was illiterate. All their hopes of university and a career were dashed by parental consent to their marriage.

I thought the practice had nearly died out until the all-party group which I chair produced a report called A Childhood Lost. We heard from many witnesses who related their stories of being taken abroad for a holiday, only to be shut away on arrival until their marriage to an unknown groom had taken place. There were others whose religious marriage had been contracted during early childhood on a holiday and then was ratified with parental consent as soon as they were 16 years old. All of this happened with total disregard of the wishes of the young people concerned.

We know that marriage as early as 16 is a public health issue as well as a violation of human rights. It takes away opportunity for education and economic independence; it is associated with violence, rape and sexual abuse; it contributes to higher rates of maternal morbidity and mortality and contributes to poor child development. We know that around 5,000 to 8,000 young people are at risk of being forced into marriage in this country every year, based on research done by our Government in 2011. A higher number may not have been counted because they were over 16 and it will be argued that the parents have not forced the marriage but have given their consent.

This is my last ditch attempt to try to strengthen this Bill. I ask the House to support these amendments that I have put forward, which apply to Scotland as well, as an attempt to ensure that consent to marriages has also been given by the two children to be married in that age group. I think that the consent should be given verbally and in writing.

--- Later in debate ---

[Lord Ahmad of Wimbledon]

Hearing what the noble Baroness and, indeed, the noble Lord, have said, with the leave of the House, I will return to this issue. I will consider its practical application with my noble friend. When the noble Lord, Lord Harris, was speaking, I was listening attentively but, as he rightly said, I was waiting for inspiration from the Box. This is too important an issue to deal with in a non-comprehensive way so, as I said, I would like to return to it.

[Baroness Hamwee]

My Lords, when the Minister is considering this with his advisers, on the point about an application to the court, will he consider both the practicality and the legal capacity of the people we are concerned about to make that application?

[Lord Ahmad of Wimbledon]

That is a valid point. I have had discussions with officials on the issue of ensuring assistance. If someone has not had the mental capacity to consent, would they have the mental capacity to take up the issue? That is a point understood and well made.

I hope that, based on the assurances and clarification that I have given that we will look at the issue again, at this juncture the noble Baroness will be prepared to withdraw her amendment.

--- Later in debate ---

[Baroness Hamwee]

My Lords, I entirely agree with what lies behind these amendments but have one concern about them, with which the noble Lord may be able to help me. We heard in an earlier debate on the Bill that a number of police and crime commissioners are already dealing with anti-social behaviour as one of their objectives. I assume that, as they are doing that, they are able to do so. Therefore, I wonder whether it is necessary to refer specifically to this Act, as it will be, in the second of the noble Lord’s amendments in this group.

Given that we already have a requirement under new subsection (1A) of the relevant Act for each of the responsible authorities to have regard to the police and crime objectives, I am not sure whether the proposed new subsection (1B) is necessary. We often hear that things are not necessary but it is helpful to be clear about them. However, my real concern is whether, by referring specifically to the Anti-social Behaviour, Crime and Policing Act, there might be a suggestion that it should have priority over other legislation which could be listed among the objectives. The relevant police reform Act, the obligations of the police and crime commissioners and the police and crime plans use wide and general terms. The Anti-social Behaviour, Crime and Policing Act, as it will become, will not be the only legislation to which all responsible authorities need to have regard, so I am concerned about knock-on effects outside what we are considering at the moment.

[Lord Taylor of Holbeach]

My Lords—