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Anti-social Behaviour, Crime and Policing Bill

Volume 749: debated on Tuesday 12 November 2013

Committee (1st Day) (Continued)

Amendment 6

Moved by

6: Clause 108, page 78, line 43, leave out “violence, threats or any other form of coercion” and insert “coercion by means including violence and threats or other psychological means”

My 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.

Amendment 6 withdrawn.

Amendment 7

Moved by

7: Clause 108, page 79, line 2, at end insert—

“( ) A person also commits an offence under the law of England and Wales if he or she causes another person to enter into a marriage and that other person lacks the capacity to consent to that marriage.”

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

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

paragraph (b) continues,

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

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

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

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

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

My Lords, I also put my name to this amendment because this is a matter that needs clarification and warrants a bit of debate. As the noble Baroness, Lady Thornton, said, there have been a number of these cases. I read the same article that she quoted, on the 114 cases that the Government had dealt with, with some concern. In August there was the case of a woman from a Sikh background who was married to a man who had mental disabilities. He did not annul the marriage because she pleaded that that would cause her stigma. It seems that the interests of the man—who was the victim in that case—were not taken into full consideration, and that needs to be looked at. If this amendment were agreed, would that mean that these sorts of cases could be declared void because people did not have the capacity to enter into marriage?

There was an article in the Times last week about another case concerning a girl of 14. Could we argue that that girl, who was forced into a marriage at gunpoint in Pakistan, had the capacity to enter into that marriage, given that it was forced? The local authority, which has now taken her and her child into her care,

“applied to the family court to have the marriage declared void”.

However, Mr Justice Holman said that he could not do that. He accepted that the marriage was,

“‘on the balance of probability void’ under English law. However, he said that he was prevented from making a solemn declaration to that effect by a section of the Family Law Act 1986”.

I am not a lawyer but, as I read it, it does not make sense that in these types of forced marriages where people either do not have capacity because they have a mental disability or they are under age, or whatever the reason may be, they find themselves at a disadvantage when they try to get the marriage annulled and voided. We have to consider that loophole, and it must be taken into consideration.

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.

Amendment 7 withdrawn.

Amendment 8

Moved by

8: Clause 108, page 79, line 9, at end insert—

“( ) A person commits an offence under the law of England and Wales if he or she—

(a) is the parent or guardian of a child, and(b) gives consent for that child to marry before the age of 18.”

My Lords, I am moving this amendment because the noble Baroness, Lady Tonge, is in Addis Ababa attending a conference on women’s health in Africa. I wish to speak also to Amendment 12, which would apply the relevant law to Scotland. Amendments 8 and 12 in this group are small and in some ways run parallel to the amendments on forced marriage we have discussed. However, if accepted, they could transform the lives of many vulnerable 16 and 17 year-old girls.

These amendments arise from the findings of a report published last year entitled A Childhood Lost by the All-Party Parliamentary Group on Population, Development and Reproductive Health, of which the noble Baroness, Lady Tonge, is chair and I am a committee member. The report looks into the effects of child marriage in the UK and overseas and is based on a parliamentary hearing held to gather evidence on child marriage—its causes, consequences and ways to reduce or combat it.

Evidence came from a range of experts, including survivors of child marriage, representatives from UN and government agencies, academics, doctors and NGOs. Our witnesses testified that child marriage had many undesirable consequences. I will not run through the whole gamut but will give a few examples of those. It is associated with violence, rape and sexual abuse, resulting in emotional and psychological problems, desertion and divorce. It takes away opportunities for education—that is perhaps the most important consequence—undermines self-confidence and reaffirms gender stereotypes. It is associated with, and helps perpetuate, harmful traditional practices, including female genital mutilation and contributes to infant mortality and poor child development. There are more consequences. UNICEF says in its report The State of the World’s Children that an infant born to a mother under the age of 18 is 60% more likely to die in its first year of life than one born to a mother over the age of 19. Research from the International Centre for Research on Women found that girls who marry before the age of 18 are more likely to experience domestic violence and depression than those who marry later.

As many noble Lords have said, child marriage is a major problem in the developing world and we are increasingly seeing it here. In England and Wales, marriage under 16 is illegal, but between 16 and 18 it is permitted, providing there is parental consent, which is not required in Scotland. In some cultures, child marriage is virtually the norm and parents are likely not only to give consent, but to force marriage on girls who may not wish to marry yet go along with it. We heard earlier, from the noble and learned Baroness, Lady Scotland, and the noble Baroness, Lady Hamwee, about emotional blackmail. A major problem which has not been mentioned is that, as with female genital mutilation, girls are taken outside the UK to get married. This amendment does not cover extraterritorial marriage but, as with FGM, we hope that a way can be found to make this illegal.

I would be grateful if the noble Lord could put his mind to this. We would be grateful if the amendment could be adapted, before Report, to include extraterritorial child marriage or if the Government brought something forward. I will not press the amendment at this stage, but would welcome discussions with the Minister about this issue between now and Report. Meanwhile, I beg to move.

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.

I thank the noble Lord for that full reply, especially as it is perfectly clear that he does not agree with the amendment. He gave it a lot of time and consideration and I had always intended to withdraw. I therefore beg leave to withdraw the amendment.

Amendment 8 withdrawn.

Amendments 8A to 10 not moved.

Amendment 11

Moved by

11: Clause 108, page 79, line 35, at end insert—

“( ) If an offence has been committed under subsection (1) or (2) in relation to any marriage (as defined in subsection (3) and whether conducted in England and Wales or elsewhere), then that marriage shall be treated for the purposes of the Matrimonial Causes Act 1973 as if the marriage was valid but annulled on the date that the offender was first charged with the offence.”

My Lords, this amendment relates to Clause 108. For the purposes of the new criminal offence of forced marriage, the Bill has adopted the definition of marriage found in the Forced Marriage (Civil Protection) Act, which states that.

“‘marriage’” means any religious or civil ceremony of marriage (whether or not legally binding)”.

At first glance this seems to be a sensible definition as it is clear that some marriages, although not valid in our law, have such community, cultural or religious significance that the couple behave as if they are legally married. Forcing someone into such a de facto marriage should also be a criminal offence. Consenting to such a marriage is fine; forcing someone is not.

No one underestimates the variety and complexity of situations that lead people to find themselves in forced marriages. A cursory glance at the case law reveals that children are sometimes subjected to such marriages by their parents, and the law needs to be flexible in its remedies. Under Clause 108(3), let us imagine that a woman takes a brave step to come forward to complain about a forced marriage in a religious ceremony which is not, as the Bill envisages, valid in UK law. She may take that step after many years of marriage and it will take enormous courage. She will almost certainly have to testify in court against her so-called husband and perhaps other community or religious leaders. This may affect her acceptance within her community. Her husband and others may be convicted and sent to prison.

Of course, this woman may need supporting financially and there may be family assets such as a car, a pension, a business, inherited wealth and most probably a home. However, they could all be in the legal name of the husband, who is in prison. Ordinarily the woman seeks a divorce or an annulment, and in both types of proceedings the courts have wide-ranging powers to transfer or split the family assets—but herein lies the problem: this forced religious marriage cannot be annulled and cannot be the subject of divorce proceedings. It is not viewed in law by the family courts as a marriage; it has been inelegantly described as a “non-marriage”. Without the legal means to get an annulment or divorce, the woman cannot put in a proper claim for the family assets. In those circumstances she will most likely be making a claim for benefits, supported by the UK taxpayer instead of by any family assets. I also shudder to think of what she may feel like if after a few years in prison her so-called husband comes back to the community and waltzes back into the family home with all the assets. I very much doubt whether any other women will come forward and take such risks if, on top of everything else, by doing so they make themselves financially destitute, with recourse only to the benefits system. Without giving her the remedy of an annulment, which is what the amendment gives her, there may be a grave injustice.

Conversely, if a person is forced into a marriage that is valid under UK law the marriage is void and can be annulled, and the family assets divided up. The Bill therefore currently gives rise to the different treatment of women forced into a marriage that is not recognised in our law, as opposed to women forced into what would otherwise be a valid marriage. There is extensive human rights case law on such differential treatment. I should therefore be grateful if the Minister can outline, if he does not accept the amendment, what reasonable and objective justification the Government have for such differential treatment of women in analogous situations. In the absence of any such justification, the law should be amended to give women the option of petitioning for an annulment. A woman will not be required to do so, and there may be cases where it is not appropriate, but the law should give her the option. This legal definition of marriage has not previously been an issue under the civil protection order regime, as that was aimed at preventing such a marriage, as the name indicates. As the law is now dealing with criminalising a forced marriage that has occurred, obviously the remedies when that marriage ends—namely, divorce or annulment—have now become relevant. If religious marriage is recognised for the purpose of a civil protection order regime and now criminal law, should it not be recognised for the purpose of family law?

This amendment has been drafted narrowly, but we will need to ensure that it does not inadvertently give financial remedies to cohabitees. I was made aware of the general issue of religious marriages during the presentation of evidence from excellent women’s rights groups to the Joint Committee on Human Rights, which said that many women, even when they consent to the marriage, are not aware that the ceremony is not valid in UK law. In some cases they discover this only when, after many years of marriage, the husband says three times that he divorces them and walks out. Literally, the first person to explain the situation to her is a divorce solicitor, who says that he cannot help her as she is in a non-marriage. Coincidentally, I was visited this morning by Dr Siddiqui, from the British Muslims for Secular Democracy organisation, who said that the situation that there may be family assets after many years of marriage can, indeed, occur.

I would be grateful to know the Government’s view on this amendment, which I believe solves an obvious injustice, and whether the Government are going to grasp the issue of non-legally binding marriages, which is causing so much harm, and look at the matter comprehensively. The Government need to take a step back. Once a different definition of marriage has crept into our law, there can be many inadvertent consequences. They need to consider different solutions, such as making the provision of a civil marriage certificate a requirement before any person conducts a religious ceremony. Such an inquiry could also look at whether the basic legal requirements of how to be married under UK law need to be part of citizenship teaching, especially given the popular trend of travelling to sunnier climes for wedding ceremonies. I fear this is not common enough knowledge; your Lordships may remember that Mick Jagger and Jerry Hall had to get an annulment as they were not married under UK law. I beg to move.

My Lords, before I speak to Amendment 13, grouped with this amendment, I apologise for missing Second Reading as I was in South Sudan, where it was rather difficult to engage with parliamentary business here. I understand that a primary goal of the forced marriage provisions of the Bill is to increase the protection of victims of honour-based abuse while bringing perpetrators to justice. As noble Lords may be aware, this is also the primary concern of my Private Member’s Bill, the Arbitration and Mediation Services (Equality) Bill, which seeks to ensure that all citizens resident under the jurisdiction of England and Wales have equal access to the law, and to increase protection for those who suffer abuse and gender discrimination. One of the concerns underlying the reason for that Bill could be addressed by this amendment, which would make it an offence to solemnise a marriage in England and Wales according to the rites of any religion or belief in circumstances where the marriage is not also solemnised as a legal marriage under the terms of the Marriage Act 1949 if either or both parties to the marriage wrongly believe that they are married according to the law simply because they have been through a religious ceremony.

The amendment would tackle the problem that arises in some communities where those getting married, particularly women who are not familiar with English law or the customs of this country, undergo a religious marriage without understanding that they are not married according to English law. They are therefore unaware that they are without any legal protection. I think there are parallels here with the amendment just moved by the noble Baroness, Lady Berridge.

In most cases, religious celebrants would not need to be concerned about committing the offence created by the amendment. They would not need to act any differently. Most marriages solemnised by religious celebrants are in registered buildings under the terms of the Marriage Act 1949. They are legal marriages. Under the Marriage Act 1949, a couple who have already entered into a civil marriage may go through a religious marriage ceremony after giving notice to a minister of religion, and on the production of a certificate of their marriage before the superintendent registrar.

Therefore, in circumstances when no certificate is provided, ministers of religion should already be on notice that a couple may not be married legally. In those situations when they are not sure that the parties properly understand the status of a religious ceremony, they may choose to say something about this publicly during the religious ceremony to ensure that there is no doubt, or they could choose to obtain a written declaration of understanding from the couple before proceeding with a marriage service. How they go about that procedure is a matter for them and the amendment does not seek to prescribe any particular means. What matters is that when there is some doubt as to the understanding of the parties, my amendment would effectively require celebrants to ensure that the couple they are marrying only according to religious rites are fully aware of the status of the ceremony and its implications.

