Serious Crime Bill [HL]

Baroness Meacher Excerpts

Monday 2nd March 2015 Lords Chamber

[Baroness Howe of Idlicote (CB)]

My Lords, Amendment 5 after Clause 70 is clearly a well intentioned measure, but I am concerned that if mandatory reporting of FGM is implemented in isolation it could have unintended consequences. Like my noble friend Lord Patel I am worried, in particular, that professionals will have no discretion and will be obliged to report, even when it may not be in the best interests of the child. The evidence from other countries where mandatory reporting of child abuse in general has been introduced suggests that there could be similar unintended consequences if a duty was introduced for FGM. Most notably: women and girls could be discouraged from seeing healthcare professionals because of concerns about catapulting themselves or friends and family into criminal investigations; professionals may seek to avoid discussions that could lead to disclosure if they are fearful of the consequences; and individuals would be likely to report on any occasion when they come into contact with a girl who they believe has undergone FGM, resulting in a girl being visited by police or social workers on multiple occasions in the short space of time before they are 18, which could be a fairly traumatising experience.

Will the noble Baroness please clarify what would happen in instances where the duty to notify police of FGM is not in the best interests of the child? Surely it is vital that the guidance on this piece of legislation is fully and carefully considered, and that experts who deal with these cases are fully involved. Can she also clarify the intentions for the guidance on how this duty will be implemented, and confirm whether this guidance will be subject to full consultation?

[Baroness Meacher (CB)]

My Lords, I add a few words of strong support to those of my noble friends Lord Patel and Lady Howe. It seems that this is trying to deal with the problem after the horse has bolted. As the Minister knows, we argued at length earlier in discussions on the Bill about the need to tackle this matter at source, where these ideas are being pressed—by the leaders and religious leaders of some communities who believe that this is necessary to save you from hell and such matters. To go down this road will be quite dangerous, because there will be an inclination by families and communities to hide these children from view. Not only may they not seek medical attention—that would be incredibly serious, as my noble friend Lord Patel has said—these girls and women need extra healthcare and may get none at all if they are hidden away. But you can also imagine that these children may be hidden away from “ordinary” English schools, because teachers may come to know about what has happened, and these families and communities will be under more pressure to set up separate schools, not integrating with our society. That would be absolutely retrograde to encourage in some way.

Obviously this is an unintended consequence. I am sure the Government’s motives are utterly right and pure, but these things can have the most devastating unintended consequences, and one can just imagine the greater isolation, being kept away from healthcare, schools and so on. These children will be incredibly vulnerable if these amendments go through, and I put on record again that we need to tackle FGM—and my goodness, we need to tackle it—at source. It is probably far too late in the day, but really it is the community and religious leaders who need to be stopped when they are preaching non-authentic Hadith and pressing for FGM on that unauthentic basis. Even at this late stage I plead with the Minister to take a step back and think whether this is the right way forward. I profoundly believe it is not. The most eminent QC in this country, Dexter Dias, who knows about these things, would say the same. Go to the community and religious leaders; do not try and deal with this after the event when these children have already been tortured.

--- Later in debate ---

[Baroness Smith of Basildon]

My Lords, what is always clear when we debate FGM issues is how complex they are. I think that the law of unintended consequences has been discussed throughout our debates. I have just read again the letter from the Minister, Karen Bradley, to Seema Malhotra MP setting out why the Government have brought this new clause forward. A consultation was held on 5 December on how to introduce mandatory reporting for FGM. As other noble Lords have said, it is a little strange that we did not have the benefit of that consultation when we held our previous discussions. It would have been helpful to have the consultation and the Government’s response, but they were not made available to us, although the other place did have the benefit of seeing them when it discussed these issues.

The purport of the amendments which have been put forward in your Lordships’ House on this issue is not just to deal with the problem afterwards, but to prevent it happening in the first place. It is also about sending a strong message that FGM is something we cannot tolerate at all. I have some concerns about mandatory reporting, but it is to be hoped that they can be addressed in the guidance and the review process. I think it is clear that we need to ensure that where health professionals are aware of instances of FGM, they should report them so that action, whether that be medical or legal, can be taken. The concerns which have been raised are ones that the Government will want to address when they are considering the guidance. If they find that there is any evidence of women not presenting to medical practitioners for care during pregnancy, it should be examined.

[Baroness Meacher]

I just want to check whether the noble Baroness agrees that reporting to the police could actually deter families from taking these children to the health services. In saying that reporting needs to happen, I am very worried if this goes to the police.

[Baroness Smith of Basildon]

I am not sure that I accept that a family whose daughter had undergone FGM and became seriously ill would not want that to be dealt with. It is quite a big jump to make, to put pressure on a family in that way. The noble Baroness says that they will not, but if that becomes evident, the Government will have to look. As I said, I have slightly conflicted views on this, but the House of Commons, I am sure, had the benefit of the consultation—although that was slightly split. I look forward to the response from the noble Baroness the Minister.

I come back to the point on legal aid. One issue that I raised with the Minister in earlier debates was whether legal aid would be available for FGM orders. At that time, she was unable to confirm that they would. We raised the point that without such legal aid, which is available for forced marriage orders, there would be no FGM orders. The point about prevention, which the noble Baroness made, is that unless you have the orders, there is not going to be prevention of FGM. We have had several conversations; the noble Baroness promised to write to me on several occasions, and I think she was frustrated that no correspondence was forthcoming. I am pleased now that the Government have confirmed that legal aid will be available for FGM orders. So we support the new clause, but I would be grateful if she could address some of the points raised in this debate, because justified concerns have been raised. That does not take away from the fact that the whole purpose of this is to try to prevent FGM from ever occurring and women from suffering such abuse.

Serious Crime Bill [HL]

Baroness Meacher Excerpts

Wednesday 5th November 2014 Lords Chamber

[Baroness Smith of Basildon]

My Lords, I am sorry not to hear further from the Minister about her amendments. We had a very helpful and productive debate on Report, where it was clear that your Lordships’ House was united in a desire to tackle FGM. The government amendment was welcomed, but it was agreed that the issues raised by our amendments, which I have again tabled today, were both valid and reasonable. There was no policy disagreement; the difference was one of approach and what would be most effective in achieving the aims that we all share.

The noble Lord, Lord Lester, emphasised the need to use civil law and family courts. The noble and learned Baroness, Lady Butler-Sloss, agreed with him and said:

“I would like to see what is good in each set of amendments put together”,

and expressed the hope that,

“the Opposition and the Government will get together … and thrash out what would be the best of everything and get that into one list that could go into Third Reading”.—[Official Report, 28/10/14; col. 1092.]

That explains why we have retabled our amendment here at Third Reading. We felt that the House would want to hear what progress we have made in those discussions.

There were two issues of difference between us and the Government. I say “difference” rather than “disagreement”, as the whole approach on this matter has been consensual. Our intention in tabling amendments is to ensure that the legislation, and its application, is the best it can be. That is why we sought advice not just on policy but from leading practising lawyers in this area. I put on record my thanks and appreciation to Kirsty Brimelow from Doughty Street Chambers and the Bar Human Rights Committee and Zimran Samuel from 42 Bedford Row Chambers. Their considerable practical experience and expertise have been of enormous assistance in understanding all the implications of the proposed legislation. We are grateful to them also for attending the meeting we had with the Minister and her officials. I am also grateful to Catherine Meredith of Doughty Street and Dexter Dias of Garden Court Chambers. I am not a lawyer, but I felt that I needed to be absolutely clear on the implications of the amendments before us—not just how they would be implemented in theory but how much difference they would make in practice. There is old saying: in theory, theory and practice are the same, but in practice they are often different.

As legislators, we must be concerned about practice— the very point made by the noble Lord, Lord Lester, and the noble and learned Baroness, Lady Butler-Sloss— when debating the use of civil law. There are two issues of difference, both relating to the Female Genital Mutilation Act 2003. We welcomed the Government’s support for our calls for FGM protection orders and were grateful to them for bringing forward their own amendment on Report. The issues of difference that merited further consideration were highlighted by the Bar Human Rights Committee, whose members proposed such an order in the first place and are experts in this area.

The first issue relates to where the orders sit in relation to civil and criminal law, and which Act the amendment relates to. It might seem just an academic argument, but if that were that case, I would not raise it today in your Lordships’ House. The 2003 FGM Act, which the government amendment seeks to amend, is a criminal statute and not necessarily familiar to family law practitioners. The Family Law Act 1996, on the other hand, is their first port of call. Forced marriage protection orders, which are used all the time in the family court, are in the Family Law Act and have been successful. Having FGM orders also in the Family Law Act would mean that they would sit beside and complement the existing regime for the protection of children in the Children Act 1989.

I appreciate that the Government’s proposal remains a civil order, but it is a civil order within criminal legislation. Those who are involved in family courts told us of the practical reasons why not all family court lawyers would know, understand or appreciate that they should also look to criminal law statutes for civil measures.

There is the issue of the deterrent factor for those whom we want to come forward, when a civil measure lies within criminal law. The difference may be understood by criminal lawyers or across the Dispatch Box in your Lordships’ House, but it is not necessarily understood by those whom the orders seek to protect.

I totally understand that from the Government’s point of view it makes policy sense to have all the legislation relating to FGM in one place. It sounds logical. But when those who will use this law, and who really care that we get it right, tell us that it could make application for and gaining of an FGM order harder and therefore less likely, I feel obliged to take their views and experience into account. What matters is what works in practice.

The second issue is about the definition. As I explained in Committee, the government amendment uses the definition in the 2003 Act. The Government believe, as was the intention when we reintroduced the legislation in 2003, that this covers reinfibulation. I am not going to test your Lordships’ House again with an exact explanation of what is involved. Last time, “Today in Parliament” put out a warning before I spoke, and gave the programme a G certificate, standing for guidance. I think that is the first time that that has happened, but it does convey some of the brutality and horror of what we are talking about.

The law was intended to include reinfibulation. Any definition or interpretation should include reinfibulation, which involves unnecessary and non-medical restitching to reclose the female genital mutilation following childbirth. However, the Bar Human Rights Committee and Doughty Street lawyers tell us that there is some misinterpretation. That is why we use the World Health Organization definition instead. That would ensure that our law is consistent with recognised international standards and understandings and clarifies any existing confusion around offending conduct such as reinfibulation.

I was reassured on Report by the willingness of Ministers to discuss this further and, as a result, I agreed to withdraw our amendments. The lawyers who advised us attended the meeting with the noble Baroness and her officials. We were looking forward to the meeting, and we were optimistic that we would make the kind of progress that the noble and learned Baroness, Lady Butler-Sloss, and others, had wanted us to make. However, I have to tell your Lordships’ House that we are very disappointed with the outcome. It appeared to us in that meeting that the Government were not prepared to take on board any of the points raised by us or, more importantly, by the barristers who deal with this issue on a regular basis. On the issue of definition the Government are now concerned that such clarification as we have called for could affect any existing or current cases. I am surprised that that was not mentioned on Report. That assessment is questioned, including by senior lawyers who we have spoken to. Perhaps the noble Baroness and I could pursue that at another time.

No one is suggesting that the law is wrong; there is a problem with interpretation. When the Royal College of Midwives and the Royal College of Obstetricians and Gynaecologists say that the definition does not include reinfibulation, that seems to me to be an excellent case for clarification. Despite the clear will of your Lordships’ House that such discussions should take place with the intention of ensuring that whatever was brought forward works well in practice, I deeply regret that I do not consider that we had productive discussions. The Government clearly have no intention of making any modifications or improvements in this area.

I do not intend to press the amendment to a vote. The government amendments are not wrong, but they could be better. We believe that this is a lost opportunity, and I ask the following questions.

First, can the Minister tell us what the Government will do to raise awareness among practitioners and the public that these orders exist? Secondly, will she agree to report to Parliament on the number of orders that have been made after, for example, one year of operation —although that might of course be under a different Government—so that the effectiveness can be considered? Thirdly, will she clarify the legal aid position? My understanding is that legal aid will be made available because these are civil FGM orders, even though they sit within criminal legislation. Without such legal aid, these orders would fail. How does the Minister intend to make that clear, or is my understanding of legal aid wrong? Fourthly, will the Government consult on the interpretation of the definition of FGM?

While we are disappointed that we do not have the best outcome, we feel that we have done all we can to make the case. The proposals from the Government are important, they are a significant improvement and we want to see them be as effective as possible.

[Baroness Meacher (CB)]

I am most grateful to the Minister for tabling Amendment 7, which enables me to speak briefly about the need to create an offence of encouragement of female genital mutilation, which we discussed on Report. I want to thank the Government for agreeing to have further discussions about the new amendment, drafted by Dexter Dias QC, and about the new evidence from our QC adviser. To be frank, that evidence is extremely powerful and it is a pity that we did not have access to these arguments earlier in our debates. I hope the Government will table the Dias amendment, or something very like it, in the other place, but I understand that they are in no position to make any commitment of that kind at this stage.

I will not repeat the arguments we rehearsed on Report in favour of focusing attention upon those who encourage the practice of FGM rather more than upon the families who practice this appalling form of child torture. I want to put on record only that the Dias amendment would provide an effective legal intervention because it is modelled on what is known to work: comparable powers used to combat the dissemination of encouragement to commit acts of terrorism. FGM is of course an entirely different crime from terrorism but the model for the two types of crime is similar.

The Dias amendment recognises the awful social pressure that parents are placed under by some communities. In traditional societies, which are intensely hierarchically structured, elders and preachers exert enormous influence. I think that most of us are not familiar with that or have not experienced it. We believe that the encouragement amendment will complement the important community work being done to dissuade preachers from encouraging FGM.

Mr Dias QC refers to our international obligations, which more than justify the creation of an offence of encouragement of female genital mutilation to cover anyone who makes a statement that is likely to be understood by some or all of the members of the public to whom it is published as direct or indirect encouragement or other inducement to them to mutilate the genitalia of a girl. That is the essence of his amendment. These international obligations include: the Convention on the Elimination of All Forms of Discrimination against Women of 1979; the UN Convention on the Rights of the Child of 1989, under which the UK has positive obligations in international law to ensure that children are not subjected to cruel, inhuman or degrading treatment; and, finally, the UN Convention Against Torture of 1984, which has been ratified by the UK.

