Withdrawal Agreement: Legal Advice
William Cash Excerpts(6 years ago)
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The Solicitor General
As I think most hon. and right hon. Members know, the role of the Attorney General is to be the Government’s chief legal adviser. He has a role in advising the Cabinet. He is not a member of the Cabinet but he attends Cabinet. The advice that might or might not be given can assist in collective Cabinet decision making. He is the lawyer, and his client is the Government. That lawyer-client relationship allows for the lawyer to provide impartial and proper legal advice, unencumbered by political considerations. That is why the convention exists. That is why it must be maintained.
Sir William Cash (Stone) (Con)
The Solicitor General was in post at the time and will know the answer to this question. Did the Prime Minister ask the opinion of the Attorney General, as laid down under the clear requirements of the ministerial code, which insists that, in respect of critical legal considerations, all Ministers must ask the opinion of the Attorney General “in good time” before the considerations are implemented by the Cabinet? I ask that both in respect of the Chequers proposals on 6 July, when the Cabinet was clearly bounced, and in respect of the incompatibility of the withdrawal agreement with the withdrawal Act and the express repeal of the European Communities Act 1972, before the signature of the withdrawal agreement over the weekend?
The Solicitor General
My hon. Friend will know the answer that I must give, which is that the convention applies. I can neither confirm nor deny the position with regard to the Attorney General as to the issue that he raises.
European Union (Withdrawal) Bill
William Cash ExcerptsTuesday 16th January 2018
(6 years, 11 months ago)
Commons ChamberRead Full debate European Union (Withdrawal) Act 2018 View all European Union (Withdrawal) Act 2018 Debates Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: Consideration of Bill Amendments as at 16 January 2018 - (16 Jan 2018)
The Solicitor General
The position that my right hon. and learned Friend took on the charter back in 2007 is the right one. As I was saying, it is in the interests of maintaining the rule of law that we maintain clarity, consistency and a clear authoritative source for those rights. My genuine concern about the importation of this particular charter into our domestic law is that we will sow confusion. That is not good for the maintenance of the rule of law, for the citizens of our country, for the future development of the law or for the position of this place vis-à-vis that development.
Sir William Cash (Stone) (Con)
I entirely endorse what my hon. and learned Friend is saying, not least because of the acquis itself. Secondly, there are the adjudications under the European Court itself. Thirdly, the charter is like a legal ectoplasm: it seeps into everything. There is no way in which we would ever be able to extract ourselves from the entirety of the provisions in perpetuity.
The Solicitor General
I am grateful to my hon. Friend, who raises a genuine concern about the impact of protocol 30. Many Opposition Members were here 10 years ago; they were anxious then to make sure that the protocol was included in the Lisbon treaty. They are now happy to resile from that position and take an entirely different view. I take great issue with that: the legal principles were the same then as now. Nothing has really changed about the potential force of the charter, so I am rather bemused to hear about that volte-face on the part of many Opposition Members.
The Solicitor General
I hope that my right hon. and learned Friend is allowing me to intervene on his intervention. Let us not forget that we are dealing with the pre-exit situation. The EU acquis is being frozen, in the sense that its full effect in a pre-exit sense must be maintained so that we can maintain certainty. I agree that it is a strange and rather unusual concept, but I think it preserves that all-important certainty.
Time is short, and I want to ensure that I deal with further amendments.
The Solicitor General
I must press on, I am afraid.
The amendments tabled by my right hon. and learned Friend the Member for Beaconsfield relating to the way in which we designate EU legislation make important contributions to the debate, but they are laden with problems. The sheer volume of what we are dealing with—well over 15,000 pieces of legislation—leads me to draw back from trying to create a convenient categorisation of retained EU law. With the greatest respect, I think it far wiser for the Government to approach each item on a case-by-case basis, not making glib assumptions and trying to downgrade EU law, but getting each particular measure right.
Amendments tabled by the hon. and learned Member for Edinburgh South West and others deal with, again, the debate on clause 6 and the interpretation of retained EU law. I entirely understand why the amendments were tabled, because the debate is intense, but I would say to those Members, with respect, that I think less is more. The more we try to enshrine in law principles such as persuasive authority—which is in one of the amendments—the more I see the potential for judicial head-scratching and litigation of a type that I do not believe the judiciary would welcome. I have said it before and I say it again: I trust our judiciary to answer the question put before them rather than to survey like lions of the constitutional savannah and to run across the landscape. They answer the question that is put to them, and I trust them to do that and to use the discretion that quite naturally they should be given.
In relation to the new clause in the name of the hon. Member for Brighton, Pavilion (Caroline Lucas), it is clear that the Government regard animals as sentient and we of course support the sentiment behind the new clause, as we did on a previous occasion, but we could not support it then and the reasons for not supporting it have not changed. Article 13 places an obligation on the EU when developing certain policies, and on EU member states when developing and implementing those policies. That obligation, because animals are sentient beings, is to have full regard to their welfare requirements, but article 13 applies only to a limited number of EU policy areas, and frankly it also allows for practices that we would consider cruel.