Honour-based abuse is a form of domestic violence where the perceived honour of the family or wider community is used as a justification for abuse. In an attempt to control the victim, abusers may use a particular interpretation—or misinterpretation—of religion and culture to coerce the victim. This practice is not confined to any one religious or cultural group. Over recent years, I and my colleagues have met victims of honour-based abuse. We have heard harrowing real-life stories of suffering which should not be allowed in this country today. On Second Reading of my Bill in October 2012, the noble Baroness, Lady Donaghy, pointed out that in terms of our attempts to eradicate this form of abuse we are 20 years behind our progress on general domestic violence.

Much is being done now to tackle the problem and I warmly welcome the Government’s initiatives to criminalise forced marriage. Yet I, other colleagues within this House, members of the legal profession, and several non-governmental organisations—particularly women’s organisations—believe that more can and should be done. Many vulnerable women have described how they have celebrated a religious marriage without an accompanying civil marriage, without realising the implications. If there is a subsequent breakdown of the marriage, because their marriage is not legally recognised, these women are unable to access any legal redress. Many have told me that had they known this before entering into the religious marriage, they would have ensured that a civil marriage ceremony as well as the religious ceremony was conducted. Others have described how they have faced intense pressure from those directly involved with the marriage not to accept the provisions of a legally recognised marriage but to be content with a religious marriage only.

Although many women who find themselves in such circumstances are not victims of abuse, those who do suffer abuse face particular hardship as they are likely to find that they have no choice but to remain in an abusive relationship to avoid potential destitution. Others find that the lack of an available civil remedy forces them to have the dispute resolved by members of the community who may have sympathy for the abuser or who have no understanding of how to deal with cases of domestic violence in this country.

Leaving an abusive relationship is immensely difficult for victims and the emotional strain as well the practicalities associated with the lack of any effective legal redress, including financial provision, may prevent them from so doing. Therefore, they remain in abusive relationships.

Another problem relates to the pressure often imposed by close-knit communities on individuals if they are deemed to be bringing shame on the community. Many women have explained to me how they have been intimidated about seeking help from professional personnel or other citizens outside their own community as they are told that it would defile the honour of their family or community. This pressure may involve the threat, or indeed the practice, of violence.

I must emphasise that the provisions do not interfere with the fundamental freedom of religious communities to solemnise religious marriages which are not recognised in law, provided that both parties to the marriage are aware that the religious ceremony itself does not confer any legal status. This is a probing amendment to address some of the really serious problems and suffering encountered by many women in our country today, and I look forward to some reassurance from the Minister.

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

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

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.

However, options are available to the communities, which the Government have highlighted. For example, on religious marriage ceremonies, there are cases of invalid marriages in a number of religions, although statistics show that the largest numbers are currently likely to occur in the Muslim community, partly because it represents one of the largest minority groups in the UK. I can assure the noble Baroness that the Prime Minister has raised concerns about the vulnerability of Muslim women in marriages that are not valid under the law in England and Wales, and the Government are currently undertaking work directly with the Muslim community to encourage mosques to register places of worship where marriages can be solemnised and to raise awareness of the requirements to be met for a marriage to be equally legally valid in England and Wales.

As I said earlier in response to a question raised by the noble and learned Baroness, Lady Butler-Sloss, on this matter, the other option is something that some Muslim communities already practise, which is to be encouraged. It is certainly something which, through work being done at the Home Office, the Ministry of Justice and the Department of Communities and Local Government, is being encouraged. Communities, imams or other religious priests who perform religious marriages are asked in advance of performing that marriage to ask the couple to produce a certificate of registration constituting a civil marriage. These are some of the initiatives and I merely outline them to underline the seriousness that the Government attach to the work in this area.

We are working with members of different communities, including the Muslim community, to encourage the registration of religious buildings and we encourage other religious groups to register their buildings as well.

I have listened with great care to the issues raised by my noble friend and the noble Baroness, Lady Cox. On the basis of my explanation, I hope they are both minded to withdraw their amendment.

My Lords, I am grateful to my noble friend for his outline in relation to this matter, but I believe I should join the club opened by the noble Baroness, Lady Thornton, and take yet more legal advice, having consulted, of course, the noble and learned Baroness, Lady Butler-Sloss, and the noble Baroness, Lady Deech, before raising this matter. I will specifically check the section outlined in the Matrimonial Causes Act, which I think applies only to marriages already valid under UK law. With that in mind, we may be back on Report to look at this matter further. I beg leave to withdraw.

Amendment 11 withdrawn.

Clause 108 agreed.

Clause 109: Offence of forced marriage: Scotland

Amendments 11A to 12B not moved.

Clause 109 agreed.

Amendment 13 not moved.

Amendment 14

Moved by

14: After Clause 109, insert the following new Clause—

“Report to Parliament

The Secretary of State shall report to Parliament annually on the effectiveness of the criminalisation of forced marriage under Part 9 of this Act.”

My Lords, I should start by saying that I am very sorry that I was not able to speak at Second Reading. However, as I am keen to make a contribution, I hope that the Committee will excuse and indulge a new girl. My noble friend Lord Lester of Herne Hill, who has added his name to this amendment, has asked me to apologise for his being out of the country.

My noble friend Lord Lester was, of course, the author of the Forced Marriage (Civil Protection) Act 2007, which has been such a huge success in using the family courts in a sensitive way to address a serious and complicated problem that particularly affects young British Asian girls, women and boys. I pay tribute to him and other noble Lords who have worked so hard on this issue over the years.

Amendment 14 comes from the report of the Joint Committee on Human Rights on the Bill. It requires the Secretary of State to report annually on the effectiveness of the criminalisation of forced marriage. This is only right if we are to ensure that the law has been effective and to aid transparency.

Along with the JCHR, I understand the Government’s reasons for criminalising forced marriage but am concerned about whether criminalisation is a step too far and whether this is the most effective method for dealing with this issue. One needs only to look at the case of female genital mutilation to see that criminalisation is not always sufficient. As the JCHR report points out, there has not been a successful prosecution for female genital mutilation in 28 years—although I take my noble friend Lady Hamwee’s point and am not quite sure what that shows. Can the Minister explain why the Government believe that the criminalisation of forced marriage will be different?

It is very important that nothing is done to undermine the effectiveness of the 2007 Act in enabling the victim to apply to the family courts to obtain a forced marriage protection order. I am concerned that if a young child knows that her parents may be criminalised as a result of such protection, she will be alarmed by the involvement of the police and the criminal courts, as well as by the publicity and the dishonour to her family that the stigma of a criminal offence will bring. Invariably, it will affect, in negative ways, not only the victim but other siblings and family members not party to the forced marriage decision. I hope the Minister can assure the Committee that the civil protection route will remain the preferred way forward and that clear guidance will be given to the CPS and the police that everything should be done to use the family courts for civil protection first and that the criminal process will be used only as a last resort.

Even if the Minister can reassure me on both those points—he has already gone a long way in this discussion to show the Government’s commitment—I believe there remains a real need to monitor the effect of criminalisation to ensure that we can evaluate the progress being made. If the Minister is minded to accept my proposal, the annual report should include, for example, the number of cases going to the family court, to allow benchmarking, the age, sex and ethnic origin of the victims, the number of cases sent to the CPS, the number of people convicted, and what financial or other aid has been given to the victim, including accommodation and legal aid to support individuals through the criminal court process. I also look forward to seeing the Government develop these ideas in their response to the JCHR. I hope that the Minister will be able to explain what steps the department will take, if it is unable to accept the proposals in my amendment for an annual report, to ensure that the effect of criminalisation is kept under review so that, if there are unintended consequences, they are identified quickly and can be dealt with.

Finally, I believe that it is important that we also look at other approaches, including working internationally, and do not just focus on criminalising the practice as the only way forward. As the Forced Marriage Unit knows well, victims can be taken to Pakistan, India or Bangladesh and coerced into so-called marriages. They may be victims of rape and bodily injury; if they do not comply, they may be victims of what are disgracefully called honour killings or of forced suicides. Tackling these issues through working with international partners is, in many ways, more important than criminalisation here in the UK, as we already have laws in place in relation to this heinous crime. I hope that the Minister can reassure me that criminalisation will form only part of our approach to tackling forced marriage, and that Ministers will continue to work internationally to put an end to the practice across the world and ensure a more joined-up approach to the criminal justice system in the UK on this issue. I beg to move.

My Lords, the noble Baroness, Lady Manzoor, has put forward an interesting amendment. The principle behind it, that Governments ought to report to Parliament regularly on the effectiveness of pieces of legislation, is one that I am sure that we would all wish to see more widely spread. However, I have a reservation about the terms in which the amendment has been put.

The noble Baroness said that she has reservations over whether criminalisation will have the desired effect. She implied, and I believe that all of your Lordships would agree, that criminalisation is not a panacea as far as this problem is concerned; it will not solve all the issues. Therefore, I would hope that if we were to receive a report to Parliament, it would look at not just the effectiveness of criminalisation but also at the effectiveness of the totality of policies on forced marriage.

My noble friend Lady Thornton moved an amendment earlier that would have broadened the scope of this and placed obligations on various public authorities in terms of the actions that they should take. I hope that the report requested by the noble Baroness would look not just at whether criminalisation makes a difference for good or ill, but also at whether all the other activities that the Government and public agencies undertake to try to eliminate forced marriage are effective. I think that that would be very valuable in terms of taking these matters forward.

My Lords, I have little to add to what my noble friend Lady Manzoor said so expertly in moving this amendment. As a member of the JCHR, this was one of the recommendations that we made in our report.

I very much endorse what the noble Lord, Lord Harris, said. I hope that the reporting to Parliament would not just be a dry recitation of the effect of criminalisation in terms of statistics, but would go wider. I am sure that the Minister will reassure us on that. This should not be simply a formality. We are stepping into an acutely sensitive area and, although we said that we approved cautiously of the decision to criminalise forced marriage, it is a matter that must be looked at very carefully for fear that more harm may come than good.

My Lords, I, too, support the noble Baroness in her amendment. I saw her nodding at the suggestion that any reporting back should be more comprehensive than simply reporting on the criminal aspects. There should be many other opportunities taken up by Government to press for the changes that underpin what the Government are seeking in criminalising forced marriage.

One factor that I would press upon the Government is that there should be greater discussion in families, for example about marrying close relatives, such as cousins. I used to chair the Human Genetics Commission and there was considerable sensitivity about this kind of discussion and about the implications of marriage within certain boundaries and how it perhaps increased risks for future generations. I think that when people are well informed that often changes social practices.

I also think that imams should be well informed about the ways in which the women in their congregation are disadvantaged by not having the cover of civil marriage so that they have rights that can be enforced in the courts. My clients have sometimes invoked Sharia law as being generous towards women at the ending of marriages or after death. Although that might have been the case in the past, nowadays women are more advantaged by what is available to them through the civil courts in the United Kingdom. I think that such pieces of information should be much more widely disseminated to communities where these issues arise.

My Lords, in the Government’s response to the JCHR, they reject the proposal for an annual report but say that they will be,

“happy to update Parliament on the progress of our work in this area in due course, including as part of the normal post-legislative scrutiny of the Act”.

That is a shame. To many parliamentarians, “in due course” means something rather longer than it does in normal language—but maybe I am too cynical.

Like other noble Lords, I think it is important that what is kept under review—that is another phrase I should avoid because it also has connotations—is far more than the narrow impact of the legislation. I have written down “prevention strategy”, “safeguarding”, “professional training”, “update on CPS strategy and outcomes”, “continuing work with stakeholders”—the list could continue. As I have said before today, I am concerned at the overreliance on girls coming forward for help. Another thing that I am sure stakeholders are very aware of is the impact on the whole family, with other family members, siblings of the child in question, being at risk if they do not support the parents’ decision. There is a range of victims as well as perpetrators in this situation, and that is another thing that we need to keep an eye on.

I hope that, having had the advocacy of a number of very effective Members of this House, the Minister can be a little more encouraging than the Government were in their response to the committee.

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

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.

Amendment 14 withdrawn.

