Serious Crime Bill [HL]

Baroness Smith of Basildon Excerpts

Monday 2nd March 2015 Lords Chamber

[Baroness Smith of Basildon (Lab)]

My Lords, I thank the Minister for his explanation of these amendments. It is helpful and we certainly welcome them. I am also grateful to him for recognising the persistence of my noble friend Lord Harris of Haringey on this matter. When he first raised the issue the Government were initially reluctant to take it on board not because they were not supportive of what he was trying to do, which was to think differently around these issues with the child as a victim. Even though the child might be engaged in sending sexually explicit messages or photographs, the child was still the victim. I referred at the time to a case that I was aware of whereby an older man was pretending to be a 14 year- old girl in order to get a real 14 year-old girl to send messages and photographs of herself quite willingly. But she was clearly a victim and was being exploited. We are grateful to my noble friend for his persistence and to the Government for taking this issue on board.

We also welcome the change in the language of the legislation by removing references to child prostitution and child pornography. Both are child abuse. Children cannot agree to be prostitutes. If money is changing hands, it is because they are victims. This shows how thinking has moved on. The noble Lord may not recall but, during the debates on the Anti-social Behaviour, Crime and Policing Bill, I proposed amendments brought to me by the Police and Crime Commissioner for Greater Manchester, Tony Lloyd, about being able to close down premises being used for child grooming. The response from the Government Minister at that time, Norman Baker, was that the prostitution laws should be used. However, of course, those laws could not be used because the children were not prostitutes. Even though they may have been receiving some kind of payment at the time, it was clear that they were victims.

The only concern I would raise is on the language in subsection (2) of the new clause proposed in Amendment 4. Perhaps further progress is to be made. In the other place we proposed amending the reference to,

“offers or provides sexual services to another person in return for payment or a promise of payment”.

That talked in the old-fashioned language and we tried to move on by including,

“prepares to engage in, or engages in, sexual activity with”,

rather than “provides … for payment”. However, welcome as that change would have been, it does not detract from the fact that the Government are ensuring that that is an offence and recognise it as exploitation and abuse.

We welcome these amendments, which are a step forward. I know that my noble friend Lord Harris would join us in welcoming the support from the Government for his proposals.

[Baroness Howarth of Breckland (CB)]

My Lords, I briefly want to say that this is a real sea-change in attitude. I am delighted to hear the Opposition Front Bench because I have, in the past, argued with Ministers on other Benches who could not see the point of changing the word “prostitution” because they said that a crime was still being committed. Everyone now has understood that the language changes the attitude to the child and we are now really seeing children as victims. I am enormously grateful for this sea-change. It will change the way in which young people and children are dealt with. We know that the police have had a huge change in attitude in the way in which they work with these young people. The All-Party Parliamentary Group for Children, which looked at working with the police, heard from them on numerous occasions how helpful it would be if we perceived children as victims and no longer as perpetrators of crimes in this sexual area. I am immensely grateful to the Government for this work.

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[Baroness Smith of Basildon]

Before the Minister sits down, could she clarify something about the amendment numbers? She referred to Amendments 24 and 25, neither of which is in this group: they were consequential amendments in group 1. The issue of FGM protection orders attracting civil legal aid seems to be covered by Amendments 50 and 51. According to the amendment list, government Amendment 24 is in group 1 and government Amendment 25 is in group 8.

[Baroness Williams of Trafford]

The noble Baroness is correct.

[Baroness Smith of Basildon]

So are we discussing those amendments now? Have they been wrongly grouped? Or are the amendment numbers that the noble Baroness has incorrect? Are we, in fact, discussing Amendments 50 and 51 rather than Amendments 24 and 25?

[Baroness Williams of Trafford]

My Lords, I apologise to the House. Let me clarify the fact that we are debating Amendments 50 and 51.

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[Baroness Howarth of Breckland]

My Lords, I found this quite extraordinary when I read about it in the newspapers. That is not because I do not think that the Government should be taking a strong line—I admire that—and not because we need to take action against FGM—many of us have spoken about it—but because we had an in-depth debate in which the noble Baroness, Lady Walmsley, and I held slightly different views about mandatory reporting. When we looked at mandatory reporting in its broader sense, it was clear that the differences between us were all about unintended consequences and not having thought through the issue from beginning to end. I was under the impression that mandatory reporting was to be taken away and there would be an in-depth look at the issue with a different sort of consultation, after which we would come at it again. FGM is at the most complicated end of mandatory reporting, as we have heard from my noble friends, so I had assumed that it would be included in that further debate. I am surprised that the provision has been brought forward in this way, even though most of us would want any possible action taken to prevent FGM.

My final point is that this clause cuts across the basic principle that the child’s needs are paramount, something which is repeated in all our children’s legislation. Here, the child’s needs are no longer paramount—the community wish to take action becomes paramount. I hope that this will be taken away and looked at again in relation to the arguments which have been made.

[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.