Mr Dias presents four pages of powerful arguments in support of the amendment he has drafted, which I hope very much that the Government will consider most seriously, as I have indicated. I will not repeat all these arguments here today—this is, after all, Third Reading—although I believe that your Lordships’ House would find them extremely persuasive. The only remaining point I want to make is that I am advised that our strong international obligations justify overriding Article 10 of the Convention on Human Rights, the right to freedom of expression. This is a very important point, particularly because we all wish to preserve that right whenever it is appropriate. All that we are saying is that in this very specific case, it is appropriate to override it.

Again, I give my thanks to the Minister for providing this opportunity for me to reiterate certain points. I hope that the Minister can confirm to the House today the Government’s agreement to have further discussions on this important issue.

[Baroness Butler-Sloss]

My Lords, had the noble Baroness, Lady Meacher, tabled this amendment I would have put my name to it. I do not want to take up time at Third Reading to repeat what the noble Baroness has said, but I ask the Minister to be in touch with those in the Home Office who will be dealing with the Bill in the other place, and not to disregard what she has said. It is really worth having a further look at this serious matter. There are communities which, as the noble Baroness, Lady Meacher, has said, are different from most of us and where there is a degree of not just influence but power among certain elements of those communities. That leads to this appalling FGM taking place on children in this country. I am also supportive of what the noble Baroness, Lady Smith, said. This is a good part of the Bill and the Government are to be congratulated on it. However, they could do better.

Serious Crime Bill [HL]

Baroness Meacher Excerpts

Tuesday 28th October 2014 Lords Chamber

Moved by

[Baroness Meacher]

45A: After Clause 66, insert the following new Clause—
“Offence of encouraging or assisting with the promotion of the practice of female genital mutilation
(1) The Female Genital Mutilation Act 2003 is amended as follows.
(2) After section 2 (offence of assisting a girl to mutilate her own genitalia) insert—
“2A Offence of encouraging or assisting the promotion of the practice of female genital mutilation
A person is guilty of an offence of encouragement or promotion of female genital mutilation if he encouraged or assisted another or others to commit an offence knowing or believing that the other or others would commit that offence.”(3) In section 5 (penalties for offences) insert—
(a) after “under” insert “sections 2 and 3 of”,(b) at end insert—“(2) A person guilty of an offence under section 2A is liable—
(a) on conviction on indictment, to imprisonment for a term not exceeding seven years or a fine or both;(b) on summary conviction, to imprisonment for a term not exceeding six months or a fine not exceeding the statutory maximum or both.””

[Baroness Meacher (CB)]

Following legal advice, I amended Amendment 45, and it has now become Amendment 45A. The aim of this amendment is to tackle FGM at its heart. I applaud Ministers, the noble Baroness, Lady Smith, and others for tabling amendments which seek to protect young girls from the threat of this terrible torture and to protect their identity. All these are important, although we know that to achieve a prosecution of families committing FGM is not straightforward, and even with all the improvements in the new amendments, I still believe that it will be difficult. I understand that FGM is increasingly happening to tiny children who cannot yet speak, which will make prosecution even more difficult until very much later on because of course the families are trying to avoid detection. Prevention will be very difficult to achieve through protection orders, for example, if this is happening very early on in a child’s life.

Amendment 45A creates an offence of encouragement or promotion of FGM if a person,

“encouraged or assisted another or others”—

that is very important—

“to commit an offence knowing or believing that the other or others would commit that offence”.

The amendment seeks to ensure that if a community or religious leader encourages the practice of FGM, whether to a congregation, a small group of parents or indeed an individual parent, they would be committing an offence and could be charged. We are seeking something very different from the amendments so far, which have focused very much on an individual child and their family, but that is not where the focus should be when the core of the problem is actually in the culture of certain communities. If we want to stamp out the practice, we have to change the culture and the religious preaching.

The Minister explained to me just before this debate that the Bill team believes that the amendment does not achieve what we believe that it will. However, I sought legal opinion from Keir Starmer and his colleague Catherine Meredith, and they came back to me over the weekend and assured me that the amendment is fine and will achieve what we want it to. Of course, this was very late on; although I approached them some time ago, they are busy people and did not come back to us until very late. We therefore have not had an opportunity for the Bill team and government lawyers to sort this out. Not surprisingly, we therefore have a slight disagreement, but I am satisfied on the basis of my legal advice that the amendment will achieve what we want it to achieve and I will therefore speak to it on that basis.

The amendment would make a distinction between religious leaders who preach from the Koran and are therefore authentic—and, indeed, religious leaders who preach from authentic Hadith—who would not be committing an offence and would not be prosecuted if the amendment became law, and religious leaders who preach on the basis of the inauthentic versions of the Hadith, who would be committing an offence; they would be very clearly differentiated from the others. That is very important.

My concern about the parent-focused offences in the absence of Amendment 45A is that if parents believe that their religion requires them to practise FGM, when parents are arrested for this practice and are subjected to a protection order, they will regard the arrest or the protection order as some terrible action of the infidels. They will not be convinced at all and their thinking will not change. In addition, parents who are not directly affected by an arrest will not be convinced. They will think that these are the actions of infidels and therefore they will try to find a way of carrying on with their FGM practice. That is the importance for me of Amendment 45A.

[Baroness Tonge (Ind LD)]

I have gone into this in great detail since 2003, when the all-party group that I chair held hearings on the subject. We learnt from various groups that gave evidence, and I have learnt since, that it is usually the grandmothers in a family who are most insistent on this practice, and that it is not confined to a particular religious group. I would hate for people to get the idea from what the noble Baroness is saying that this is a practice of the Muslim religion or any other religion. It is confined to small cultural groups. It is often opposed by the religious leaders and men in the community but the grannies insist that it is done.

[Baroness Meacher]

I am grateful to the noble Baroness for her intervention. I completely agree: this is not exclusively a Muslim problem. Indeed, there are Christians, apparently, who promote FGM. However, we know that there are religious leaders who preach from the unauthentic Hadith and are certainly promoting FGM; they are rather effective at doing that. They ally, of course, with the grandmothers, and the grandmothers can look to them for support.

Another question is whether this practice is sufficiently prevalent to justify this new offence. Yes, it is. The noble Baroness, Lady Smith, referred to international figures. I simply want to refer to a few from the British Arab Federation. It estimates that more than 100,000 women have undergone FGM in this country and that some 25,000 girls are at risk of having their lives destroyed in this way. The Local Government Association provides a figure of 144,000 girls born in England and Wales to mothers from FGM-practising countries between 1996 and 2010. We do not know how many of these mothers will have changed their minds about this practice, but the figures from the British Arab Federation are certainly alarming and we need to take them seriously.

We must applaud the British Arab Federation for making it its highest priority to work with all organisations to bring an end to this crime. The federation is clear that there is no evidence, as far as Islamic sources are concerned, requiring, justifying or condoning the practice of FGM. This, again, reiterates the point. This is not a problem of the whole of Islam—far from it—or, indeed, only Islam. It affects certain groups and certain leaders.

The descriptions of the way FGM is performed are utterly appalling. Just reading them was a painful experience for me. The noble Baroness, Lady Smith, went into this in great detail and I certainly do not want to repeat what she said. As I have already said, there is no mention in the Koran of FGM and no mention in the authentic Hadith of FGM, so there are perfectly proper Islamic texts that do not in any way encourage this activity. Indeed, Islamic law prohibits partial or complete removal of any bodily organ without proven medical need. Thus FGM is unlawful, as I understand it, according to Islamic law. It is important that, in proposing this amendment, we make this absolutely clear. In no way is this amendment an attack on Islam: quite the opposite. It is an attempt to secure the proper practice of Islam. There is a lot of work going on in communities to encourage them to abandon FGM, but this work is being hindered by these leaders who stick to unauthentic texts.

Currently, under Sections 44 to 46 of the Serious Crime Act 2007, anyone inciting or carrying out FGM in a particular case can be prosecuted for incitement. The LGA argues, quite rightly, that it is not possible under current law to prosecute someone who in general terms says that there are religious, health or other grounds for carrying out FGM. That is the whole point of this amendment and the whole point of referring to the plural: if somebody preaches to “another or others” that FGM is important to their religion, they are committing an offence. This amendment should make it much easier to bring cases against those who promote this practice. Inhibiting the preaching or promotion of this practice is much better than action ex post. That is what we are all working for: to try to prevent this thing ever happening in the first place. A lot of the focus has been on prosecuting people after they have practised FGM and that is just not good enough.

I know that the Government have concerns about whether this amendment really would achieve what we hope it would achieve, but I hope that we can have further discussions. I take the point that there will also be debates in the other place. Therefore, we do not even have to resolve these issues, and the issues around the previous amendments, before Third Reading, although I will certainly seek to do that with my legal advisers. I beg to move.

--- Later in debate ---

[Baroness Williams of Trafford]

Again, this has been a further excellent debate on the role of the criminal law in helping to put a stop to the practice of FGM in this country. I am grateful for the constructive approach that the noble Baroness, Lady Meacher, and others have adopted in both debates and in the discussions we have had outside and inside the Chamber.

As many noble Lords have said, we are aiming to get to the same end. It is slightly unfortunate that the amendment was tabled quite late and that there is a difference of opinion in terms of what the amendment seeks to achieve. My noble friend Lady Hamwee rightly pointed out, on the point about “other or others”, that the amendment does not seek to achieve what was sought in the original amendment, if that makes sense.

I also thank my noble friend Lady Tonge and the noble Baroness, Lady Meacher, for pointing out quite strongly that this is not a religious matter. There is nothing in any religious text that points to FGM being something that should be carried out on young girls. It is a specific cultural practice that exists in certain communities in the world and has found its way to this country. Legislation alone cannot eradicate a practice that is so deeply ingrained in the culture and traditions of those who practise it and have been doing so for centuries, but I agree that the law is a very important part of our response to the abhorrent practice of female genital mutilation, and it is right that we should change it where necessary.

We believe that the new offence that we have just debated of failing to protect a girl from risk of genital mutilation gets to the heart of the issue. The Government’s new offence focuses on those who allow this dreadful abuse to be perpetrated on their daughters rather than on those who may only encourage them to do so. That is not to suggest that encouraging female genital mutilation, or indeed any crime, is in any way acceptable.

I take the point made by the noble Baroness, Lady Hamwee, that such behaviour also constitutes an offence under the provisions of Part 2 of the Serious Crime Act 2007, which contains inchoate offences of: intentionally encouraging or assisting an offence; encouraging or assisting an offence believing it will be committed; and encouraging or assisting offences believing one or more will be committed. As the noble Baroness observed, the revised wording of the proposed new offence follows closely the wording of the existing inchoate offences. That is both its strength and, dare I say, its weakness. As a result, it would not cover behaviour that is not already covered by the existing 2007 Act offences.

We are not persuaded that creating a specific offence of encouraging FGM is necessary or appropriate. The provisions in Part 2 of the Serious Crime Act 2007 apply to all criminal offences precisely so that it is not necessary to create specific encouraging or assisting offences for every crime. We agree that the behaviours now referred to in the noble Baroness’s revised amendment should be criminalised, but that is already the case. This amendment would not advance the criminal law in this area—I suspect this is where we are going to have a further conversation.

We believe that changing the culture and attitudes that allow female genital mutilation to persist will be better achieved through the awareness raising and community engagement that the Government have already embarked upon, rather than through the creation of another, arguably unnecessary, inchoate offence.

I wholeheartedly commend the aims of the noble Baroness, Lady Meacher, and others in tabling her amendment. As I have said, this House is united in its desire to eradicate FGM, even though we may differ on how best to achieve that end. I hope the noble Baroness will agree that the government amendments that we have just debated represent a substantial package of measures to strengthen the civil and criminal law to tackle FGM. I firmly believe that they offer a better way forward, and on that basis I ask the noble Baroness not to press her amendment.

[Baroness Meacher]

I thank the Minister for her constructive response and all noble Lords who have spoken very constructively in this debate. I particularly thank my noble and learned friend Lady Butler-Sloss for her very important point that this amendment, unlike any other, would achieve deterrence, and that is what we want to do. We want to deter this dreadful act. We do not want just to prosecute after the event, although it is difficult ever to achieve a prosecution. If we can deter, we have really got to the goal that is now clearly shared across all sides of the House, which is to change the culture on FGM. We therefore need to change the way the leaders operate and the way they encourage people to indulge in this terrible act.

I also thank the noble Baroness, Lady Smith, for her very helpful support. We must try to find a form of words that the government lawyers, our lawyers and all other lawyers agree will achieve this incredibly important objective. On that basis, I beg leave to withdraw the amendment.

Amendment 45A withdrawn.

Serious Crime Bill [HL]

Baroness Meacher Excerpts

Tuesday 15th July 2014 Lords Chamber

[Baroness Howarth of Breckland (CB)]

My Lords, I shall speak very briefly as I hope that the Minister will take these amendments away and come back with a combination. I support the noble and learned Baroness, Lady Butler-Sloss, and her companions in their amendment, but I am absolutely with the noble Baroness, Lady Walmsley, and the noble Lord, Lord Ponsonby, in relation to the age of these children.

Some years ago the Social Research Unit at Dartington produced a compendium of all the research about emotional abuse in children. It showed that the development of children who had been emotionally abused was more severely impeded in the long term than the development of those who had been physically abused. This is different from sexual abuse, which is another thing. Children who had experienced physical abuse were more likely to be able to survive and grow through it than those who had been emotionally abused. Those children whose parents had never made a proper emotional contact with them were unlikely to make relationships later. So, in terms of mental health and the economics of the situation, looking after these children, and doing so until they are 18, makes really good sense.