Clause 151: Compensation for miscarriages of justice

Amendment 15

Moved by

15: Clause 151, page 121, line 24, leave out “the person was innocent of the offence” and insert “no reasonable court properly directed as to the law, could convict on the evidence now to be considered”

My Lords, this amendment is in my name and those of my noble friend Lady Smith and the noble Baroness, Lady O’Loan. It relates to Clause 151, dealing with compensation for miscarriages of justice where new evidence comes to light some time after—indeed, sometimes very long after—a criminal trial procedure has been concluded and the defendant convicted and sentenced, and which demonstrates beyond reasonable doubt that the conviction was unsafe. In those cases, the Criminal Justice Act 1988 requires the Secretary of State to pay compensation where the conviction has been reversed or the claimant pardoned. It should be emphasised at the outset that such cases are few and far between, with only two cases a year succeeding out of around 50 claims.

At Second Reading we heard in a compelling and powerful speech from my noble friend Lady Kennedy of The Shaws of an inquiry that she chaired into sudden death cases of infants whose mothers’ convictions were ultimately overturned. We also heard of a case in which a woman whom she represented served 11 years in prison for an arson attack that killed two people but of which it eventually transpired she was innocent. The noble Baroness, Lady O’Loan, reminded us of what might be termed the Irish cases, in which after a very long time compensation was also paid for serious miscarriages of justice.

As my noble friend Lady Kennedy of The Shaws emphasised:

“The point of compensation is to remind the state of its responsibility to hold those who act for it to the highest standards”.—[Official Report, 29/10/13; col. 1541.]

It is also to make some reparation for the damage inflicted upon those wrongly convicted.

It is instructive to look at the impact assessment on this aspect of the Bill, published as it was on 9 May. In terms of the financial implications, it claims,

“an estimated benefit of around £100k per year”—

a minuscule amount compared, for example, to the recently identified cost of the botched universal credit scheme of some £140 million. Interestingly, the assessment goes on to assert that compensation for the victims of miscarriages of justice is a “vexed subject”, and that:

“Some MPs”—

I note in parenthesis that Members of your Lordships’ House are not cited—

“and pressure groups may be opposed to any limitations of the current scheme”.

In a particularly telling phrase it goes on to say that,

“there would be a reduction in the amount of taxpayers’ funds that are spent on litigation in a challenging economic environment”.

It even goes on to assert:

“The Government also has a strong record of success in relevant Judicial Review proceedings”—

somewhat at odds, one might think, with their current efforts to reduce the scope of judicial review.

The assessment goes on to claim that the purpose of the provision is,

“to ensure that there is a consistent and unambiguous definition of what a miscarriage of justice is for the purposes of identifying eligibility for compensation”—

a point to which I shall return shortly. It even claims that the alleged lack of clarity makes it difficult for potential applicants to assess the likelihood of receiving compensation, as if that were the true rationale of the proposal, and that a clear definition would ensure that those individuals who are entitled to receive compensation would do so,

“thereby increasing the welfare of this group of people”.

What the Government really want is not just a clear definition but one of which they approve. They clearly do not approve of that definition provided by the Supreme Court in the Adams case, which pronounced that the test should be whether:

“A new fact will show that a miscarriage of justice has occurred when it so undermines the evidence against the defendant that no conviction could possibly be based on it”.

Basing compensation on a test requiring innocence to be established, which is in effect what Clause 151 requires, would, in the words of the noble and learned Lord, Lord Phillips,

“deprive some defendants who are in fact innocent and who succeed in having their convictions quashed on the grounds of fresh evidence from obtaining compensation. It will exclude … those who no longer seem likely to be guilty, but whose innocence is not established beyond reasonable doubt. This is a heavy price to pay for ensuring that no guilty person is ever the recipient of compensation”.

In the case of Ali, the court suggested the following formulation:

“Has the claimant established, beyond reasonable doubt, that no reasonable jury (or magistrates) properly directed as to the law, could convict on the evidence now to be considered”.

It is that formulation which the amendment seeks to embody, and it does so because the Bill in its present form, wittingly or not, undermines the basic principle of our English law that guilt has to be proved beyond a reasonable doubt, not that innocence has to be proved. It is a semantic quibble for Ministers to say that that same principle should not, in effect, extend to claims for compensation for wrongful convictions. We should not import the Scottish “not proven” verdict—in effect, “not guilty but we know you did it”—into our system at any point, including this point of compensation.

The Government claim that the Bill does not require the applicant to demonstrate innocence but that,

“the Secretary of State has to be satisfied that the new fact on which the conviction was quashed shows clearly that the applicant did not commit the offence for which he or she had been convicted”—

a distinction, it might be thought, without a difference.

The clause allows compensation,

“only if the new or newly discovered fact shows beyond reasonable doubt that the person was innocent of the offence.

However, for the purposes of a claim, this of course effectively requires a negative to be proved—all too likely to be not merely a formidable but in some cases an almost insurmountable challenge and one which, in practice, would fall to the applicant to attempt to meet.

The noble and learned Lord, Lord Browne of Eaton-under-Heywood, at Second Reading indicated his support for Clause 151, but even he implicitly accepted that it requires the applicant to prove his innocence beyond a reasonable doubt. The noble and learned Lord offered what he called,

“a slight modification to it, a slight dilution”,

so that, instead of the person having to prove his innocence beyond reasonable doubt,

“he need establish innocence only on the balance of probabilities”.—[Official Report, 29/10/13; col. 1537.]

Even that, however, would often be very difficult and would still represent a significant dilution of the presumption of innocence.

The noble and learned Lord, Lord Browne, referred to a case in which two brothers were convicted of an offence but where the convictions were set aside after 12 years. One was retried, having made confessions of guilt in the interim, but no retrial could apparently be made of the other, who had remained silent. The noble and learned Lord thought that any compensation claim made by that brother would have succeeded on the Adams test. Even if that were correct, however—and it is debateable—it would not justify abandoning the principle enshrined in our traditions and in the amendment. Hard cases can all too often make bad law, as the noble and learned Lord effectively acknowledged when he accepted that some people who are truly innocent “will go uncompensated”.

The Joint Committee on Human Rights addresses the problem in its fourth report in six months for this Session—which is, perhaps, a telling indication of the propensity of this Government to arouse concerns on issues going to the heart of our system of justice. The Joint Committee cites Article 14(6) of the International Covenant on Civil and Political Rights, which prompted the introduction of compensation by the enactment of Section 133 of the 1988 Act and Article 3 of Protocol 7 to the ECHR, which it describes as almost identical. The Joint Committee regards a condition of requiring proof of innocence beyond reasonable doubt as,

“incompatible with the presumption of innocence”.

It quotes the recent decision of the European Court of Human Rights in the case of Allen v the United Kingdom, which rejected the Government’s case that compensation cases in relation to miscarriages of justice were neither criminal proceedings nor sufficiently closely linked to criminal proceedings. The Government’s argument in this respect is little more than legalistic casuistry of the most blatant kind. It is matched, in the Government’s memorandum on the Bill purporting to address issues arising under the convention, by the insouciance of the claim that:

“The judiciary has not been able to agree on the right test”.

After Adams and Ali, that is a highly misleading assertion. The problem is that the Government regard it as the wrong test, but there is indeed an agreed test now.

The Joint Committee concludes that,

“requiring proof of innocence beyond reasonable doubt as a condition of obtaining compensation for wrongful conviction is incompatible with the presumption of innocence, which is protected by both the common law and Article 6(2) ECHR”.

It recommends that Clause 143—as it was in the draft Bill—“be deleted”, as is proposed by my noble friend Lady Kennedy. It is a matter of judgment whether that course of deleting the proposal altogether is preferable to amending the Bill in the way in which I propose. The House will wish, as I do, to listen carefully to the arguments before, at a later stage, determining a final course of action. At the moment, I lean towards embodying the clear definition in statute, which is what my amendment seeks to achieve. In either case, we could do no better than to hearken to the words of the noble and learned Baroness, Lady Hale, in Adams, quoted by the Joint Committee on Human Rights, when she said:

“Innocence as such is not a concept known to our criminal justice system. We distinguish between the guilty and the not guilty. A person is only guilty if the state can prove his guilt beyond reasonable doubt ... He does not have to prove his innocence at his trial and it seems wrong in principle that he should be required to prove his innocence now”.

I respectfully agree and I urge your Lordships to do likewise. I beg to move.

My Lords, the noble Lord, Lord Beecham, has correctly drawn attention to the ostensible reasons given by the Government for including Clause 151 in the Bill. I noted that at Second Reading the noble Lord, Lord Taylor of Holbeach, referred to the clause as the “new test”, which would be in aid of clarity and “much-needed certainty”. He added,

“we want to reduce the number of complex, expensive and generally unsuccessful legal challenges that currently arise”.—[Official Report, 29/10/13; col. 1486.]

I will make three brief comments.

First, it is perfectly clear that Clause 151 is concerned not merely with the interpretation of Section 133, as he seemed to suggest. It would exclude the type of claim which was recognised and allowed in Adams, and what was said at Second Reading simply does not address that particular step. Secondly, it seemed to be suggested that there was a current state of uncertainty in regard to the law. However, it is important to bear in mind that in Adams the Supreme Court carried out an exhaustive study of the scope of Section 133 and made a fresh analysis. Part of that was to get a final resolution of conflicting statements that had been made by judges in previous years.

Thirdly, Section 133 was intended to give effect to Article 14.6 of the covenant, which has already been referred to and which was ratified by this country in 1976. The wording of Section 133 is virtually identical to Article 14.6; apparently that was done deliberately. The Supreme Court had to consider what meaning should be given to Section 133 in the light of that article. Therefore, is it appropriate for Parliament to be invited to use its legislative supremacy to overrule the decision of the Supreme Court as to the application of such a statutory provision, and in particular to cut down its application, including on the ground of expense?

My Lords, I express my gratitude to those who have already spoken on this very important topic. To some this may seem like rather arcane law, but it is something very simple and very clear that comes down to fundamental principle. When I spoke at Second Reading, I did so with some force, because the reality of cases reminds you why law matters. When you conduct cases where there has been a miscarriage of justice, you know why it is so important that the law acts fairly to those who have suffered the consequence of miscarriage of justice. I, too, feel shocked that the Government—and it might be supported by others—seek to say that this is about saving taxpayers’ money when the sums of money involved are very small and the number of cases are few, and when we are dealing with such an important issue of principle: that is, that we in this country believe, powerfully and rightly, that a person should be presumed to be innocent unless they have been proved guilty.

When the Court of Appeal receives new evidence—and it is rare—and they decide that that new evidence casts a different light on what went before, we make assumptions that the person is therefore is not guilty. To require, as the amended section would, that a person has to prove their innocence is an affront to fundamental principle. It is shocking that our Supreme Court reached a decision with great care and that we are now seeking to overrule that decision. To most of us, the current position is very clear. The notion that there is uncertainty is, I suggest, a confabulation to justify overturning important principle.

Therefore, I, too, wish to invoke the fact that this is about not just an article of the European court or European convention; it is also an affront to the common law built up over the experience of our nation which says that persons should be deemed to be not guilty unless the state has managed to prove their guilt. I have been involved in cases where it would be very difficult to prove that you were innocent—indeed, the cases which have been mentioned, to which I referred at Second Reading, where mothers were found guilty of causing the death of their babies but thereafter it was felt that medical science was not yet in a place to help to ascertain possible genetic causes of sudden infant death. To ask those women who were released on appeal—having been in prison and having suffered the anguish of being accused of killing their own babies—to prove that they were innocent on the standard we are discussing is, of course, asking the impossible.

The reality is that with some cases, usually those involving the use of DNA, you can show that the miscarriage of justice most certainly involved the wrong person being accused. However, that happens rarely and usually involves calling into question the evidence that went before a jury and raising the spectre that a wrong decision was made. Too often, I am afraid, it also involves the state having behaved badly through its agents. In the cases mentioned by the noble Baroness, Lady O’Loan, in which I was involved—Irish cases where there were miscarriages of justice—false confessions had been made following the misbehaviour of police officers. Sometimes a question mark is raised over cases because the state has failed to behave appropriately.

We must be clear that, even on the balance of probabilities, it is asking the impossible for someone to show that they are innocent. Great experience gained in the common law has taught us that we do not make innocence a test; we decide as between guilt or non-guilt. On a previous occasion it was a source of shock to me to hear one of our eminent judges speak about a case where it seemed to him that it would be an affront if someone were compensated. Occasionally people are acquitted where they may be guilty but we in our wisdom know that that is a price you sometimes have to pay for having our highly regarded justice system.

