Anti-social Behaviour, Crime and Policing Bill Debate
Full Debate: Read Full DebateLord Ahmad of Wimbledon
Main Page: Lord Ahmad of Wimbledon (Conservative - Life peer)Department Debates - View all Lord Ahmad of Wimbledon's debates with the Ministry of Justice
(10 years, 9 months ago)
Lords ChamberMy Lords, I will also speak to Amendment 9. I thought that after the previous debate on the Bill I would be faced with saying, “Follow that”, but lunch overtook us. However, it is in fact a question of “Follow that”.
Amendment 6 would alter the definition of “force” in the new provision. Noble Lords might wonder why I am worrying about that. In fact, I propose that the definition be the same as the definition in Section 63A(6) of the Family Law Act 1996—in other words, the definition for the forced marriage protection order. I had wondered why different definitions were used in the Bill and existing legislation.
I wonder that even more after the previous debate on the Bill. The noble and learned Baroness, Lady Scotland, referred to psychological means of coercion which are not referred to in the Bill but are referred to in the 1996 statute. She talked about emotional blackmail which might be exerted by members of the very observant part of the Jewish community.
My noble friend Lord Ahmad certainly used the term “psychology”. If there are intentional differences between the grounds for the two different offences—as we are calling both of them—then the Committee ought to be clear that that is intended. If it is not intended that there are differences, then, again, the Committee should be clear that that is the case.
The noble and learned Baroness, Lady Scotland, talked about “emotional blackmail”; I would include that with the term “psychological coercion”. There may be quite porous demarcation lines in attitudes and the way in which one deals with one’s children. However, trying to stand back and look at it objectively, given the emotional blackmail which she described, from what we have heard from other noble Lords and what we know from our own experience, psychological means should not simply be left aside without noble Lords addressing their minds to them.
My Amendment 9 is much more straightforward. Its purpose is merely to obtain confirmation that a habitual residence—“habitually” is the term used in the Bill—is as it is understood under the Hague convention and the case law which has developed from that. It is obviously not defined within the Bill. I believe that it is used elsewhere in legislation, although I have not been able to find it myself—although I found myself going down different byways of reading, looking at reports of cases on the internet. However, if my noble friend could confirm that, I would be grateful. I beg to move.
My Lords, I am grateful to my noble friend Lady Hamwee for explaining her Amendments 6 and 9 to Clause 108. It is important that we get the definitions of the new offences right and I welcome this opportunity to explore them in more detail.
Amendment 6 would amend the definition of a forced marriage. Clause 108 defines it as including the use of,
“violence, threats or any other form of coercion for the purpose of causing another person to enter into a marriage”.
My noble friend Lady Hamwee proposes that this should be replaced with alternative wording that, as she explains, would mirror the language used in the Family Law Act 1996 in relation to forced marriage protection orders.
The main difference between the two formulations is that the amendment refers to “psychological means”, while Clause 108 refers to,
“any other form of coercion”.
This is intended to make it very clear that the offence recognises the different types of pressure that can be put on victims. Victims are continually faced with different types of pressure in the course of being forced into marriage, including physical, emotional, financial and sexual pressures. It is therefore right that the definition of the offence should fully cover all of the behaviours that could be employed by the perpetrators of this absolutely horrendous practice. That is what Clause 108 does. On that basis, therefore, I do not believe my noble friend’s Amendment 6 to be necessary.
My noble friend’s Amendment 9, as she has explained, is designed to probe the meaning of the word “habitually” as used in Clause 108(5)(b). The clause provides that an offence is committed outside the United Kingdom if either the victim or perpetrator is a UK national or “habitually resident” in England or Wales. This means that the new law will apply, for example, in a situation where someone who lives in England or Wales is taken abroad in order to be forced into a marriage.
The term “habitual residence” simply means the ordinary residence of a person. As my noble friend alluded to, in fact, the term was introduced into English law from the conventions under the Hague Conference on Private International Law, where it was developed due to the perceived problems with establishing the domicile of some persons, in particular children. The term is commonly used in legislation without further definition and I am satisfied that that is the correct approach to adopt here. Based on those clarifications and explanations, I hope that my noble friend will be minded to withdraw her amendment.
My Lords, I will probe the first one a little further. Of course I agree with my noble friend that we have to cover every situation, or as he said, “every type of pressure”. However, as regards the definition, is there a distinction between the provision in the Bill and the provision in the 1996 Act? If there are differences, can we know them? He has not addressed that point. If they are the same, can we know that?
My Lords, as I said about the language to which my noble friend alluded, Clause 108 has been drafted to ensure that it clearly covers the wider range of factual scenarios that exist in forced marriage cases. That addresses why there is a difference between Clause 108 and Section 63A. Clause 108 is intended to be all-encompassing.
My Lords, that begs the question of whether the 1996 Act is not all encompassing. I do not want to make life more uncomfortable this afternoon—I stress this afternoon—for my noble friend, but would he be able to write to me about that, following today’s Committee proceedings? This looks like a lawyer’s point, but it is a very real one. We have already talked today and will continue to talk about the choice between the two routes. Of course, one of the factors in the choice will be if the definitions are different, and therefore if the criteria for choosing one route are not the same as the criteria for choosing the other. I gave notice to my noble friend—although probably not directly to him—of the points that I wanted to raise on these two amendments. I will not tease him about the fact that he has not told us which other legislation the term “habitually resident” is in. However, that is probably enough from me for now, and I beg leave to withdraw Amendment 6.
My Lords, I declare an interest as chair of the Freedom charity. I apologise to the Committee for not being present for the earlier part of our discussions on these topics due to a commitment at the Department of Health.
