Anti-social Behaviour, Crime and Policing Bill

Baroness Scotland of Asthal Excerpts

Tuesday 12th November 2013 Lords Chamber

[Baroness Hussein-Ece (LD)]

My Lords, I, too, have added my name to this amendment. I wish to make just a few comments as the noble Baroness, Lady Thornton, has covered most of what I would have liked to say about this amendment. I come to this issue with personal experience of some of the problems that I encountered as a young teenager living in my community. I like to think that we have moved on considerably in the intervening 35 years or so, but this is still a real issue. Too many young women are still exposed to this problem and are victims of it. We need to do far more to tackle it than is currently the case.

The guidance needs to be uniform and all the agencies that come into contact with potential victims need to be very clear about what they can do to support these young people who come forward needing help. I agree with the comments of the noble Baroness, Lady Thornton, on schools. There are huge concerns about schools because they follow their own principles and guidelines. In addition, we now have far more free schools, whose practice in this regard may not be in line with that of local authority schools. I would like assurance that the role of schools, which are pivotal in this regard, will be looked at very closely.

I have had conversations with survivors and some of the organisations working in the front line of forced marriages, particularly Jasvinder Sanghera of Karma Nirvana, who is very supportive. As most noble Lords who have worked in this field know, Jasvinder is herself a survivor of forced marriage and has set up the organisation to support other women in this situation. I was struck by the advice that Karma Nirvana gives girls who are forced to travel overseas to marry; namely, to conceal a spoon or fork, for example, about their person so that an alarm will be set off when they go through the airport X-ray machine. Then the airport security staff will have to take them aside to speak to them, thus giving them the opportunity to speak privately with security staff and try to enlist their support. It is sad that this advice still has to be given to young women and some young men. If everything worked effectively, presumably they would not need to resort to such tactics. Is my noble friend the Minister confident that there is consistency across the country regarding the guidance and support given by airport security staff to young girls who are being forced out of the country and who follow the advice to activate an alarm, or is it just up to individual staff to decide what support to give? The amendment is important to ensure that there is uniformity in this regard.

Young people in this situation who are accompanied by their families also need to be listened to. I know that schools contact the families of pupils who have raised this issue. If schools or other authorities contact the families of victims, it is important that the young person is taken aside and is spoken to privately to enable them to explain their situation rather than relying on family members to speak on their behalf.

[Baroness Scotland of Asthal (Lab)]

My Lords, I support both amendments in this group, not least because guidance in this area is critical. Noble Lords will know that the previous Government produced stringent guidance. However, it is not just a question of producing guidance but of implementing and monitoring it to ensure that it is effective in raising standards and offering greater protection for the victims and survivors of this most pernicious form of abuse. What assessment has been carried out of the current guidance and of any implementation strategy that the Government are minded to put in place if this amendment is accepted, which I hope the noble Lord is about to tell us he energetically supports?

[Baroness Butler-Sloss (CB)]

My Lords, I declare an interest as chairman of a forced marriage commission which is currently hearing evidence. An interesting aspect of that is that we went to visit the Karma Nirvana organisation just outside Leeds and the victims to whom we spoke were all very anxious that forced marriage should be criminalised. I have had my doubts about that. I took part, with the noble Lord, Lord Lester, in the original initiative on this issue, which led, I am very glad to say, to a government Bill being produced some years ago under the previous Government. I know that the noble Lord is very opposed to the criminalisation of forced marriage. However, there is no doubt that all the victims to whom members of the commission spoke considered that this was an essential next step, which I thought was very interesting.