European Union (Withdrawal) Bill
William Cash ExcerptsWednesday 15th November 2017
(7 years, 1 month ago)
Commons ChamberRead Full debate European Union (Withdrawal) Act 2018 View all European Union (Withdrawal) Act 2018 Debates Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: Committee of the whole House Amendments as at 15 November 2017 - (15 Nov 2017)
Sir William Cash (Stone) (Con)
On a point of order, Dame Rosie. On the yesterday’s selection list—and, in part, today’s—there are some extremely helpful references to the page numbers of this enormous wodge of amendments. Would it be possible for the Clerks to be good enough to put the page numbers on the selection list for easy reference, because it is sometimes quite difficult to find the amendments at short notice?
The Second Deputy Chairman of Ways and Means (Dame Rosie Winterton)
I will certainly bring that to the attention of the Public Bill Office and see what we can do to help.
New Clause 2
Retaining Enhanced Protection
“Regulations provided for by Acts of Parliament other than this Act may not be used by Ministers of the Crown to amend or modify retained EU law in the following areas—
(a) employment entitlement, rights and protections;
(b) equality entitlements, rights and protections;
(c) health and safety entitlement, rights and protections;
(d) fundamental rights as defined in the EU Charter of Fundamental Rights.”—(Matthew Pennycook.)
This new clause would prevent delegated powers from other Acts being used to alter workplace protections, equality provisions, health and safety regulations or fundamental rights.
Brought up, and read the First time.
Matthew Pennycook
I will make a little more progress if that is all right.
Let me remind the House of the sentiments on the Government Benches when it comes to workers’ rights. Throughout the referendum, prominent leavers drew attention to what they claimed was the high cost of EU employment regulations, including those such as the working time directive and the temporary agency work directive. Prominent members of the Cabinet are on record as having called for workers’ rights to be removed. For example, the Foreign Secretary has written that we need
“to root out the nonsense of the social chapter—the working time directive and the atypical work directive and other job-destroying regulations.”
During the referendum, on 18 May 2016, the then Minister for Employment, the right hon. Member for Witham (Priti Patel), went so far as to call for the UK to
“halve the burdens of EU social and employment legislation”
in the event of Brexit. The newest member of the Brexit ministerial team—Lord Callanan—has openly called for the scrapping of the working time directive, the temporary agency work directive, the pregnant workers directive and
“all the other barriers to actually employing people.”
Just this week, the hon. Member for North East Somerset (Mr Rees-Mogg) made a speech in London calling for, among other things, deregulation. It was retweeted and then hastily deleted, as we heard yesterday, by the Department for International Trade.
Matthew Pennycook
I am going to make some progress.
It may be the case that pragmatism and electoral appeal trump ideology, but there is no guarantee, and that is the point. We should not take risks with rights, standards and protections that have been underpinned by EU law. Hard-won employment entitlements, along with entitlements relating to the environment, health and safety, equalities and consumer rights, should not be vulnerable to steady erosion by means of secondary legislation outside of the powers contained in this Bill. In future, Ministers should be able to change the workers’ rights and other rights that came from the EU only through primary legislation, with a full debate in Parliament. On that basis, I urge hon. Members on both sides of the House to support new clause 58.
Mr Grieve
It is a pleasure again to be able to participate in this debate.
The new clause in the name of the Leader of the Opposition raises a really important issue about the way in which the Government have approached the whole question of retained EU law. To be clear at the outset, and it is worth repeating, the Government’s aim—to bring EU law into our own law, retain it there to ensure continuity and then, over time, to take such steps as this Parliament wishes to take to replace it or change it—makes absolute sense. But as we discussed yesterday, the difficulty that arises is that the origins of EU law mean that it has come into the law of this country in ways that are totally different from our usual process of primary and secondary legislation. [Interruption.] Does my hon. Friend the Member for Stone (Sir William Cash) wish me to give way? I thought that he said something from a sedentary position.
Richard Drax (South Dorset) (Con)
I said, “That’s why we are leaving”, in response to my right hon. and learned Friend’s comments.
Mr Grieve
I do. I entirely accept that it is within the wit and ability of this House in future to replicate, if we so desire, many areas of law that currently come from the EU, but at the moment we do not have time to do that. We are taking in law that really matters to people out in the street. I suspect that the vast majority will have no idea where this law originates from; they will just say, “Actually, my employment rights are rather important.”
Mr Grieve
No, I will carry on for the moment and then give way.
People will value that law, and yet we are bringing it in and giving it a status that I regard as very unsatisfactory. There are a number of ways in which that could be addressed, including new clause 2, which has been tabled by the Opposition. I have tabled new clause 55, which I will briefly explain. It looks at the nature of retained EU law, establishes a general presumption that retained EU law may be amended only by primary legislation or subordinate legislation made under the Bill that we are enacting, and provides a framework for the Government to stipulate specific provisions of retained EU law that are merely technical, and therefore appropriate to be amended by subordinate legislation. I do not have any objection to that happening, but the rest would have to be dealt with by primary legislation. The new clause would provide much greater legal certainty about powers for future amendment of retained EU laws, and it would give the Government flexibility to amend technical provisions quite freely.
