Anti-social Behaviour, Crime and Policing Bill

Lord Harris of Haringey Excerpts

Tuesday 14th January 2014 Lords Chamber

[Lord Harris of Haringey (Lab)]

My Lords, I declare an interest as chair of the Freedom Charity, which works to provide education and support for individuals who may be at risk of forced marriage. The noble Baroness, Lady Tonge, is right to highlight that many organisations believe that the Government are correct in trying to make forced marriage a criminal offence. The Freedom Charity is precisely one of those organisations and, in my view, the Government’s approach to this is right.

However, the amendment moved by my noble friend Lady Thornton, as opposed to the general principle which seems to have been aired, raises another, separate and extremely important issue—the circumstances in which an individual who has been forced into marriage lacks proper capacity to consent to that marriage. I have no doubt that we will be told by the Minister that somehow that is covered by the phrase at the end of Clause 109(1)(b) about a person entering into a marriage,

“without free and full consent”.

I understand that argument, but it seems to me that nothing is lost and rather a lot is gained by specifically highlighting the problems of those who may not have the capacity to consent to a marriage.

I am in no doubt that there are instances where young people, or not so young people, who have limited capacity are being forced into marriages, perhaps from benign motives—that is, to protect or support them—but perhaps also from less benign motives. Forced marriage is pretty abhorrent in itself, but the implications of forcing into marriage somebody who does not even understand what is happening to them seems to me particularly vile and is something that I hope this legislation will address.

That is why the amendment moved by my noble friend Lady Thornton is important, and I hope that the Government will be prepared to accept and support it. As I said, I understand that they will no doubt say that,

“without free and full consent”,

covers the point but, unless it is highlighted and unless the particularly vulnerable state of people with limited capacity is made clear, a great opportunity is being lost. Making it a specific and separate criminal offence is important, and I hope that the Minister will be able to accept the amendment.

[Baroness Hamwee (LD)]

My Lords, when I first saw the amendment, I thought that, as the noble Lord, Lord Harris, has just said, it was covered by Clause 109(1)(b). However, I realised that it is not, because paragraph (b) comes into play only if paragraph (a) applies. Therefore, my question to the Minister is: what does “coercion” in paragraph (a) mean? If the argument is that it is covered, I think that we need to understand the extent of coercion and whether that covers the situation that the noble Baroness has set out.

While I am on my feet, perhaps I may say that I hope my noble friend Lady Tonge will seek the leave of the House to speak to her amendments in this group. She got so carried away with enthusiasm for the noble Baroness’s amendment that she forgot to cover them. I am intrigued by my noble friend’s amendments. We were all left floundering somewhat listening to the debate on their predecessor amendments in Committee, knowing that there were good intentions behind them but not quite finding the means to support them because we were rather doubtful about them. These amendments are much more comprehensible.

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[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 Harris of Haringey]

The point here is not the consent but whether coercion has taken place. The noble Baroness, Lady Hamwee, put it very clearly: for an offence to be committed, both paragraphs (a) and (b) have to apply. It is not a question of whether consent has been given or not under paragraph (b) but a question of whether or not there has been coercion. This will not necessarily be coercion. It may simply be suggestion, which I do not think counts as coercion. The context is that you have to do both (a) and (b), so there has to be either the use of “violence” and “threats”—which does not necessarily have to happen—

“or any other form of coercion”.

However, this will not necessarily be coercion. I will carry on explaining the point to allow assistance to come from the Box. It is an extremely important issue.

There is the question of coercion, which leads to somebody entering into a marriage, and the question of consent. I think we all agree that people with limited capacity will not be able to give consent. However, that, in itself, does not create an offence, because they may not have been coerced. A highly suggestible person with learning difficulties may simply have been told, “This is going to be nice, you are going to enjoy this and this is going to be fun. So-and-so is going to look after you and take you to the cinema”. I do not know what the form of suggestion might be, or how it might be put, but that is the context in which it would happen. It is not the same as coercion—that is the difficulty. As far as I can tell—the noble Baroness, Lady Hamwee, put it very clearly—you need both coercion and the failure to consent before you have committed an offence. That is why my noble friend Lady Thornton’s amendment is so important.

[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.

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Moved by

[Lord Harris of Haringey]

90: Before Clause 111, insert the following new Clause—
“Local community safety plans
In section 6 of the Crime and Disorder Act 1998 (formulation and implementation of strategies) after subsection (1A) insert—“(1B) In exercising functions under subsection (1), each of the responsible authorities for a local government area must set out their approach to making use of the powers conferred by Parts 1 to 5 of the Anti-social Behaviour, Crime and Policing Act 2014.””