I am afraid that this issue is about principle. It is not about arcane law but about the stuff that makes our legal system work and makes it something to be proud of. I sincerely hope that if the Minister does not accept that this issue has to be looked at again, in the fullness of time this House will remedy what the Government seek to do in this clause.

My Lords, I agree with the speeches that have been made this afternoon. Clause 151 should not be included in the Bill unless it is amended in order to restate current law, as the noble Lord, Lord Beecham, suggested. There are three reasons for that. The first is the reason about which the noble Baroness, Lady Kennedy of The Shaws, spoke; namely, a defendant does not have to prove innocence at trial. It would be contrary to basic principles to require the defendant to prove innocence in order to obtain compensation for a wrongful conviction. Even the Scottish verdict of not proven, to which the noble Lord, Lord Beecham, referred, does not, as I understand it, require the defendant to prove anything at all.

The second point is the practical one, which is as important as issues of principle in this context. The point was made at Second Reading by the noble Baroness, Lady O’Loan, and the noble and learned Lord, Lord Hope of Craighead, and made this afternoon by the noble Baroness, Lady Kennedy of the Shaws. It will often be very difficult indeed for an innocent person to prove their innocence: the evidence may simply be unavailable. It is very unfair that they should be unable to secure compensation for the miscarriage of justice.

The third point is that the approach adopted by Clause 151 breaches the European Convention on Human Rights because it contravenes the presumption of innocence in Article 6.2 of that convention. All 17 judges of the Grand Chamber of the European court stated this on 12 July in the case of Allen v United Kingdom, a case about compensation for miscarriages of justice. It was a unanimous judgment, which found that there was no breach of the presumption of innocence, but an important part of the court’s reasoning, at paragraph 133, was that the courts of the United Kingdom,

“did not require the applicant to satisfy Lord Steyn’s test of demonstrating her innocence”.

That is the test that was stated by the noble and learned Lord, Lord Steyn, in the case of Mullen in 2005—found in 1 Appeal Cases, page 1—in the Appellate Committee of your Lordships’ House. The noble and learned Lord, Lord Steyn, took the view that Section 133 did contain a proof of innocence test. That approach was not adopted by the Supreme Court later, in the Adams case.

Clause 151 now wishes to introduce the approach of the noble and learned Lord, Lord Steyn. It would be a quite remarkable step for Parliament to enact legislation now which contravenes a clear and recent statement in a unanimous judgment by the Grand Chamber of the European court, a step which should be taken only in the most exceptional circumstances, where some fundamental principle of English law is at stake. That is not the case here: we are not dealing with a clause that seeks to maintain some fundamental principle of English law. Indeed, to the extent that fundamental principles are at stake, they are those explained by previous speakers in this debate and which Clause 151 will frustrate and breach.

I will make one other point. At Second Reading, the noble and learned Lord, Lord Brown of Eaton-under-Heywood, who I am very pleased to see in his place today, said he was concerned about a case in which the conviction was quashed because of an abuse of process by the prosecution. However, my understanding of the Adams judgment in the Supreme Court is that compensation is not, in any event, payable under the current law in such a case. The Supreme Court describes such cases as category 4 cases:

“Where something has gone seriously wrong in the investigation of the offence or the conduct of the trial, resulting in the conviction of someone who should not have been convicted”.

The Supreme Court said very clearly that such cases do not, under current law, confer a right to compensation.

At Second Reading, the noble Lord, Lord Taylor of Holbeach, said that Clause 151 is designed to introduce certainty into the law, but Section 133 already has a clear meaning, as the noble Lord, Lord Beecham, explained. The Government intend to change that meaning; I hope they will withdraw this clause before Report.

My Lords, I recognise that the great majority of noble Lords who took part in the Second Reading debate on this clause, and the great majority of those who have spoken or propose to speak in this debate, are against Clause 151. However, if I may say so, they are under a considerable misapprehension as to the essential nature of this provision.

The clause has everything to do with statutory compensation but, frankly, little to do with criminal justice. That may sound simplistic but it is true. Convictions may be quashed in a wide variety of circumstances. It may be that fresh evidence comes to light that shows that the accused could not possibly have committed the particular offence. That may be as a result of DNA evidence, or perhaps someone later admitted to the very offence of which he has been convicted. Or it may be that the fresh evidence gives rise to a “lurking doubt”, as it is called, as to whether the defendant really was guilty. Or perhaps the judge can be shown to have unfairly admitted evidence or possibly misdirected the jury so that the conviction can no longer be regarded as safe. In all these cases, the conviction must be quashed and the defendant set free, and the presumption of innocence applies at that point in all those cases. However, it would be a very great mistake to suppose that all those defendants, merely because their convictions have been set aside and they are now presumed to have been innocent, are thereby entitled to the payment of compensation.

On the contrary, under the international convention to which our legislation is giving effect, only a very restricted number of cases are entitled to compensation: only those who by virtue of new facts disclosed on a late appeal can be shown conclusively to have suffered a miscarriage of justice are entitled to compensation. The critical question is: what, for this purpose, is a miscarriage of justice? It is not—I repeat and emphasise, not—the case that any conviction subsequently shown to be unsafe and set aside is a miscarriage of justice.

In the case that we have all been considering, Adams, the Supreme Court divided by 5:4. I should make it plain, as I did at Second Reading, that I was in the minority of four. The appellants and Justice, which intervened in that case, argued for the position that is apparently being taken by those participating in this debate, whereby all those whose convictions are set aside as unsafe should qualify for compensation. That, I understand, is what the noble Baroness, Lady Kennedy, contends. That indeed clearly appears to be the point made by the noble Baroness, Lady O’Loan, at Second Reading. She said:

“If we legislate in the way suggested by the Government, we will create two types of ‘not guilty’ … those who are fortunate enough to be able to present evidence that proves conclusively that they are innocent; they will be entitled to compensation. Others, not so fortunate, will only be able to prove that they should not have been convicted”.—[Official Report, 29/10/13; col. 1515.]

However, even under the amendment, those whose convictions are set aside as unsafe and who may well be, in the words of the noble Lord, Lord Beecham, truly innocent will still, by common consent, not be able to claim compensation. The international covenant that we have given effect to in our law shows that only a limited category is entitled to compensation.

The noble and learned Lord, Lord Judge, then the Lord Chief Justice, in the minority of four in Adams, explained that Section 133, which gave effect to our international obligation distinguishes the reversal of a conviction and a miscarriage of justice. These concepts are distinct. In short, for the purposes of Section 133, the reversal of a conviction and the consequent revival of the legal presumption of innocence are not synonymous with a miscarriage of justice.

The noble and learned Lord, Lord Steyn, in the case of Mullen, concluded that compensation was payable only when,

“the person concerned was clearly innocent”.

That, if I may say, was entirely consistent with the explanatory report that related to an article in the protocol to the European convention, which was enacted in terms virtually identical to those of Article 14.6, which our Section 133 is designed to implement. The explanatory report said:

“The intention is that states would be obliged to compensate persons only in clear cases of miscarriage of justice, in the sense that there would be acknowledgement that the person concerned was clearly innocent”.

In Adams, the majority devised a sort of halfway house, which was later redefined by the Divisional Court in Ali to say that compensation is payable if a new fact shows,

“beyond reasonable doubt, that no reasonable jury (or magistrates) properly directed as to the law, could convict on the evidence now to be considered”.

That, noble Lords will readily see, is essentially the identical language to that which Amendment 15 now proposes to put into Clause 151. That, I respectfully suggest, is the worst of all possible worlds.

First, it actually lacks principle. The notion of a prosecution case so undermined, as it was put in Adams,

“that no properly directed court could convict”,

is simply not a notion known to the court of criminal appeal. The court of criminal appeal deals only in the safety of convictions. A conviction may be unsafe because it is perfectly obvious that the man could no longer be regarded as guilty, or because doubt has been thrown on an important aspect of the evidence. It may be that the jury would still have convicted even in the light of new facts, or it may be that they would not. It may sound certain but there is considerable uncertainty over how this would apply. It will always be for the Secretary of State to decide, whatever the test, whether it is satisfied. The Secretary of State will have to decide, by reference to what is called in this clause,

“the evidence now to be considered”,

whether a reasonable jury, properly directed, could still have convicted, notwithstanding the doubt now thrown on some particular aspect of the evidence. It will require compensation to be paid in various cases where the defendant, although, of course, to be presumed innocent and set free, can nevertheless still be seen as quite likely to be guilty of the offence. I gave one instance of that at Second Reading, in col. 1539. The noble Lord, Lord Beecham, referred to it today, as did my noble friend Lord Pannick. However, with respect, my noble friend misunderstood the concept of the abuse of process that we were discussing in Adams. That was the sort of abuse of process that had caused Mullen in the earlier case to be brought wrongly from, I believe, Zimbabwe and tried, when he should never have been tried at all. That was not the sort of abuse of process under consideration in the case that I discussed and for which I gave the facts, which I will not repeat, at Second Reading.

Let me give another instance of where a probably guilty person could fall to be compensated under the proposed language in the amendment. Let us assume that the main prosecution evidence is a confession of guilt and it can later be shown that it was procured by an inducement. It may be that the police officer said, “Come along, you’ve only got to tell us what happened and we’ll give you bail. You’ll go free”. So a confession is made, perhaps to rape, and it may be demonstrably true. It may contain the sort of facts that only the guilty person could know. It is completely irrelevant whether it is demonstrably true; if it is obtained through an inducement, it has to be disregarded. In those circumstances, on this test, that person would be compensated. It could be that, such a conviction having been set aside, the victim of the rape could bring a civil claim for damages for assault, and establish the case on a balance of probabilities, which is the test on a subsequent civil claim. That claim would succeed and the assailant would be shown to be probably guilty but nevertheless entitled to compensation.

I am conscious of the time, so I shall come fleetingly to Strasbourg. The Joint Committee and my noble friend Lord Pannick appear to understand Allen to be saying that the proposed test would be incompatible with the convention. I can entirely see those passages in the judgment that could take one to that conclusion, although those were not the facts of that case and it was not the conclusion arrived at by the court. To my mind, that simply cannot be right. It would be complete nonsense. The higher the state raises the bar for what is necessary to qualify for compensation, the less the chance that a decision to refuse compensation would be understood as an allegation of criminal liability—in other words, a denial of the presumption of innocence.

If, as everybody agrees, a claimant is to be refused compensation because his conviction can be shown to be merely unsafe, in the sense that a jury could properly have convicted him on the other evidence, notwithstanding the new facts which cast doubt on part of the evidence that really might be thought to suggest that he was probably guilty. If, however, he is refused because he cannot conclusively demonstrate his innocence that is a great deal further away from suggesting that he was probably guilty. In other words, Strasbourg swallows the former, the camel, and it would be quite illogical for it to strain at the latter, the gnat.

There was much else that I would have liked to say, as said at Second Reading, including how I am perfectly agnostic and relaxed as to whether the burden on the claimant for compensation should be that of establishing his case on a balance of probabilities rather than beyond reasonable doubt. Those, however, are not the critical issues today. The critical issue is: how large should be the category of those who on any view will be truly innocent but refused compensation, and how large the category of those who are truly guilty but get compensation? That is the critical question that eventually this amendment, or its rejection, will decide.

My Lords, I was quite right to wait for others to table the amendment before adding my name, so that they could all go first with the arguments. I tried to canter through them at Second Reading in considerable haste and will try to be quick now. I accept that the new clause is to do with compensation, not the criminal law, otherwise every overturned conviction would lead to a right to compensation and Section 133 makes it clear that that is not the case. However, what has been troubling me is that if you do not have to prove innocence at the original trial and then the matter turns on a new or a newly discovered fact, surely you would not have had to prove that. If the fact had been available at the time of the trial, this would not have changed whether you would have to have proved your innocence, which you did not have to do. I do not see that bringing in a new fact should change that at all. I do not see why that is necessary now.

The noble and learned Lord, Lord Brown, has said that this is about who should be entitled to compensation. The Government say that it is about clarity. They do not argue in any effective way that the amounts involved are such as to require a change in the law in order to save the taxpayer. The impact assessment on this clause says:

“The intended effect is to lessen the burden on taxpayers and reduce unnecessary and expensive legal challenges to Government decisions to refuse compensation”.

Those are two quite separate points. The lessening of the burden on taxpayers is very small, but legal challenges to government decisions are another matter. That goes to clarity and it seems to me—I am not nearly as well qualified as everyone else who has spoken—that the chain of cases we have has produced the clarity. The impact assessment says that we need the provisions to be unambiguous and decisions on eligibility to be more transparent. I should have thought that the cases have taken us to that point.

