Anti-social Behaviour, Crime and Policing Bill Debate
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Baroness Thornton
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Anti-social Behaviour, Crime and Policing Bill
Baroness Thornton Excerpts(10 years, 11 months ago)
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Baroness Thornton
“( ) Where a court makes a sexual harm prevention order in relation to a “child” as defined in section 103B(1), the court must have regard to safeguards in place to ensure the child receives the support he or she needs, including an assessment of their emotional, welfare and behavioural needs, therapeutic or educational support.”
Baroness Thornton (Lab)
My Lords, the first thing I need to say is happy birthday to the Minister. I am sure noble Lords will agree with me in wishing him all the very best. I am not sure that this is the best way I would choose to spend my birthday.
As I said at Second Reading, we on these Benches generally support the sexual harm prevention orders and the sexual risk orders as set out in Part 9 of the Bill. The two new orders will replace existing powers, and the threshold for risk will be lowered to cover any case of sexual harm, not just cases of serious sexual harm. These orders seek to improve the protection of vulnerable children at risk of sexual harm. On Report in the Commons, the Minister, Damian Green, provided details of the two new orders. He explained:
“The sexual harm prevention order may prohibit the person from doing anything described in it, including preventing travel overseas. Any prohibition must be necessary for protecting the public in the UK from sexual harm or, in relation to foreign travel, protecting children or vulnerable adults from sexual harm. It lasts a minimum of five years and has no maximum duration, with the exception of any foreign travel restrictions which, if applicable, lasts for a maximum of five years but can be renewed”.
The sexual risk order,
“will be available for those who have not been convicted of an offence but who none the less pose a risk of sexual harm to the public. It may be made by the magistrates court on application by the police or the new National Crime Agency where an individual has done an act of a sexual nature and poses a risk of harm to the public in the UK or adults or vulnerable children overseas”.
Of course, any prohibition in the sexual risk order must be necessary for protecting the public in the UK from sexual harm or for protecting vulnerable adults abroad. Such an order, as I have described it, will last for a minimum of two years. The police are very keen on these orders as their view is that they do not have the right measures at their disposal to intervene to prevent harm to children. We agree with them.
It is also welcome that these orders simplify the current system. In relation to non-conviction behaviour, they reduce the number of acts of harm required for an order to be used from two to one, which means that they can be obtained more easily. Extending the scope of sexual behaviour covered by the orders and lowering the threshold from serious sexual harm will also increase their use. This will help tackle behaviour that poses a risk of sexual abuse to children but which has not yet translated into a criminal offence.
In the Commons, my honourable friend Ann Coffey MP noted:
“The risk of sexual harm orders, which the new sexual risk orders would replace, can be given only to offenders aged 18 and over”.
She asked the Minister:
“Will the new sexual harm prevention orders also only apply to offenders over 18? If they will apply to offenders under 18, what consideration has he given to introducing accompanying rehabilitative provisions for child sex offenders?”.
That is at the heart of what this probing amendment is about. At the time, the Minister, Mr Green, said:
“The two new orders will apply to both over-18s and under-18s”.
He also clarified the situation in relation to the sex offenders register:
“In line with the old order, the new sexual harm prevention order will make the offender subject to the notification requirements for registered sex offenders—it will put them on the sex offenders register. For both new orders, in line with the existing position, breach is a criminal offence punishable by a maximum of five years’ imprisonment. Conviction for a breach of a sexual risk order would also make that individual subject to the sex offender notification requirements”.—[Official Report, Commons, 14/10/13; cols. 472-75.]
Extending the ability to use these orders to protect children under 18, including 16 and 17 year-olds, recognises that older children are still vulnerable and can be subject to child sexual exploitation and abuse. The inclusion of vulnerable adults to the SHPO and SRO is welcome. We know that young adults with learning difficulties or special educational needs are targeted by individuals looking to exploit them.
