Anti-social Behaviour, Crime and Policing Bill

Baroness Thornton Excerpts

Tuesday 14th January 2014 Lords Chamber

Moved by

[Baroness Thornton]

87ZZ: Clause 109, page 79, line 41, 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 (Lab)]

My Lords, before I speak specifically to my amendment, I should like to mention a broader aspect of the discussion about forced marriage.

In Committee, my noble and learned friend Lady Scotland raised her serious concerns in detail with the Minister and, since that time, has had a meeting with him and his colleagues. She is unable to be with us today due to urgent family business and is disappointed not to be here because she believed that this matter would be discussed next week on Report.

Today, I have received a letter from Dr Aisha Gill, Sumanta Roy from Imkaan, and Hannana Siddiqui from Southall Black Sisters registering their opposition to the Government’s proposals to introduce a specific crime of forced marriage. I suspect that the Minister has received the same correspondence. On behalf of my noble and learned friend, I should like to put on the record, as I said in earlier proceedings on the Bill, that the route that the Government have chosen for this matter did not receive uniform support. I mention the Southall Black Sisters, the Ashiana Network, Imkaan, Rights of Women and the JAN Trust by way of counterbalance to the seemingly singular narrative that has been advocated for the victims of forced marriage. I know that the Minister this week intends to meet the stakeholders who share these concerns, and I therefore wonder if he will be taking their views into account over how we might do that at this late stage in the Bill.

I turn to the amendment and the issue that we discussed in Committee. This is a hidden problem. In cases of the forced marriage of a vulnerable adult, the violence, threats or coercion to which the Bill specifically refers are often not necessary to force a person to marry, due to the lack of capacity of the victim. Deception is not necessarily a factor and, consequently, the amendment seeks to make it an offence if a person forces another person to marry when that person lacks the capacity to consent to the marriage.

It is worth noting why forced marriages of people with learning disabilities happen. Marriage can sometimes be seen as a means of providing a carer and continuing support. Parents may be the primary carers and, as they get older and less able to provide support; they may view marriage as a means of ensuring continuing care for their son or daughter with learning disabilities. Marriage can be seen as a means of improving the chances of getting a visa to the UK. A person with learning disabilities may be seen as easy to deceive or coerce into such a marriage and then act as the visa sponsor. Families may believe that the marriage will cure the learning disability or allow a person with learning disabilities to lead a normal life.

It is difficult to find the figures for people with learning disabilities involved in forced marriages. The Forced Marriage Unit estimates that 115 of the cases it has received involve people with disabilities, but it is not clear whether they have learning disabilities or lack of capacity. I have seen an estimate of 50 in 2012. However, the Ann Craft Trust believes that this is the tip of an iceberg and that hundreds of adults who lack capacity are being forced into marriage. Mencap believes the same; its chief executive says:

“People with a learning disability can be particularly vulnerable to forced marriage … People with a learning disability have a right to express their emotions and sexuality, and to develop personal relationships, just like anyone else. The issue here is that incidences of forced marriage can involve people with a learning disability who are unlikely to have the capacity to consent to such a relationship”.

The guidelines that have been reissued recently are excellent in the way that they describe this problem and how to deal with it. It is the words in the Bill that concern me. On this side of the House we are still not convinced that they cover somebody who lacks capacity.

Another problem is the lack of facilities, experience or support for people with learning disabilities who are involved in forced marriage. I gather that there is one refuge that is equipped to deal with forced marriage victims who have learning disabilities. Asha Jama, the manager of Beverley Lewis House, a refuge in east London, says that there is a terrible lack of options for people with learning disabilities who are escaping abuse and forced marriage. She says that the problem is compounded by social care cuts and that statutory authorities are placing the victims in supported living service or care homes, which are not services geared to provide the specialist support needed to address the abuse that these people have faced.

The amendment seeks to add a third point to Clause 109 which recognises:

“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”.

We think that provides completeness to this part of the Bill.

Finally, I ask the Minister how the Government intend to respond to what looks like an increasing incidence of people who lack capacity being forced into marriage. Can we have some assurance about monitoring and reporting the effectiveness of the legislation in dealing with this particular issue? I beg to move.

[Baroness Tonge (Ind LD)]

My Lords, I wish to make a brief intervention in support of the noble Baroness, Lady Thornton. Her remarks about forced marriage when someone lacks capacity are entirely right. We should be very concerned about this. I think there is evidence from the medical profession that many of these cases occur and could be on the increase, although I would not know that.

Secondly, on the debate about whether forced marriage should be a criminal offence, the noble Baroness listed organisations that were against that happening. I can list organisations that are in favour of that happening—Girls not Brides and the Iranian and Kurdish Women’s Rights Organisation, to give two examples. We discussed this issue in great detail in A Childhood Lost, the report from the All-Party Parliamentary Group on Population, Development and Reproductive Health, which I chair.

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is deliberately drafted very broadly—we have discussed this with legal counsel across government—so as to encompass a wide range of behaviours. For example, I am sure that many noble Lords have come across a situation where various pressures are put on people who find themselves in this situation. The pressures could be financial, emotional or—

[Baroness Thornton]

I thank the Minister for allowing me to press him on this point. Actually, the point is that there will be no coercion. There does not need to be any coercion as the person lacks capacity. Therefore, they cannot consent, or withhold their consent, because they do not know that they can do either of those things. The parents concerned may think that they are doing exactly the right thing for that son or daughter, whether a young person or not. In other words, the Bill as drafted does not cover that point. No coercion is being used, and no coercion is needed, as the person lacks capacity. I do not think the definition of coercion that the Minister has mentioned at previous points in the Bill covers that.