Mr Grieve
Yes, indeed: the Conservative party did precisely that. There is a proud record in the Conservative party—as, indeed, there is in the Opposition—of contribution to that process. I make it quite clear that I do not put the smallest imputation that those on the Treasury Bench, or on any of my colleagues in government, want to reduce those protections one bit.
Sir William Cash
I want to put on the record that I have a lot of sympathy with the idea of an enhanced sifting scrutiny process, as my right hon. and learned Friend knows. I am glad to note that he puts an emphasis, which I am sure we all agree with, on primary legislation. The only question that I want to raise with him about his earlier remarks concerns his enthusiasm for the manner in which the legislation was made in the first place. I make the point yet again that it was done, to an extraordinary extent, behind closed doors and by a process of consensus that cannot possibly be justified.
Mr Grieve
I understand where my hon. Friend comes from, in view of his long-held concerns about these issues. But I ask him to consider the fact that one consequence of our EU membership—I have to accept this—is that in some areas in which law might have developed domestically, it has not done so in the 45 years of our membership, because we did it in common with our European partners. That is just an historical fact. Because it is an historical fact, we have to grapple with how we make sure that we do not throw the baby out with the bathwater.
Sir William Cash
I would be grateful if the hon. Gentleman could explain how often, and in what circumstances, the arbitration court has departed from the decision making and precedence of the ECJ.
Stephen Kinnock
This is a clear case of a “before and after” conversation. The court would be substantially altered were the UK to have judges on it. It would be a category shift in the role of the court. It would require negotiation, of course, but I am offering an opportunity to square the circle in terms of the many contrasts, conflicts and competing agendas around the delivery of a Brexit that works for the whole country and delivers for the millions of people who voted in the referendum and who are not ideologues on one side or the other. They want this Parliament to get on with the job and to deliver a Brexit that works for the whole country, and indeed helps to reunite our country. In that spirit, new clause 22 is so important and offers so much.
There is much conversation about models. The Canada model does not include services, while the Ukraine model is new and untested. The EEA-EFTA model is well established and well understood. It would give our business community and our economy the certainty that they so desperately need.
Sir William Cash
The two “retained enhanced protection” new clauses tabled by the Leader of the Opposition are inconsistent. The hon. Member for Greenwich and Woolwich (Matthew Pennycook) did not refer in his speech to the fundamental rights as being part of new clause 2 itself. When I compared the two new clauses, I saw considerable inconsistencies. For example, new clause 58, entitled “Retaining Enhanced Protection (No. 2)”, includes the word “repeal”, and the words “environmental standards and protection” are included in new clause 58 but not in new clause 2. That presents a problem, because, as far as I understand the position, it is possible to debate and vote only on the new clauses in question. Which will Members vote on, if they do vote? I think it important to put that on the record, because there are serious inconsistencies between the two.
There has been a great deal of metaphysical discussion about the whole question of retained law. Let me say to those who have not had the benefit of doing so that it is quite useful to read pages 52 to 58 of the House of Commons briefing. It saves a lot of time, including debating time.
Jack Dromey (Birmingham, Erdington) (Lab)
The Government say, “Trust us, workers’ rights are safe.” As someone who has fought for workers’ rights for 40 years, rising from being a lay member to ultimately being elected deputy general secretary of the Transport and General Workers Union, I have seen often implacable hostility from Tory Governments towards workers and their trade unions in every decade since we joined the EU, ranging from when we were described in the 1980s as the “enemy within” to, more recently, the Trade Union Bill 2015.
In the referendum campaign, what the wide-eyed Brexiteers now driving the Government would like to see in our country could not have been clearer. The right hon. Member for Chingford and Woodford Green (Mr Duncan Smith) pledged to “whittle away” the regulation “burden” with its
“intrusions into the daily life of citizens.”
Lord Lawson called for a “massive” regulatory cull. The ex-International Development Secretary, the right hon. Member for Witham (Priti Patel), said:
“If we could just halve…the EU social and employment legislation we could deliver a £4.3 billion boost to the economy.”
Indeed, the previous Prime Minister talked about killing off the safety culture. Anyone who had stood outside Wembley stadium with 1,000 workers mourning the death of somebody who had just been crushed at work would not talk about killing off the safety culture. And the Foreign Secretary said during the Brexit campaign that the weight of employment legislation is now “back-breaking” and that his preferred model is to scrap the social charter.
I do not doubt for one moment that there are truly honourable Members on the Conservative Benches who mean it when they say that workers’ rights will be safe; the question is how we safeguard that in the next stages.
Let me tell just one story showing why this matters—why European Union law mattered to British workers, and, crucially, why it matters that we get it right to protect workers’ rights as we leave the EU. In 1977 the EU legislated for the acquired rights directive, and our Government had to introduce it into domestic law. Eventually it was introduced, with gritted teeth, in 1983, with William van Straubenzee saying in the House that he did so “with the utmost reluctance.” But the Tories then excluded the public sector; 10 million public servants were excluded for 10 years. The price that was paid, as we saw mass privatisation throughout the 1980s, was catastrophic for workers.