The amendment seeks to probe how the orders will work for young people under 18 subject to the orders and how they are supported. Some young people who are subject to the orders may also have been victims of sexual exploitation, or become involved as a means of self-preservation, as was the case for a young person quoted in one of the briefs that I received. We are seeking safeguards from the Government for young people under 18 who are subject to the orders, to ensure that they receive the support that they need,
“including an assessment of their emotional, welfare and behavioural needs, therapeutic or educational support”.
We are concerned that a breach of the child SHPO without conviction or the SRO can result in five years’ imprisonment when a child has not actually committed a criminal offence. We know that custody may not be the most effective way to tackle children’s criminal behaviour, and I am sure that we all agree that custody for under-18s should only be used as a very last resort in the most serious and violent offences, so we must question whether this is appropriate where children have not been convicted of an offence. We are very concerned about the use of custodial sentences for under-18s subject to SROs or SHPOs obtained without conviction. That is why we have put forward this amendment.
What measures do the Government propose for under-18s subject to these orders? Will the Government consider prescribing the use of therapeutic support and/or education and an assessment of needs in guidance when the orders are applied to under-18s? Will the Government review and evaluate the effectiveness of the orders, such as through rates of reoffending and the effectiveness of any assessment of needs, when they are applied to under-18s? It is important that we question the detail of how this will work for under-18s.
The Minister very kindly wrote to me on this matter and in his letter he mentioned that the Government will be,
“working closely with the Ministry of Justice on applications for orders relating to under-18s and will ensure that guidance is available to the courts and others to ensure that such cases are heard in the youth court as appropriate”.
Will that draft guidance be available before the Bill has completed its passage through your Lordships’ House? I beg to move.
Baroness Hamwee (LD)
My Lords, the Government have moved forward a great deal, as have the police and the CPS, in understanding that in some cases, particularly in cases of trafficked people, those who may at first be seen as a perpetrator—often of relatively small crimes, but sometimes of bigger ones—are in fact victims and have done what they have done as a result of the way that they have been treated. It seems to me that what the noble Baroness proposes is absolutely in line with that thinking.
Baroness Thornton
I thank the Minister for that detailed reply. I will read it in more detail but the Government seem to be taking this issue extremely seriously. I would just like to be reassured that when these orders are being considered, therapeutic and educational support can also be prescribed, as it were, as part of the order. The noble Lord is nodding—I thank him.
Finally, I suggest that the others that are consulted in the process of producing this guidance will include the children’s organisations that are expert in dealing with abused children. Their expertise has certainly been very useful to me in bringing this amendment to the Committee and I hope that the Government will draw on those resources. With that, I beg leave to withdraw the amendment.
Baroness Hamwee
My Lords, I shall speak also to Amendment 4. This is a very low-key group of amendments as we start the part of the Bill on forced marriages. Many noble Lords will have far more to say on this issue than is appropriate to this little group. I will confine my remarks very narrowly to the points of which I have given the Government notice.
These are two probing amendments. Amendment 3 would take out new subsection (2). The intention is to probe the meaning of “aware” in it, where it says that,
“a person can be guilty of an offence … in respect of conduct engaged in at a time when the person was aware of the existence of the”,
forced marriage protection order. What is the burden of proof as to whether an individual is aware of an order? I assumed on first reading that this meant actually aware as distinct from having been served with an order, which is rather more particular. Is there scope for judicial discretion in dealing with this? As I said, this is just intended to understand what is meant by “aware” in this context. My noble friend Lord McNally accuses me of being too curious about this sort of terminology.
Amendment 4 probes the relationship between criminal proceedings following a forced marriage protection order and contempt of court if an order is not complied with. I agree with what I understand the Bill to provide—that it should be one or the other—but I hope that my noble friend can explain to the Committee how decisions will be taken about which enforcement route will be followed. What criteria will be used? I am not challenging the content; I simply wish to understand how the matter will be approached. I beg to move.
Baroness Thornton
I was not completely clear what these amendments concerned when I read them and I assumed they were probing. They are both legitimate questions and I look forward to hearing what the Minister has to say about them.
Lord Ahmad of Wimbledon
My Lords, first, I reassure my noble friend that her curiosity is always welcome on these Benches. That is well acknowledged by my noble friend Lord McNally.