[Baroness Meacher (CB)]

My Lords, I rise to make two small points on Amendment 40BZB, so ably introduced by my noble and learned friend Lady Butler-Sloss. First, I congratulate the Government on clarifying in Clause 62 that psychological effects on children have equal importance to physical effects. As my noble friend has just said, it is also my professional and personal experience that psychological damage to children is often more serious than physical injury—although, of course, it depends on the severity of both. This is an important step forward, albeit not an entirely new one. I know that the legislation has always alluded to psychological or psychological-type abuse. I strongly support Amendment 40BZB and hope very much that the Government will be able to support it, or something very like it. It seems to me that the clarification is altogether helpful.

I welcome proposed subsection (6)(b), which defines the term “wilfully”, and have no worries about it. Further elaboration will no doubt come in regulations. I should be grateful if the Minister would assure the Committee that in those regulations the Government will clarify that a parent with a drug addiction will be regarded as not having the competence to foresee that an act or omission regarding a child would be likely to result in harm, but nonetheless as unreasonably taking that risk. Clearly, if a drug-dependent parent is causing physical or psychological harm to a child, the matter must be dealt with. Again, I hope that regulations will be put in place to ensure that resources for the treatment of the addiction will be put in place and that the parent will be expected to make good use of them in order to avoid continuing damage to a child.

--- Later in debate ---

Moved by

[Baroness Meacher]

40BA: After Clause 63, insert the following new Clause—
“Offence of encouraging or assisting the promotion of the practice of female genital mutilation
(1) The Female Genital Mutilation Act 2003 is amended as follows.
(2) After section 2 (offence of assisting a girl to mutilate her own genitalia), insert—
“2A Offence of encouraging or assisting the promotion of the practice of female genital mutilation
A person is guilty of an offence if he encourages or assists in the promotion of the practice of female genital mutilation.”(3) In section 5 (penalties for offences)—
(a) after “under” insert “sections 2 and 3 of”,(b) at the end insert— “(2) A person guilty of an offence under section 2A is liable—
(a) on conviction on indictment, to imprisonment for a term not exceeding seven years or a fine (or both),(b) on summary conviction, to imprisonment for a term not exceeding six months or a fine not exceeding the statutory maximum (or both).””

[Baroness Meacher]

The amendment is intended to ensure that anyone encouraging or assisting in the promotion of the practice of female genital mutilation will face an investigation and, if found guilty, a conviction. We propose that the penalty for those offences should be severe: a maximum prison sentence of up to seven years for a conviction on indictment.

Local councils have a role in tackling the issue as a result of their duties to safeguard children and they are well placed to work with the relevant communities in their area where FGM is practised in order to reduce the number of women and girls at risk of that mutilation. It is appalling to contemplate that 20,000 girls and women in this country are currently at risk of being subjected to FGM. Professionals and third-sector experts believe that the practice will be eradicated only through a change in custom and culture in the communities where it happens. We will not do it through individual charges.

We can be encouraged that there are many members of communities with a history of practising FGM who are now willing to make the case against it. However, we also know that there are community and faith leaders who promote and encourage the practice of FGM. This amendment would make it absolutely clear that authorities can, and indeed must, step in to prevent the community and faith leaders perpetuating this practice. The approach of these faith leaders is likely to be through generating pressure on families who might otherwise turn away from FGM for their daughters.

Currently, anyone inciting the carrying out of FGM can be prosecuted for incitement, regardless of whether the underlying substantive offence is committed or attempted, under Sections 44 to 46 of the Serious Crime Act 2007. I understand that the CPS believes that there is no need to create a new offence on the basis that legislation already exists to criminalise incitement. However, the purpose of this amendment is to clarify the law to make it clear that even indirect promotion of FGM by community and religious leaders could be dealt with under the law. It is not difficult to imagine how religious leaders might stop short of incitement but nevertheless through general persuasion and comments as leaders of these communities might indeed lead families to be fearful if they do not comply with the religious standards of their history.

It is relevant to note that the Local Government Association strongly believes that there is a case for this amendment and for bringing the offence of promoting or encouraging FGM into the 2003 Act so that it sits alongside the offence of practising FGM itself. This would help law enforcement officers and legal practitioners with no prior experience of FGM to locate the offence. It is no good if some offence is there if the key people are not aware of it. We know that the Modern Slavery Bill has the similar aim of consolidating and clarifying the relevant legislation. I think it is a very good example to follow.

I hope very much that the Government will agree that this is such an important and yet difficult area of law that our amendment is justified. I beg to move.

[Baroness Butler-Sloss]

My Lords, I had intended to put my name to this amendment, but I am afraid I was rather busy last week and did not in fact remember to do so. I strongly support the noble Baroness, Lady Meacher.

Perhaps noble Lords will permit me to tell a short story. Yesterday evening I was one of eight judges for the “Speak Out” competition for 15 year-olds across the whole of London and Essex. We had 15 brilliant 15 year-olds, and each had to speak between one and three minutes on the subject of their choice. One girl of 15 stood up and talked about female genital mutilation. It was an absolutely brilliant speech. Unfortunately, she did not win, but it was absolutely breathtaking that a 15 year-old could be telling us what we should be doing about it. She was utterly shocked that we were not effective in stopping this happening—this absolutely abhorrent crime, which is hitting so many young girls nowadays in this country because they are being taken to other countries, or even it is being done here.

Anything—absolutely anything—that can encourage the public who are part of this system, or who know about this system, to be reminded that it is a crime should be taken forward. Anyone who might be involved in this in any way, perhaps as a member of a family where one member may be considering taking the girl to Sudan or to South Sudan or wherever else it may be, should now say, “Just be very careful, as this is something that is not acceptable in this country, either for those living here or those coming in or out”.

I do hope that the Minister will see that this has all sorts of values. That is to say that it has the value of actually dealing with the offence of encouraging or assisting the promotion of this abhorrent practice and, secondly, it would send out a powerful message that those who are around those who do it are possibly in danger of criminal offences themselves. I really hope the Government will pick this one up.

--- Later in debate ---

[Baroness Walmsley]

My Lords, it would not be in order for me to say anything about the amendment moved by the noble Baroness, Lady Meacher, as I was not in my place when it was moved. I support the noble Lord, Lord Rosser, in his attempt to get anonymity for the victims of FGM, and I hope the Government will consider it. Indeed, I think there may be a case for going a little further than that, because it could be that there are women within communities who know what is happening who might be more encouraged to come forward and say so if it were guaranteed that they would have anonymity. It is something that needs looking at.

[Baroness Meacher]

The noble Lord, Lord Rosser, introduced his amendment extremely effectively and has said all that needs to be said, but I would hate the Minister to think that there was no support for it. Therefore, I simply say that we need these charges to be investigated and pursued, and if victims are not given anonymity, it seems an impossible task. I hope that the Minister will be able to support the amendment proposed by the noble Lord, Lord Rosser, as well as my amendment.

[Baroness Butler-Sloss]

I also support the amendment proposed by the noble Lord, Lord Rosser. I meant to say so earlier, but forgot.

--- Later in debate ---

[Baroness Williams of Trafford]

My Lords, I commend noble Lords who spoke to the amendments in this group, which show how seriously this House takes the practice of female genital mutilation. These amendments seek, in their different ways, to further our common objective of ending the abhorrent practice of female genital mutilation.

In moving Amendment 40BA, the noble Baroness, Lady Meacher, is, as she explained, seeking to give effect to a recommendation made by the Local Government Association. The association recommended that a specific offence of “inciting and condoning” the practice of female genital mutilation would make it easier to bring cases against those who advocate it, whether they reside in or are visiting the UK. As I hope Clause 64 demonstrates, the Government are open to identifying ways in which the law might be strengthened to help put an end to female genital mutilation and better to protect victims. We are already considering recommendations made by the Director of Public Prosecutions, one of which we will debate shortly, and we are looking carefully at the recent recommendations made by the Home Affairs Select Committee, to which the noble Lord referred. In this instance, however, I hope to persuade the noble Baroness that her proposed amendment is unnecessary as the behaviour that it seeks to criminalise is already covered and can more effectively be punished by existing provisions of the law.

The common-law offence of inciting the commission of another offence was abolished by Section 59 of the Serious Crime Act 2007 with effect from 1 October 2008, and replaced by the provisions in Part 2 of that Act, which I will refer to as the 2007 Act. They are as follows: intentionally encouraging or assisting an offence; encouraging or assisting an offence believing it will be committed; and encouraging or assisting offences believing one or more will be committed. To be convicted of encouraging or assisting an offence, it is not necessary for the anticipated principle offence to take place. In addition to these legislative provisions, if an FGM offence is actually carried out then anyone who aided, abetted, counselled or procured the offence would be liable as an accessory.

We believe that the existing law is sufficient to cover those who encourage or assist the practice of female genital mutilation and those who take part in an offence in a secondary way, whatever their reason for doing so. The offences in Part 2 of the 2007 Act also have extraterritorial application: they can cover those who encourage or assist, wholly or partly from this country, offences of female genital mutilation that they know or believe will be committed abroad.

[Baroness Meacher]

I am sorry to interrupt the Minister but I wonder whether I have understood this correctly. My understanding is that the current law talks about aiding a particular offence of FGM. What we are concerned about is the general promotion by community leaders and faith leaders of this practice. I am not sure whether this is the case, but my feeling is that perhaps the current law does not fully and effectively cover that point.

[Baroness Williams of Trafford]

I think I will get on to that further on. As the noble Baroness said, we need to go beyond the law and think about other aspects of how we stop this happening in our communities. I hope I will answer her question, but if I do not I am sure she will stand up again.

This possibly comes on to it: a person convicted of encouraging, assisting, aiding or abetting an offence is liable to any penalty for which he would be liable on conviction of the principle offence. So a person convicted of encouraging, assisting, aiding or abetting an offence of female genital mutilation would be liable, on conviction on indictment, to imprisonment for up to 14 years. Amendment 40BA, which provides a maximum penalty of seven years’ imprisonment for encouraging or assisting the promotion of the practice of female genital mutilation, would therefore have the effect of reducing by half the maximum penalty currently available for such behaviour.

The noble Baroness is, of course, right that the long-term and systematic eradication of FGM in the UK will require practising communities to abandon the practice themselves. While the criminal law can play a part in this, the recent Home Affairs Select Committee report quite properly also pointed to the need for more effective engagement with communities to persuade them to abandon the practice. To this end, the Government are spending £100,000 on the FGM community engagement initiative. Charities were invited to bid for up to £10,000 to carry out community work to raise awareness of FGM among women who have already been affected by FGM and young girls at risk, as well as men. We are now funding 12 organisations to deliver community engagement activity, and we will continue to work with civil society organisations to examine how we can support and facilitate their engagement with communities in the UK. It is noteworthy that in its report the Home Affairs Select Committee made no recommendation in favour of a new offence of promoting or encouraging FGM.

I now turn to Amendment 40CA. As the noble Lord, Lord Rosser, has explained, this amendment would extend to the victims of FGM the same anonymity that already applies to the alleged victims of many sexual offences.

[Baroness Meacher]

Well, the Minister did say that I could stand up again if she did not answer my point. I was listening very carefully to her words, and they still related to a specific offence of FGM, whereas this amendment is about its general promotion—for example, in a faith leader’s sermon—which is a different thing. I only ask the Minister if she could take this back and consider it. I have said enough, and I do not want to interfere with her answer to noble Lords.

[Baroness Williams of Trafford]

I shall certainly go back and think about what the noble Baroness has said. There is no provision in law for condoning something, and that is what she is suggesting. Perhaps I could clarify it with her further. I apologise if I have not quite answered her question.

Can we now move on to Amendment 40CA from the noble Lord, Lord Rosser? He talked about the same anonymity being applied to victims of FGM that already applies to victims of other sexual offences. This follows a recommendation by the Director of Public Prosecutions. FGM is an offence of a particularly personal and sensitive nature, and the DPP believes that it is important that its victims should know that their identity will be protected if a prosecution takes place. The DPP has argued: that this protection needs to be guaranteed, rather than discretionary; that it should apply from the outset, when an allegation is first made, rather than from the point of charge; and that it should last indefinitely. The director believes that such anonymity would go far to encourage the further reporting of this offence.

These are powerful arguments, and we are considering them carefully. In doing so, we will also take account of the fact that, in its recent report on FGM, the Home Affairs Select Committee endorsed the DPP’s proposal. There are some questions that we need to resolve, but I assure your Lordships that the Government see the force of the argument, and I am confident that they shall shortly be in a position to announce their conclusions.

Going back to the noble Baroness, Lady Meacher, I have just been given an additional note. I will read it out: “Where the general encouragement of FGM related to a specific act, constituting an offence would depend on the circumstances of the case, but we believe such conduct could be covered”. If that still does not answer her question I am happy to write to her. But on the basis of everything I have said, and in the knowledge that we can and should return to this issue on Report, I hope that the noble Lord, Lord Rosser, and the noble Baroness, Lady Meacher, will be content at this stage not to press their amendments.

[Baroness Meacher]

I thank the Minister for her careful response. I hope that the Minister will agree with me that she has not really answered the point. I am grateful, therefore, that she will take this back, and hope that we can perhaps have discussions with Ministers and officials to sort it out. On that basis I withdraw my amendment.

Amendment 40BA withdrawn.