This is an important principle. If the Minister is planning to respond by saying that the issue is adequately covered either in the clauses we have before us or elsewhere in legislation, I urge him to think again before giving the Committee that response. It needs to be made absolutely explicit that a forced marriage is not valid where there is any question at all that the person being coerced into marriage and who has entered into it does not have capacity. That capacity may be related to age—elsewhere in our legislation there has been all sorts of discussion about capacity and age, and some of the girls concerned are of a very young age—or it may be related to learning difficulties of various sorts. We therefore need to make it absolutely explicit in the legislation that this is intended to cover those circumstances where the individual concerned does not have capacity.
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.
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.
My Lords, I have every respect for my noble friend and appreciate the genuineness of his concerns, but I am not persuaded—and neither is the Opposition—that it is appropriate to change the age at which people can be married from the current age of 16, with the condition, to which my noble friend has already referred, of parental consent. We have to recognise that 16 year-olds and above are increasingly sexually active. They can serve in the Armed Forces. Many people, including me, feel that they should have the vote at 16; indeed, they will do so in the Scottish referendum next year.
I accept the legitimacy of the concerns cited by my noble friend. However, the number who might be involved in marriage from 16 to 18 is not clear—or, at least, the evidence is not before us—let alone the number who are adversely affected in the way that my noble friend described. It is a large step to alter, on the basis of what we have heard, what has been the law for some considerable time. This is quite different from matters such as female genital mutilation and the forced marriage issues which we have discussed fully today. The Opposition will not, therefore, support this amendment if it is brought forward again on Report.
My Lords, I am grateful to the noble Lord for introducing this amendment on behalf of my noble friend Lady Tonge and for explaining that the rationale for it is, in effect, to raise the age of marriage to 18 years. I also thank the noble Lord, Lord Beecham, for his comments. This is one of those occasions when the two Front Benches are at one which people sometimes smile about.
I shall merely rise to reply, not rise to the challenge.
As noble Lords know, in England and Wales it is possible to marry from the age of 16, with parental consent, and from 18 without consent. The consequence of Amendment 8 would therefore be to make it impossible for a 16 or 17-year old to marry. While I understand my noble friend’s concerns, I do not believe this amendment is necessary because the law already provides adequate safeguards for children entering into marriages.
In England and Wales the provisions for the age at which a child can marry are contained in the Marriage Act 1949 and the Matrimonial Causes Act 1973. Section 2 of the Marriage Act 1949 and Section 11 of the Matrimonial Causes Act 1973 provide that any marriage, whether civil or religious, conducted in England and Wales, where either party is under the age of 16, would not be a valid marriage. If a marriage is solemnized and either or both of the parties is under the age of 16 that marriage will be void. For a child aged 16 or 17 to marry, the law requires the consent of the child’s parents or guardians, unless the child is a widow or a widower. These provisions recognise that, while children of this age may have the maturity to enter into marriages, it is still necessary to ensure that they are afforded some level of protection in doing so.
The Government believe that the current provisions provide appropriate safeguards for children entering into marriages. We therefore do not consider it necessary to amend the age at which people can enter into a marriage. The noble Lord has referred to the UN Convention on the Rights of the Child but the convention does not address the issue of marriage. Accordingly the law relating to marriage, including the age at which a person can consent to marriage and can marry, is a matter for determination by the national law of those states, including the United Kingdom, that are a party to the convention.
My noble friend Lady Tonge is also understandably concerned, as we all are, about forced marriages. While I share her desire to do more to stamp out this abuse, the amendments as tabled are not the best way of doing this. We have just debated provisions to strengthen the law in respect of forced marriage, thereby making it a criminal offence to breach a forced marriage protection order and making it an offence to seek to force someone to marry. This is combined with a significant nationwide engagement programme and the work done by the Government’s Forced Marriage Unit to give direct support to victims and potential victims.
Amendment 12 to Clause 109 seeks to make identical provision in the case of Scotland. Marriage law is a devolved issue and Scotland has its own marriage laws. I therefore cannot comment on behalf of the Scottish Government. The noble Lord will be aware of the convention that the United Kingdom Parliament does not legislate on devolved matters in Scotland without the consent of the Scottish Parliament.
I take on board the noble Lord’s point about further discussions between stages of the Bill. I am always open to discussions on all these matters. As I said earlier, this is an important matter and this is about getting it right. If the noble Lord or my noble friend wishes to meet me I shall be delighted to do so. Based on that explanation, I hope that the noble Lord will be prepared to withdraw his amendment.
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.
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.
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.
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.
I thank my noble friend the Minister for his considered response. I know his personal commitment to this issue. I also thank the many noble Lords who took part in this debate. They have been both passionate and certainly much more eloquent than I have. I entirely agree with the observations made by the noble Lord, Lord Harris, and my noble friend Lord Faulks—noble Lords will have to forgive me as I am just getting to terms with knowing everyone’s names. I am very pleased by the Minister’s response but when he says that he will come back and report to Parliament, how often is that likely to be?
All I will say to my noble friend is that, as I have already indicated, the Government will be held to account. That is something that will be discussed through the usual channels, but my noble friend has an opportunity, as a Member of your Lordships’ House, to raise a Parliamentary Question or debate. As I said, the Government take this issue seriously. Once this becomes legislation and passes into law, as I hope it will, it is certainly an issue that the Government will return to, not least because we believe it is important to update the House. It would not be appropriate for me at this time to give a specific target date: that would be presumptuous. Nevertheless, as I said, the option is even open to my noble friend to hold the Government to account.
I thank my noble friend. I will, along with other noble Lords, do that. I beg leave to withdraw the amendment.