Turning to her specific amendments, as she rightly said, we are moving on to the subject of forced marriages. This is an important subject to address. It is unfortunate that we have to address it but it is a reality that exists. As my noble friend said, we will move on to other elements of this. I say from the outset that the Government take this particular issue very seriously. It tragically impacts on people in this country and it needs to be tackled and dealt with. I hope that through our discussions this afternoon we will be able to throw further light on what is a very important matter.
The new offence of the breach of a forced marriage protection order mirrors closely the existing offence of the breach of a non-molestation order in Part 4 of the Family Law Act 1996. This approach of closely following the non-molestation order precedent is the proposal on which the Government consulted in 2012, as noble Lords will know, and with which a large majority of respondents—71%—agreed.
Consistent with the existing offence, new Section 63CA of the Family Law Act provides that, first, a person can be guilty of an offence under Section 63CA only in respect of conduct engaged in at a time when the person was aware of the existence of the order and, secondly, where a person is convicted of a breach of a forced marriage protection order, they cannot be punished subsequently for contempt in relation to subsections (3) and (4).
Baroness Thornton
“( ) It shall be a duty on the Secretary of State to prepare and publish guidance about the effect of this section before it comes into force to such descriptions of persons as the Secretary of State considers appropriate.
( ) A person exercising public functions to whom guidance is given under this section must have regard to it in the exercise of those functions.”
Baroness Thornton
My Lords, in moving Amendment 5 I also speak to Amendment 10; both are in my name and that of the noble Baroness, Lady Hussein-Ece. Amendment 5 would place a duty on the Secretary of State to prepare and publish guidance about the consequences of forced marriage and breaching a forced marriage protection order. We all agree that criminalisation, whether through criminalisation of a breach of a forced marriage protection order or through direct criminalisation, is not enough to tackle forced marriage alone. The previous Government recognised this and that all the authorities which come into contact with victims of forced marriage—schools, colleges, the police, doctors and health services, social services, local authorities, airport staff, FCO staff and the courts—must be aware of forced marriage, how it manifests itself, what to look for and, most importantly, the appropriate action that needs to be taken.
For example, in August this year, the Government issued a warning to teachers, doctors and airport staff to be alert to forced marriages over the summer holidays. Between June and August, the Forced Marriage Unit—a joint operation between the Home Office and the Foreign and Commonwealth Office—received over 400 reports. This year the unit handed out leaflet cards called Marriage: It’s Your Choice, to provide help and information to potential victims, signposting them to confidential advice. The cards reminded young people to speak to police or airline staff if they found themselves at an airport with nowhere to turn. That is an important initiative. Of course, it referred them to the Forced Marriage Unit, which was set up in January 2005 as the Government’s one-stop shop for dealing with forced marriage policy, outreach and casework. It does an excellent job, operating both inside the UK, where support is provided to any individual, and overseas, where consular assistance is to be provided to British nationals, including dual nationals. I pay tribute to my noble and learned friend Lady Scotland and other noble Lords who set up this important initiative.
However, we need to look at what has happened since that time. We must recognise that, if we look at the evidence, the action we want to be taken throughout all those authorities and public bodies is certainly not uniform or adequate. We can look, for example, at the evidence that Karma Nirvana and the Southall Black Sisters gave during Committee in the Commons. Karma Nirvana’s evidence showed that little had changed in schools since 2008, and that schools were often reluctant to participate in the charity’s work on forced marriage, for example. Other evidence confirms that schools do very little to ensure that pupils are informed about forced marriage and to offer them the necessary support if they need it. There was even evidence that some schools were putting students at risk by contacting family members when children had consulted teachers in confidence.
Southall Black Sisters said in its evidence:
“Our experience shows that the education system has been the slowest to respond to the need to address forced marriage. There needs to be considerable attention on increasing awareness and creating monitoring mechanisms for all forms of gender-related violence and equality issues in schools … We are of the view that heads of secondary schools and further education colleges have an obligation to provide clear and well publicised information on a range of gender-related violence issues”,
which includes forced marriage,
“and Ofsted has an important role to play in monitoring how these issues are addressed”.
