Anti-social Behaviour, Crime and Policing Bill

Baroness Thornton Excerpts

Tuesday 12th November 2013 Lords Chamber

Moved by

[Baroness Thornton]

7: Clause 108, page 79, line 2, at end insert—
“( ) A person also commits an offence under the law of England and Wales if he or she causes another person to enter into a marriage and that other person lacks the capacity to consent to that marriage.”

[Baroness Thornton]

My Lords, this amendment, in my name and those of my noble friend Lady Smith and the noble Baroness, Lady Hussein-Ece, seeks to test whether the Bill adequately covers the issue of capacity; in other words, the capacity of a vulnerable adult who may be forced into a marriage. Almost by definition, they are very often not in a position to give free or full consent to a marriage, or otherwise. We are looking at Clause 108(1)(a) and (b). Paragraph (a) says,

“A person commits an offence … if he or she … uses violence, threats or any other form of coercion for the purpose of causing another person to enter into a marriage, and”,

paragraph (b) continues,

“believes, or ought reasonably to believe, that the conduct may cause the other person to enter into the marriage without free and full consent”.

Both those points assume that the person has capacity either to resist or to consent to a marriage. Of course, we know that a proportion of the cases dealt with by the Forced Marriage Unit concern people who have not given consent to a marriage. An article published in the Guardian in August which quoted the Forced Marriage Unit said that,

“The government dealt with 114 cases of forced marriage last year that involved mentally disabled people”.

However, the Forced Marriage Unit recognises and admits that that is probably only the tip of an iceberg and does not reflect the full scale of the abuse. I think that everybody would agree that we should be concerned that disabled or mentally disabled people are protected in this legislation and do not suffer forced marriage.

My second question, which is linked to but is not only about capacity, is: how can marriages be voided in these circumstances? When is a forced marriage voidable? How does it go forward and, in particular, if there is no capacity to agree to the marriage, how can it be ended? In recent times there was a judgment in which the courts decided not to end the forced marriage of somebody who they admitted lacked capacity. That has troubled many people who are concerned about this area. That is the issue we would like to probe, and I would like to know whether the Government have taken that into consideration. I beg to move.

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[Lord Ahmad of Wimbledon]

My Lords, I thank the noble Baroness, Lady Thornton, for her amendment. I also thank my noble friend Lady Hussein-Ece and the noble Lord for their contributions. The noble Lord alluded to the Freedom charity, which carries out notable work in this field, and I acknowledge his work and engagement in that arena.

Marriage without consent or the capacity to consent is totally unacceptable. Clause 108 specifies that an offence is committed if the perpetrator uses coercion and believes, or ought reasonably to believe, that their conduct may cause another person to enter the marriage without free and full consent. A person who lacks capacity to enter into marriage is incapable of providing free and full consent to marriage. In the cases that have come to the attention of the Forced Marriage Unit, some form of coercion has invariably been involved in forcing a person who lacks capacity to consent to a marriage. The new offences would therefore cover this behaviour.

Although I totally understand the noble Baroness’s concerns and those of other noble Lords, the definition of the new offences in Clause 108 already captures in practice the types of cases intended to be covered by this amendment. I take on board the point that the noble Lord made about looking specifically at this issue. Certainly, between Committee and Report we will look at the issue once again in the context of Clause 108. However, I assure noble Lords that Clause 108 is intended to capture that particular element. Marriage is voidable under Section 12(c) of the Matrimonial Causes Act 1973 on the grounds that,

“either party to the marriage did not validly consent to it, whether in consequence of duress, mistake, unsoundness of mind or otherwise”.

The issue was also raised of a vulnerable person getting a decree of nullity. The procedure to do so is available and a person can apply for a decree of nullity by filing a petition at any time after the marriage ceremony. If the application is not opposed, there is unlikely to be a court hearing and the person will not have to attend court. Following the petition, the court will issue a decree nisi and, following this, the applicant can apply for a decree absolute. The Family Procedure Rules make provision to ensure that these matters are straightforward for unrepresented applicants. However, having said all that, I fully acknowledge the points made by noble Lords about the special circumstances that they have mentioned. Having explained the scope of Clause 108, I hope that the noble Baroness is minded to withdraw her amendment.

[Baroness Thornton]

I thank the noble Lord for that explanation, which was a good attempt to describe the position. However, I am not convinced that capacity is covered in the Bill. Therefore, I will ask a lawyer what they think. Depending on what they think, and perhaps after further discussions with the Bill team, we shall see whether we need to return to this at a later stage. I beg leave to withdraw the amendment.