My Lords, I fear that I do not share the view just expressed by my noble friend Lady Hamwee that the law is clear at the moment. The number of decisions, one following another, with disagreements between judges in the same tribunal indicates the difficulty of the question and, I conclude, the lack of clarity in the test that should be applied. One of the reasons for this provision is in order to provide clarity. That, I believe, it does. The second question is whether it is appropriate and whether it offends the presumption of innocence. I am part of the Joint Committee on Human Rights and originally I took the view that it did offend the presumption of innocence. I have changed my mind, having thought about it. Although I was not often able to persuade the noble and learned Lord, Lord Brown, of anything, he has contributed to persuading me, on the other hand, of the merits of the arguments he advanced, both at Second Reading and today.

I have also had the opportunity of reading the cases of Allen v the United Kingdom and KF v the United Kingdom and I agree with the noble and learned Lord that they do not in any way require the retention of the law in its current state, or that they offend the presumption of innocence—provided, it seems, that some judge, in declining to award compensation, does not make any comment to the effect that there is any doubt about someone’s innocence.

I also respectfully disagree with the noble Baroness, Lady Kennedy, that the point of these applications for compensation is to hold the state to account. The point of the applications is to obtain compensation, and the difficult question is that of who is entitled to it. It is not an easy question, but in my submission the Government have come to the correct answer. Sadly, a few people who are genuinely innocent will not obtain compensation, which in my view, for the reasons given, is an unsatisfactory element. However, it does not involve people being deprived of their liberty; it is simply a question of compensation.

My Lords, I would like to make four brief points. The first is whether there should be a test in the statute, taking account of what has been said by the judges so far. The second is a brief word about the standard of proof, to which my noble and learned friend Lord Brown of Eaton-under-Heywood referred. The third question is the wording of the amendment, and the fourth is the wording of the clause that the Government are proposing.

On the first point, I am very much in sympathy with the points made by the noble Lord, Lord Faulks. Particularly in view of what the Divisional Court said following what the majority said in Adams, there is a bit of confusion as to the way the judges are going. I must say that I would have hoped that Adams had settled the matter, admittedly by a small majority, but then we find the Divisional Court in Ali using a formula which I do not think fits with the majority view in Adams very well, if at all. Given that state of affairs, the Government are probably right to say that the time has come for the matter to be laid down in statute. This has a bearing on a point with which I am inclined to agree with the noble Lord as well. We are dealing here with compensation, not the criminal law as such, and therefore while one has a concern about the presumption of innocence, it is not going to affect the individual’s position as to whether or not he is to be convicted.

I support the Government in principle on those points and, coming to my second point, I also support them on the standard of proof. The wording of Article 14(3) uses the phrase “shows conclusively”, which points the way to the standard of proof that the new clause is adopting. I would be very uneasy about reducing it to a balance of probabilities test in view of the background of the article and the purpose of the provision, which is to provide for compensation in exceptional cases which really do justify that kind of award.

On the third point concerned with the wording of the amendment, I am bound to say that I am troubled by it. I hope that the noble Lord, Lord Beecham, will look at it again. What he has done, as I understand it, is adopt the formula that was used in Ali by the Divisional Court. If one looks more closely at the judgments in Adams, it will be found that the majority were not adopting a formula that, as my noble and learned friend Lord Brown rightly pointed out, is used more or less every day in the court of criminal appeal. It was not in the mind of the majority—I have to say that I am speaking as a member of that majority—that any conviction which is shown to be unsafe should justify an award of compensation; not at all. Lord Bingham, who started thinking about this before we came to it in Adams, was talking about some kind of failure in the trial process, something quite fundamental which has gone wrong. The example mentioned by my noble and learned friend Lord Brown was the person brought to trial here who should never have been brought to trial here at all. That is quite a strong example. One is looking for something different from and more exceptional than the Ali test indicated. I suggest that the noble Lord, Lord Beecham, and his advisers look more closely at what the noble and learned Lord, Lord Phillips, said in paragraph 55, supported by the noble and learned Baroness, Lady Hale, in paragraph 114, the noble and learned Lord, Lord Clarke, in paragraph 217 and myself in paragraph 74, indicating that what was really being looked for was something that is so fundamental that it undermines the evidence so that no conviction could possibly be based on it. The words “so undermined” and “could not possibly” were intended to indicate a much tougher test than the test that rightly is of concern to my noble and learned friend Lord Brown.

Coming to the wording of the Government’s proposal in Clause 151, it may be a practical point, but it is a fundamentally important point. I have here the letter which was written by the noble Lord, Lord Taylor of Holbeach, to the noble Baroness, Lady Smith of Basildon, on 7 November. Quite rightly, he is pointing out for everybody’s information that the applicant will not need to prove anything. What he is saying is that the requirement that the clause imposes is something that will be satisfied simply:

“they will not need to provide any information apart from the Court of Appeal judgment quashing their conviction”.

Very well; that is the material to which you look. The individual does not have to prove anything except simply tender the judgment of the Court of Appeal and say to the Minister, “Here it is, see what you can make of it. Does it come up to the required standard?”.

That brings me to one of the cases which the noble Baroness, Lady Kennedy, was looking at. It is the case of Sally Clark, which was one of the most tragic cases, I think, that has ever come to the court’s attention. Noble Lords may remember that she was the lady who had two babies, each of whom died. Initially, it was thought that this was due to cot death. The authorities were not satisfied with that; it looked like too great a coincidence. The matter was referred first to pathologists, who conducted post-mortem examinations of both infants. Then it was referred to Professor Meadow, who looked at the statistics. He came up with a statistic that the situation of two infants dying and their deaths being attributed to cot deaths was really stretching the imagination far too far, because if one has a second death following on the first, the chances are one in 74 million against its being due to natural causes. That startling statistic was the basis of the Crown case before the jury. The jury convicted.

Subsequently, the case first went on appeal and the conviction was upheld by the Court of Appeal. It was then referred by the Criminal Cases Review Commission back to the Court of Appeal. The significant point is to look at the way in which the Court of Appeal dealt with the argument. The noble and learned Lord and his advisers may care to see the way in which the narrative proceeds in the case of Meadow, which was reported in 2007 Queen’s Bench 462. The relevant facts can be gathered from paragraph 102 in the judgment of Lord Justice Auld and the opening remarks of the Master of the Rolls, Sir Anthony Clarke.

The point is that the basis on which Sally Clark’s conviction was set aside was non-disclosure of relevant material by the biologist who conducted the biopsies, the post-mortem examinations of the infants, particularly one point relating to the second of the two infants to die. It was a non-disclosure point. With great respect to those who are proposing Clause 151, I do not think that it could possibly satisfy the test which Clause 151 sets out. The Court of Appeal did not go ahead to examine the significance of the evidence of Professor Meadow. It did not have to, because it found that non-disclosure was enough for the conviction to be unsafe and that was the standard being applied in that case.

Of course, there was no declaration of innocence; that certainly would not happen in our criminal Appeal Court. It was on the basis that it was unsafe on the ground of a non-disclosure. However, if one had gone on to look at the statistic, which was grossly irresponsible—indeed, Professor Meadow was taken to task by his professional body and found guilty of misconduct; serious misconduct was set aside, but he was found guilty of misconduct—that was evidence that should never have been placed before the jury, because the one point that he failed to disclose was that the statistic did not apply in a situation where two children were related. It was a statistic for when the children were unrelated, which was not the case that was being dealt with at all.

That raises a very real practical issue. The case destroyed that poor lady’s life, as we all know. I am haunted by the picture of her coming out of the court, having been successful in her second appeal. She had totally changed physically from when she went into prison and, as we all know, she later took her own life. If there was a case that called for compensation, surely that was it. I do not know what happened, as the case was decided early in the decade, before Mullen, which was the conviction from, I think, 2000 that was set aside. The question of the Mullen test did not arise and I think it was decided under some ex-gratia system, although I do not know the facts. However, that is not really what should disturb the Minister. The question is whether the test is one that could face up to that kind of case, which everybody would feel should see compensation.

It is a practical problem, and I support the Government a long way in their thinking. For reasons I have attempted to explain to the noble Lord, Lord Beecham, I am not in favour of his amendment, and would certainly not support it in its present terms, but I do ask the Government to look more carefully at their own version of the clause.

My Lords, I will correct the noble and learned Lord, Lord Hope, on only one point. I think that at one point he referred to me as noble and learned. Nothing could be further from the truth—I think, in fact, I am the first non-lawyer to rise to his feet in this debate. But we are none the worse for that, because this is about getting it right. I am very pleased that the way in which the debate unfolded showed what a challenge the Government are trying to meet. I have one little chide for the noble and learned Lord, Lord Cullen: he talked about the Government’s “ostensible” reasons, which implies that there are some less worthy reasons behind the legislation. Again, as the debate unfolded, it became clearer that we are trying to deal with some genuine problems. I believe that this debate will stand very good reading. We are all going off on recess and so will have the opportunity to study very carefully some very detailed speeches. The best advice that the noble Lord, Lord Beecham, gave was that we should all listen carefully to the arguments. That is certainly what I intend to do.

We are going to some fundamental questions. The noble and learned Lord, Lord Cullen, questioned whether Parliament has the right to override a carefully calibrated judgment of our Supreme Court. As I say, I am not a lawyer but I am, if I have any other description, a parliamentarian and have always thought that Parliament has that right, however well calibrated the judgment might be. The noble Baroness, Lady Kennedy, was very keen to see it as an affront to that fundamental principle of the presumption of innocence and, indeed, as an affront to our common law. The noble Lord, Lord Pannick, warned us that it was a breach of the European convention. Then, almost like the 7th Cavalry, the noble and learned Lord, Lord Brown, came over the hill with what sounded like, even from my layman’s position, a magisterial dissection of the arguments. I hope and advise that all participants in the debate, and wider readers, read what the noble and learned Lord, Lord Brown, had to say. He pointed out clearly that compensation was not available in all circumstances and that only a limited number would qualify. I will not try to repeat his arguments, as I want to study them carefully.

The noble Baroness, Lady Hamwee, was concerned that the emphasis on the new fact was a challenge to the principle of the presumption of innocence. The noble Lord, Lord Faulks, said that that was one of the things that had worried him, but that he had been persuaded by the arguments that it was not. Again, I will not try to analyse and dissect this, but I think that those on all sides who are interested in getting this right would do well to study the intervention of the noble and learned Lord, Lord Hope. He acknowledged that there is confusion, that it is important to get the right standard of proof and that the Government were probably right to try to offer the certainty of statute but, in a carefully balanced judgment, he found that the effort of the noble Lord, Lord Beecham, was too loose and that the Government’s effort would not meet the non-disclosure test, as he illustrated by reference to the tragic case of Sally Clark.

This is a debate worthy of this House and it is our responsibility to try to get this right. There is no sleight of hand or hidden agenda; this is an attempt to get clarity into the law without sacrificing the fundamental principles that have been alluded to. I will put on record the Government’s explanation of this clause as it now stands. I hope that the House will listen to it and test it against the interventions that have been made, as it is obvious that we will be returning to this in some form on Report.

Clause 151 provides, for the first time, a statutory definition of what constitutes a “miscarriage of justice” for the purpose of determining eligibility for compensation under Section 133 of the Criminal Justice Act 1988. This definition will mean that compensation is paid only where the new fact that led to the quashing of the applicant’s conviction shows beyond reasonable doubt that they were innocent of the crime of which they were convicted.

At Second Reading, several noble Lords spoke on this issue. We heard concerns about the relationship of this provision to the presumption of innocence, which have been repeated today. The Government do not believe that the provision conflicts with, or in any way undermines, the presumption of innocence. The presumption of innocence is a fundamental constitutional right, enshrined in the European Convention on Human Rights, and one that we fully support. Once a person’s conviction has been quashed on the basis that it was unsafe, he or she is once more presumed innocent. That is only right. However, as the European Court of Human Rights recognised in the Allen judgment, and in the subsequent judgment of KF, the fact that someone is once more presumed innocent does not automatically mean that they suffered a miscarriage of justice. In the Government’s view, a miscarriage of justice will have taken place only when someone should not have been convicted—not just because something went wrong with the trial process or with the investigation, either of which could render a conviction unsafe, but because there was a fact, unknown at the time of their conviction, that clearly demonstrates that they did not commit the crime.