I hope that the Minister will be able to give us some information that will help to reassure us that this will happen and that it will have teeth. However, in addition to that evidence, in 2011 the Home Affairs Select Committee wrote to the Secretary of State for Education to express its concerns about this matter. I am sorry to say that the Secretary of State rejected its views and said that he did not believe that his department should be directive or prescriptive to schools on this matter. Does the Minister think that that is satisfactory, on a matter of child protection that lies at the heart of forced marriage for young people?
There have now been two Select Committee inquiries and the Forced Marriage Unit report, and still the Department of Education does not treat forced marriage as a child protection issue in many schools—a reason why this amendment is so important. We have to recognise that the voluntary sector is doing an excellent job in trying to remedy this situation. I know that were he here, my noble friend Lord Harris would tell us about the organisation he chairs, the Freedom Charity, which first and foremost wants to protect the lives of children and young people by raising awareness of forced marriage in the UK and the associated problems of dishonour-based violence, giving young people the tools and confidence to deal with the problem. The charity plays a vital role in spreading the word and helping to prevent forced marriage, and runs the country’s first 24-hour, seven-days-a-week helpline to raise awareness and prevent abuse. It should be commended for the work it does. However, we have to accept that it is almost certainly not enough.
My second point, which I will raise very briefly with the Minister on this matter, is on whether and how legal aid will be available to victims of forced marriage when they come forward. Again, many of the organisations that deal with forced marriage have raised that as a concern. Statutory agencies have a legal duty to ensure that safeguarding policies and practices are implemented, and that is what lies at the heart of this amendment. I beg to move.
Baroness Thornton
I am grateful to the Minister for giving this detail, but can he clarify whether the Department for Education regards forced marriage as a safeguarding issue?
Lord Ahmad of Wimbledon
Safeguarding and the protection of people in schools or elsewhere are central to every department of government. The Department for Education takes that responsibility very seriously. As I have already said, schools work very closely with the Forced Marriage Unit and children’s services at a local level. It is right that decisions are taken with the full consultation and engagement of schools, and intervention will be available to them if they require it.
Perhaps I may address the other points that were raised. The noble Baroness mentioned legal aid, a subject that has occupied your Lordships’ House at various levels over the past few years, but there was a reality to address. I am conscious that my noble friend Lord McNally is sitting to my left but I will not ask him to take over the Dispatch Box; he has answered many a question on this issue. However, there was a reality and a challenge that needed to be faced. However, I assure the noble Baroness that we have retained legal aid in key areas impacting on women—in particular, in relation to injunctions to protect victims from domestic abuse and in private family law cases in which domestic violence is a feature. Legal aid is also available for victims of forced marriage, who can seek a forced marriage protection order.
Finally, as my noble friend Lady Hamwee pointed out, given that we will come on to discuss elements of a later amendment that relate to forced marriage—a subject raised by the noble and learned Baroness, Lady Butler-Sloss—I hope that, given my explanation, the Committee is assured that there is appropriate provision for guidance and that the Government are fully committed to addressing and tackling this issue. We are looking to update existing guidance to support professionals in the field. This is not just about passing laws but about applying them too. I therefore hope that the noble Baroness will agree to withdraw her amendment.
Baroness Thornton
I thank the Minister for that detailed and comprehensive answer. I also thank my noble and learned friend Lady Scotland, the noble and learned Baroness, Lady Butler-Sloss, and other noble Lords who have taken part in this debate, as well as the noble Baroness, Lady Hussein-Ece, for her support.
This has been a useful discussion because this issue is important. I had a look at the guidance, which, as my noble and learned friend Lady Scotland pointed out, is comprehensive and impressive. Were it to be implemented in the way that is intended, it would be extremely effective. It is detailed and tells all public officials how they should deal with this issue and what they should say. The guidance is very impressive but implementation is the point. I also agreed with the noble Lord when he told the House that this is also about cultural change, changes in community and so on.