I remember the first example I dealt with, at the Fire Training College at Moreton-in-Marsh: 120 predominantly women housekeepers and catering workers had their pay cut by a third and the numbers employed cut by a half, holiday entitlement cut, and sickness entitlements cut. The only humorous side of an otherwise sad story was that the managing director of Grand Met Catering which won the contract was—I kid thee not—none other than a Mr Dick Turpin.
These situations went on for year after year. Let me give another example. My uncle Mick, God rest his soul, was a street-cleaner. He lived with me when I was a kid. He worked for Brent Council. I will never forget when Brent street-cleaners and refuse collectors were facing privatisation. During a meeting in their canteen one morning, the street-cleaners sat together, many of them disabled workers, in fear of what would happen because they knew that the bids coming in would result in a third of the workforce going, and they might be the most likely to go. I remember that my Uncle Mick’s good friend—a single man living alone—collapsed in tears afterwards at the thought of what loomed before him. There was 10 years of that throughout the 1980s.
I then took the case of the Eastbourne dustmen to the European Court of Justice and the European Commission, and we won. Thanks to EU law, our Government were forced to extend TUPE to cover 10 million public servants. It is vital in the next stages that there can never be any going back.
Time does not permit me to talk about other examples of implacable hostility: GCHQ, the refusal to sign the social charter, the national minimum wage, employment tribunal fees and the Trade Union Bill.
In conclusion, I stress again that I draw a distinction between the many Government Members who mean what they say and those who are in the driving seat, taking us ever closer to the cliff edge. When they say, “Trust us,” say no. That is why my hon. Friend the Member for Greenwich and Woolwich (Matthew Pennycook) was right to table new clauses that would safeguard workers’ rights as best we can. We cannot delegate to future Conservative Governments—if they still exist—the ability to change workers’ rights by way of Henry VIII powers, so that they can say, “Off with their heads.” On each and every occasion, as my hon. Friend argued, workers deserve the enhanced protection of any changes to their rights after we leave the European Union coming back to Parliament for debate, and changes being made only by an Act of Parliament. Is that ideal from my point of view? No, but it is at least a damn sight better than relying on Henry VIII powers in the hands of the Foreign Secretary—or who knows who?—at the next stage.
European Convention on Human Rights: UK Membership
William Cash Excerpts(8 years, 7 months ago)
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Urgent Questions are proposed each morning by backbench MPs, and up to two may be selected each day by the Speaker. Chosen Urgent Questions are announced 30 minutes before Parliament sits each day.
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This information is provided by Parallel Parliament and does not comprise part of the offical record
The Attorney General
May I start by returning the right hon. Gentleman’s compliments? I very much enjoyed serving in government with him and I have the highest regard for him as an individual. He is a little unfair about coalition government; in my experience, it was not unstable much of the time. We should recognise—he and I, and all other Members of the House—that what we did in coalition was to produce pieces of legislation such as the Modern Slavery Act that recognised the real actions we could take in pursuit of defending human rights, and this Government will continue that course.
It is not right to say, as the right hon. Gentleman suggested, that there is confusion on this policy. I have set it out and he was here in the Chamber when my hon. Friend the Under-Secretary of State for Justice did the same. There is no confusion here. What has been said throughout—by the Prime Minister and all other Ministers—is that we rule nothing out in seeking to achieve the policy objective that we have set and for which we have a clear mandate from the recent general election.
The right hon. Gentleman asked about membership of the European Union. It is not, I am afraid, in any way clear that membership of the European Union requires membership of the European convention on human rights; as with most of these things—he and I are both lawyers—he will understand that there are considerable legal complexities, so that is certainly not a clear statement that I or he can make.
Let me simply say this to the right hon. Gentleman: what the Home Secretary was doing yesterday—in a speech with which, I suspect, he broadly agreed, and which I certainly found made a very persuasive case for remaining in the European Union—was setting out some of the difficulties with the human rights landscape as it stands. We think there are considerable difficulties: there is an absence of common sense and there have been cases that have demonstrated that human rights law is headed in the wrong direction. Restoring that common sense is the objective of the entire Government.
Sir William Cash (Stone) (Con)
Does my right hon. and learned Friend agree that our fight against terrorism and excessive immigration has been persistently undermined by not only the European Court of Human Rights in Strasbourg but the European Court of Justice adjudicating on the charter of fundamental rights, and that the only answer is to leave the European Union?
The Attorney General
I certainly agree that there have been cases in both Luxembourg and Strasbourg with which we have found difficulty and which we have sought to contest. It is certainly right, as my hon. Friend suggests, that not everything about our membership of the European Union is wonderful, and the Home Secretary made that point very clearly yesterday. However, it is a question of deciding whether, on balance, it is right or wrong to be in the European Union—whether, on balance, it is better or worse for the United Kingdom to be there—and he and I have come to different conclusions on that.