[Baroness Williams of Trafford]

My Lords, it is probably best to start with the point that not only is FGM illegal but it has been illegal for 30 years, and that all healthcare professionals—indeed, all professionals —who come into contact with children have a general safeguarding duty to those children. That is the underlying issue within the law, and it has been so, as I said, for three decades. As noble Lords have said, FGM is a terribly complex issue, and there are things beyond the law that we also need to do in terms of changing the culture and the practice of FGM.

I will start with the points made by the noble Lord, Lord Patel. The mandatory duty to report has actually received support from organisations such as the Royal College of Nursing and the Royal College of Midwives, but the noble Lord pointed out the concerns raised by the BMA. It has actually been supportive of the majority of the FGM measures in the Bill but it has highlighted some concerns in respect of the mandatory reporting duty, particularly what it means for victims. The Government appreciate that introducing a mandatory reporting duty will impact on many different sectors, and we recognise that this is very complex. However, we believe that it will be an important step forward in tackling FGM.

FGM is already a hidden crime, and introducing a clear mandatory duty will provide clarity for professionals on their responsibilities to report to the police. It will also lessen the onus on the girls to report FGM by putting responsibility on those whose job it is to safeguard girls who have been victims of what is a crime and what is child abuse. Of course, we recognise that there are existing legal and professional responsibilities in relation to safeguarding, and the new duty will have to be seen in the context of the existing statutory guidance—for example, Working Together to Safeguard Children.

Some concern has been expressed that the duty may act as a barrier to individuals accessing healthcare services. The Government recognise this risk, which is why we are clear that there will be no requirement for professionals to work outside their usual professional duties to actively seek out cases of FGM. We have focused the duty on known cases of FGM rather than suspected ones, and the new FGM unit working with government departments is conducting a programme of outreach with professionals and front-line communities, which will explain how the new duty, in tandem with other government reforms, will work in practice. We are also updating the multiagency guidelines on FGM and putting them on a statutory basis to support effective implementation of the duty.

There were also concerns about cases being referred to the police and the fear that this may act as a further deterrent to individuals accessing services. The Government have carefully considered the options for when referrals should be made, and we recognise that cases have both a criminal and a safeguarding element. FGM is a criminal offence and we therefore believe that the most appropriate reporting route is via the police. However, I reassure noble Lords that a report to the police will not necessarily immediately trigger a criminal investigation: when a report is made, the police will work with the relevant agencies to determine the most appropriate course of action. In preparing to introduce the duty, we will work closely with the police to ensure that a clear reporting system is in place prior to its introduction. In addition, we will have ensured that there is a reasonable timeframe within which professionals are required to make the report to the police, to allow time for consultation with other agencies in sensitive or complex cases.

Finally, I confirm that the Government will ensure that there is adequate time for consultation with stakeholders prior to the introduction of statutory guidance.

I again apologise to the House for the confusion about the provisions relating to legal aid. The relevant amendments in this group are indeed Commons Amendments 50 and 51. I think the noble Baroness, Lady Smith, asked what legal aid will be available for orders made in criminal proceedings. The Commons amendments make civil legal aid available for victims and third parties who may wish to apply, vary or discharge an FGM protection order.

[Baroness Smith of Basildon]

The noble Baroness is aware that the orders are not based on criminal proceedings; they are civil orders. The confusion was caused because the Government have placed a civil provision within the criminal law, whereas our proposal was for a civil provision, wholly within civil law. I think that is what, partly, created the confusion around legal aid. It is purely a civil matter, although it sits within criminal legislation.

[Baroness Williams of Trafford]

I thank the noble Baroness for clarifying that. I think I referred to this in my introduction, but the Government have made some quite tough choices in deciding which matters would remain in scope of legal aid. The ministry took account of the importance of the issues at stake, the individual’s ability to present their own case and the availability of alternative sources of funding. Legal aid continues to be available in the most serious of cases, for example where people’s life or liberty is at stake or where their children may be taken into care. Legal aid is available where not providing it would be likely to result in a breach of the individual’s rights under the European Convention on Human Rights or European law. I confirmed in my remarks at the beginning that civil legal aid will be provided.

My noble friend Lady Walmsley asked about the progress of the consultation on whether to introduce a more general duty to report suspected abuse of children and vulnerable adults. As my noble friend will know, following the earlier debates on the Bill in the House the Government committed to undertake such a consultation, and the outcome of that consultation will be reported on within 18 months of Royal Assent.

My noble friend also asked about sanctions for failing to report cases of FGM. The proposal will use existing disciplinary frameworks to consider sanctions. Given that in health these may include General Medical Council and Nursing and Midwifery Council fitness to practise proceedings, there can be a wide variety of recommendations made as to suitable action, which may include retraining, supervision or other measures.

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[Lord Bates]

My Lords, I shall speak also to Commons Amendments 17 and 21.

We can all agree that domestic abuse is a serious and pervasive crime; a point well made by the noble Lord, Lord Wigley, on Report. It is shocking that in the past year more than 2 million people in England and Wales were abused by those closest to them, and even more shocking that 85 women were murdered by a current or former partner.

However, comparing those figures to the number of people who reach out for help and access the criminal justice system shows that, despite prosecution and conviction figures reaching their highest ever levels under this Government, domestic abuse is still vastly underreported. A stark comparison of crime survey and Crown Prosecution Service figures suggests that just one in 20 of those abused by their families and partners have access to justice.