We agree that people should not have to prove their innocence in order to qualify for compensation. We also agree that to require this would be equivalent to reversing the burden of proof. That is why we are not requiring it. We do not, and do not plan to, require applicants for compensation to prove anything. We do not wish them to provide us with new evidence relating to their case. We look only at the new fact that led the Court of Appeal to quash their conviction and at the impact of that new fact. If the new fact shows that they were innocent—for example, that they were somewhere else when the offence was committed—then they have been the victim of a miscarriage of justice and should, and will, be compensated.

In our view, Article 14(6) of the International Covenant on Civil and Political Rights, which we have implemented through Section 133 of the Criminal Justice Act 1988, obliges us to pay compensation for a “miscarriage of justice” only in these circumstances. We do not believe that it is necessary to pay compensation more broadly than this. Compensating everyone whose conviction has been quashed would be tantamount to saying that everyone who is acquitted at trial has suffered a miscarriage of justice. That is clearly not the case.

For many years the courts have regularly tussled with how a miscarriage of justice should be defined. Before 2011, it was defined as a case where the person whose conviction was overturned was shown to have been innocent. As the then Lord Chief Justice, the noble and learned Lord, Lord Judge, put it in his dissenting judgment in the Supreme Court case of Adams,

“the operation of the compensation scheme under section 133 is confined to miscarriages of justice in which the defendant was convicted of an offence of which he was truly innocent. In my judgment nothing less will do, and no alternative or half-way house or compromise solution consistent with this clear statutory provision is available”.

The Government agree with him.

The noble Lord, Lord Pannick, referred to the recent letter from the Constitution Committee to my noble friend Lord Taylor. In that letter, the Constitution Committee questioned whether it was appropriate for Parliament to use its legislative supremacy to overrule a decision of the Supreme Court. I hope that noble Lords will have seen the response from my noble friend to the noble Baroness, Lady Jay. In short, the Government argue that it is the proper role of the courts to interpret the law made by Parliament. Where this law is not clear, or leaves gaps, as Section 133 of the Criminal Justice Act 1988 does at the moment, it is entirely appropriate for the courts to fill those gaps with their interpretation. However, where the courts cannot reach a settled view on what a statute is meant to achieve, it is properly for Parliament to address those gaps or ambiguities. That is what Clause 151 will achieve.

I cannot say the same for the amendment tabled by the noble Lord, Lord Beecham, which seeks to maintain the current definition of a “miscarriage of justice”. There are two problems with this definition, which derives from the Divisional Court’s recent judgment in Ali and others, where the court sought to clarify the Supreme Court’s definition in its judgment in Adams. First, unlike Clause 151, the Ali definition requires the applicant to demonstrate that they have suffered a miscarriage of justice; secondly, it requires an assessment of what a jury,

“properly directed as to the law”,

would decide. This is clearly ambiguous and arguable in every case. We do not believe that this is satisfactory. It is essential that applicants for compensation have clarity and are able to understand the test that applies. That is not the case now—as is demonstrated by the many unsuccessful applications for judicial review when compensation is refused—and it would not be the case if we kept the current test and gave it a statutory basis.

In contrast to the noble Lord, Lord Beecham, the noble Baroness, Lady Kennedy of The Shaws, other noble Lords and the Joint Committee on Human Rights have argued for the removal of Clause 151 from the Bill. The effect of this would be to leave the definition of a miscarriage of justice to the courts. The lack of statutory definition has left applicants struggling with case law, which, as well as often appearing ambiguous and confusing, changes unpredictably, automatically moving the goalposts for existing applicants.

The Government believe that creating a clear and comprehensible statutory definition will make it easier for potential applicants to predict their chance of success and to understand the Secretary of State’s decision on their case. This should end the succession of unmeritorious attempts at judicial review, which create uncertainty for applicants and incur significant costs for them and the taxpayer. The purpose of Clause 151 is to make the definition of a miscarriage of justice more consistent, clearer and easier for the public and potential applicants to understand. We believe that it is fairer than using an obscure and confusing definition or continuing to work with a definition subject to unpredictable change. Finally, I remind the House that the tests that we are now enshrining in legislation operated successfully between 2008 and 2011.

Clearly, as I said, we are going to return to this matter. What I have just stated is the considered government reasoning for bringing forward Clause 151 with all the legal advice at the Government’s disposal, but I am also extremely grateful to noble Lords—as I often say about the team that I have in the Liberal Democrats who occasionally advise me on these things, if we had to pay them, we could not afford them. We have had a range of thought-provoking interventions, which I will take back. I am encouraged that those interventions do not, for me, dismantle the case for Clause 151. In fact, I think that a balance of reading or a balance of listening gives me more confidence. I think, however, it would do us all well, as the noble Lord, Lord Beecham, advised at the beginning, to listen carefully. I recommend that we read carefully, and we will return to this matter on Report.

The Minister has given an interesting and full reply to what has been a very interesting and compelling debate, demonstrating yet again that consideration of these matters goes further and deeper in your Lordships’ House than it does in another place, where, frankly, this issue was dealt with in fairly peremptory fashion.

I am grateful to all Members of your Lordships’ House, particularly the noble and learned Lords, for their contribution to the debate, and I will certainly be taking my own advice and that of the Minister and reading very carefully and more than once the contributions that have been made in this very difficult area, both philosophically and in terms of jurisprudence.

It is interesting that the Minister rejects the test that is advanced in the amendment as not acceptable and again repeats the mantra that applicants are not required to prove their innocence because, as he implies, the amendment suggests that everybody whose conviction is quashed should be compensated. That is not what the amendment is intended to achieve and not what it says. The noble and learned Lord, Lord Hope, identified one category where purely procedural defects of a significant nature—for example, somebody being wrongly brought over to this country for trial— was sufficient to make a conviction vulnerable to quashing, and indeed it was quashed. That did not give rise to the sort of concerns that the amendment seeks to address.

The noble and learned Lord, Lord Brown, with whose support I was very content when we discussed aspects of the secret courts Bill, alas differs from me and others with his approach to these matters. Of course, I very much respect his appearance and wisdom. It is interesting that, towards the end of his speech, he posited two categories about which questions might be asked. He asked how large the category of innocent people not getting compensation would be, and how large the category of guilty people getting compensation would be. That is a factor, but it is not the crucial factor that we ought to weigh as we determine whether to make what is, in my submission and that of other noble Lords, a significant change in how guilt and innocence are treated, at any rate for the purposes of compensation. The noble and learned Lord, Lord Hope, took the view—others have expressed it—that the Ali test does not go far enough and somehow distorts the decision in the Adams case. I want to look very carefully again at both those judgments and to consider whether my amendment is fit for purpose. It might need reconsideration.

The noble and learned Lord referred to the judgment of the noble and learned Lord, Lord Phillips, in that case and mentioned the noble and learned Baroness, Lady Hale, and her judgment. The noble and learned Lord, Lord Phillips, advanced in paragraph 55 of his judgment the proposition of a more robust test of a miscarriage of justice than that which had been formulated by Lord Justice Dyson. His formulation was this:

“A new fact will show that a miscarriage of justice has occurred when it so undermines the evidence against the defendant that no conviction could possibly be based upon it. This is a matter to which the test of satisfaction beyond reasonable doubt can readily be applied”.

That is consistent with the terms of the amendment. It seems to make very much the same point. The noble and learned Lord, Lord Hope, disagrees about that and I want to consider very carefully that distinction. The noble and learned Lord, Lord Phillips, went on to say:

“This test will not guarantee that all those who are entitled to compensation are in fact innocent. It will, however, ensure that when innocent defendants are convicted on evidence which is subsequently discredited, they are not precluded from obtaining compensation because they cannot prove their innocence beyond reasonable doubt”.

The question is whether the Government’s position would facilitate that or not. That is where there is a significant measure of doubt.

I was also slightly puzzled by the noble and learned Lord’s quotation from the judgment of the noble and learned Baroness, Lady Hale. I have already quoted the noble and learned Baroness. Referring to the text of her judgment explicitly, she referred to,

“the ‘golden thread’ which is always to be seen ‘throughout the web of the English criminal law’”—

that is, proof of guilt beyond a reasonable doubt. She went on to say:

“Only then is the state entitled to punish him. Otherwise he is not guilty, irrespective of whether he is in fact innocent. If it can be conclusively shown that the state was not entitled to punish a person, it seems to me that he should be entitled to compensation for having been punished. He does not have to prove his innocence at his trial and it seems wrong in principle that he should be required to prove his innocence now”.

That seems to be more consistent with the amendment that I have tabled and to which I speak than the proposition contained in Clause 151.

There are clearly matters that I and many of us will have to revisit before we get to Report. The Government’s proposals in Clause 151 are not consistent with the thrust of our traditional common law policy in these matters and with the judgment in Adams. We wish to see that what had been understood to be the position, and which Adams stressed, is reinstated. I hope that in exploring these matters further we might reach a point where doubts about the amendment and its possible rephrasing might help us achieve that objective.

These are serious matters. I remind your Lordships that we are not talking about large numbers of cases and large numbers of guilty people being compensated, or about large numbers of any category of people being compensated. Not that many cases achieve compensation. The point is the direction of travel in which we address these issues, and the impact that that has on our traditions and system of justice.

At this stage I will not seek to test the opinion of the House. I look forward to another interesting and hopefully productive debate when we get to the Report stage of the Bill. I beg leave to withdraw the amendment.

Amendment 15 withdrawn.

Clause 151 agreed.

Clause 152: Low-value shoplifting

Amendment 16

Moved by

16: Clause 152, page 122, line 11, leave out “£200” and insert “£100”

My Lords, happily this is a relatively short matter and appropriately I shall be speaking to it.

The issue here is a change to the way in which shoplifting is to be dealt with. The thrust of the Government’s proposals is to make a summary-only offence of shop theft below £200. That would facilitate matters being disposed of without trial following a written guilty plea, with a fine then usually being imposed on an absent defendant. It might seem somewhat illogical for the Government to preserve the right to elect trial for somebody even on a charge for such a moderate amount, but they are absolutely right to do this.

The problem identified by members of the retail trade and the Magistrates’ Association in particular, and perhaps also by others, is that under the present system an on-the-spot fine can be given for a low-value shop theft if the penalty, which I believe at the moment is £80, is not paid within 21 days. Half of them, incidentally, are not. It then becomes a higher fine of £120 and the court system manages the collection. That is a reasonable way to approach first-time offenders. It should not, however, continue to be available for repeat offences. The penalty notice for disorder—we are into alphabetical descriptions again: the PND—is not an admission of guilt.

The police often caution offenders for shop theft—that does require an admission of guilt. It could be the next stage after a previous PND. A summons to court may follow after two previous incidences of shop theft. If the Government’s measures turn this into a kind of postal process only, there is the danger that repeat offenders will accumulate a succession of fines without really being stopped or deterred at all. The view of the Magistrates’ Association is that a great deal of shop theft goes undetected as it is, and some offenders detected under this process for the third time will have committed nearer to 30 offences. This is obviously not good for the trade. It is also probably not good for the offenders. Many of them have huge problems. They may be afflicted by homelessness and a consequent inability to claim benefits, or they may have problems of addiction to drugs or alcohol. Of course, those aspects will not be picked up on at all under this process. There is therefore a double risk, both to the trader and, indeed, very often to the offenders.

The purpose of the amendment is therefore to narrow the scope within which these new procedures can apply. The figure is one which simply triggers the debate. In the Commons, my honourable friend Mr David Hansen who moved the amendment did so with two figures, £100 and £40. It is irrelevant which figure one looks at, the question is whether the system as proposed will produce more problems rather than fewer for both traders and potentially for offenders, and whether—at the very least—a lower figure might limit that. I hope that the Minister will consider that area. I am not expecting a complete response tonight, but perhaps by the time we come to Report the Government could have had another look at this issue with a view to seeing whether some of these fears which have been expressed by those with an interest in the matter can be properly addressed. I beg to move.

My Lords, I support the amendment —I suppose because it comes from my Front Bench. However, I do not like the provision in the Bill at all. Shoplifting has been with us, as it were, for a long time. Correct me if I am wrong, but it is unprecedented for shoplifting to be singled out as a form of theft that should receive special attention. What is the gain to the public of that?