On my hon. Friend’s specific point about the charter of fundamental rights, he will know that the charter covers areas where European law is applicable; it does not cover other areas, so it is not quite the same as our membership of the European convention on human rights.
Serious Crime Bill [Lords]
William Cash Excerpts(9 years, 9 months ago)
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The Solicitor-General
I am extremely grateful to the hon. Lady, and I pay tribute to her for the work that she has done, most recently in the report that she prepared about child sexual exploitation in Greater Manchester.
New clause 9 will require persons working in regulated professions to notify the police if they discover in the course of their work that an act of female genital mutilation appears to have been carried out on a girl under the age of 18. The new duty will help to ensure that professionals are clear about their responsibilities when they encounter cases of FGM in under-18s, and that those cases are reported to the police, thereby supporting investigations.
The consultation on what a mandatory reporting duty should look like closed on 12 January, and we received nearly 150 responses, including from health care professionals, education professionals, the police, charities and members of the public. We have considered those responses carefully, which is reflected in our approach to the new clause.
The new duty will require regulated health and social care professionals and teachers in England and Wales to report known cases of FGM to the police. Depending on the specifics of the case, a report to the police will not necessarily trigger a criminal investigation immediately. When a report is made, the police will work with the relevant agencies to determine the most appropriate course of action, which may include referral to medical experts for diagnosis of whether FGM has taken place. That is important, because we want to reassure those involved in the detection and exposure of this appalling child abuse that although prosecution and criminal investigation are important, they are not the only means that we have to deal with this scourge.
Sir William Cash (Stone) (Con)
My hon. and learned Friend will understand that new clause 9 deals only with circumstances in which FGM appears to have been carried out, not with those in which there is a risk of it being carried out, to which I shall refer later.
The Solicitor-General
I look forward to my hon. Friend’s contribution and will respond appropriately when I have heard his full argument.
We recognise that some individuals captured by the new duty may be less likely than others to encounter cases of FGM. The duty will apply only to cases identified in the course of an individual’s professional duties. There will be no new requirement for professionals to look for visual evidence, and we do not expect them to do so.
Where professionals fail to comply with the duty, it will be dealt with in accordance with existing disciplinary procedures. That is in line with the approach favoured by the vast majority of respondents to the consultation and will ensure that appropriate sanctions are imposed in accordance with the circumstances of an individual case. The Government expect employers and the professional regulators to pay due regard to the seriousness of breaches of the new duty.
New clause 10 will confer on the Secretary of State a power to issue guidance on FGM to relevant individuals in England and Wales, and will require them to have regard to it. That guidance will take the form of updated multi-agency guidelines, which will explicitly capture good safeguarding practice, including for non-regulated practitioners. In addition, the existing frameworks for the purpose of dealing with child abuse will, of course, continue to support appropriate safeguarding responses.
Sir William Cash
I wish only to repeat, in a sense, what I have already said, namely that this measure will not, in itself, deal with the problem of girls who are at risk.
The Solicitor-General
My hon. Friend has made his point again. We may well have to differ on the issue of the threshold with which his amendment deals, but I will outline my arguments when I have heard all that he has to say.
Amendment 10 relates to the new offence of sexual communication with a child, which was added to the Bill in Committee. While there was cross-party support for the new offence in Committee, there was some debate about whether it should be possible for a prosecution to be mounted in England and Wales in respect of conduct engaged in abroad—that is, whether such conduct should be subject to extraterritorial jurisdiction.
Sir William Cash
Does the hon. Lady agree that it is essential to ensure that girls at risk are also protected?
Diana Johnson
I absolutely agree with the hon. Gentleman on that point. Research undertaken by Dexter Dias QC with survivors of FGM from around the country highlighted the need for measures to tackle the encouragement of FGM, whereby parents can be put under extreme pressure to cut their girls. Not only are parents told that their daughters will never get married, but whole families can be ostracised and isolated as unclean. We need to support those seeking to change the culture in affected communities that they are part of and send out the message that this practice is against the law. That is why Labour has proposed adding a new offence of the encouragement of FGM to this Bill. As I say, it was tabled in Committee and we feel it is important that we have brought it back today.
Sir William Cash
I am extremely glad that we have this opportunity to discuss FGM and wish to thank those who have made the discussion happen. I have corresponded with the Home Secretary, the Secretaries of State for Justice and for International Development and the Leader of the House and met them to discuss all the matters to which I am about to refer. We have also had advice from some very capable and senior barristers. Sir Keir Starmer, the former Director of Public Prosecutions, completely supports what I am about to say, as does Aileen McColgan of chambers. These matters have been pushed forward by the not-for-profit organisation Justice for FGM Victims, and I would like to pay tribute to Sarita Bingeman for her work on this over many months.
Amendment 20, which stands in my name, is simple and incredibly short—all it would do is leave out “the” and insert “a risk of”. As I have said repeatedly in interventions, it is not good enough simply to rely on the fact that the act of female genital mutilation has been carried out, for example when notifying the police or dealing with guidance, which is quite vague and is not specific enough to deal with the problem of girls being at risk.