Serious Crime Bill [HL]

Baroness Meacher Excerpts

Tuesday 8th July 2014 Lords Chamber

Moved by

[Baroness Meacher]

32: Before Clause 47, insert the following new Clause—
“Dissuasion Panels to prevent gang-related violence and drug-dealing activity
(1) A police officer may refer a person aged 14 or over to a Dissuasion Panel under this section if the following two conditions are met.
(2) The first condition is that the officer is satisfied on the balance of probabilities that the person has engaged in or has encouraged or assisted—
(a) gang-related violence; or(b) gang-related drug-dealing activity.(3) The second condition is that the officer thinks it is necessary to make the referral for any of the following purposes—
(a) to prevent the person from engaging in, or encouraging or assisting, gang-related violence or gang-related drug-dealing activity;(b) to protect the person from gang-related violence or gang-related drug-dealing activity;(c) to determine whether the person is drug dependent and may benefit from drug treatment.(4) A Dissuasion Panel must be comprised of at least three people from the following backgrounds, with preference given to professionals with prior knowledge of the individual—
(a) medical, including mental health;(b) social work;(c) legal;(d) any other profession that the court believes will be useful and as it directs.(5) The Dissuasion Panel will—
(a) assess the individual’s personal circumstances,(b) consider whether these have impacted on the activities at subsection (2), and(c) determine whether interventions are needed to—(i) prevent the person from engaging in, or encouraging or assisting, gang-related violence or gang-related drug-dealing activity;(ii) protect the person from gang-related violence or gang-related drug-dealing activity;(iii) address drug dependency.(6) Following assessment of a person by a Dissuasion Panel under this section, the Panel may—
(a) make no further intervention; or(b) require the respondent to do something which they reasonably believe will—(i) prevent the person from engaging in, or encouraging or assisting, gang-related violence or gang-related drug-dealing activity;(ii) protect the person from gang-related violence or gang-related drug-dealing activity;(iii) address drug dependency.(7) Requirements may include, but are not limited to—
(a) treatment for those who are drug dependent;(b) counselling;(c) education;(d) training;(e) reporting to the Panel for review.(8) If the person does not agree to the proposed requirements they will be referred to court for alternative action under section 34 of the Policing and Crime Act 2009, as introduced by section 47 of the Serious Crime Act 2014.
(9) At any review by the Dissuasion Panel, the Panel may—
(a) permit the contract to continue with its current terms;(b) vary the contract by—(i) adding a requirement; (ii) removing an existing requirement;(iii) amending an existing requirement;(c) cancel the contract and refer the person to court for alternative action under section 34 of the Policing and Crime Act 2009, as introduced by section 47 of the Serious Crime Act 2014.(10) If the person breaches the contract, he or she will initially be referred back to the Dissuasion Panel who may—
(a) permit the contract to continue with its current terms;(b) vary the contract by—(i) adding a requirement;(ii) remove an existing requirement;(iii) amending an existing requirement;(c) cancel the contract and refer the individual to court for alternative action under section 34 of the Policing and Crime Act 2009 as introduced by section 47 of the Serious Crime Act 2014.(11) For the purposes of this section, something is “gang-related” if it occurs in the course of, or is otherwise related to, the activities of a group that—
(a) consists of at least three people, and(b) has one or more characteristics that enable its members to be identified by others as a group.(12) In this section “violence” includes a threat of violence.
(13) In this Part “drug-dealing activity” means the unlawful production, supply, importation or exportation of a controlled drug.
(14) “Production”, “supply” and “controlled drug” have the meanings given by section 37(1) of the Misuse of Drugs Act 1971.”

[Baroness Meacher (CB)]

My Lords, I rise to move Amendment 32 and to speak also to Amendments 33 to 39, all of which are probing amendments. I emphasise that we are presenting quite a detailed proposition. The new clause was drafted by a lawyer from Release at my request. Neither she nor I claim that every word will be approved by government lawyers. We ask for your Lordships’ indulgence on that. I am grateful to the Minister for the meeting we had yesterday to discuss these amendments. It was extremely helpful.

I shall deal quickly with Amendments 33 to 39. They are substantially consequential on the new clause and I do not want to take the time of the House to discuss them in any detail. The exception is Amendment 34, which replaces the lower standard of proof with “beyond reasonable doubt” as the basis for injunctions. Any order of a court which could involve penalties should, in our view, be based on the criminal standard of proof. We are simply asserting that and I shall not debate it. Amendments 38 and 39 also relate specifically to injunctions and ensure that the requirements or prohibitions spelled out in an injunction relate specifically, in Amendment 38, to,

“engaging in, or encouraging or assisting, gang-related violence or gang-related drug-dealing activity”

and in Amendment 39, to

“protect the respondent from gang-related violence or gang-related drug-dealing activity”.

I shall be interested in what the Minister has to say about those amendments, but I shall focus my remarks more generally on Clause 47 and specifically on the new clause.

We understand the objective of Clause 47 and are not arguing against the granting of injunctions in a number of situations envisaged by the Government. Our concern is that the injunctions referred to in Clause 47 and in the Policing and Crime Act 2009 require the young person to go to court where the injunction may be issued. We discussed this issue yesterday with the noble Lord. The involvement of the court in our view is an extremely costly and in many cases unnecessary process. It is also a process which criminalises the young person and makes it harder for them to return to normal life and earn a living.

We understand that an injunction may place a range of prohibitions and requirements on the young person, including the requirement to participate in rehabilitative activities. We realise that they are not just blunt instruments. We welcome the requirement in the statutory guidance on the implementation of gang injunctions of 2011 that the body proposing to apply for the injunction must consult the youth offending team and may also consult schools, probation and other bodies. Local authorities also have an obligation under the National Health Service and Community Care Act 1990. If a young person may be suffering from drug, alcohol or mental health problems, local authorities must have regard to that.

--- Later in debate ---

[Lord Taylor of Holbeach]

My Lords, I am grateful to the noble Baroness, Lady Meacher, for explaining her thinking behind these amendments, and to noble Lords for taking part in this interesting debate. I am also grateful to the noble Baroness, Lady Meacher, for coming to see me yesterday, when we had a good discussion, so that I could understand what she wanted to achieve through her amendments on tackling drug dependency. I know that she takes a strong interest in this issue. We have often discussed drugs policy in this Chamber while wearing other hats. I recognise that her intention is to place a stronger focus on addressing drug dependency and on meeting the needs of vulnerable individuals who may become involved in gang-related violence and drug dealing. Therefore, I welcome this opportunity to discuss these issues.

However, as my noble friend Lord Elton indicated, gang injunctions are a much wider issue than that of just drug abuse. Drug abuse can be an element of gang activity but gang injunctions go much further than drug abuse alone. I hope that I can help noble Lords by talking about what the Government are doing to tackle drug-related offending and reoffending. The Government strongly support local investment in integrated offender management approaches, including identifying drug-using offenders and directing them to treatment. This is going on now. The Government are also: piloting drug recovery wings, focused on abstinence and connecting offenders with community drug recovery services on release; increasing the number of drug-free environments and piloting payment by results for drug and alcohol recovery services; testing a new “through the gate” model for substance misuse services to complement the introduction of transforming rehabilitation proposals; and developing and testing liaison and diversion services in police custody suites and at courts. I mention these initiatives because I do not want it to be assumed that no effort is being made at a local level to try to make drug users’ lives better. A great deal of effort is being expended in this area.

The expansion of activities covered by gang injunctions is not a substitute for seeking the prosecution of someone for a serious crime such as drug dealing. However, there are instances where a gang injunction may help prevent respondents engaging in gang-related drug activity or protect people being further drawn into such activity, which is particularly important for children, girls and young women.

Amendment 32 introduces the concept of dissuasion panels with the purpose of assessing the personal circumstances that could have led a person to engage in gang-related violence or gang-related drug-dealing activity. The panels would be composed of persons from a medical, legal or social work background. The amendment also confers powers on these new panels to impose requirements on an individual to prevent them engaging in the gang-related violence or gang-related drug-dealing activity, to protect the individual from such violence or activity, and to address drug dependency.

Although referrals to a dissuasion panel appear to be discretionary, the tenor of the proposed new clause seems to be to prevent an application for a gang injunction being considered by a court until the case has been referred to the dissuasion panel—I think I heard the noble Baroness aright in that regard—and the person concerned declines to abide by any requirements imposed by the panel. The result of the proposed new clause would be the introduction of a two-stage process. While I have considerable sympathy for the outcome the noble Baroness is seeking to achieve, I believe that interjecting a dissuasion panel into the process applying to a gang injunction is unnecessary.

[Baroness Meacher]

I should make it clear that the amendment proposes that only if a police officer identifies drugs as a problem for the individual concerned will they be referred to the dissuasion panel. If they have engaged in violence and there is no indication of drugs being involved, then, of course, they will go straight through to the court.

[Lord Taylor of Holbeach]

I am grateful to the noble Baroness for that explanation but I do not think that it totally weakens the argument I am trying to make for adopting a holistic approach to gang activity, which is contained in the gang injunctions. An individual’s personal circumstances leading to his or her involvement in gangs are already part and parcel of the matters taken into account as part of the gang injunction process. The Policing and Crime Act 2009 includes a consultation requirement. This requires the applicant to consult any local authority, chief police officer and other body or individual that the applicant thinks it is appropriate to consult. The Government’s statutory guidance on gang injunctions—we are considering gang injunctions in the Bill—published in 2010, stresses this point and suggests that the consultation process may include voluntary or support services working with the respondent and/or their family as well as the respondent’s school or housing provider, among others.

I agree that it is essential to take into account mental health or substance misuse issues, as these can be very relevant to someone’s involvement in gangs, together with any other personal circumstances, and this is already the case as part of the application process for a gang injunction. I also agree that it is important to stress this point further. However, I believe that the best place would be in guidance rather than introducing an additional statutory layer to the process. The guidance on gang injunctions is currently being revised and will be reissued in the autumn, as I explained to the noble Baroness yesterday. The revised version will make clear that the consultation process should include medical practitioners where appropriate and any other relevant professional who may assist in determining the individual circumstances of the case, and in particular whether substance misuse or mental health issues are factors that need to be taken into account.

New subsection (7) of the proposed new clause stresses further the point that requirements to prevent or protect a person from gang-related violence or drug dealing may include treatment for drug dependency, counselling, education or training. Gang injunctions are intended to help respondents leave the gang and may already include positive requirements such as the ones highlighted in Amendment 32 that work towards this end. The statutory guidance encourages applicants to be creative about helping respondents to leave the gang and specifically suggests that anger management sessions, coaching, counselling or other behavioural sessions may be appropriate. The revised guidance will stress further the positive requirement element of the gang injunction as a way of helping break away from gang-related violence, which is one of the elements we are seeking to address, and/or drug dealing.

--- Later in debate ---

[Lord Taylor of Holbeach]

I am not in the position to provide the figures that my noble friend asked for, but certainly when we study the Portuguese system and documentation I will make sure that I write to the noble Lord—and indeed to all noble Lords who have spoken in this debate. It will be useful to share that information.

My noble friend is absolutely right. There are all sorts of reasons why people belong to gangs. Fear is one of them. I have made two visits now to Brixton to see how territory, people and circumstance combine to encourage the existence of gangs. We need to be proactive in the way in which we deal with this problem. It causes abject misery through drug dependency; it causes crime through theft; it causes violence; and it causes unnecessary loss of life, as much of the violence can result in fatalities. All of that needs to be addressed in any policy that deals with gangs.

That is why we need a process. In my view, gang injunction lies at the heart of that process. I would be reluctant to dilute that but it can be informed by processes that can be imported from elsewhere. I hope that I have given some idea of my thinking about the issue and I hope that the noble Baroness, as I have said already, will withdraw her amendment.

[Baroness Meacher]

I thank the Minister for his very considered reply, and also give a special thank you to the noble Lord, Lord Elton, for his thoughtful intervention. I assure him that one of the key points in the Portuguese system is indeed the monitoring of the observance of the contract by the individual.

[Lord Elton]

I am sorry, but the word I used was “mentoring”.

[Baroness Meacher]

Indeed: mentoring. The idea in this system is that the referral to, for example, treatment ensures that the person is then mentored in the environment to which they are referred, whether it is residential or day-based or a number of different things. The idea is a comprehensive package for the individual, monitored—not mentored—by the dissuasion commission panel to make sure that the person really does receive all the elements that they have signed up to in their contract. As I said, it is not a soft option but it is an effective one. That is what we are seeking to at least discuss here. I am truly grateful to the noble Lord, Lord Elton, to my noble friend Lord Howarth for a very considered and important contribution, and to the noble Baronesses, Lady Smith and Lady Hamwee. This has been a helpful debate.

I need to mention in response to the noble Baroness, Lady Smith, that Britain still has one of the highest levels of drug addiction and problems in Europe. We are in the top three countries. The tougher the policies, the worse a country tends to do. That is just a basic rule across many countries and is well understood in the field.

I am very grateful indeed to the Minister for agreeing that the department will look at—and, I hope, undertake a cost-benefit analysis of—dissuasion panels as an option for dealing with people with drug dependence problems. That is the point: it is cost effective and it is worth it. It produces results and it is cheaper. Rather than seeing it as a sort of two-tier system, one should think of it as dissuasion panels taking an awful lot of work away from the courts and dealing with that work more effectively: that is perhaps a better mental set in relation to this problem. With my many thanks to all those who have been involved, we will undoubtedly come back to this and, I hope, have further discussions with the Minister. On that basis, I beg leave to withdraw the amendment.

Amendment 32 withdrawn.

--- Later in debate ---

Gang involvement is a distinct issue; police and community safety partners require a tailored civil order that they can use as part of their response to tackle local gang issues effectively. Gang injunctions for adults have been available since January 2011.

[Baroness Meacher]

I regret that the Minister referred to the speech of the noble Lord, Lord Howarth, as incoherent—or words to that effect. It seemed to me that the noble Lord’s arguments were incredibly powerful with regard to the lack of appropriate skills and training of the people in the courts, and the Howard League case he referred to. Obviously, as I said in my own speech, matters are made a great deal worse by cutting somebody off from their support systems and so on. I have to say that many of the comments made by the noble Lord, Lord Howarth, support strongly the case for having a professional tribunal or dissuasion panel to look at these cases, rather than leaving it to the courts, which do not appear to have the skills needed in these very difficult situations. I absolutely agree with the Minister that these are difficult problems; they have to be dealt with, but they have to be dealt with professionally, and I think that is the point the noble Lord, Lord Howarth, was trying to make.

[Baroness Smith of Basildon]

I had intended to speak in this debate. The noble Lord was uncharacteristically quick off his feet to respond to my noble friend. This clause requires some clarification and I am sorry that he seems quite upset about the probing questions that have been asked. I will listen to what he has to say. If the issues I intended to ask him about are not addressed, I will come back to him at the end of his comments, but there are some points of clarification that would be helpful in this debate.