I am very concerned about how the immigration authorities, or emigration authorities, can cope with this problem. I talked to an immigration official at Gatwick and asked him what he did about girls going out to Pakistan with their parents and those coming back, or a young man coming into this country, where a girl is waiting with her parents to welcome him as her intended husband. The official told me that he had spoken to these girls on many occasions. One such girl was waiting for an intended husband to come through the airport and the official took her aside and asked her whether she wanted to marry that man. She replied, “No, I do not”. When he asked her whether it was a forced marriage, she replied, “Yes, it is”. He said that he could stop the forced marriage by preventing the young man entering the country but that the girl would have to declare publicly that she was being forced into a marriage. The girl replied, “I cannot do so in front of my parents”. This is a major problem. We know that a lot of girls and some young men, many of whom are under 18, are being forced into marriage in Pakistan, Bangladesh and India and, indeed, other places. This is by no means only a Muslim problem. It is also a Sikh problem and occasionally a Jewish problem, but it is a problem across the world. One of the major problems in this regard I have been told about concerns disabled young people, particularly those with learning difficulties, as the parents think they are doing the young woman concerned a favour by marrying her off as she will be protected for the rest of her life. Nevertheless, she does not want the marriage and this is a very real problem.

I very much support Amendment 5, particularly because I think it is time that everyone, from the Government through to the Department for Education and schools in particular, should do as the noble Baroness, Lady Thornton, suggests and treat this as a child protection issue. If you force a girl or boy to marry under the age of 18, particularly under 16, when they do not want to marry, this is a very real child protection issue. However, another extremely worrying issue arises. These girls—it affects particularly the girls—are being married in other parts of the world with an Islamic ceremony. That ceremony is not registered overseas and it is not registered in this country. Therefore, the girl is not married according to English law. The husband can divorce her under Islamic law and she can obtain no redress in this country for herself. She does not have to be married to get financial help for her children but she gets no financial help whatever for herself because she is not married according to English law. Interestingly, there is a law that gives the second wife in a polygamous marriage some financial assistance.

I have not tabled an amendment in relation to forced marriages that are not considered valid marriages, but I hope that the Government will look at that as there is no shortage of women in this country and abroad who are not considered married according to English law although their marriage ceremonies are considered perfectly adequate in some communities. I particularly underline what the noble Baroness, Lady Thornton, said about child protection. I am not at all sure whether Amendments 5A and 6 are entirely necessary, although the Government should certainly look at them, but Amendment 5 is vital.

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Moved by

[Baroness Scotland of Asthal]

5A: Clause 108, page 78, line 41, leave out subsections (1) and (2) and insert—
“(1) Where a person commits an offence under the law of England and Wales, it shall be considered an aggravating feature if he or she—
(a) uses violence, threats or any other form of coercion for the purpose of causing another person to enter into a marriage, or(b) believes, or ought reasonably to believe, that the conduct may cause the other person to enter into the marriage without free and full consent.(2) Where a person commits an offence under the law of England and Wales, it shall be considered an aggravating feature if he or she—
(a) practices any form of deception with the intention of causing another person to leave the United Kingdom, and(b) intends the other person to be subjected to conduct outside the United Kingdom that is an aggravating feature under subsection (1), or would be an aggravating feature if that person were in England and Wales.(2A) In subsections (1) and (2), “a person” refers to any individual who commits an offence for the purpose of causing another person to enter into a marriage.”

[Baroness Scotland of Asthal]

My Lords, I should make it clear right from the beginning that this is a probing amendment at this stage. I seek to amend the proposed criminalisation of the offence in order that forced marriage becomes an aggravating feature that a court will be minded to consider and have to take into account.

Perhaps I may explain to the Committee my concern in relation to the current government proposals. In doing so, I immediately endorse and commend the Government for caring about this issue, for seeking to address it and for understanding the sensitivity that surrounds it in relation to all communities, because, regrettably, forced marriage happens in all communities. Whether it involves an Irish farmer, someone in this country from a strict Christian denomination, Jewish communities or various forms of Asian communities, forced marriage happens in all our families. It is wrong and it is an infringement of human rights. I therefore do not hesitate to say that the Government are right to care about this, to work on it and to commit themselves to its eradication. All that is correct.