I will briefly give the House some figures. About a decade ago the number of girls and women in England and Wales who had undergone FGM was approximately 66,000. Shockingly, that figure is now estimated to be 137,000. Equally worrying is the number of girls in England and Wales under the age of 15 who are at risk of FGM, which over the same period has increased from about 20,000 to an estimated 60,000. I am talking about 60,000 girls under the age of 15 who are at risk. That rise is further demonstrated by official figures recorded since the new reporting system was introduced by hospitals in the UK last year. They show that 2,269 girls and women who had undergone FGM were treated in hospitals in November 2014 alone, and of those 466 were newly identified cases. That is very alarming and unacceptable, and there is an urgent need to prevent the number growing further. This is an unforgiveable crime. It is beyond imagination that it is going on, and indeed that it is increasing exponentially at the rate I have described.
I am glad that the Government have brought forward a power to make an FGM protection order. All I am asking for, on the best legal advice, is that the words “a risk of” be included in paragraph 1(1)(a) of schedule 2, which is set out in clause 72. Sub-paragraph (1) would therefore read:
“The court in England and Wales may make an order (an “FGM protection order”) for the purposes of —
(a) protecting a girl against a risk of commission of a genital mutilation offence”,
rather than simply
“(a) protecting a girl against the commission of a genital mutilation offence”.
The Bill currently does not state explicitly, despite the intention that it should do so, that the order may be applied for and/or granted in the event of a risk that a genital mutilation offence may be committed. Although some are arguing that there could be some difficulty interpreting the words in relation to forced marriage orders, the fact is that it is apples and pears.
When we are dealing with forced marriage, we are dealing with people who are much older and with different circumstances. We are not dealing with five and six-year-old children who do not know what is being done to them. The horror and brutality of FGM must be dealt with. We cannot simply deal with the circumstances by analogy, as has been suggested to me by some technical advisers and lawyers. I am a lawyer myself; I was shadow Attorney-General. I do not misunderstand the nature of questions of interpretation. We have to tailor the circumstances to the problem that we are faced with. We are faced with a massive problem so it is essential that we deal with it.
Some have said that guidance would be sufficient. The guidance, which everybody in the House can look at, does not deal with the specific problem of those at risk. As I said, on the issue of notifying the police, that would apply only where the mutilation had already taken place. These are small girls. The practice cannot be allowed to carry on. We must do something about it. If I may suggest it, everybody should vote with me on this issue, including the Government. I ask the Opposition to be good enough to vote with me as well.
Let me give an example. On 3 April 2014 the Department for Education published updated statutory guidance on safeguarding. It was called “Keeping children safe in education”. The guidance tells teachers how to identify girls who are at risk or who have suffered FGM. It was e-mailed to every school in the country and on the same day a letter from the Secretary of State was e-mailed to all head teachers, drawing their attention to the guidance. The letter was e-mailed to 31,660 addressees in 25,000 schools. As at 30 April only 43% of recipients had opened the e-mail, and only 30% of recipients had clicked through to the guidance on safeguarding. That is why the legislation is needed.
Further statistics for each London borough show that the response rate was significantly worse in some areas, including some where large numbers of girls were from communities that had traditionally practised FGM. In Hackney, for example, only 25% of the 91 heads had read the guidance, and in Lambeth and Southwark the proportion who did so was only 34%, yet those girls are at risk. Other front-line workers have said that faced with the confusing number and breadth of guidelines, protocols and regulations that often appear conflicting, they have turned to the legislation—the Female Genital Mutilation Act 2003—to provide clarity for themselves. But as the shadow Minister said, only two prosecutions have taken place and neither was successful. What are we doing in this country? How are we allowing FGM to happen? I appeal to Members to vote for my amendment.
A number of front-line professionals from the health, education and social services, including the child protection sector, were interviewed by Justice for FGM Victims. All of them stated that they would welcome the guidance that would be provided if the amendment were accepted, but not otherwise. They believe that the explicit mention of the requirement to apply successfully for a protection order would support front-line staff and empower them to take action where they thought there was a risk of FGM being committed against a young girl or woman.
FGM is practised in secret. It is extremely difficult for care professionals to know whether a person is at risk. Therefore as a deterrent and in order to catch the perpetrators, it is essential that the words “a risk of” are included. This is not a small matter. It is a small amendment about a very, very big matter. Girls are being victimised, abused and terrorised by FGM, and it is happening on our watch. It must be stopped.
John Mann (Bassetlaw) (Lab)
I welcome various sensible and positive suggestions. I shall speak to new clause 2, which I trust the Government will accept. If not, we will give the House the opportunity to decide whether it should be accepted. I am sure, Mr Speaker, that in today’s rather confused timetable you will indicate the appropriate time at which to do so.