I might say to the noble and learned Baroness, Lady Butler-Sloss, that I come from a community in Bradford, have links across West Yorkshire and have spoken about this issue to many different groups of women in those areas. I have to say that the enthusiasm for criminalisation, which we will come on to talk about, is not by any means uniform among the groups, including, for example, a group of Somali women in Halifax with whom I had conversations only in the past year. Criminalisation of breaches of the Forced Marriage Act is important, as I think everyone would agree. However, the discussion that we are going to come on to is slightly more nuanced.
I should be grateful if the Minister could answer the question mentioned by his noble friend Lady Hussein-Ece about free schools. He does not need to answer now; a letter would be sufficient. Do the rules relating to this issue apply also to the new free schools? I should like to read what the noble Lord has said about the Department for Education’s role in this and about the safeguarding issue. We may need to have discussions and return to it at a later stage. However, I beg leave to withdraw the amendment.
Lord Faulks
My Lords, I am a member of the Joint Committee on Human Rights, which looked at this issue, as with other issues in the Bill, and realised that there was a great deal of knowledge and experience in your Lordships’ House, some of which we have heard today. We came to the conclusion that we cautiously accepted the Government’s reasoning for the criminalisation of forced marriage, but we recommended, among other things, that the Crown Prosecution Service should develop a strategy on prosecutions over forced marriage and that, in developing such a strategy, there should be consultation with the relevant stakeholders. It was very much a cautious acceptance of the Government’s reasoning.
I appreciate that the noble and learned Baroness has put this down as a probing amendment rather than anything more and I accept it in that spirit. I counsel some caution, however, about having an offence which one commits if there is an aggravating feature in relation to another offence. It causes difficulties in sentencing in other cases in which this form of offence has been introduced. It seems to me, as I suggested in a brief intervention on the noble and learned Baroness, that it would be perfectly possible to have an offence of forced marriage and to have an offence if the context required it—a further offence, perhaps, in Section 20 or Section 18—of whatever other offence had been committed. However, I understand the spirit of the amendment and I look forward with interest to what the Minister has to say.
Baroness Thornton
Did the human rights committee consider the proposal that has been put forward by my noble and learned friend? If it did not, does it think it would be a good idea if it did now do so, if there is time?
Lord Faulks
I do not, of course, speak for the committee, as I am only one member. This particular amendment was not considered; I can certainly take it back to the committee and ask that we consider it.
Baroness Hamwee
My Lords, I am at the cautious end of the spectrum as well. Being cautious, I noticed in the fact sheet on this issue published by the Home Office the lines:
“Victims of forced marriage, their families, and society may feel better served by a specific criminal offence. There may also be a deterrent effect”.
I read into the second sentence that that might also cover a reluctance to approach the health and other authorities simply because they are authorities.
I share the concern that has been expressed about stigmatising one’s own family and the ostracism of not just the family, but of the whole community. However, as I have said already today, I am not yet convinced that this would be answered by there being a choice between civil and criminal proceedings. Indeed, the fact sheet also makes it clear that choice is a key message of engagement. That is because there is still the dilemma of how one’s family and community will react to either type of proceedings. I then asked myself whether, conversely, it could produce the reaction of, “Well, they are civil proceedings, not pursuing the criminal route, so it is not that serious”. That worries me as well. I have said to my noble friend that I am concerned about training in this issue for the police and prosecution authorities, although that probably goes to the guidance: how will they put to those who are victims in this situation the choice they have and yet not put pressure on them?
Finally—at this point at any rate—my noble friend said that female genital mutilation is not a good example. I think that it is a good example because the criminal route has not been chosen. I am not sure what we have learnt from that; I have not picked up that we have learnt anything.
Baroness Thornton
My Lords, this has been a remarkable debate and I thank my noble and learned friend Lady Scotland for introducing what is a very serious and important issue to our discussions. I want to make a point about the legislation on female genital mutilation. The reason we had to create an offence was because our law was silent on the matter of female genital mutilation at the time. We created an offence because it was the only thing we could do.