Serious Crime Bill [HL]

Baroness Meacher Excerpts

Monday 16th June 2014 Lords Chamber

[Baroness Meacher (CB)]

My Lords, I applaud some aspects of the Serious Crime Bill and raise some questions in relation to others. It gives me great pleasure to follow the powerful and challenging contribution of the noble Lord, Lord Howarth.

First, the positives. As I said in my short contribution to the Queen’s Speech debate, I welcome Part 5 of the Bill, particularly, along with other noble Lords, the explicit reference in Clause 62 to amendments to the Children and Young Persons Act 1933 to define cruelty to children as including both physical and psychological injury. As my noble and learned friend Lord Brown mentioned, there have already been indications of that, but I think it is important and overdue that it is absolutely clear. Anyone who has worked closely with child abuse knows that emotional cruelty by either parent, and sometimes tragically by both, can cause long-term damage to the child at least as great as any physical abuse. Having said that, an already severely traumatised child will be damaged further by the process of criminal proceedings against either parent, particularly in view of the inordinate time that such proceedings very often take. A criminal charge against either parent must surely be a very last resort. That is the essence of what I am trying to say, and I am sure that the Minister is well aware of this point.

I hope that clear recognition in law of the offence of emotional cruelty to a child will focus more attention on that possibility and ensure that appropriate interventions are put in place to rescue the situation. I have certainly been aware of cases where all the focus is on any possible physical abuse, ignoring the far greater issue of psychological abuse that is staring people in the face. That is why I strongly support what the Government are trying to do, despite the real risks of criminalising parents.

Very often, emotional abuse may result from a parent’s mental health and addiction problems. A criminal sanction in such circumstances is clearly wrong. I would never condone such a response. The parent or parents need skilled and appropriate addiction or mental health treatment and perhaps also support in developing parenting skills following a diagnosis of the problem. I hope that we can discuss with the Minister what steps the Government are taking to ensure that the right interventions are provided to avoid the need for costly and damaging criminal proceedings wherever possible, and certainly whenever a parent is unwell.

Another issue is the 16 year-old cut-off point in defining children in this context. As any parent knows, 16 and 17 year-olds can be very vulnerable, particularly when abuse is likely to have occurred over a long period, albeit that it may have come to light only when the child reaches maybe 16 or 17. It seems wrong for protection to be denied to young people at that age. The consequences of emotional neglect are likely to come out just then in the form of depression, self-harm or suicide. What are we doing by giving that cut-off point?

A final point on Clause 62, which I am sure we will raise in Committee, is whether, as the noble Baroness, Lady Smith of Basildon, highlighted, the term “wilful neglect” is correct or too narrow. This point was raised by the Children’s Society and I support it, at least as a matter for debate.

On Clause 64, at this stage I only want to welcome the broadening of the scope of the Bill from permanent UK residents to include those who are living in this country but who may not have permanent resident status. Others have spoken at greater length on that point.

I now turn to Clause 47 concerning injunctions to prevent gang-related violence and drug-dealing activities. The principle of preventing activities can only, of course, be a good thing. However, I have serious reservations about the approach set out in the clause. The NGO release makes the point that injunctions as envisaged may not satisfy the basic requirement of reasonableness. This is particularly the case if they were to be applied to problem drug users.

Under Clause 47, a court may grant an injunction against a child of only 14 years, or just over that, if for example it is satisfied on the balance of probabilities that the child has been engaged in or has assisted gang-related drug-dealing activity. A gang, as I think the noble Baroness, Lady Hamwee, mentioned, can comprise just three people. Let us suppose that a 14 year-old has become a problem drug user, and in order to afford the drugs he needs to feed his dependency he and a couple of friends, also drug dependants, agree to sell some cannabis to their school mates on behalf of a thoroughly undesirable gang in the neighbourhood. Clearly the situation needs to be dealt with firmly—I do not doubt that—but an injunction will simply not work unless it is backed up by a treatment programme.

What do the Government plan to do to ensure that an injunction is not issued unless the child or young person is at the same time referred for appropriate treatment? I think that at this point the Minister would expect me to refer to the Portuguese model, and I shall not disappoint him. The Portuguese have had a system in place for 13 years that deals firmly but sensibly with problem drug users and which has produced some good results: far higher numbers of people—young people, in particular—are receiving treatment; drug users are representing a very much smaller percentage of the prison population; and most important of all, in a way, the number of teenage problem drug users has fallen under that regime. Social use may not have fallen—it is roughly in line with that in neighbouring countries—but surely the important thing is problem drug users: we do not want them in our country.

These are the sorts of results that I think that our country would celebrate if only we could achieve them, so a constructive way forward would be to link injunctions to an aspect of the Portuguese model. Would it not be wise for a young person suspected of gang-related drug-dealing activity, as it is referred to in the Bill, to be referred to a drugs commission? Again, if we followed the Portuguese model, the commission would comprise three people—a psychiatrist, a social worker and a lawyer—to determine whether the young person was a problem drug user and, if so, to refer that person for treatment.

The system in Portugal is not a soft one. If a person does not comply with the treatment and is simply a problem drug user, they will receive an administrative penalty, but if they are dealing they will at that point find themselves drawn into the criminal justice system. The important point here is that treatment comes first, and I hope for some assurance from the Minister that that will also apply in this country. The Clause 47 injunctions could be applied to anyone suspected of gang-related or other drug-dealing activity who is deemed by the commission not to be a problem drug user. In other words, if they are playing around with drugs and find themselves drawn into a gang, then indeed a clear injunction might be very helpful.

I shall refer only briefly to Part 4. I simply want to ask the Minister how the Government will prevent the new powers to seize, detain and destroy drug-cutting agents from impacting on genuine businesses that use the same substances for medical products for human or veterinary use. No doubt we will return to this in much more detail in Committee, but that is all I want to say today.

In conclusion, the Bill has valuable sections, but we could radically improve it through our discussions with Ministers and through amendments in the coming weeks, as various noble Lords—and, I hope, I—have indicated.

--- Later in debate ---

[Lord Taylor of Holbeach]

My Lords, this has been a good debate. Even though the Bill itself has been widely welcomed and there has been general agreement about its purposes, noble Lords have raised matters which we will be required to resolve and deal with in Committee. In handling this Second Reading debate, I will do my best to answer as many of the questions as I can. We have strayed a little; I am thinking in particular of my noble friend Lord Blencathra’s contribution regarding his communications data Bill, while the noble and learned Lord, Lord Brown of Eaton-under-Heywood, gave my noble friend Lord Faulks some indication that he might be troublesome on the Criminal Justice and Courts Bill that is to come. In the mean time, we can all agree that the serious and organised crime which this Bill is designed to address is a significant threat. We must equip the National Crime Agency, the police and others with the necessary powers to counter that threat.

We can also agree that we need a robust body of law to protect children from harm. Passing new laws will not, of itself, change anything on the ground. The noble Baroness, Lady Smith of Basildon, and the noble Lord, Lord Rosser, emphasised that, as did many other noble Lords. As we move from clause to clause, noble Lords will want to test whether the provisions of this Bill provide for adequate enforcement, as well as for the legislative changes that we are proposing.

A number of noble Lords have properly and helpfully used this debate to set out some of these issues. It is striking that many contributions have related to Part 5, concerning child cruelty and female genital mutilation, but it is not surprising given that so many Members of your Lordships’ House are committed to enhancing the protection and life chances of children. In responding to some of the specific points raised, I will start with these provisions. I thank my noble friend Lady Brinton for her contribution; she is very keen that we scrutinise these aspects. The noble Lord, Lord Elystan-Morgan, suggested that we should brush away the Victorian cobwebs which surround this area.

The Government accept that the current offence of child cruelty in Section 1 of the Children and Young Persons Act 1933 is still effective and that the courts are able to interpret it appropriately. We acknowledge that some of the language is outdated and that the law may be easier to understand if it is updated and clarified. That is a reasonable approach to take. It is why we are amending the 1933 Act to make it absolutely clear that children subject to cruelty likely to cause psychological suffering or injury are to be protected by law. My noble friend Lady Hamwee and the noble Baroness, Lady Meacher, questioned why the offence applies not to 18 year-olds but only to those up to the age of 16. We recognise that there are circumstances in which people of 16 and 17 require protection. Young people over 16 are lawfully able to be married and are generally deemed capable of living independently of their parents. They could themselves be parents or carers of a person under 16. Those under the age of 16 are generally more vulnerable and more dependent on those who care for them. That is why Section 1 focuses on protecting those under 16, though it is not to deny the vulnerability of those who are older than that.

With regard to Clause 62, the noble Baroness, Lady Meacher, asked that for child cruelty offences prosecution should be the last resort. I agree totally with that view; prosecution is a last resort, and in cases regarding children Section 1 of the 1933 Act is really only one part of a comprehensive legislative framework for protecting children. The role of social workers and partners in caring for young children is to protect the child and to support the parents to do just that. Our proposed changes to Section 1 of the 1933 Act will not change that responsibility.

[Baroness Meacher]

My comments on this area did not really have to do with whether the legislation was adequate; rather, they were to suggest that we need to discuss what sort of support will actually be available for these children and their parents, particularly because—this is a slightly political point—there are massive cuts to local authority services and a risk that services will not be available along the lines that I was suggesting. If you find a parent emotionally abusing a child and causing severe psychological damage, there may be nothing between no intervention and some sort of criminal sanction. My point was about trying to look at whether guidance or something needs to be in place to ensure that the criminal route really is the last resort. I think that the Minister will understand what I am trying to get at.

[Lord Taylor of Holbeach]

I understand exactly what the noble Baroness is saying. All I will say is that at every point at which I have been taking Home Office legislation through the House, these sorts of points have been made. I hope that I have been able to emphasise that it is exactly the points that the noble Baroness has been making that are uppermost. We are urging local authorities and those with responsibility for the welfare of children to have a high regard for their role in preventing abuse, and indeed for detecting it. As someone mentioned earlier—I think it was my noble friend Lady Hamwee—it is schools and a whole series of individuals with responsibility for the welfare of children, in terms of their general activity of support, that are important to make success of legislation such as we are bringing through. It puts legislation in context to see it being a supporting pillar of a caring society, does it not? That is what we are seeking to do with this legislation.

That applies to FGM as well, on which we have had some really good contributions. In welcoming the measure, the noble and learned Lord, Lord Brown of Eaton-under-Heywood, said that more should be done to tackle this issue. Of course successful prosecutions are the key to stamping out FGM, and the DPP has announced the first prosecutions while the CPS is also considering 11 other cases. However, we agree that legislation cannot in itself eradicate FGM; it is important that we change the law where necessary, but there are other pressures that we can bring to bear. I note the robust comments by my noble friend Lord Blencathra in this regard and indeed the suggestion of my noble friend Lord Elton, both of which I think are worthy of our consideration when we come to the clauses in Committee.

The noble and learned Lord, Lord Hope, asked why the new offence of the possession of paedophile manuals does not extend to Scotland. This provision does not relate to reserved matters and, as such, under the Sewel convention, we would legislate here at Westminster only with the consent of the Scottish Parliament. We have discussed the provision with the Scottish Government and they have indicated that they will monitor the new offence and then take a view on whether to bring forward a similar offence in the Scottish Parliament. If, however, they change their mind before the passage of this Bill is complete then I am sure this House, and indeed Parliament in general, would consider such a request favourably as part of the legislative process.

Parts 1 and 4 of the Bill, as I have indicated, ensure that the National Crime Agency and others have the powers that they need to pursue relentlessly, to disrupt and to bring to justice those who commit serious and organised crime. We heard an excellent speech from my noble friend Lord Paddick, who informed our debate by drawing on his experience of policing. He and other noble Lords, including the noble Baroness, Lady Smith of Basildon, and my noble friends Lord Bourne and Lord Blencathra, pointed to the importance of ensuring that confiscation orders made under the Proceeds of Crime Act are robustly enforced. Serving time in prison does not excuse the liability to compensation. People who have not paid their compensation orders are still liable for them and will still be pursued because, as was said during the debate, the whole point of the exercise must be to deprive criminals of their ill-gotten gains. That is the fundamental point of these measures. The measures in Part 1 of the Bill, which I set out, will assist in that regard.

Let me deal with some of the particular points made. The noble Baroness, Lady Smith, said that more needs to be done to strengthen default sentences. The Bill includes significant increases in the length of default sentences where an offender fails to pay higher-value confiscation orders. As a result, an offender who defaults on a confiscation order of more than £10 million will in future serve up to 14 years in prison rather than five years as now. The noble Baroness asked whether that was the right figure. We will no doubt be monitoring closely the impact of these changes, and provisions in the Bill enable us to make further changes to the default sentencing framework through secondary legislation. My noble friend Lord Blencathra referred to Clause 36, which relates to the making of confiscation orders in magistrates’ courts, for example. We agreed that the existing £10,000 threshold may be too low, which is why we have included an order-making power in the Bill to increase this figure through secondary legislation. I trust that that will be welcomed by my noble friend and I expect that we will be debating these issues in Committee.

The noble Baroness, Lady Smith, asked whether enough groundwork was being done to ensure that the Northern Ireland Assembly agreed the necessary legislative consent Motion. I understand her interest in making sure that that is the case. We have worked very closely with the Minister of Justice, David Ford, on the development of this Bill in general. The provisions in Chapter 3 of Part 1 have been included at his request and he has agreed, in principle, to pursue a legislative consent Motion for them. It is now a matter for David Ford to take forward, but we are ready to assist him in any way that he would consider helpful.

The noble Lord, Lord Harris, asked about the distributing of moneys under POCA. One of the key incentives of our criminal finances improvement plan, which is overseen by the Criminal Finances Board, is to ensure that the asset recovery incentivisation scheme works effectively. To this end, we intend to review the scheme later this year to ensure that it works to support front-line agencies in the way that he has suggested.