The question that I raise through this amendment is: is criminalisation the right course? Noble Lords will know from my noble friend Lady Thornton that we worked very hard on this matter and during that time we learnt a number of lessons. During the whole of my legal career—from 1977 to date, which is not very long—I have had the privilege of working with families in which both boys and girls have been subjected to forced marriage. During that time, my experience in the Foreign Office caused me to seek to create the Forced Marriage Unit and then to pursue the issue with vigour through each of the departments in which I was privileged to be a Minister. Lastly, as noble Lords will know, as Attorney-General I had the opportunity to assist victims of domestic violence, of which forced marriage is part. The prosecution of those who unlawfully seek to coerce others into a marriage to which they do not consent is something which all of us, no matter which party, pursued with vigour. The question for all of us is how best that should be done.

I looked with interest at the Government’s response to the consultation. I want to ask the Minister a number of questions in relation to the notice, if any, which was taken of some of the answers given—particularly in relation to Imkaan, which the noble Lord will know submitted a response from 48 organisations. I shall mention a few: Jewish Women’s Aid, Latin American Women’s Aid, Latin American Women’s Rights Service, various professors, the Newham Asian Women’s Project, Race on the Agenda, Rape Crisis (England and Wales), Respect, Rights of Women, Scottish Women’s Aid, Solace Women’s Aid, the Southall Black Sisters, Welsh Women’s Aid, Women and Girls Network, and Women’s Aid, England. These front-line organisations have been dealing with this matter for a very long time—indeed, as far back as I can remember.

To the Government’s question:

“Do you believe that the current civil remedies and criminal sanctions are being used … effectively?”,

those organisations answered no. In answer to the question:

“Do you think a criminal offence should be created for the act of forcing someone to marry against their will?”,

the answer was no. In answer to the question:

“What issues should be considered to ensure that a new offence does not deter people from reporting the crime?”,

the answer was:

“The creation of a specific offence on forced marriage would in itself create a significant barrier to reporting. As highlighted earlier, women and girls will not always prioritise prosecution. Women and girls want the choice to reconcile, where appropriate, with family members and often prefer to access support services before making any other decision”.

In answer to the question:

“Do you think there should be an offence of luring someone abroad”,

the answer was no. In answer to the question:

“Do you think that the creation of a new criminal offence would make the law clearer?”,

the answer was no. Then, in answer to the question:

“Do you think the creation of a new criminal offence would make it easier for professionals to tackle the problem?”,

once again, the answer was no. That made me pause because here were the most significant front-line services in our country, which have been dealing with these issues for many years, saying no.

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[Lord Faulks (Con)]

Would not the answer to the dilemma that the noble and learned Baroness quite rightly identifies be for the prosecuting authorities to have different counts on indictments so that they include, for example, Section 18 or Section 20 and the offence of forced marriage?

[Baroness Scotland of Asthal]

My Lords, that, of course, is the way forward. However, the question that I pose is this: how are the prosecutor and the police officer to decide which offence to go for? Criminal prosecutions, as the noble Lord will know, will be carried out on the basis of proving things beyond reasonable doubt. If you look at the forced marriage provision, you have to identify a course of behaviour that is coercive. In so doing, the prosecutor will have to identify what criminal act was alleged against the defendant. For example, is it alleged that the accused hit the person or that they threatened the person? It seems to me that in order to prove the forced marriage provision, you have to identify a substantive criminal act which it is asserted that person committed. If one then has a jury, what will we say to the jury? How do we differentiate the forced marriage allegation from the substantive allegation made in relation to the other offence? I am asking this probing question to understand how the Government expect this to be done, because you cannot have an alternative in the way that we have just debated unless there is clarity about what the prosecutor is seeking to establish. In the case of a kidnapping, in order to satisfy the jury that a forced marriage offence was committed, how do you differentiate between those two if the accused is found not guilty of the kidnapping but guilty of the forced marriage based on the kidnapping? There is an inherent difficulty.

The only element of this offence that seems not to be currently covered is coercion on an emotional basis. I take as an example a devout Jewish family which discovers that one of its children wishes to marry outside the faith. A matchmaker has arranged a marriage within the community and the child rejects the suggestion made by the parent. The parent then says, “If you do not do this, I will rend my garments, I will sit shiva for you”—which means, in effect, “I will treat you as if you were dead”—“and you will break my heart”. That is coercion inasmuch as it is emotional blackmail, perpetuated for the sole purpose of making the child change their mind, but it is genuinely felt by the parent, who believes that to refuse will be detrimental to the child’s long-term being. Looking at this offence, it seems to me that it would be possible to prosecute such a parent under this legislation. I want to be clear as to whether the Government believe that such a prosecution would be merited and is what they wish to achieve.