Amendment 7 withdrawn.

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[Lord Hope of Craighead (CB)]

My Lords, I had not intended to say anything about this amendment, but two points occurred to me in listening to the noble Baroness, Lady Berridge, which I mention in case they might be of any assistance to the Minister in looking into the matter. First, I should have thought that it would be plain that if the individual is not capable of entering into a marriage at all, because he or she was underage or simply did not have the mental capacity to agree, one could not treat that as a valid marriage for the time being until it was annulled. There may be something to be said for some categories which are not in that very stark situation; where there was initially the capacity to marry, but there has been enforcement or something like that which has persuaded the individual to enter into it. It is rather as in the law of contract: there are some contracts which are void ab initio and some which are voidable. There may be room for that distinction: no doubt the Minister will wish to research that further.

Secondly, when I was at the Bar in my junior days I used to do cases in Scotland which were described as “nullity of marriage cases”. The ground of nullity in those cases was lack of capacity to consummate the marriage. An individual who found that the husband or wife could not consummate the marriage was entitled to come to court and if that fact could be proved—it was very often not disputed, which was just as well—the marriage would be set aside. I do not know how the law is in England, but there must be a similar process where the marriage cannot be consummated. It may be that those cases are precisely in the category that Amendment 11 is talking about, where somebody has a choice. An individual who finds that the marriage cannot be consummated may feel that the marriage should go ahead for other reasons—simply because they enjoy living with each other. Nobody forces them to apply to the court to have the marriage set aside. It may be that there is an analogy there which can be drawn upon, to follow up the point that the noble Baroness is making.

[Baroness Thornton]

The noble Baronesses, Lady Berridge and Lady Cox, have raised very valid but different points. The issues to do with property and assets and differential treatment are very valid indeed, particularly with regard to Amendment 11. I look forward to hearing what the Minister has to say because these issues need to be addressed.

[Lord Ahmad of Wimbledon]

My Lords, I thank my noble friend Lady Berridge and the noble Baroness, Lady Cox, for raising these important issues, which I shall address in turn. As both noble Baronesses will know, I take this issue very seriously: it needs to be addressed and the issues that have been raised are perfectly valid, as the noble Baroness, Lady Thornton, has said. I also thank the noble and learned Lord, Lord Hope of Craighead, for his contribution. He has raised one or two matters which I shall certainly take back to officials to discuss further.

As my noble friend has explained, it is crucial for victims of forced marriage to be able to ensure that the marriage that they have been forced into is subsequently rendered void as a matter of law. While I agree that this is important, especially to the victims of this crime who rightly want clarity on where the marriage stands in the eyes of the law, there are reasons why the Government feel that this amendment is unnecessary. Under the current law, if a forced marriage takes place, victims can apply to the court to end the marriage by divorce or annulment. If a victim wishes to apply for an annulment, it must be shown that the marriage was either void or voidable. The grounds on which a marriage is void or voidable are set out in the Matrimonial Causes Act 1973.

A forced marriage is voidable by virtue of Section 12(c) of the 1973 Act, which provides that a marriage will be voidable on the grounds,

“that either party to the marriage did not validly consent to it, whether in consequence of duress, mistake, unsoundness of mind or otherwise”.

If a victim wishes to apply to the court for an annulment on these grounds, and the court grants the decree of nullity, the annulment will take effect on the date on which the decree of nullity is issued. This amendment would mean that if a conviction for an offence of forced marriage occurred, the court would be required to issue a decree of nullity. The date on which that decree of nullity would take effect would be the date on which the perpetrator was first charged with the offence. I understand totally the sentiments behind the amendment tabled by my noble friend, but I do not agree that the process by which a victim can seek to end a forced marriage, and the date on which that marriage ends, should be determined by reference to whether a conviction for forced marriage has taken place. Such an approach provides no flexibility for victims whose perpetrators are convicted of an offence of forced marriage to choose how they wish to end their marriage. It would also be unfair to those victims whose perpetrators are not found guilty of the offence of forced marriage, and who would have to continue to rely on the current law to end their marriage.

Victims of forced marriage experience a range of specific extenuating factors, as a consequence of which they may wish to have a divorce rather than an annulment. For example, there may be children involved, as my noble friend pointed out, and property rights to consider. As a result, they may prefer a specific legal route to end their marriage. Preserving a victim’s choice is the intention behind the Government’s proposals. We are seeking to provide flexibility to victims who, on seeking legal advice, can end their marriage as and when they see fit. I hope that, having heard this explanation, my noble friend is reassured about where the Government currently stand on this issue.