Shoplifting is of course prosecuted under the Theft Act 1968. When I was a young barrister prosecuting young shoplifters up and down Oxford Street, the notion was that very few people did other than plead guilty. They wanted to get it out of the way. They certainly did not want to go for trial and have to wait until a jury trial could be arranged. Therefore, they invariably preferred the summary trial. I would be surprised if that were any different today.

I see little point in this clause if it introduces for the first time special provision relating to one particular kind of theft. Why this kind of theft? Why not theft from one’s employer, or from one’s friends and neighbours? Why shoplifting, in particular? From my experience of years ago, I am afraid that the general public seem to think that shoplifting is not nearly as serious as real theft. It is something that most people engage in when they are young, or otherwise. However, to label this aspect “shoplifting” rather than theft in general, as the Government are doing, is perhaps to lend credence to the notion that shoplifting is not so important at all.

I suggest that the very least which could be done would be to adopt the amendment of my noble friend Lord Beecham. Really, however, the Government ought to withdraw the clause. Is the Bill not big enough, covering enough subjects, as it is, without dragging in something which has no relevance to any other part of the Bill?

It is always a great pleasure to follow the noble Lord, Lord Borrie. I have always thought of him as a complete Front-Bench loyalist but also acknowledge his considerable experience in this area. By the way, I am only teasing him about being a Front-Bench loyalist.

A long time ago I was director of the British Retail Consortium, and I know that it is one of the most irritating things for shopkeepers, large and small, when shoplifting is seen as some kind of victimless crime or childish prank. I often think, when looking at first-time offenders, that they should be listed as “first-time court offenders”. It is a scourge, and as the noble Lord, Lord Borrie, knows as a former champion of the consumer, in the end the consumer pays for the tolerance of shop theft. Therefore this certainly in no way trivialises shop theft. We intend to produce guidelines for the police on these provisions and we are currently working with the police and retail associations to draft guidance on them, which we hope will be available in time for Report. That will primarily cover the circumstances under which it would be appropriate to pursue the Section 12 Magistrates’ Courts Act procedure, which allows defendants to plead guilty by post.

The volume of people who go through the court is certainly a problem. Just over 120,000 people were brought to justice for shop theft in 2012, 40% of whom received out-of-court disposals. However, we do not believe that these changes will result in shop theft being treated less seriously; in the vast majority of cases they will affect neither where the case is tried nor the sentence that is imposed. Ninety-nine per cent of shop theft cases are heard in magistrates’ courts, and of those who are convicted 98% are sentenced there. Only 1,650 shop theft cases were sentenced in the Crown Court last year, and 90% of them resulted in a sentence that the magistrates’ court could have given.

It is true that there are remaining concerns about that in the retail sector. However, we believe that they flow mainly from a misunderstanding about what the provisions seek to achieve. Any incident of theft continues to be a serious matter. However, the changes we are introducing simply enable more efficient processes to be employed to bring such cases to justice quickly. They do not change the fact that 99% of shoplifting cases are already considered in the magistrates’ court and that 90% of cases involve goods worth less than £200.

Amendment 16 would reduce the number of shop theft cases to which Clause 152 applies by reducing from £200 to £100 the monetary threshold that defines these cases. However, I appreciate that that was a figure given to stimulate the debate. The purpose of the clause is to enable cases of low-value shop theft to benefit from more efficient arrangements that are limited to summary-only offences. In particular, it will mean that the procedure that enables defendants to plead guilty by post will be available, and the police will be able to make use in these cases of powers that they already possess, whereby they can prosecute certain offences where they are uncontested. The result will be to speed up the prosecution of these cases and to provide swifter justice for retailers.

Nobody would suggest that the theft of valuable property should be made a summary-only offence. A line has to be drawn somewhere, and the £200 threshold was chosen on the basis of research that was done in 2006 for the Sentencing Advisory Panel. That showed that 90% of all shop theft cases heard in magistrates’ courts involved goods worth £200 or less. Lowering the threshold to £100 would catch rather fewer cases—77% of them, according to that research. I am not sure what would be gained by excluding cases where the item stolen was worth more than £100. Almost certainly it would have no effect at all on where the defendants were tried or on the sentence that could be given. It would simply mean that the more efficient and speedier procedures would not be available in those cases.

I assure noble Lords that we do not expect all cases of low-value shop theft to be dealt with by post and prosecuted by the police in the defendant’s absence. That is not the intention. It may well be appropriate for prolific shoplifters to be charged and bailed to appear in court, to be dealt with in person. That would not only be suitable but necessary in cases where a custodial sentence was in prospect. The new provisions do not prevent this: whether the “guilty by post” procedure is used is discretionary. This is a matter for guidance which we are developing, as I have just said.

Amendment 17 would exclude from the ambit of Clause 152 any case in which the defendant had already received a caution, conditional caution or penalty notice for disorder in respect of shop theft. It is not clear why a case should be excluded from the scope of these provisions simply because the defendant had previously received a caution or other out-of-court disposal. That sort of disposal is not an unusual outcome for a first offence of shop theft.

The Government are aware of concern about people being given a succession of cautions for similar offences and have considered this as part of the simple cautions review, the outcome of which we will announce shortly. The expectation will therefore be that defendants who have already received an out-of-court disposal will be prosecuted. Prosecution for low-value shop theft under the streamlined procedure permitted by the new section seems an obvious and appropriate next step, and it would be perverse to rule that out. A person being prosecuted for the first time for offending at this level is most unlikely to receive custody, and is therefore very suitable to be dealt with under the new procedure.

I am grateful for the contributions made and hope that the amendment prompted the debate for which the noble Lord, Lord Beecham, hoped. I also hope that my explanation will provoke him to withdraw his amendment.

I always enjoy being provoked by the Minister. On this occasion I am happy to withdraw the amendment.

Amendment 16 withdrawn.

Amendment 17 not moved.

Clause 152 agreed.

Clause 153 agreed.

Amendment 18

Moved by

18: After Clause 153, insert the following new Clause—

“Protection arrangements for children and dependants

(1) The Criminal Justice Act 2003 is amended as follows.

(2) After section 174 (duty to give reasons for, and explain effect of, sentence) there is inserted—

“174A Duty to ask about children etc left behind

(1) Any court passing a custodial sentence on an offender who was on bail when awaiting sentence must ask what the arrangements are for the care of any children of the offender or any vulnerable adult who is dependent on the offender while the offender is in custody.

(2) If the court considers the arrangements are not satisfactory the court must make a referral to the relevant local authority social care team.

(3) Any person or body having statutory responsibilities for children or vulnerable adults must co-operate with the court in securing that arrangements are made for their safety in the circumstances to which subsection (1) refers.”

(3) The Bail Act 1976 is amended as follows.

(4) In section 5 (supplementary provisions about decisions on bail), after subsection (5), there is inserted—

“(5A) Where a court withholds bail in criminal proceedings from a person to whom section 4 of this Act applies, the court must ask what the arrangements are for the care of any children of the defendant or any vulnerable adult who is dependent on the defendant while the defendant is on remand in custody.

(5B) If the court considers the arrangements are not satisfactory the court must make a referral to the relevant local authority social care team.

(5C) Any person having statutory responsibilities for children or vulnerable adults must co-operate with the court in securing that arrangements are made for their safety in the circumstances to which subsection (5A) refers.”

(5) This section shall come into force two months after enactment.”

My Lords, this amendment stands in my name and that of the noble Lord, Lord Ramsbotham, who has asked me to apologise for his absence as he is en route to Kenya as we speak.

This probing amendment would introduce a very straightforward duty on courts to inquire whether individuals who are refused bail or sentenced to prison have caring responsibilities for any children or vulnerable adults and, if they do, to make a referral to the appropriate local authority if arrangements are not in place for their immediate safety and well-being.

The noble Lord, Lord Ramsbotham, if he were here, would have sought to discover more about the Government’s plans to transform the probation service. He would have reminded the House that in pre-Grayling days family details would have been discovered by the probation service, which would have included this information in pre-sentence reports. I know he would have worried that a privatised probation service would not have the time to complete full reports, and I believe that he would have been right to do so.

Our proposed change in the amendment would not have any bearing on decisions about the length of sentence or whether bail is granted, nor would it place any onerous burden on courts to establish care provisions themselves. It is simply about identifying young, old or disabled people who have been left in a precarious situation as a result of their primary carer being imprisoned, so that the appropriate steps may be taken. Regrettably, far too many are let down by the current system.

At Second Reading, I spoke about a seven year-old boy who was neglected and, ultimately, left alone by friends after his mother was sentenced. Then there was the case of the young lady who was unaware of her daughter’s whereabouts and only discovered that she had been hospitalised after a support worker contacted four different councils. Finally, a 19 year-old boy was left caring for five siblings when his mother was denied bail. These give an indication of the kind of cases that organisations supporting this amendment—members of the Families Left Behind campaign—are regularly faced with. Charities such as the Prison Advice and Care Trust, Barnardo’s, the NSPCC and Caritas Social Action Network have all highlighted how vulnerable people are unnecessarily put at risk, sometimes overlooked for hours or even days. In such cases, serious risks often only become apparent when the prisoner talks to a support worker or chaplain about their family.

People facing trial or bail hearings are rightly encouraged to make arrangements for their dependants before entering the courtroom, and many do just that. Where the court is assured that suitable support is in place, this amendment will not necessitate any further action whatever. However, where those arrangements have not been made, perhaps because the defendant was confident of being released or was simply overwhelmed by the judicial process, it offers a vital opportunity for early intervention to prevent people from coming to harm. The importance of avoiding any break in care for children or vulnerable adults is well established. The Government themselves advise that children under 16 should not be left alone overnight; children under 12 should not be left alone for long periods of time; and babies or toddlers should never be left alone at all. The advice continues and warns that parents may be prosecuted if any child is left,

“in a manner likely to cause him unnecessary suffering or injury to health”.

Yet this is precisely the situation some children face when a parent is remanded in custody or sentenced to prison. The longer it takes for the appropriate authority to intervene, the greater the risk becomes.

Likewise, we are only too aware of the danger posed to older or disabled adults by depriving them of necessary support, even for a short time. We have all been appalled by cases in recent years where just one or two missed homecare visits have led to people being left in darkness, unable to use the toilet or even without vital medication. In more extreme situations, people have experienced serious harm, or even lost their lives, after falling through gaps in the system and finding themselves without support. Many steps are being taken to ensure that such tragedies are never repeated and that homecare schedules are properly adhered to. Yet equally robust provision is lacking in situations where a person’s primary carer is a relative or friend and they have been given a custodial sentence.

It is worth revisiting the number of people at risk of being left in these difficult circumstances. Some 200,000 children in England and Wales experience the imprisonment of a parent every year, more than twice the total number of children in the care system. While statistics for adults who experience the imprisonment of their carer are not centrally collected, this figure is also likely to be significant, given that the prison population currently stands at over 80,000 and approximately one in eight of Britain’s adults is a recognised carer. A simple process whereby courts make relevant inquiries and notifications regarding dependants, at the point when a sentence is passed or bail is refused, will go some considerable way to addressing current shortcomings, without creating significant pressure on either time or resources. The proposal also stands to reduce the need for the more intensive and costly intervention often required further down the line if people are left without support.

I therefore hope that we can take this opportunity to adopt this sensible and constructive measure. It is a small change in procedure but it will make a significant difference for a child who finds that there is no one to collect them from school because their mother has been refused bail, or for the elderly parent who finds that there is no one to help prepare their dinner because their son has been handed a custodial sentence. When anyone is sent to prison, the families and dependants who are left behind will invariably feel the consequences. It is perhaps impossible to completely mitigate the impact of losing a parent or carer in this way but we can and must make improvements to ensure that those innocent people who, through no fault of their own, are placed in positions of extreme vulnerability do not go unnoticed.

We are all grateful to the noble Lord, Lord Taylor of Holbeach, who took a great deal of trouble to write on a number of matters that came up at Second Reading but this was one issue that slipped through the net and was not referred to in his letter—just like many of the people who I talked about; they, too, slip through the net. Perhaps the Minister when he replies can give us some hope that our pleas have not fallen on deaf ears. I beg to move.

My Lords, I am happy to support the amendment. I mentioned at Second Reading that it was through my long association with the Northern Ireland Association for the Care and Resettlement of Offenders that I came to be sensitive to the issues behind the amendment. It was NIACRO, I think, that first coined the phrase, “the silent sentence”, which described in those few words the impact on families of the imprisonment of a parent or person caring for children.