I wish to make three substantive points in relation to the new clause. I thank those in every part of the House who have added their name to it. The abuse in Rotherham has been described as the tip of the iceberg. It is a rather easy phrase to use. I do not think that the majority of people out in the country, if they have thought about the language used, believe that that is true. They think they have seen the bad side and that there may be a bit more of it, but that it cannot get worse than that. My experience is that Rotherham is no different from anywhere else, except that it has had a detailed inquiry which has quantified the problem better than in other places. There are some specific and uncomfortable elements to the problem there that certainly differentiate it from my area, but I know that my area is no worse than anywhere else.
When I have used the opportunities I have in my weekly newspaper columns to suggest to victims, current or past, that they should come forward, I expected a few people to come forward. What I did not expect is somebody new to come forward every week. I did not expect people to fly back to my constituency from across the world, as they have done and as more wish to do, to give me precise evidence that they have given to nobody in 30 years. They know that that will never lead to a prosecution, but when they spoke out before they were not believed. They speak of individual, specific, single incidents of sexual violence, on different scales, of differing natures, yet every week new people—my constituents—are coming forward.
It is almost as if the process began with the easier cases—easier in the sense that the people were more prepared, and the cases were more specific, more identifiable and more prosecutable—and, as the weeks go by, the bigger ones come. I have a brand-new case now. People do not make up such allegations. One cannot make up what I was told by somebody younger than me. The sexual violence and other violence is not even the most horrific part of it. At the age of 11, that person was put into slavery in a workplace and location that I can identify. I am not going to name it as that is the prerogative of the person involved. I think he will name it, then everybody in my area will be able to identify it. He mentioned witnesses whom he could identify and names that I know.
That went on year after year, and what did my constituent and other kids of 11 or 12 do? They ran away. What happened when they ran away? They were returned time and again to the same perpetrators by the police and the social workers, until one heroic social worker rescued my constituent, unlike the other kids living in that foster home, who were not rescued. He has got on with his life and had spoken to nobody until he came to me. The report is being prepared in great detail and will go to the police. I do not know whether those who covered up for the school by falsifying its records in saying he was there when he was not—the employer and those working there alongside an 11-year-old, then a 12, 13, 14 and 15-year-old, during those years—are all still alive; presumably some of them will be. There will be a major investigation.
That is just a single example; I have not mentioned the other victims. If it happened in my constituent’s time, what about the kids before or the kids after? I make a few discreet inquiries and vast amounts of things immediately come out that people know about—a huge web. This was just one foster family among many. It was horrendous, systemised abuse. The system was at fault, and everyone within it, because these kids were regarded as commodities. They were to be sold, and they were sold—in this case, into actual, technical slavery. It was a money-making activity.
The Solicitor-General
I will put on the record the assent of the hon. Lady. I am grateful to her for all her work on this matter.
I will move on briefly to the proposals in new clauses 15 and 16 to tackle the encouragement or promotion of FGM. In Committee, the hon. Member for Feltham and Heston (Seema Malhotra) rightly said:
“encouragement to commit an offence is not an issue of free speech.”––[Official Report, Serious Crime [Lords] Public Bill Committee, 20 January 2015; c. 157.]
However, we need to distinguish between actual active encouragement and the expression of a distasteful opinion. As the law stands, there must be some direct connection between the encouragement or assistance and the principal offence. We believe that that is the right approach. It is settled law that applies to a whole range of criminal offences. We are not convinced of the need to go beyond that and create an offence or introduce civil measures that prohibit any or all encouragement, regardless of the intention behind it. It is too general, in our view, and there will be evidential difficulties. Members of this House and practitioners in the field are familiar with the term FGM, but it is not, of course, a term that would necessarily or colloquially be used by those who support, or have sympathy with, that form of abuse. We therefore need to think about the practicalities and the realities of seeking to prove such a general offence in the field. I am not convinced, with respect to those who moved the new clauses, that they would achieve their aim.
Amendment 20 was tabled by my hon. Friends the Members for Stone (Sir William Cash) and for Mid Derbyshire (Pauline Latham). We heard a characteristically impassioned speech from my hon. Friend the Member for Stone. I remind him that it is a passion we all share. A large number of Members—including the Under-Secretary of State for Health, my hon. Friend the Member for Battersea (Jane Ellison), who will be speaking to a later group of amendments, myself and others—all share his passion to see an end to FGM. With respect, the test that would be applied in his amendment would not help. The phrasing and terminology of FGM protection orders replicates provisions we already have in law in relation to forced marriage protection orders. It is clear that we are talking about prevention and the protection of young women and girls from FGM. Therefore, and with respect to him, references to risk are wholly otiose.
The Solicitor-General
I would like to give way, but I am afraid I am going to stick to the Speaker’s exhortation and stick to time.
It is not only the proposed legislation, but as a result of a significant public awareness programme being—
The Solicitor-General
I am afraid I cannot give way to my hon. Friend.
Coupled with a widespread public awareness programme, the provision will deal with the mischief my hon. Friend rightly talks about without unnecessarily complicating the Bill by otiose references to risk. It is simply not necessary.