A number of noble Lords mentioned the participation offence; I expect that we will be returning to this in Committee. This new offence is designed to capture anyone who takes part in the criminal activities of an organised crime group. It is not just about corrupt lawyers and accountants; it is about anyone who is involved in criminal activities. Taking part in such activities will in future be a criminal offence rather than just an issue of professional misconduct. For the regulated sector, which would include lawyers and accountants, failing to report someone else who is known or suspected to be involved in money-laundering is a criminal offence, but that is not the same as an individual themselves taking part in the activities of the crime group. We will shortly be meeting with the Law Society and the Institute of Chartered Accountants in England and Wales to discuss their concerns. I am sure that elements of the new offence will be scrutinised when we come to them in Committee.

The right reverend Prelate the Bishop of Derby wanted to hear more about other strands of the serious and organised crime strategy, namely the three Ps of Prevent, Protect and Prepare. I agree that they are just as important as the Pursue strand. The measures in the Bill to improve the operation of serious crime prevention orders and gang injunctions are designed to prevent people from engaging in serious and organised crime. However, here, as elsewhere, prevention is better than cure. I noted very much the right reverend Prelate’s comments about involving the police, local government, education and faith groups, in the last of which he has shown what can be done, particularly in local circumstances.

The noble and learned Lord, Lord Hope, queried the draft of new Section 36A of the Serious Crime Act 2007, which is concerned with the standard of proof that is applicable to proceedings in Scotland in relation to serious crime prevention orders. The noble and learned Lord has made a telling point in contrasting the approach taken in the Bill with that taken in the 2007 Act as it applies to England and Wales. I undertake to consider the matter further before Committee.

The noble Lord, Lord Howarth, felt that the Bill reinforced, in his view, another big push in a failed drugs strategy. I know that the noble Lord is totally sincere in his view that drugs are an iniquity and I know that he does not favour drugs but takes a more liberal view towards those who find themselves in a world of drugs. I think that he is wrong. Drugs are illegal because scientific and medical analysis has shown that they are harmful to human health. They can destroy lives, as we all know, and cause misery to families and communities. The drugs strategy—reducing demand, restricting supply, building recovery and supporting people to live a drug-free life—aims to take a balanced, evidence-based approach to tackling drug use that works within international conventions. We are confident that our approach is the right one. Drug use has fallen to its lowest level since records began in 1996. People going into treatment today are far more likely to free themselves from dependency than ever before.

The noble Lord, Lord Harris, and my noble friend Lord Wasserman asked about the responsibility for counterterrorism policing. Our position has not changed. We will take a decision following a review and conduct that review only when the NCA is more established. I remind the House that the NCA came into being only last October.

Finally, the noble Lord, Lord Sherbourne, referred to the provision in Clause 65 that extends extraterritorial jurisdiction for offences under the Terrorism Act 2006. That is an important provision to help further to protect the country from those who commit acts preparatory to terrorism or undertake terrorist training abroad.

I have a further point for the noble Lord, Lord Rosser. The Government are making £860 million-worth of investment over five years to 2016 through the national cybersecurity programme and have so far committed £72 million of that programme over four years to build law enforcement capabilities to tackle cybercrime.

I have been overtaken by time and a lot of issues have been raised. I hope that I will be able to help noble Lords by writing to them in the period between now and Committee. I will try to take the opportunity at that stage to reinforce those views so that they are on the record. In the mean time, I thank noble Lords and commend the Bill to the House.

Queen’s Speech

Baroness Meacher Excerpts

Monday 9th June 2014 Lords Chamber

[Baroness Meacher (CB)]

My Lords, I shall say a little about the modern slavery Bill and the Serious Crime Bill and refer briefly to the Government’s drug policy reviews.

I welcome the modern slavery Bill and applaud the commitment and hard work of my noble and learned friend Lady Butler-Sloss and Frank Field in the other place in convincing the Government to introduce the Bill, and indeed I congratulate the Government on recognising the importance of the issues raised. I understood when we debated the need for independent legal guardians for all trafficked children, in the context of the Immigration Act, that the Government would be reviewing the need for guardians in the context of this Bill. I understand that the Government are running trials, but can the Minister explain whether these trials will provide guardians only for children identified as having been trafficked? If so, that will only scratch the surface of the problem, as I am sure he recognises.

The Minister will know that trafficked children are generally not recognised as such until they have been through the criminal justice system—indeed, often not until they become adults. In the mean time, many become embroiled in immigration and criminal proceedings due to the actions of others. If guardians are available only to the minority of trafficked children who are recognised as trafficked from the start, the provision will exclude the great majority. The inclusive provision of guardians for all unaccompanied children assessed as needing them would include those children who are vulnerable for a variety of reasons, including those who are not immediately recognised as having been trafficked when they arrive in the country.

Of course, children fleeing war and persecution, as well as those who are victims of trafficking, cannot cope alone with the complex legal and social systems that they face on arrival. They probably do not have the language, and do not have anyone about—it is a very frightening situation for all of them. All these children are likely to suffer mental health problems and should be regarded as vulnerable. The UNCRC has made clear the responsibility of signatory states to provide guardians for unaccompanied and separated children, not specifically trafficked ones. I hope that the Minister can assure the House that the modern slavery Bill will provide for independent legal guardians with statutory powers to be allocated to all separated migrant children.

The Children’s Society has provided a most helpful briefing raising a further point. Can the Minister give us an assurance that the Bill will create a specific offence of child trafficking and exploitation, spelling out the most common forms of these crimes? I believe that these are just not familiar to a lot of the professionals who will be involved in these cases.

Turning to the Serious Crime Bill, I applaud the Government’s decision to clarify the Children and Young Persons Act 1933 to make explicit that emotional cruelty which is likely to cause psychological harm to a child is an offence. This recognition of emotional cruelty is long overdue and very important. In the past, a physical assault on a child has rightly been recognised and action taken, but the sad reality is that long-term emotional neglect or cruelty, often in fact by mothers, can be even more damaging to a child’s mental health. The UK has been one of the only countries in the world failing to recognise emotional neglect as a crime.

However, recourse to the law for emotional or physical abuse should of course be the last resort. The Children’s Society rightly points to the need for preventive measures, including support in developing parenting skills and better interventions with parents with drug or alcohol problems. As the Minister knows, this is an issue close to my heart. If a parent is found to have a drug addiction or other mental health problem, treatment must be the right answer, not a resort to the law. While I welcome the new proposals, I am very concerned that people who are addicts are then subject to criminal action not only for the addiction but also for this other aspect of their lives.

It is important to welcome the Government’s review of international drug policy developments and the review of policy in relation to new psychoactive substances. Neither of these two pieces of work is complete, so I understand that there is nothing on those issues in the Queen’s Speech. However, I am sure that the Government are undertaking the reviews for a purpose, and I hope that the Minister can give the House some hope that before the election they will introduce sensible evidence-based reforms that would provide a safer world for our children.

Misuse of Drugs Act 1971 (Amendment) (No. 2) Order 2014

Baroness Meacher Excerpts

Monday 12th May 2014 Lords Chamber

[Baroness Hamwee (LD)]

My Lords, I have difficulties with both the substance of the order and the amendment. It seems that we may be in a world of policy-based evidence and an amendment that is being brought to the House because the Opposition are looking for something to object to without objecting to the ban itself. The matters identified in the amendment seem to be good reasons to oppose the ban, but the Opposition support it.

The ACMD not only recommended no change in the status of khat—that it not be controlled under the Misuse of Drugs Act—but set out a number of other recommendations dealing with local needs assessments; education and prevention initiatives; culturally specific and tailored treatment and recovery services; partnership working; addressing the problems through engagement and dialogue with the local community and interagency working; working through community safety partnerships; and regular monitoring and returns. It also made a specific recommendation about data to form the basis of future research. Those would themselves have formed a very good amendment, but that is not what is before us.

The ACMD was quite clear on the merits of the ban. The Secretary of State, on the other hand, seems to be saying—if I can summarise it—that since it is banned in the rest of the EU, it must be banned here. The ban was announced last July. Will the Minister tell the House what evidence there has been of the drug’s use since that announcement? Some time has now gone by. Indeed, it has been banned in the rest of the EU since January of last year, so if there are concerns, some of those might have come to light.

One of the reasons that we are given for the proposed ban is the risk of this country becoming a regional hub or a haven for criminals. I was interested to read some of the characteristics of khat, one of which is that it has a very short life. The active ingredient declines a couple of days after being picked; it needs to be fresh for it to have an effect. I have no doubt that the users of it, as consumers, are as demanding as consumers of most products, so is it a genuine concern that we would become a regional hub, if what might be distributed through the hub has, in fact, lost its efficacy by the time it is traded on?

The risks identified from a ban include the users moving towards more addictive, harmful and expensive substances; a black market; and organised crime stepping in to supply the drug and criminalising—inevitably—the users. I appreciate the proposals about applying an escalator to how offences are dealt with, but we would be criminalising users and suppliers, and we know that one crime leads to another.

Of course, I am aware that the Minister in the Commons and the Home Secretary, in her response to the Home Affairs Select Committee, have presented the matter as finely balanced, and that the communities where use is widespread are divided. Looking at the reports, I have been wondering how broadly women in those communities want a ban and men do not. I wonder whether that is rather simplistic reporting. I find it difficult to believe that a ban would instantly lead to such a considerable behavioural change and make model husbands of former users. I have my doubts about that. There is one view that clearly comes from the Somali community, and that is that they would prefer their children to use khat rather than alcohol or tobacco. The ACMD has reported that the use of khat has been decreasing over recent years.

In the Commons, there was very little discussion—nothing from the Minister, I believe—about the broader issues of drugs policy or the wider context, to which reference has just now been made, of the economy of Kenya and the potential instability and risks associated with that. I would be very wary of banning something of cultural significance, with the risk of driving a wedge between the police and the already quite marginalised communities. The references in the reports to the use of khat at weddings made me think of sugared almonds at weddings in some other traditions and how one might respond to any suggestion that that tradition be changed. In summary, I am not persuaded by the orders, but I am not persuaded by the amendment: I would leave the balance as it is.

[Baroness Meacher (CB)]

My Lords, I support the amendment to the decision of Home Secretary to ban khat under the Misuse of Drugs Act 1971, although I identify with the comments of the noble Baroness, Lady Hamwee, in relation to the amendment. There are very good reasons to oppose this ban. I make clear at the outset that if khat presented a serious health risk to users, I would support a ban on the importation and sale of the substance. On the other hand, we now have sufficient evidence to show that banning the possession and use of psychoactive substances—even dangerous ones—is counterproductive. Of course, the excessive use of khat by small groups of Somalis needs to be tackled; the question is how. We know that bans on possession and use delay treatment. They divert resources away from public health and education initiatives and into the criminal justice system. We also know that a criminal record is extremely damaging to anyone’s employment prospects. The criminalisation of these people will therefore tend to lead them to continue with their drug habit or—if they ever get away from it—to return to it. There are very severe and negative consequences of banning, particularly on the consumer side.

That is the evidence framework within which I have thought about the Home Secretary’s decision to ignore the advice of the ACMD and ban not only the supply but the possession and use of khat. This is a most serious decision for the communities involved, people principally from Somalia, Yemen and Ethiopia. The small but vociferous group of campaigners from Somalia believe that a ban on khat will get rid of the problems as they perceive them—social problems within families and so on. In reality, those using khat will continue using the substance at a vastly increased price. The Home Affairs Select Committee’s ninth report suggested that a hundredfold increase in price could be expected from a ban on khat. The khat user who continued to use khat would also risk, as I said, a criminal record. The alternative, to which other noble Lords have alluded, is that khat would be replaced by alcohol in particular. We know that alcohol is far more dangerous and would have all sorts all sorts of consequences that khat does not have. Either alternative, therefore, would be much worse than the status quo. I am not suggesting that the status quo is wonderful, but it is nothing like as serious as the possible consequences of a ban. The idea that the household would have more cash to spend on food is, sadly, a delusion. Some women might see their husbands spending £25 on khat and think, “I could do with that to buy some shoes for the kids”, but it is a little more complex than that.

The ACMD had clear, scientific reasons for advising the Home Secretary that,

“the evidence of harms associated with the use of khat is insufficient to justify control and it would be inappropriate and disproportionate to classify khat under the Misuse of Drugs Act 1971”.

These are very strong words from the ACMD and, particularly, a council led by Professor Leslie Iversen, whom I know quite well and who is a highly regarded scientist known for his incredible moderation, gentleness and so on. He is not a wild man; if he allows such words to go forward to the Government, we really need to take note.

The two central findings concern the medical and social harms, as others have indicated. The ACMD concludes that khat has no direct causal link to adverse medical effects, other than a small number of reports of an association between khat use and significant liver toxicity—a small number and an association. In scientific lingo, as we know, “association” simply means that the two things tend to happen alongside each other. There is no indication of a causal link between the use of khat and medical consequences. On the question of anecdotal evidence of social harms, the ACMD concludes that its research into these has found no robust evidence that demonstrates a causal link between khat consumption and any of the harms indicated.

Professor Iversen emphasised in his letter to the Home Secretary that the council’s recommendations were based on a rigorous and systematic process of evidence-gathering and subsequent analysis of what was submitted and presented to it. In other words, as I understand it, the recommendations should not be set aside other than for matters of serious national security or national interest. Now my understanding is that the main reasons for the Home Secretary’s decision have nothing to do with medical and social risks, and are twofold. First, as others mentioned, Sweden and the Netherlands in particular have banned khat and would find it helpful if the UK took the same step in order to avoid this “hub”. The noble Baroness, Lady Hamwee, dealt very effectively with that point, bearing in mind the very short life of the substances within khat that people are interested in.