We should not be in any doubt at all that forced marriage is an offence. We need to be clear about that, and I do not think that my noble and learned friend’s—
Baroness Hussein-Ece
My Lords, I want just to clarify a point. Perhaps I did not make myself clear, but what I meant was that in the debates around FGM at the time, it was argued that criminalisation would force the practice underground. There is an area of comparison because the point about this issue is that it is underground already.
Baroness Thornton
The noble Baroness makes a very fair point. What we are being presented with here, as the result of the proposal of my noble and learned friend, is a choice about how to deal with the crime of forced marriage: which is the best way to deal with it? At Second Reading I think I indicated to the Minister that the Government would have to make a good case for going down the road they are proposing. They need to have a robust justification for criminalisation. As yet, the Government have not produced the evidence that would be the justification for doing so.
My noble and learned friend has done the Committee a great favour here, because she has said that there are two ways of achieving this. This side of the House is very keen to strengthen the law on forced marriage; indeed, my right honourable friend Yvette Cooper and my honourable friend Gloria De Piero—my new boss, the shadow Equalities Minister—have both said that we are keen to do so.
I would like to ask a couple of questions, because I know that some of us are quite keen to have our lunch. In what way did the Government examine this as an alternative route to the criminalisation that is on the face of the Bill? What was the discussion? Where did it take place? In particular, was this discussed with the CPS and police and what were their views on the most effective route to take? If the Minister thinks it is appropriate, we may need to have further discussion about this.
Lord Ahmad of Wimbledon
My Lords, first, I thank all noble Lords who have taken part in a very detailed and expert debate on this issue, as the noble Baroness, Lady Thornton, has already said. On a lighter note, I will address a point made by the noble and learned Baroness, Lady Scotland, who knows I have a deep respect for her professionally and personally. She talked about how parents would react to children who said no to them. I can assure noble Lords that as a father of two myself, that is a regular occurrence in the Ahmad household. A firm line—more from mother than father—normally does the trick. However, we are on a serious subject and it is important that we have had this detailed debate.
I join other noble Lords in thanking the noble and learned Baroness, Lady Scotland, for all the work that she has undertaken both in and out of government to end forced marriage. We have different perspectives on this. Let me also assure the noble Baroness, Lady Hussein-Ece, and the noble Baroness, Lady Uddin, who is not in her place at the moment, that this Government are building on what has been done already. I am sure that I speak for all in the Committee and in your Lordships’ House when I say that we are at one in trying to get the best solution on this most important issue. I am therefore very grateful to the noble and learned Baroness for raising her important points and I welcome the opportunity to explain to the Committee how we have considered these points fully in the development of the Bill and will continue to take them into account as we move forward on the issue of forced marriage.
Let us be absolutely clear: we all agree that forced marriage is a fundamental abuse of human rights and needs to be tackled. We are as one on that. In criminalising forced marriage it is the Government’s intention to prevent this appalling abuse, to protect victims and prosecute perpetrators. By criminalising forced marriage, we are sending a very strong message that this abuse will simply not be tolerated and we are empowering the victims, who are at the centre of what we are proposing, to come forward in the knowledge that this issue is being and will be taken seriously, and perpetrators will be punished.
The proposal is to replace the new offences of forced marriage in England, Wales and Scotland with provisions that would make the same conduct an aggravating factor when sentencing a person found guilty of another offence. I would like to reassure the noble Baroness that the Government have considered making false marriage an aggravating factor for sentencing. However, in England and Wales, the courts already have an overarching guideline on the principles of seriousness which they are required by law to follow. Within this guideline, abuse of power, position, trust and the deliberate targeting of vulnerable victims already apply, as supplemented by a guideline on domestic violence issued by the Sentencing Guidelines Council, which courts are required by law to follow. The guideline uses the current definition of domestic violence which covers forced marriage. It is therefore difficult to see how the amendments of the noble and learned Baroness would make any difference to the way in which the courts currently sentence forced marriage—the behaviours often associated with it are already aggravating factors.