[Lord Ahmad of Wimbledon]

Again, I totally understand and respect the noble Baroness’s position. She is correct in saying that, often, the people who may be forced into a marriage would be unaware of the situation. The point she raised about parents is also well made. However, as the legislation stands, they would not have given their “full” consent, which means that they had the capacity to give that consent. I see that the noble Lord wishes to speak.

[Lord Ahmad of Wimbledon]

I thank the noble Lord and the noble Baroness for their interventions and will return to that point before I conclude my comments. The point is well made and understood, but I will continue while I await clarification. My understanding on this issue is that any person taking part in a marriage would have to give their consent. The view is that, if no consent is given, it would not be deemed to be a valid contract. However, as I said, I will clarify that point in a moment.

I turn to Amendments 87A and 87B tabled by the noble Baroness, Lady Tonge. I shall explain that these amendments relate to the process by which a young person aged 16 or 17 may consent to the marriage. Following the Committee stage, I have had the opportunity to meet the noble Baroness and I welcome the opportunity again to discuss this important issue today. These amendments would make it an offence for the parent or guardian to consent to a marriage of a person or persons before the age of 18 unless the written consent of both parties to the marriage has been obtained. The offence would also extend to marriages contracted outside the UK.

I understand that the noble Baroness is concerned that under the current law parents may give consent to force marriage on a 16 or 17 year-old who may not wish to marry. However, I do not believe this amendment is necessary because the law already provides adequate safeguards for children who are aged 16 to 17 and are entering into marriages.

The law in England and Wales, as contained in Section 2 of the Marriage Act 1949, provides that if a marriage, be it civil or religious, is solemnized and either or both of the parties is under the age of 16 that marriage will be void. If the child is aged 16 or 17, Section 3 of the Marriage Act 1949 requires the consent of the child’s parents or guardians, unless the child is a widow or a widower.

I appreciate that Amendment 87A seeks to add additional safeguards to the current law rather than preventing the marriage of 16 and 17 year-olds outright. However, I consider that the additional need for the written consent of parties is unnecessary. If any person is forced into a marriage without their consent, the provisions in this Bill which will make it a criminal offence to seek to force someone to marry will apply regardless of the age of the party concerned. In addition, any forced marriage would be voidable under Section 12(c) of the Matrimonial Causes Act 1973 on grounds of lack of valid consent.

If someone is being forced into marriage, it is foreseeable that they could be forced to provide written consent. Therefore, I do not believe that this provision would achieve the noble Baroness’s desired effect of preventing forced marriages. However, I understand totally the noble Baroness’s concerns and I share her desire to ensure that we do everything we can to protect 16 and 17 year-olds—as well as others—from forced marriage. In regard to the points made by the noble Baroness, I will keep the provisions in the Bill under review and, as we have previously discussed, consider the issue of how the legislation is currently drafted to see whether there is something more that we can return to at Third Reading.

Turning to the application of such a provision to marriages contracted outside the United Kingdom, there is no legislation in England and Wales on this issue and matters of recognition of such marriages in England and Wales are for the courts to determine. However, I consider that the courts already have the necessary powers to provide adequate safeguards for children entering into marriages outside the UK. Generally speaking, the validity of a marriage contracted outside the UK will be governed by the law of the country in which it was contracted. However, if there were questions as to the capacity or age of one or both parties to such a marriage, the courts in England and Wales could refuse to recognise the marriage for the purposes of England and Wales law.

I therefore consider that the need for the written consent of parties is unnecessary in respect of marriages contracted outside the UK. We also do not believe that applying this sort of provision to marriages contracted outside the UK would be practical or appropriate. For example it would, in our view, be extremely difficult to enforce.

Finally, I turn to Amendment 87B, which seeks to make identical provision to Amendment 87A in respect of Scotland. This is a devolved issue, as the noble and learned Lord, Lord Hope of Craighead, underlined.

Perhaps I may turn to the issue just raised on Section 109. The Forced Marriage Unit carried out a full review of the cases dealt with in relation to victims with learning disabilities and mental health issues and could not find any cases in which there was no element of coercion. Where there is an element of coercion, we do not wish to criminalise the behaviour concerned. Rather, the appropriate recourse is for the individual to apply to the court for the marriage to be declared void under Section 12 of the Matrimonial Causes Act.

[Baroness Thornton]

This House has a reputation for dealing with issues to do with mental capacity. We have spent many months discussing the issue of capacity and how best to protect people who lack it. We have a great body of legislation which protects people who lack capacity. I ask the Minister to look again as to whether this really protects people who lack capacity as people in this House believe that it does not. It would be awful if we found, further down the track, that we got this wrong and we were not protecting people who lack capacity.

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[Lord Ahmad of Wimbledon]

That is a valid point. I have had discussions with officials on the issue of ensuring assistance. If someone has not had the mental capacity to consent, would they have the mental capacity to take up the issue? That is a point understood and well made.

I hope that, based on the assurances and clarification that I have given that we will look at the issue again, at this juncture the noble Baroness will be prepared to withdraw her amendment.

[Baroness Thornton]

I thank the Minister for his usual comprehensive and comprehensible response. I am very grateful for the fact that the Government have agreed to think about this again and, of course, we will be very happy to help them to do so. I beg leave to withdraw the amendment.

Amendment 87ZZ withdrawn.