The Opposition spokesperson, the hon. Member for Kingston upon Hull North (Diana Johnson), tabled amendment (a) to Government new clause 8. I entirely understand the spirit with which she wishes to move her amendment. The Government’s aim is to replicate the offence in the Sexual Offences Act 2003 in a way that removes the offending phrase “child prostitution”. What we do not seek to do is widen or create a new offence. The danger of her amendment is that it would involve a substantive change in the law. For that reason, we do not support it.
Briefly, on new clause 22 with regard to child exploitation, the Modern Slavery Bill will deal in large measure with the abuse identified by all corners of the House. We do not think—this is supported by the Director of Public Prosecutions, the National Crime Agency, the National Policing Lead for Modern Slavery and the independent Anti-Slavery Commissioner—that the new offence would add anything other than confusion to the existing legislative position.
I hope I have already answered my hon. Friend the Member for Mole Valley (Sir Paul Beresford) with regard to amendment 33. I listened to him carefully. We have made progress. We think the most likely scenario involving paedophilic manuals and individuals who travel abroad is that they will come into possession of such a manual either in this country by downloading it or by bringing it in to this country. We therefore think that some of the problems he rightly talks about will be covered.
Mr Speaker
Before we move to the second group, it might be for the convenience of the House to know my response to the point of order raised earlier by the hon. Member for Enfield, Southgate (Mr Burrowes), upon which I undertook to reflect. In seeking to ensure an opportunity to speak and possibly vote on matters appertaining to abortion, he asked whether I would consider conflating groups 2 and 3, or eliding group 3 into group 2, for that purpose. As I hope he will understand, it would be a very unusual thing to do, so rather than elide one group into the other, as he suggested, I think there might be good will across the House to ensure that both groups are spoken to and, as appropriate, voted upon. I am hoping, therefore, that we can keep the groupings as they are and that the debate on the second group will run for no more than approximately an hour—preferably not later than 8 o’clock—so that there is an opportunity to address the third group. It is what is ordinarily known as an old-fashioned British compromise. However, it is not in my hands—it is my will, but it is not in my hands—and it depends upon the co-operation of the House. I hope the hon. Gentleman is satisfied. I am afraid it is all I can offer him tonight.
Sir William Cash
On a point of order, Mr Speaker. I wish to confirm that my amendment 20 will be pressed to a vote.
Mr Speaker
I am grateful to the hon. Gentleman. Given that the point has been raised, I should say that separate Divisions on any non-Government new clauses will come at 9 pm. I have shortly to leave the Chair, but I shall return at, or shortly after, 9 o’clock, and it is my very strong wish that the many discrete issues should be tested through the division of the House. If Members want to test the will of the House, within reason there should be that opportunity. He can therefore rest content for the next couple of hours that the opportunity of a Division upon his important matter will come erelong. I hope he is now happy.
New Clause 23
Throwing articles into prisons
After section 40CA of the Prison Act 1952 (inserted by section 75 above) insert—
“40CB Throwing articles into prison
(1) A person who, without authorisation, throws any article or substance into a prison is guilty of an offence.
(2) For the purposes of subsection (1)—
(a) the reference to an article or substance does not include a reference to a List A article, a List B article or a List C article (as defined by section 40A);
(b) the reference to “throwing” an article or substance into a prison includes a reference to doing anything from outside the prison that results in the article or substance being projected or conveyed over or through a boundary of the prison so as to land inside the prison.
(3) In proceedings for an offence under this section it is a defence for the accused to show that—
(a) he reasonably believed that he had authorisation to do the act in respect of which the proceedings are brought, or
(b) in all the circumstances there was an overriding public interest which justified the doing of that act.
(4) A person guilty of an offence under subsection (1) is liable—
(a) on conviction on indictment, to imprisonment for a term not exceeding two years or to a fine (or both);
(b) on summary conviction, to imprisonment for a term not exceeding 12 months or to a fine (or both).
(5) In this section “authorisation” means authorisation given for the purposes of this section; and subsections (1) to (3) of section 40E apply in relation to authorisations so given as they apply to authorisations given for the purposes of section 40D.”” —(Karen Bradley.)
This New Clause creates a new offence of throwing any article or substance into a prison without authorisation (so far as not already prohibited under the Prison Act 1952). The offence would be triable either way with a maximum penalty (on conviction on indictment) of two years’ imprisonment.
Brought up, and read the First time.
Injunctions
William Cash Excerpts(13 years, 6 months ago)
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The Attorney-General
I would not normally comment on the role I have to carry out as Attorney-General in the public interest and not as a Minister of the Crown, but there is no secret in the fact that, as matters stand, I have received no referral whatsoever in relation to any civil contempt of court.
Mr William Cash (Stone) (Con)
Does the Attorney-General accept that the fault in this case lies with Parliament itself in not repealing the Human Rights Act 1998? As the then shadow Attorney-General, I advocated doing that and it remained Conservative policy until the general election. Does he accept that it is about time that we legislated on our own terms in Westminster to deal with these matters, and in terms of parliamentary privilege, to ensure that the British voter actually sees legislation that is what he wants and that we have British law for British judges?