The sad fact is that we are still grappling with a reality where many people think a crime has been committed in a relationship only if violence is involved. Even the courts have taken the view that stalking and harassment legislation does not apply in ongoing relationships where abuse is interspersed with periods of affection. That rules out those cases of domestic abuse where controlling and manipulative perpetrators play on the affection of their partners or family members to avoid detection.

The Government understand that coercive and controlling behaviour can be harder to recognise, but can be every bit as damaging to its victims as physical violence. To quote one victim of domestic abuse who responded to our consultation,

“my bruises faded, but the psychological scars didn’t”.

In recognition of the harm that coercive and controlling behaviour can do, the Government have expanded the non-statutory definition of domestic violence and abuse to send a clear message that abuse is more than just physical. Last summer, we ran a consultation to ask whether the law also needs to be strengthened to provide better protection to victims of domestic abuse. Eighty-five per cent of respondents told us that the law needs to be strengthened; 55% highlighted the need for a new offence to make sure that a person causing someone they are in a relationship with to live in constant fear faces justice for their actions.

Commons Amendment 7 provides for just such an offence. The new offence makes it clear that abusing someone in a relationship is every bit as serious as stalking or harassing a stranger. It applies to repeated or continuous behaviour in relationships which, when incidents are viewed in isolation, may appear unexceptional, but has a significant cumulative impact on the victim’s everyday life. It causes them to feel fear, alarm or distress.

When I first spoke on this issue in the House last year, I said that legislation on this issue must be approached judiciously. I stand by that. There is a balance to be struck. Every relationship has its own power dynamics and this is not about outlawing arguments or saying that couples cannot disagree. It must be clear that the new offence does not apply to volatile relationships which stop short of being abusive. To capture this balance, key elements of the new offence are the need to establish the repeated or continuous nature of the behaviour and the ability of a reasonable person, whether part of or external to the relationship, to appreciate that the behaviour will have a serious effect on its victim.

We have made sure that the new offence does not duplicate existing criminal law. Child abuse does not fall into the ambit of the new offence because it is covered by existing offences. Nor does the new offence apply to extended family members who have never lived with the victim, because stalking legislation would capture those circumstances.

We must also be on our guard against the application of the new offence in circumstances where control may be necessary to secure a loved one’s safety. For example, I am sure that none of us would want to see the spouse of a person struck by mental illness imprisoned for medicating them or protecting them from situations which may cause them harm. I am equally sure that we would not want to see the parents of an unruly teenager convicted for proportionately curbing the behaviour of their wayward child. That is why we have included a defence in the framework.

Of course, we also need to be sure that manipulative perpetrators cannot use the defence to escape justice. To address this, the defence will not be available where the victim has been caused to fear violence. To rely on the defence, a defendant will need to show that a reasonable person would agree that their behaviour was reasonable in all the circumstances. This is not an easy test to meet if you have perpetrated a campaign of control against another person.

The maximum sentence of five years’ imprisonment for the new offence recognises the damage that coercive or controlling behaviour can do to its victims and is commensurate with the maximum penalty for stalking. Of course, the new offence cannot be implemented without an effective police response, so the work that the Home Secretary is doing to drive improvements through her national oversight group on domestic abuse remains as high a priority as ever.

The new offence, together with the guidance for investigators provided for in Commons Amendment 8, will make it easier for the police to protect victims and bring those who abuse them to justice. This will send a clear message that domestic abuse in all its forms will not be tolerated in our society. Commons Amendments 17 and 21 are consequential on Amendments 7 and 8. I beg to move.

[Baroness Smith of Basildon]

My Lords, I welcome these amendments. As a long-term patron of Basildon Women’s Aid, for over 20 years, I am very much aware that coercive and intimidating behaviour is often a precursor to violent behaviour. I have spoken to women and found that it can start with, “Oh, I like to see you in that dress”. In one case, it went from what somebody wore and whether they wore make-up through to, if they even washed, they were seen as trying to attract other men, and that then led to violence. It can start very simply with what somebody wears or make-up and end in violent behaviour.

Not only does the amendment recognise that controlling or coercive behaviour in such relationships is dangerous, it could also be a preventive measure, because it could nip the problem in the bud before it gets to violent and more abusive behaviour. The amendment recognises how dangerous such controlling behaviour is. Even if it does not lead to violent behaviour, controlling behaviour is dangerous and corrosive to the individual. That is recognised in the courts already. Ongoing, day-in, day-out controlling behaviour has led to cases where the woman being victimised has turned on and been violent towards the perpetrator of such behaviour. The courts have now recognised that slow-burn behaviour. Intimidation has consequences, so the amendment is very welcome.

The Minister talked about the effective police response. Passing a law does not, on its own, make something happen, and he recognised that. In my area, the number of police officers and the pressure that they are under has an impact on the police’s ability to investigate and act on such issues. Too often, domestic violence can, as the noble Lord and the Home Secretary have recognised, come further down the list of priorities. I hope that, when the Government examine how successful this is, they also look at the resources that are available for the police to take the action that is needed.