The other issue raised, which I find utterly peculiar, is that there is some relationship between khat use and terrorism. That is quite remarkable. I will deal with the terrorism issue very quickly. A very small trade in a perfectly legal, low-cost substance in a few BME communities is just not a serious candidate for a terrorist threat or interest. Indeed, the ACMD was not provided with any evidence of al-Shabaab or any other terrorist group’s involvement in the export or sale of khat, despite consultation with the relevant national and international official bodies. I understand that the Home Secretary has claimed that the ACMD would not have been aware of these things. However, it was aware of the people who are aware of them—and consulted them. The fact that the ACMD picked up nothing in this area should be taken seriously. On the other hand, banning a substance such as khat and increasing its value a hundredfold or more really might interest terrorists. Even on that count, this ban could be—and could be expected to be—counterproductive.

The first question one must ask on the hub possibility is whether the bans in these other countries are working. There is apparently no evidence that they are, or that they are even helpful. I would not expect them to be helpful. The idea that we follow other people simply because they want us to seems a little wrong.

I want to put a proposal with respect to khat. The Government introduced temporary-class drug orders for the purpose of controlling new psychoactive substances. I will not go on for very long on this but I want to put it forward. I applaud the Government for their policy. Its great strength is that these TCDOs do not criminalise the possession and use of these drugs while the TCDO remains in place. However, it provides for the ban of production and sale of substances that may prove dangerous. These orders were designed to enable the ACMD to analyse new drugs and determine whether a full ban under the Misuse of Drugs Act 1971 could be justified. The only possible justification given by the Government and Home Secretary—I emphasise that—for a ban of khat concerns the supply of khat to other European countries or supply involving terrorists, not that that point needs to be taken seriously. An order along the lines of a TCDO, which avoided criminalising users of khat, would fulfil the Government’s objectives while avoiding unnecessary and severe consequences for the BME communities affected.

The 12-month review proposed in the amendment would then evaluate a narrower issue: the supply ban and, for example, the price increase and illegal activity that will inevitably result. The ACMD could do that work, its findings could be put to the Home Secretary and, if the supply ban was seen not to be in the national interest, it could be dropped. If the ACMD recommended education and preventive initiatives, tailored treatments and other social interventions could then be funded instead of that money going into the criminal justice system. There is an awful lot to be said for that approach. The ACMD thought about this very carefully and that is what it came up with.

The above proposition is relevant even at this stage, if I may say so. We know that some 40% of legislation is never implemented. It is surely possible for the Government to implement only the supply side of their ban and defer—I hope indefinitely—the implementation of the ban on possession and use of khat. Such a plan would enable a more focused 12-month review, as I have already mentioned. I hope the Minister will be willing to take this idea away, even at this late stage: a supply ban only could be introduced and then evaluated to see whether it should continue.

--- Later in debate ---

[Lord Taylor of Holbeach]

I do not have those figures to hand. I think the noble Baroness will understand that, if this material is arriving here to be distributed to other countries, as I have illustrated, it confirms the view that this country is serving as a distribution hub in a way that would not have happened before those countries banned its use. That is the point which the Government have had to consider. The noble Baroness came to see us and we had a good and useful meeting, talking about issues that concern her. I will address these but I would like to consider the points made by other speakers first.

My noble friend Lady Hamwee wanted to know what the Somali network’s report had to say. An important aspect of this is that, according to testimony given by community leaders and mothers, several areas of a person’s life can be affected by khat use. Disagreements and frustration over drug use can cause family arguments and affect personal relationships; legal and health problems associated with khat use add to the strain on personal, financial and work relationships; and chewers of khat tend to be more inward looking rather than reaching out to others, fuelling further segregation. In other words, it can be anti-social in its impact.

The noble Baroness, Lady Meacher, rang me this morning to advise me that she wanted some assurances on this issue. I cannot give her the assurances that she is seeking but I can, at least, explain the Government’s thinking. She asked what the ACMD thought of our decision to control khat. The ACMD acknowledged the lack of robust evidence on whether khat caused medical or social harm. It understood that the scope of issues that the Government will take into account to make a decision on drug control would go beyond the remit of the committee itself. Before the decision was publicly announced, the Government discussed it with the chairman of ACMD, who accepted that we came to a different view on this occasion, based on consideration of the wider issues beyond those that were the immediate responsibility of ACMD.

The noble Baroness asked about temporary bans. They form part of the Police Reform and Social Responsibility Act 2011 but they are very different. Temporary class drug orders were introduced as a swift legislative tool to tackle the fast-paced emergence in the UK of psychoactive substances or so-called “legal highs”. I have debated these with the noble Baroness on other occasions. In essence, they are used where there is an urgent or significant threat to public safety or health. There is often very little evidence of the harm these drugs do, for the simple reason that they have been available only for a matter of months, if not weeks. Under a temporary class drug order, the advisory council has just 20 working days to advise and only looks at medical harms. Temporary bans are the exception, not the rule, and only last for 12 months. Khat is not a new drug where such swift, temporary action is demanded.

The role of advisors is to advise—

[Baroness Meacher]

Does the Minister accept that the whole point about khat is that the ACMD did look at the potential medical and social harms and concluded that they did not justify a ban? The supply-side issues, which Professor Iverson accepts may be slightly beyond the council’s remit, are separate. My point is that if you accept the ACMD’s conclusions that the medical and social harms are low and would not justify a ban—and it was very clear about that—the case for criminalising possession and use really is not there. Hence there is a value in something akin to a temporary class drug order: I was not suggesting that you literally translate it completely. Does the Minister accept that focusing simply on supply makes sense, in terms of the Home Secretary’s comments and the evidence available?

[Lord Taylor of Holbeach]

I cannot accept that. When I spoke to the noble Baroness earlier, I said that I did not think I would be able to give her much comfort. We did not reject the ACMD’s report. As I explained, the ACMD is there to advise on particular aspects but, in the end, Ministers have to make decisions and be prepared to stand by them.

I turn to the points made by the noble Baroness, Lady Smith of Basildon. She has considerable concerns that we have not made proper efforts to prepare affected communities for this ban. I want to reassure her that we have done exactly that. We acknowledge that this is a finely balanced decision that needs careful and extensive preparation at national and local level. Our plans, which have been worked up over a couple of months, are in place and are ready to be rolled out once the draft order completes its parliamentary passage. We are waiting on a decision of the House to approve the order today.

I ask the House to note that, although we took a different view from the ACMD, we took on board its recommendations for locally led health and community-based interventions to meet local khat needs and for monitoring the situation in communities. I know that the noble Baroness would like to have a review after a year. We see it as a matter of continuous review and are specifying that a close eye will be kept on the impact of the ban. In this, we are going beyond the usual approach to the monitoring of newly controlled drugs, to ensure that locally and nationally collected data provide an evolving picture after the ban.

Immigration Bill

Baroness Meacher Excerpts

Wednesday 12th March 2014 Lords Chamber

Moved by

[Baroness Meacher]

62: After Clause 33, insert the following new Clause—
“Domestic abuse and female genital mutilation
No charge may be imposed for health services—(a) relating to injuries sustained as a result of domestic abuse as defined in Home Office Circular 003/2013 “New government domestic violence and abuse definition”, or(b) relating to injuries sustained as a result of female genital mutilation as defined in the Female Genital Mutilation Act 2003.”

[Baroness Meacher (CB)]

In moving Amendment 62, I shall speak also to Amendment 62A. The purpose of Amendment 62 is to ensure that treatment for any injury resulting from domestic abuse or female genital mutilation is exempted from NHS charges even if the victim does not have permanent leave to remain, or indeed if her immigration status is not clear. I should explain at the outset that these are probing amendments and I understand from the Minister that these matters will be dealt with by the Department of Health in regulations. Having said that, this amendment provides an opportunity for this House to try to influence those regulations. I think that I am right that there will be no further opportunity to do that.

Clause 34 defines for the first time the term “ordinarily resident”. If the person is not ordinarily resident they may be charged for health treatment. If they have paid the surcharge they should be covered for health services but many other people are already living in this country—I understand in the realm of about half a million—who have not paid the surcharge and are eligible for NHS charges. Further, Clause 34 brings ordinary residents into line with permanent residents. That means that instead of being here with a visa for a settled purpose such as a job, a university course or to reunite with a spouse for a minimum of one year, an immigrant will need to be here for a minimum of five years in most cases before they are fully covered for healthcare. This is why Amendment 62 is important and relevant to health charges, as I understand it.

In his letter of 12 March, the noble Lord, Lord Taylor, said that short-term visitors and those without lawful immigration status will,

“continue to be liable to pay overseas visitor charges for secondary care treatment under NHS regulations”.

This is similar to the letter from the Minister for health quality, who said that,

“illegal non-EEA migrants and short-term visitors (under 6 months) will continue to be liable to NHS treatment charges as they are now”.

I am told that this is not precisely the case, as the National AIDS Trust’s excellent briefing points out. In fact, the Government plan to introduce new charges for primary care, apart from GP and nurse consultations, and for A&E services for this group and for any migrant who cannot show that they have paid the levy. The need to assess patient entitlement in primary care or A&E would be an unhelpful distraction in an emergency situation. This might be done after someone receives treatment—but that, too, is an alarming position for someone who may have little or no money.

In his subsequent note and his latest briefing, the Minister gave assurances about a number of vulnerable groups who will not be subject to the surcharge or charges for treatment under the NHS charging regulations. There is no mention of the victims of domestic violence or FGM in relation to either. Do the Minister and his colleague, the Minister for Health, intend to exclude these two groups from the surcharge and, in the case of those already here without permanent residence, from NHS charges? If not, it is a matter of great concern that the moral and humanitarian case previously accepted concerning these groups appears to have been set aside.

As to the practical difficulties in determining who the exemptions for domestic abuse and FGM would apply to, I understand that medical checks would be needed if these groups are to be exempt from the surcharge. I appreciate that could be problematic in the circumstances, but in the case of NHS charges for failed asylum seekers, irregular or undocumented migrants, short-term visitors and others without permanent residence, does the Minister not agree that if a patient in any of these groups has been domestically abused or damaged by FGM, they should not be charged for treatment? It would be helpful to have clarification on this point on the Floor of the House, if the Minister is able to give it, albeit that such provisions would ultimately be made in Department of Health regulations.

If irregular migrants and refused asylum seekers who would not have paid the surcharge cannot access primary care services, apart from GP and nurse consultations to address comparatively minor health problems, they will eventually present elsewhere—probably at an A&E department—at much greater cost, as I referred to in relation to an earlier amendment.

A different but important point is whether the NHS will be expected to report back to the Home Office if a patient’s migration status requires them to be charged for NHS services. There is a concern about this in view of the comment of the Home Office Permanent Secretary to the Home Affairs Select Committee that the Home Office intends,

“to improve its radar screen into the NHS”.

I find that rather chilling. If it became known that a visit to the doctor could lead to a report to the Home Office, people could be deterred from seeking healthcare. Can the Minister assure the House that this will not be the case?

The Government have previously recognised the important role of the NHS in identifying victims of abuse and helping them to recognise, consider and exercise their option to escape from that abuse. Also, in the case of FGM—where we have not had a single prosecution—the NHS is seen as probably the best hope of identifying perpetrators and providing evidence to support the prosecution case. I look forward to hearing the Minister’s view on that.

On Amendment 62A, the Government have agreed that no charge will be made for health services to victims of human trafficking. I am dealing with this issue separately because, in a sense, these people are in a different situation. The aim of the amendment is to put this commitment in the Bill and to require the Government to produce a strategy and procedures to ensure that the victims of human trafficking are promptly and effectively identified for the purposes of the clause. This is a probing amendment which I hope the Minister can endorse, thus assuring the House that there will be regulations in place to achieve its aims so that victims receive the necessary medical treatment. The UK would thus satisfy our international obligations.

According to the Catholic Bishops’ Conference, the UK Human Trafficking Centre shows that more than half—54%—of trafficking victims were not recorded by the national referral mechanism in 2011. UKHTC notes that people who have been trafficked are often treated as irregular or illegal migrants. They may, of course, have been given false, stolen or genuine but fraudulently obtained identity documents. They will most likely then be treated as immigration offenders despite not acting under their own volition. This is quite understandable but it will need attention to avoid this kind of thing happening.

As the Bill is currently worded, these victims would not be exempt from the charges for health services if they are in one of these obscure groups. Also understandably, people who have been trafficked and coerced into criminal activities are often treated as offenders rather than victims. They are unlikely to benefit from exemption from health charges. A 2013 report by Anti-Slavery International highlighted a lack of awareness of trafficking indicators among authorities. If these victims are not identified, they are likely to get a criminal record, go missing, be deported and be retrafficked. They become victims a second time round.

All this will increase the fear of victims and their suspicion of the authorities. Help with later investigations is less likely to be forthcoming. At the moment, the authorities rely on those who are trafficked to disclose their status quickly or face detention—and, for obvious reasons, often that does not happen. If not identified immediately on arrival, trafficking victims are unlikely to be identified subsequently, and hence the importance of subsection (2) of the amendment. There is a need for,

“a strategy and procedures to ensure that victims of human trafficking are promptly and effectively identified”.

We are particularly concerned about trafficked children. I understand that at the moment social workers receive no mandatory training in identifying a trafficked child. We know that in the context of the draft Modern Slavery Bill there is a commitment to roll out specialist training and other measures. Can the Minister give the Committee a commitment that rigorous enforcement of health charges will not be introduced until the safeguards associated with the Modern Slavery Bill are rolled out?

Let us get things in the right order. Does the Minister agree that before the planned safeguards are introduced, they will be put before the modern slavery commissioner, who is to be appointed under the modern slavery legislation? Indeed, to clarify these matters, can he provide the Committee with information about the planned timing of the introduction of the new enforcement rules for health charges and of the implementation of proposals in relation to the Modern Slavery Bill? I beg to move.

[Baroness Finlay of Llandaff (CB)]

My Lords, my noble friend Lady Meacher has introduced this group of amendments with great clarity. I have added my name to Amendment 62 and I will speak to Amendment 64. Other Peers who have added their name send their apologies for not speaking at this late hour. I do not want to add much more to what has been said about domestic abuse and female genital mutilation except to say that I have a major concern as to how this will actually work in practice unless these groups are exempt.