The whole question of forced marriage is a very delicate and difficult issue. If emotional blackmail, which is not yet on the statute book, is the only offence, do the Government intend this provision to apply to parents who use it? Emotional blackmail can be devastating; if you think your mother is going to kill herself, that the family are going to be shamed, that your father will never again be able to raise his head and that you will be thrown out of your community, that is very powerful coercion, directed specifically to cause the child to comply with the request. It seems to me, looking at the offence created, that that behaviour could be caught by this provision. I would very much like to know from the Minister whether that is the Government’s intent. Let us be clear. If a loving parent disagrees with a child and seeks to persuade them to do something, which the child does not want to do but which the parent believes to be right—no matter how wrong that parent is and if they do it lovingly—they could find themselves in difficulties. I need to understand from the Minister whether that is indeed his intent.

The other issue is to see how the legislation is currently working. From the evidence that I have been able to cull, the forced marriage protection orders appear to be a very effective tool. Between November 2008 and the end of 2010 there were 257 applications for forced marriage protection orders, of which 181 had power of arrest attached. By June 2011 339 orders were recorded. A study carried out in 2011 at Roehampton University shows that of the 74 written responses received from a range of groups, including local authorities, organisations concerned with domestic violence, faith groups, police and lawyers, 50% of respondents thought it should not be criminal, 38% were in favour, 13% were unsure, 57% thought it would be more difficult for criminals to come forward, and 64% thought that the existing legislation was enough. So 64% thought that what we have now is enough. The real issue that came forward strongly was the enforcement of the forced marriage protection orders.

Before we step into an area where there may be unforeseen consequences, I should like to hear from the Minister how it is proposed that this offence will operate and what guidance the enforcement agencies—the police and the CPS—should be given. If, however, as my amendment proposes, the Government were minded to make it an “aggravating feature”, that would be a very useful tool for the courts. Forced marriage involves a breach of trust. It is not just that you kidnap, falsely imprison or assault someone you are supposed to love, it is that you do so to force them to enter into a relationship that will have lasting impacts on their lives, and maybe negatively so.

Just as we punish more severely those who breach our trust if they steal from us as an employer, it is equally important to say that if you commit any of these substantive offences which are grievous and egregious in their own right, and you do so for the express purpose of forcing someone for whom you have responsibility directly or indirectly into a marriage or otherwise, you deserve more trenchant punishment than if you did it to a stranger—somebody that you did not know. We would be able to keep all the substantive offences, punish them appropriately in accordance with the gravity of what was done, using the legislation that is already there, but we could do so more trenchantly because they did it in the framework of forcing someone into marriage. We would do what the Government want, which is to make it very clear that it is a criminal offence, will be taken seriously and needs to be punished, but we may be able to do it within a context that will not bring about some of the unforeseen consequences that some of us foresee now.

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The noble and learned Baroness quoted the Government consultation. I will share the summary of the responses with the Committee this afternoon. The Government conducted a full consultation on criminalising forced marriage and overall 54% of those who responded to the forced marriage consultation were in favour of criminalisation; 37% were against the creation of a new offence; and 9% of respondents were undecided.

[Baroness Scotland of Asthal]

My Lords, I hesitate to interrupt the Minister but can he tell me whether Imkaan’s submission was counted as one or 48?

[Lord Ahmad of Wimbledon]

I shall come to that. I will ask the officials to look into that and respond accordingly. Some 297 responses were received in total. People who looked at this issue are on the front line and deal with these issues day to day. Aneeta Prem from Freedom says:

“One of the arguments is that, if you criminalise forced marriage, you will drive it underground. Well, it already is underground. Nobody advertises that they are forcing their son, daughter or anybody else into a marriage. It could not be further underground than it is already. People are using that as an excuse”.