[Lord Harris of Haringey]

In moving Amendment 90 I shall also speak to Amendment 91. These two amendments are intended to be entirely helpful to the Government. I am surprised that that suggestion provoked hilarity from the Government Front Bench, because that is genuinely the case. If the Minister has in front of him a brief from his officials suggesting that he should oppose these amendments, I hope that by the time he has finished listening to what I have to say he will realise that that advice is perhaps an example of civil servants approaching amendments to a Bill as if not a tiny hair of its precious head should be interfered with, because obviously it is an object of complete perfection. I hope that by the end of my speech the noble Lord will realise that I am trying to improve the Bill and make it fit more coherently with other legislation on policing and anti-social behaviour.

Amendment 90 requires that each of the responsible bodies in a local community safety partnership should set out its approach to using the anti-social behaviour powers in the Bill. As part of the production of a community safety plan, the various relevant organisations —the local authority, the local police commander, and possibly the health bodies and so on—should set out how they will use the powers given to them by the Bill.

Amendment 91 requires that police and crime commissioners should include in their policing and crime plans objectives for the use of the anti-social behaviour powers in the Bill. Before the Minister assumes that I must have had some sort of Damascene conversion to the concept of police and crime commissioners, let me tell him that this is nothing of the sort. I am simply trying to make this legislation that the Government are trying to get through consistent with other legislation that Parliament has already passed. I am not saying that previous legislation is perfect or does not need changing; I am simply trying to make this legislation consistent with it.

The aim of the amendments is to integrate what is in the Bill with other legislative requirements. They would ensure that plans were made for how the various powers—the new injunction powers, the dispersal order powers and so on, which we have spent many happy hours debating—would be used in any local area. The requirement that the intentions of the various responsible authorities be set out in the local community safety plans and the force-wide policing and crime plans will ensure that there is public consultation on the approach to be taken. It will also require buy-in from all the local partners to the approach being taken. Above all, we are trying to ensure that some sort of coherent strategy for the use of Parts 1 to 5 of the Bill is articulated. At the moment, that is not an obligation for those who will enforce it.

In my view, local community safety plans are the building blocks of local collaboration. The 1998 Act that created them, and the subsequent amendments of the law that have strengthened and added elements to them, are the mechanism by which, at local level, the police service, the local authorities and other relevant parties come together to decide on the best way of dealing with what, in the original formulation and language used, was called crime and disorder. In this context, that would include anti-social behaviour. What is the best way of addressing that? My amendment would involve the local authority sitting down with the police and identifying the circumstances in which they can both make a difference, so it is about the sort of collaboration that the Minister, in responding to a number of provisions, has talked about as being the sine qua non of what the Government are trying to achieve with the Bill. Therefore, the amendment follows the principles set out by Ministers but provides a framework in which they will be discussed at local level by the relevant parties. The amendment would also provide coherence and enable the relevant intentions to be set out clearly. It sets out a mechanism for this to take place and a mechanism for partnership around what the Government want to see achieved at local level with regard to anti-social behaviour. It also sets out a mechanism whereby those approaches can be agreed.

The amendment would deliver transparency at local level with regard to how the measures in Parts 1 to 5 are to be used—without the amendment, I am afraid that the Bill simply does not have that—and introduce a much clearer system of local accountability as the local objectives in regard to the use of Parts 1 to 5 would be set out. It would also provide a mechanism to achieve consistency of approach in the way that the powers in Parts 1 to 5 are used within a force area and even within a local authority area. Above all, it would institutionalise effective collaboration. I cannot see what there is in these amendments for the Government Front Bench not to like. As I say, they are genuinely put forward in a spirit of trying to be helpful and make this piece of legislation consistent and compatible with other legislation that requires collaboration and working together to protect local communities against anti-social behaviour. I beg to move.

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[Lord Harris of Haringey]

My Lords, I am grateful to the Minister for his courteous endorsement of my intention to be helpful on this occasion. I suggest that my espousal of the current arrangement for police and crime commissioners will have to wait for another occasion; we are certainly not going to get there tonight.

I have some difficulty with his response. It is very useful that he set out for the record the Government’s commitment that the use of the powers under the terms of the Bill should be very much part of local planning in terms of the preparation and delivery of community safety plans and in terms of police and crime commissioners setting out their objectives. The reality is that most police and crime commissioners have said, “Yes, this is one of our priorities”. They have not—partly, of course, because the legislation has not been passed—specified exactly how they intend to approach these issues. But of course, at the moment, there is no obligation on them to refer to the content of the Bill. That is what would be changed.

My noble friend Lady Smith talked about the dispersal order powers. This is one example of where we beg to differ on the subject of whether there should be prior consultation with local authorities. If there was at least a formal agreement and protocol on the circumstances in which both sides will expect those powers to be used, that would be helpful to the legislation and might avoid some, although I fear not all, of the problems that were identified when we talked about this on a previous occasion.

I do not think that the Bill requires the sort of collaboration that I think is necessary and that the Minister thinks is necessary. I think it is unfortunate that the Bill is so silent on how this fits in with community safety plans and police and crime plans, but I am at least grateful to the Minister for what he has said on the record today. In the light of that—I will read the debate carefully to make sure that he has not left too many gaps—I beg leave to withdraw the amendment.

Amendment 90 withdrawn.