What happens if a girl comes into the country, her status is not established, and she has infected wounds? What happens to the girl who has been mutilated and has urinary and voiding difficulties or suffers chronic pain? What happens during pregnancy, when delivery can be incredibly complicated? If it is not properly managed, a woman may literally burst because scar tissue is not elastic. We recognise FGM as an absolutely awful form of abuse and it is shameful that there have not been prosecutions already. If we put these women into the charging category, we will almost reverse the message we have sent to society about this terrible act.

The other problem arises with domestic abuse. If a woman arrives at A&E with severe facial injuries including fractures to the bones of her face or her chest wall, they may be life-threatening. If her ribs have been stoved in, it may be a life-threatening injury such as a pneumothorax and treatment will have to begin straightaway. Emergency service personnel are going to be put into a terribly difficult position. Another problem is that, in the societies from which many of these women come, sadly they are not afforded the rights they have in our society, and they are not given the respect they deserve. I am fearful that there may be a tendency to blame the woman if attempts to stay fail because she is a burden on the man, thus making it more difficult for him to stay.

Amendment 64 is about people who are released from detention. Currently, people can receive treatment while they are being held in an immigration detention centre and the course of treatment will be ongoing when they leave, but this may not be the case in the future. The consequences will be particularly acute in the area of mental health. It is well documented that the experience of an immigration detention centre is damaging to the mental health of many detainees. Without ongoing support, those mental health problems will be exacerbated rather than ameliorated at the point of release. The problem we are faced with is where to set the boundary and how it will actually be implemented.

These are probing amendments, but when regulations come before the House we will not be able to amend them. We will be faced with either accepting or rejecting them. That is why we need to tease out these issues very carefully at this stage.

--- Later in debate ---

[Baroness Meacher]

I am sorry to interrupt the Minister. He understandably said that this was a matter for the Department of Health and therefore not really appropriate for discussion here. Can he assure the Committee that we will therefore have another opportunity to influence the design of these regulations, which will indeed determine whether people suffering with FGM, domestic violence and so forth will be excluded from health charges or not? That is a matter of great concern to many of us. If we cannot discuss it here, will there be another opportunity?

[Lord Taylor of Holbeach]

That is why I am going to try to address some of these matters. It is right to seek to do so, allowing for the limitations of my knowledge in this area, which I hope that noble Lords will understand.

This House has a good reputation for debating these sorts of things not, if I may say so, through the statutory instrument process so much as generally. I am absolutely certain that my noble friend Lord Howe would be quite prepared to come at a suitable point during the consultation to discuss the basis of changes that would be made. I am sure that I am not losing a friend for life by committing him to do just that.

As if to show that I need to brush up a little bit, apparently I may not have said, through mis-speaking or a slip of the tongue, that the Home Secretary announced the review of the NRM. I thought that I had implied that, but if I had not, I should have done so. Let us hope that I do not fall out with another friend for not crediting the Home Secretary.

The noble Baroness, Lady Meacher, asked about training for the enforcement of new NHS rules, and also about the Modern Slavery Bill which, as noble Lords know, is in pre-legislative scrutiny. The Department of Health will publish its implementation plan on the health service rules during the course of this year. The Modern Slavery Bill will be a fourth Session measure. I must not anticipate the Queen’s Speech, but the fact that that Bill is going through pre-legislative scrutiny rather suggests that it will be in the fourth Session legislation.

The noble Baroness, Lady Finlay, asked about a victim of FGM who has infected wounds. Under the NHS charging regulations and policy, immediate necessary treatment is not held up because of charging. I think that the noble Baroness has enough experience of how the health service operates charging principles, and I do not think that that is likely to change. GP care is not charged for, as I have said. The Department of Health is reviewing provisions for vulnerable individuals under these NHS regulations.

The noble Baroness asked why we were planning to charge migrants for accident and emergency services. Surcharge payers will obviously not have to pay for A&E services. The Department of Health has indicated that there is a good case for introducing overseas visitor charges for A&E, for those short-term visitors and illegal migrants who do not pay the surcharge. It is giving this detailed consideration, but will not make any changes unless it is confident that the new systems will work well without compromising rapid access to emergency care for those in immediate or urgent need, which will never be withheld or delayed pending payment. However, as I said, that is not a matter for the Bill. It is part of the review into regulations which is going on at the moment.

My noble friend Lady Cumberlege asked whether those exempted from the charges will be exempted from NHS charges. Our policy intention is that those who are exempt from the surcharge will also be exempt from subsequent National Health Service charging for health services under NHS regulations. However, obviously they will be liable for dentistry; as I mentioned before, at the moment that is not free other than in exceptional cases.

Under the Bill it is possible for surcharge payers to be charged for certain expensive discretionary treatments —I think we have discussed that already. However, we have made it clear that we intend that no such additional charges will apply when the surcharge is introduced. The Department of Health has made it clear that it would consider those in the future only in the event of any exceptional and compelling specific justification for health purposes, and, as I have already said, any changes would need to be put before Parliament.

My noble friend welcomed the exemptions, but those refused asylum will face charges, as will most victims of trafficking who are not recognised through the national referral mechanism. I emphasise to my noble friend that refused asylum seekers will not pay a surcharge. Health charging for refused asylum seekers is a matter for the Department of Health and the devolved health administrations within its remit. We have already confirmed that trafficking victims will not have to pay the surcharge.

The NRM is the only process by which an individual can be formally identified as a victim of trafficking and matched with appropriate support. Someone who has not been identified as a victim through the NRM and who is an illegal migrant or visitor would not be covered by the exemption for NHS charging under the existing regime. However, the NHS can write off NHS debts if individuals are subsequently identified as victims of trafficking, so there is a retrospective exemption in that regard.

The Department of Health has committed to give further thought to strengthening exemptions in the current NHS charging regulations for vulnerable groups, including victims of trafficking. We want to make sure that the NRM works effectively, which is why the Home Secretary has commissioned the review.

My noble friend asked whether those who come on a visa, pay the levy—or the surcharge, as it is properly called—and are later refused an extension will still get free NHS treatment while waiting for an administrative review decision, and asked about a period for which the paid levy has expired. This is about people and their leave to remain. Those individuals will continue to receive free NHS treatment as part of the conditions of their extant leave. Where individuals had leave, alongside which they paid the surcharge when they applied for an extension and applied for an administrative review within the specified time limit for doing so, their leave will be extended on the same conditions under Section 3C of the Immigration Act 1971 until their administrative review is decided.

My noble friend asked what would happen if their review is refused and they bring a human rights appeal. Once an administrative review is refused a migrant will be liable for NHS overseas visitor charging unless they fall under one of the exemptions set out in NHS charging regulations. That will be commensurate with their immigration status.

A number of noble Lords were concerned about GP consultations being free—I think that that is widely understood—but what about treatment? We intend for surcharge payers to receive most treatment free, as would any other UK citizen or person with indefinite leave to remain. We have made that clear in all the responses that I have given. They will be charged only for services for which permanent residents are also charged. As part of its work to reform the charging regime in England, the Department of Health has signalled an intent to extend charging for short-term visitors and illegal migrants to some primary care services, excluding GP consultations. It is carrying out a detailed analysis to inform decisions in this area, and any agreed changes will be put to Parliament.

I was asked by my noble friend Lady Cumberlege to give an assurance that the Home Office would not be permitted to use access to healthcare as a means for it to identify and take action against those subject to immigration controls. Healthcare staff are not routinely required to inform the Home Office on issues to do with individuals’ immigration status, and there is no plan to change this. However, there are circumstances where it is appropriate for the NHS to pass information to the Home Office, such as for enforcing the NHS debtors rule, which is a current rule under which migrants who have run up an unpaid debt of £1,000 or more are not given permission to enter the UK while the debt remains unpaid.

Finally, I hope that I have answered the questions posed by my noble friend Lady Barker on mental health and such matters. She made a valuable contribution to the debate.

I turn to the challenges presented by the noble Baroness, Lady Smith, who asked, “What is success?” Success might be the £2 billion surcharge income for the NHS, which is a large sum of money even in a health service budget running to several hundred thousand million pounds. An additional £500 million will be recovered in treatment charges each year through better administration, plus the surcharge, and vulnerable groups will be protected and treated. Part of the consideration of the NHS review and the provisions of the Bill are to ensure that vulnerable groups are protected. There is no adverse impact on public health, and there is a fairer set of rules and arrangements, which command public support. Those are the basic challenges that face us in seeking to reform charging within the health service.

I reiterate that the introduction of the surcharge in the Bill will give those who are obliged to pay it—and they are obliged to pay it—the peace of mind that they will receive comprehensive NHS treatment when needed. But charging for short-term visitors and illegal migrants remains the responsibility of the Department of Health, and it is not dealt with in the context of this Bill.

--- Later in debate ---

[Lord Taylor of Holbeach]

I give that commitment. I will, of course, write on that. I will also go through the debate as other questions may have not have been answered, for which I apologise. The noble Baroness, Lady Finlay, nods, so I clearly forgot to answer one of hers. However, I will go through the debate and answer all the questions as best I can. Indeed, my officials will talk to officials at the Department of Health as some of these matters are the responsibility of that department, as we have already discussed. I thank the noble Baroness, Lady Barker, for her kind words.

[Baroness Meacher]

My Lords, I thank the Minister very much for his thoughtful response. He was able to give us some reassurance on some points. I think that there are still a lot of gaps, but I am sure that the Minister will respond to some of the points in writing. I am very grateful to him for his kind offer in regard to his colleague, the noble Earl, Lord Howe, meeting us. I assume I am right in saying that the Minister’s office will be in touch with the office of the noble Earl, Lord Howe, to set up such a meeting because I think that it is only in that forum that we can achieve clarity about some of the most important and concerning issues to do with health charges and these vulnerable groups. As the noble Baroness, Lady Smith, said, we are talking about the victims of criminal offences.

There is much to thank the Minister for, but we will have to read the debate carefully and think about Report. With that, I beg leave to withdraw the amendment.

Amendment 62 withdrawn.

Immigration Bill

Baroness Meacher Excerpts

Wednesday 12th March 2014 Lords Chamber

The data should not be on just the simple, straight transactional costs of collecting the fee. They should be robust about the impact on public health and on the use of expensive acute services by people who have not gone to primary healthcare services because of the deterrent effect of the changes proposed in the Bill.

[Baroness Meacher (CB)]

My Lords, Amendment 66 requires information outlining details of health charges for health services applicable to the individual to be given at the point of an application for immigration permission or upon request. One of the biggest worries about the health service clauses in Part 3 is that they could create confusion and wrongly discourage some migrants from accessing free healthcare to which they are entitled. According to the Catholic Bishops’ Conference of England and Wales, for whose briefing I am most grateful, there is already a notable lack of understanding about how the charges for health services will work among both individuals and healthcare professionals. Even more worrying, there has also been inconsistency in how charges are implemented.

Most welcome is the exemption from charging for the treatment of diseases which present a public health risk. However, public confusion could result in delays in people presenting themselves and therefore in diagnosis. Already in 2012, 47% of adults newly diagnosed with HIV were diagnosed late. I am not sure what percentage of those late diagnoses would be attributable in any way to confusion. Overall, 81% of AIDS-related deaths in England and Wales in 2012 were attributable to late diagnosis. There is an issue about timing.

Equally, unless people are made aware of their entitlement to health treatment right at the start of their application for immigration permission or when they request it, they are likely never to sort this out or to become clear about the services to which they are entitled. From the taxpayers’ point of view, it is crucial that those entitled to free GP consultations are aware of it. The risk is that fear of being charged for a visit to the GP may result in people not doing that and later needing an A&E appointment. The cost differential between these two options is £90 per patient and could over time add up to quite a bit for the taxpayer, quite apart from the detriment to the patient.

Does the Minister agree that readily available information accompanying any changes to the healthcare charging system or to the collection of charges—I understand that is going to be much tougher in future—is essential to prevent public health risks and unnecessary costs to the Exchequer? I hope the Minister will inform the House what assessment the Government have made about the current level of public understanding about healthcare charges and exemptions for specific groups and what steps they have taken or will be taking to improve awareness among healthcare professionals and members of the public.

[Baroness Lister of Burtersett]

Following what the noble Baroness, Lady Barker, said about the importance of the evidence base, I take us back to our debate on Monday. In that debate, a number of noble Lords questioned the evidence base for the claim that there is a problem of so-called health tourism in this country. They asked the Minister what the evidence base was for that claim and questioned the Department of Health’s report on it. The Minister had an awful lot of points to make in his summing up speech and, after about 30 minutes, he quite understandably thought that he had had enough and probably everyone else had, too. Although he has already helpfully circulated a letter following our first day, I could not see anything in it that responded to the concerns raised on all sides of the House. I use this opportunity to invite the Minister to respond on that this evening.

--- Later in debate ---

[Lord Taylor of Holbeach]

I would not wish to get involved in hearsay or gossip or, indeed, the suggestion that some of this stuff is just newspaper chat. I will get back to the noble Baroness, Lady Lister, with a reasoned reply explaining the Government’s analysis of the situation. However, the purpose of this measure is not to do with health tourism at all; it is to do with providing a charge whereby people who stay here for more than six months make a contribution to the NHS. It will make it more difficult for people who are not entitled to access healthcare to do so, but that is a secondary purpose.

[Baroness Meacher]

Perhaps I might ask for clarification on one point. The Minister skated rather quickly over that fact that “it” will be explained on the visa application form. I wonder what “it” refers to. Will it spell out clearly that all health services freely available to permanent residents will also be available to the applicant as somebody who has paid the surcharge?

My second question concerns people with infectious diseases who may not have paid the surcharge but who will be entitled to free treatment for an infectious disease. What sort of action will the Government take to inform them of their entitlements?

[Lord Taylor of Holbeach]

The latter point is more difficult to answer positively; it is something which my noble friend Lord Howe would be in a position to reply to with authority. On the first point, I think that the wording which the noble Baroness suggested is particularly good. It sums up the policy as I have tried to describe it to the Committee.