Jasvinder Sanghera from Karma Nirvana writes:

“Criminalising forced marriage will give the police more effective, formal powers, but it would also send out a very strong message that it is child and public protection”.

I recognise that there is a fear that criminalisation could serve as a deterrent to victims. Tragically, as I have already said in a previous debate on this subject, it is already there, it is happening—it is underground, it is tragic, it is real. The question is what we are going to do about it. Forced marriage is already a hidden underground practice. While we take these concerns very seriously, I do not believe the answer is to avoid criminalising forced marriage.

In drafting this Bill, we have sought to provide the best possible protection for victims. That is why we have made provision to establish jurisdiction over new forced marriage offences where they are committed overseas by or against a UK national or where they are committed by or against someone who is habitually resident in England and Wales. The amendments would then result in these provisions not being available for the protection of the victims at the centre.

In answer to the question raised by the noble and learned Baroness, Imkaan’s submission was counted as one response. However, Karma Nirvana submitted 3,000 responses in the same vein in favour of the Government’s proposals and we also considered those 3,000 responses as one.

The question is one which, of course, taxes—

[Baroness Scotland of Asthal]

I am sorry to press the noble Lord further but I want to make it plain to him why I am concerned. I am sure he will want to deal with this. My worry is that the list of 48 covers the national front-line agencies that have been dealing with this issue for a very long time. Women’s Aid operates throughout our country and represents thousands and thousands of women, as do the Jewish societies and Refuge. I estimate that all those organisations counted in the 48 would account for millions of voices as opposed to thousands. I would be very grateful if the noble Lord would look with a greater degree of acuity as to the quality of the list of the 48.

[Lord Ahmad of Wimbledon]

As I always assure the noble and learned Baroness, I listen attentively when she speaks. I take on board what she has said and will write to her about it.

To those who say that this is going underground, and in respect of the cultural pressures that exist, I would say that young women and, indeed, young men may not take the issue forward because of the fear of being ostracised in their community and for fear of shopping their parents or close relatives. I say that with some understanding of the cultural challenges faced by some communities across Britain. Although I do not claim any expertise in the field, I certainly travel quite widely, along with other noble Lords, and I hear about and deal with some of these cases directly.

Irrespective of whether it goes down a criminal or a civil route, the step forward is a difficult one. That is the focus and the emotion that the noble and learned Baroness, Lady Scotland, spoke about with such eloquence. It is the first step. We are leaving the civil route open but, equally, we need to ensure that the deterrent of this being a criminal offence is also available for the victim. I defer to the noble and learned Baroness’s expertise in this field but the difficult part for anyone involved is taking that first step of reporting this kind of coercion or abuse, irrespective of what route is available. That is what we need to overcome. We need, as a responsible Government, to address that issue. As I am sure the noble and learned Baroness will acknowledge, I have listened to her words quite carefully. I reassure noble Lords that, in drafting the Bill, we have sought to provide the best possible protection for victims. That is why we have made provision to establish jurisdiction over the new forced marriage offences, whether they are committed overseas or against a UK national.

The noble and learned Baroness raised several other questions, which I shall address briefly. In respect of the emotional element in decision-making, Clause 108(1)(a) covers any other form of coercion, which includes emotional coercion or emotional blackmail. That forms part of the mischief that we are seeking to address via criminalisation. However, in practice, the CPS will prosecute in cases only where it is in the public interest to do so. That will also involve an analysis of all the facts of the case, including the gravity of the offending behaviour and the harm caused. The definition of force in the Forced Marriage (Civil Protection) Act 2007 already addresses coercion by other psychological means, which could encompass emotional coercion and emotional blackmail. This is not a new proposition but something that Parliament has already endorsed. The inclusion of emotional coercion is also consistent with the non-statutory cross-government definition of domestic violence.

The CPS has existing guidelines on the selection of charges in cases where a number of different offences have potentially been committed, and our expectation is that the CPS will apply that existing guidance. We will, of course, consider carefully with the CPS whether any additional bespoke guidance is required in this context to deal with the new forced marriage offence.