Perhaps I may now turn to religious marriages, the issue focused on by the noble Baroness, Lady Cox. I pay tribute to her because I know that she represents women’s interests very widely and that this is an issue on which she does not seek to target any particular faith or community. However, she recognises fully that many, if not all faiths, protect such marriages. Unfortunately, it is the case that some of the practices do not live up to the theology. As the noble Baroness has explained, the purpose of her proposed new clause is to create a new criminal offence, under Section 75 of the Marriage Act 1949, of solemnising a marriage according to any religion so that the couple getting married believe they are validly married when in fact the marriage is not valid under that Act. This proposed new offence clearly arises from a desire to help couples who have a religious marriage ceremony that they think is perfectly valid, but which has no legal status because the requirements of the law in England and Wales have not been complied with.

The legal position in respect of religious marriages in England and Wales is that anyone who wishes to contract a religious marriage and acquire a legal marital status has two options. They can either have a religious marriage and a separate secular civil ceremony or they can choose to solemnise their religious marriage in a place of worship registered to conduct marriages, thus removing the need for a separate civil ceremony. Where a marriage is invalid for want of the appropriate formalities or other elements, this does not necessarily leave the parties without any remedies. If the marriage purports to be in accordance with the provisions of the Marriage Act but does not fully comply with those provisions, it may be void under Section 11(a) of Matrimonial Causes Act 1973. This section enables a party to the marriage to apply to the court for a decree of nullity and the court is able to make orders in respect of children and the division of property in the same way as on divorce. We believe that this will provide protection for some of the couples whom the noble Baroness seeks to protect with her amendment.

The Government accept that there will be some religious marriages to which Section 11(a) will not apply. In such cases, the courts may be able to view the marriage as being valid in principle and, as such, susceptible to a decree of nullity. The court will determine such issues on a case by case basis and will consider issues such as whether the ceremony or event set out or purported to be a lawful marriage, whether it bore all or enough of the hallmarks of a marriage, and whether the parties acted in good faith. If the court is not able to make such a finding, again, that does not mean that the spouse will be left without any form of redress. For example, it would still be possible for the court to make an order for financial relief in respect of any children under Schedule 1 to the Children Act 1989. While the Government are keen to ensure that any person who enters into a purported religious marriage in good faith has adequate protection before the law, we do not consider that making the solemnisation of purported religious marriages a criminal offence is the correct way forward. This would, in our view, involve unjustified interference in people’s private and religious lives.

However, the Government take these matters, as raised by the noble Baroness, Lady Cox, very seriously. Even though we may differ in how best to deal with it, the sentiments are certainly much the same. We want to ensure that couples seeking a religious marriage are aware of the need to have a civil marriage as well. If this is to be achieved, it must be with the support of religious leaders and must not be seen as an attempt to dictate to them or undermine them.

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[Lord Hylton (CB)]

My Lords, earlier today we had an interesting and worthwhile debate on whether it was better to deal with forced marriages by criminal or civil sanctions. In the light of that, there is a need for reporting on the effect of this legislation. I support the intention of the amendment in the name of the noble Baroness, Lady Manzoor, although the precise wording may need to be widened.

[Baroness Thornton]

My Lords, I added my name to that of the noble Baroness, Lady Manzoor, on this amendment because we think that if we end up criminalising forced marriage, we need to look very carefully at how that works out. I very much agree with my noble friend Lord Harris that this should be about the totality of the work of the Forced Marriage Unit. How the Government decide to do it is not the point. It is important that these things are monitored regularly, so I think that “in due course” is probably not a satisfactory answer on this occasion.

[Lord Ahmad of Wimbledon]

My Lords, first, I thank my noble friend Lady Manzoor for her amendment. I welcome her to what I think is her first contribution to legislation in this Parliament. As has been demonstrated today and in her maiden speech, her contributions are always welcome and based on her great expertise and experience, of this issue in particular.

The proposed new clause would place a duty on the Secretary of State to report to Parliament annually on the effectiveness of the criminalisation of forced marriage under Part 10 of this Act. The Government are indeed happy to update Parliament on the progress of our work in this area. I hope that the various exchanges and discussions we have had, which I have certainly found very valuable, as I am sure all members of the Government and, I hope, the House have, underline the Government’s commitment to look at this issue very seriously.

Noble Lords are correct: this is not about coming back “in due course”. I say to my noble friend Lady Hamwee that I will not be saying that. What I will say is that the Government are concerned that this issue is addressed and dealt with appropriately and that the appropriate debates, discussions and questions take place as and when, but the issue remains one of Parliament. Parliament has open access here. Questions and debates can be tabled as appropriate. I do not, however, believe for a moment that an issue as important as this will be left, for us to return to at some future point. I am sure that the Government will be seeking to update Parliament regularly on work in this important area.