The noble Baroness, Lady Thornton, asked whom we discussed this with outside of the general consultation that I and the noble and learned Baroness, Lady Scotland, have referred to. Discussions were held with ACPO, the CPS and the Attorney-General’s Office about how this offence could work in practical terms. The Government considered the option of making it an aggravating factor, but we took the view that this was already adequately covered by the guidelines issued by the Sentencing Council, to which I have already referred.

The noble and learned Baroness’s amendments to Clause 109 would make identical provision for Scotland. This is a devolved matter and Clause 109 has been included in the Bill at the request of the Scottish Government. I cannot, as noble Lords will appreciate, comment on behalf of the Scottish Government. The noble and learned Baroness is, of course, also aware of the convention that the UK Parliament does not legislate on devolved matters in Scotland without the consent of the Scottish Parliament.

As I said in responding to the amendments tabled by my noble friend Lady Hamwee, to complement the legislation, the Government’s Forced Marriage Unit is rolling out a nationwide engagement programme to support practitioners such as those that the noble and learned Baroness highlighted in tackling forced marriage. The unit also continues to give direct assistance to victims and potential victims. Last year, for example, the unit provided advice or related support in almost 1,500 possible forced marriage cases.

My noble friend Lord Hussain talked about education and about Pakistani dramas and Bollywood. I certainly did not expect that element but nothing surprises me in your Lordships’ House. He is right, but I would ask how many of these families watch these films and dramas, watch this man fall in love with a woman who is the wrong caste or even religion and say, “Oh, it’s tragic isn’t it?”. Yet what do they practise themselves? Why do they not have the same emotions as when they watch what are often fictional accounts? That is the education that needs to be given to the community—to realise that, whether this is about Islam, Hinduism, Buddhism, Christianity or humanism, what should prevail above all else is the rule of law, which prohibits coercion in marriage. That is what the Government are seeking to address through their proposals.

I pay full respect to the experience of the noble and learned Baroness and, once again, acknowledge the hard work that she has undoubtedly, historically and over many years, put into the area of forced marriage. I know that she will continue to share her expertise in the field, and I hope that, based on the explanations I have given, she will be minded to withdraw her amendment.

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[Baroness Scotland of Asthal]

My Lords, first, I thank the Minister for that comprehensive response. I very much value his commitment, sensitivity and understanding in relation to these matters. I reiterate that I absolutely accept that the Government are committed to doing what they believe to be right to support victims of forced marriage.

I listened very carefully to what the noble Lord said but cannot promise him that I will not bring this back, not least because I would very much like a full answer on how these issues are going to be prosecuted. One of the delights I had for three years was being in the position where that burden was mine. I therefore hope that the House will forgive me if I look at this role that is going to be foisted on my successor, Dominic Grieve, and worry a little about what he is going to do with it.

The noble Baroness, Lady Hussein-Ece, asked about the plea made by a young girl who said, “I wish I could say you cannot do this to me because it is illegal”. The answer is that she can. Today, in our country, forcing someone into marriage is illegal. Someone will commit that offence by doing a number of the things that we went through in the debate. I urge the Government to make it clear that it is illegal today, because that is what people need to hear. I also invite the noble Lord to consider how we are going to differentiate between domestic violence and forced marriage, which is a feature, an aspect or a species of domestic violence.

At the moment we do not have an offence of domestic violence, because domestic violence can be committed in a plethora of ways. I should like the Government to consider again, a little more deeply, the fissure that might be created by this disparity in the way in which we treat these offences. Everyone in this short debate has made it clear that prevention is the most important element. I ask that the Government consider very carefully whether the current system, with strong implementation, is not the better course.

In response to the noble Lord, Lord Faulks, regarding the sentencing guidance, the current amendment has been framed in such a way as to enable us to have this debate. Obviously, if the Government were minded to follow the suggestions that we have raised, it could be done by strengthening the sentencing guidelines together with creating, with ACPO and the CPS, appropriate strengthened guidance to make sure that we prosecute more of these cases and that we do so successfully by enabling those victims to have the courage not only to come forward but to stay forward. I beg leave to withdraw the amendment but I will be back.

Amendment 5A withdrawn.