I will allude briefly to the issue of female genital mutilation. I accept that although a law has been enacted, prosecutions have not followed, but let me again reassure my noble friend, the Committee and the wider House that the Government take this seriously. My right honourable friend the Foreign Secretary has made this a personal priority. I will talk about it in a moment.

Once this piece of legislation receives Royal Assent, there is a period of three to five years for post-legislative scrutiny. As I have indicated, the Government accept that, on an important issue such as this, we will be returning to it earlier than that. In the case of the forced marriage provisions, the Government’s Forced Marriage Unit, through its direct work in assisting victims and those at risk of forced marriage, has the capacity and function to monitor the difference that legislation will make to victims of forced marriage. The unit, as many noble Lords will know, runs a helpline providing confidential advice and support to victims and to practitioners charged with the responsibility for safeguarding children and vulnerable adults, ensuring they are fully informed on how to handle such cases. The number of reports to the helpline has steadily increased since the unit was established in 2005. In 2012 the Forced Marriage Unit provided advice and support in almost 1,500 cases. It will regularly update Ministers on any issues identified with the new laws and make recommendations on any necessary policy changes.

My noble friend Lady Manzoor referred to the lack of prosecutions for FGM and asked whether forced marriage will be different. I would like to reassure my noble friend that we will also monitor the number of prosecutions brought, and we will want to understand the reasons why cases are either not referred to the CPS or not proceeded with by the CPS if that should prove to be the case. That said, it is important to remember that the Government’s priority in criminalising forced marriage is prevention, a sentiment I know is shared across the House. This legislation has been designed to send the clear message that forced marriage is unacceptable, it is a breach of human rights, and perpetrators will be punished.

My noble friend talked about options. We know that legislation alone is not enough to address issues, and we will endeavour to work with partners across government, with non-government organisations and other experts in the field to ensure that victims and potential victims of forced marriage are aware of the support and options available to them. As I said to my noble friend Lady Hamwee in an earlier debate, it is important that a civil remedy remains available to victims. This means that victims could choose to take a civil route or go to the police, as they can now. I reassure my noble friend that, in respect to FGM, the Government will do everything in their power to ensure that victims can come forward and their abusers face the full force of the law.

The Department of Health is working to improve the information collected by the NHS on FGM. The Home Office has recently announced it will help fund a new study into the prevalence of FGM in England and Wales. The Department for International Development has established a £35 million programme to address FGM in Africa and beyond, with the ambition to end FGM in one generation. The level of international co-operation to which my noble friend alluded is certainly working well there.

The Government have also joined forces this year with the NSPCC and the Metropolitan Police to establish a dedicated FGM helpline. But as we know, there is much more that needs to be done, which is why the Home Office is working closely with the CPS to ensure that the Government are doing everything they can to help secure a prosecution. I am greatly encouraged by the assessment of the Director of Public Prosecutions that it is only a matter of time before a perpetrator is brought to justice.

I will just pick up on one or two other issues that were raised. The noble Lord, Lord Harris of Haringey, and my noble friend Lord Faulks mentioned the importance of coming back to Parliament on this. As I have already said, the Government take this issue seriously. I hope that has come across in today’s debates. I also acknowledge the very important point made by the noble Baroness, Lady Kennedy, that education must be a major component of how we start to address some of these issues of marriages, particularly those that take place in certain communities. As for marrying into families and that continuing, my noble friend Lord Hussain talked about how clans and tribes work. He used the word “brathries”—I am not sure Hansard needs a translation, but it generally means within a brotherhood. I hope that clarifies that for the Hansard writers.

This is the last amendment in the group on forced marriage. I share my noble friend’s desire—and that of all noble Lords—to ensure that new legislation is effective. I will be happy to update the House on the progress of our work in this area. The Government would of course expect to be held to account through the usual parliamentary oversight channels.

Before I ask my noble friend to withdraw her amendment, I just say this: forced marriage is a terrible act; it is a heinous crime. Coercion in marriage has no place in our or any society. The Government seek ultimately to strengthen a victim’s access to justice. I know that is a sentiment we all subscribe to. Our country is an incredible place, one that encompasses all people, all communities and all faiths, but we must hold those who commit these crimes to account and help those who suffer as victims to ensure that they have the opportunity to take to task those who commit these crimes. On that basis, and with the explanation I have given on this issue, I hope that my noble friend will be minded to withdraw her amendment.