It is highly significant that 12 or 13 NGOs or charities have come together to launch a campaign called the Families Left Behind. They point out:

“Children of prisoners are disproportionately represented amongst young offenders, the care population, children in poverty and children with mental health needs. Parental imprisonment is correlated with a range of other family problems including domestic violence and drug and alcohol misuse”.

It is significant that two-thirds of boys whose fathers have been in prison go on to offend. We should note that 66% of women currently in prison have children.

I shall give a little history of what has happened in the past two years. In 2011, Action for Prisoners’ Families together with Her Majesty’s Courts and Tribunals Service—a significant combined action by a voluntary group and a statutory body—published a range of resources aimed at promoting good practice in relation to children or dependent adults whose primary carers had been sent to prison. These resources included new guidance asking magistrates to check that there are no immediate welfare needs concerning children or dependent adults. However, the sad fact is that many courts have not followed this guidance and therefore seem still to be unaware of the issues concerning the welfare of children and vulnerable dependants when the carer is placed in custody.

The amendment is quite right to place the responsibility clearly on the court making the sentence. This will be, I am sure, a matter to which we shall return on Report. Meanwhile, I look forward to the Government’s response.

My Lords, I strongly support the amendment. I remember, on a visit to Holloway, being tackled very forcefully by a prison officer, who said how outraged she was, fulfilling her duties, sometimes quite late at night, of receiving and processing people who were being taken in to that prison after court proceedings, that only at that stage did the staff discover that there was somebody vulnerable at home. It is outrageous in any decent society that there is any possibility of something like this happening. I think sometimes that we just do not think through the consequences. Apart from the possible inhumane results, not that infrequently a vulnerable person in that situation will have been in the care of a woman or a man—it is not exclusively a matter for women—in a home that has had more of its share of disrupting influences on that child. For the child suddenly to be left in this predicament only compounds the insecurity that that child has faced in life and, indeed, could well accentuate a tendency to anti-social behaviour at a later stage.

If we are trying to reduce crime and encourage the young to forgo the possibility of delinquent behaviour, a demonstrable sense of care by society is very important. From that standpoint, it seems to me that this amendment is crucial. I will be very sad if the Minister feels unable to accept it, because I am quite certain that it must be pursued on Report. For a prison officer, who was deeply concerned, to raise the matter with me brought the point home to me all the more forcefully. It is quite shocking that this sort of situation can occur. The sooner we eliminate that possibility, the better.

My Lords, I can well understand the problem that individuals facing sentence may be in denial about the consequences. In what I think is a parallel example, working on adoption through the Select Committee earlier this year and talking about placements of children and whether it was right for a child to be placed away from its birth parents, we were told time and again that it was at a very late stage that other members of the birth family would come forward offering to care for the child. I do not want to leap to conclusions on how this proposal might operate, so I ask the noble Lord whether he or those involved with this campaign—I regret that I have not seen the detail—have consulted, first, the courts and, secondly, the Local Government Association about the operation of such a scheme.

I am grateful to the noble Lord for giving way. I just want to say that we entirely support the amendment moved by my noble friend and hope that the Government will give it serious and prompt consideration. It seems to make an absolutely unanswerable case and one that could lead to the saving of public money, quite apart from any other consideration, avoiding, for example, children having to be taken into care or extra services being required in an emergency, which would save the public purse. That is another reason for supporting the amendment and I hope that the Minister will be able to say something positive about it.

I am reliably informed that the noble Lord might have to quit, and I fully understand that; I know how reliable east coast trains are.

This issue raised by the noble Lords, Lord Hylton and Lord Judd, and by my noble friend Lady Hamwee is serious. I sometimes think that we are too ready to leap on the idea that the cold and uncaring state is not concerned about these matters. Sometimes some of these cases arise because an accused person has not informed anybody of children or dependants at home, and it is difficult in those circumstances to deal with matters. Courts already have a duty to take account of mitigating factors in every case, including the fact that an offender has primary care for children or other dependants. It is important that the presence of dependants is brought to the court’s attention, but the duty proposed in this amendment will not and could not force convicted offenders to tell the court about the existence of dependants.

The case law in this area makes it clear that a judge must perform a balancing act when making a sentence, weighing up the welfare of the child against other factors, such as the length of sentence and the necessary limitation on the offender’s rights by reason of their imprisonment. Where necessary, the court must obtain information on the consequences of the sentences on any children. It is important, therefore, that the existence of dependants is brought to the court’s attention. There will, however, be cases where the seriousness of offending is such that despite the existence of dependants a custodial sentence is necessary. I can also say that the changes in the women’s estate which I recently announced will try to make sure that women who are in prison and with family responsibilities are as close to home as the estate allows.

I appreciate that both noble Lords, Lord Ramsbotham and Lord Touhig, come to this from a deep concern. What they are proposing would place a duty on a criminal court following a decision to sentence an offender to immediate custody or to remand a defendant in custody to ascertain what arrangements had been made for the care of any child or dependant. I completely understand the sentiment behind the amendment. It is right that we should be concerned for the welfare of the children and dependants of those who are about to be deprived of their liberty. I am also aware of the Families Left Behind campaign from the Prison Advice and Care Trust—PACT—which also represents the views of a number of children’s charity and penal reform groups. Indeed, a number of noble Lords, including the noble Lord, Lord Touhig, and the right reverend Prelate the Bishop of Lichfield, referred to this campaign in the Second Reading debate.

I have now seen a very helpful letter from Bronwen Fitzpatrick of PACT that explains in more detail the context of this amendment. Let me say at the outset that I do not disagree with the sentiment behind the amendment. I do, however, have real concern about the details and the practicalities of what is proposed. I will mention these concerns briefly without going into too much technical detail. I should also say that I would be happy to meet Bronwen Fitzpatrick, as she asks in her letter to me. PACT has already met the Children’s Minister, Ed Timpson, but I would be equally happy to see Bronwen Fitzpatrick with the noble Lord, Lord Touhig, if that would help.

One particular concern is the duty this amendment places on a criminal court, dealing with serious crime, to take on what is essentially a non-criminal function. The criminal court should take account of a number of relevant factors, including any responsibility the offender has for dependants, but it cannot be the responsibility of our criminal courts to address all the issues that flow from the offender’s conviction and custodial sentence. It is simply not realistic for the criminal courts to step in and manage an offender’s life after they have been convicted. I am also concerned that, under the noble Lord’s amendment, the proposed duty on the court comes at the end of the court process. At that point the offender has already been convicted and has been sentenced to a custodial term. The effect of a custodial term on dependants is a factor which should have been taken into account in considering the sentence to impose, not as an afterthought once the sentence has been decided on. In deciding on an appropriate sentence the court is required to consider, first and foremost, the seriousness of the offence. It will also consider personal mitigating factors relevant to the offender, which can include the impact of a sentence on dependants.

The impact that caring responsibilities may have on the type or severity of a sentence has been clarified over the years by decisions of the Court of Appeal. In short, it is long established that the courts can, and in certain circumstances must, consider the potential impact of a sentence on dependants and, if they do not where it is relevant, this could give rise to an appeal against sentence. The judge or magistrates, in deciding on sentence, should therefore already know about any dependants and have taken them into account. The pre-sentence report, prepared for the court by the probation service, should set out the background circumstances of the offender, including any family connections or caring responsibilities. I do not believe that our reforms will change that. The legal representative of the offender can raise any such caring responsibilities with the court, often as part of a plea in mitigation.

The Children Act 2004 already requires interagency co-operation to safeguard and promote the well-being of the child. Probation staff working in court or preparing pre-sentence reports already have a responsibility to consider the impact of custody on an offender’s children. If there is a likelihood of custody, children’s services will be alerted to ensure arrangements are in place to safeguard the well-being of children. This brings me to a crucial point. In order for agencies to promote the well-being of children, or for courts to take into account the impact that a custodial sentence would have on dependants, they must know about them. In the case studies provided by PACT, it is striking that the offender has often not disclosed to probation, any other authorities or even to their own legal representative that they have dependants. It is often not until they are in prison that this fact emerges. This amendment would not, however, address that situation. It would not force an offender to disclose to the court that they had dependants; it may well have the opposite effect. Judges or a bench of magistrates can be seen as intimidating authority figures. If they are quizzing a defendant about children in the context of calling in social services, that may, in fact, reinforce the offender’s mistaken desire to keep their dependants secret. It is simply impractical for a court to satisfy itself in every case involving custody of the adequacy of arrangements for care of dependants, especially if the offender does not disclose they have dependants. It is also unclear as to what duty the criminal court would have should the care arrangements be unclear, and how, if at all, this should impact on the sentencing or remand decision.

It is for those practical reasons that the Government cannot accept this amendment. However, we believe that the issue should be addressed and we are willing to look at ways to do so. For example, I recognise that often, although not always, offenders who are primary carers are likely to be women. Last month, as I have said, we set out new approaches to managing female offenders. We are developing the custodial estate so that women can stay closer to home and maintain links with their families. Under our Transforming Rehabilitation reforms, all women’s prisons are to become resettlement prisons. This means that female prisoners will serve their sentences as close to home as possible and, most importantly, as close to their children as possible—maintaining vital links that will help them to break the pernicious cycle of reoffending.

It is important that we raise awareness of the importance of identifying the presence of dependants as soon as possible. We also have to convince defendants that ultimately it is misguided to hide the existence of dependants. I will certainly look at the point made by the noble Lord, Lord Hylton, about the inconsistency of courts exercising their responsibility to try to find out these facts. As I have indicated, I pay tribute to the work of PACT along with the senior judiciary to ensure that posters and information are available in courts to bring that message to the attention of defendants, the legal profession and the judiciary. If, as has been suggested, there is a problem, I am happy to discuss it with representatives of PACT, the court services and the senior judiciary to see how we can refresh these efforts to ensure that maximum coverage and publicity is given to the need to disclose these facts as much as possible. I would suggest that that is likely to be far more effective than a statutory provision, which I fear would not have the effect that is intended.

By putting some of the practicalities before the Committee, I hope that the noble Lord, Lord Touhig, will accept that we understand that there are issues. Not all of them lie at the door of the courts or of an uncaring state; they are often to do with the chaotic lives of some of the people who come before our courts. However, if we can hold a meeting with PACT and have further discussions, we will be able to see how we can take this problem forward. With that, I hope that the noble Lord will agree to withdraw his amendment.

My Lords, I will be brief because I appreciate that other Members want to carry on with other matters. The noble Baroness, Lady Hamwee, made a good point about whether the courts or the Local Government Association have been consulted. I am not sure, but it is a valuable question. However, I should point out that in a note to me, which I mentioned in my opening remarks, the noble Lord, Lord Ramsbotham, did say that currently the probation service would provide family details for a pre-sentence report. Perhaps we are part of the way there.

My noble friend Lord Judd referred to the account of a prison officer who pointed out to him the number of people who are left behind when someone with older people or children to care for is sentenced. The noble Lord, Lord Hylton, made the point that a coalition of charities has come together to help this vulnerable group. However, that coalition has no power to change the law; only we have that power and we should do so. I welcome the remarks made by the Minister and his suggestion of a meeting, but here we have a chance to put in a safety net. I have no crystal ball, but I am as sure as God made little green apples that some way down the line, unless we put in this extra element of support in one way or another, there will be a case where an elderly vulnerable person is left uncared for and dies or a child is left uncared for and dies because of the system. It is not an uncaring system, but it is an oversight that will let people down. With those few remarks, I beg leave to withdraw the amendment.

Amendment 18 withdrawn.

Amendment 19

Moved by

19: After Clause 153, insert the following new Clause—

“Marital coercion

The defence of marital coercion for a wife charged with an offence other than treason or murder is hereby abolished.”

My Lords, at the end of March, the Ministry of Justice stated that the Government were considering whether to ask Parliament to abolish the defence of marital coercion. That was after the defence was unsuccessfully relied upon by Vicky Pryce at her trial in March for taking speeding points on behalf of her husband, Mr Chris Huhne. I have tabled this amendment to find out when the Government hope to come to a conclusion on this matter.

Given the time, I shall deal with it briefly. Members of the Committee will know that Section 47 of the Criminal Justice Act 1925 contains a special defence for a wife who is charged with any criminal offence other than treason or murder. It is a defence for the wife to prove that the offence was committed in the presence of and under the coercion of her husband. No such defence applies to husbands for offences committed in the presence of wives. The defence cannot be claimed by a live-in partner of either sex, by the partners to a same-sex marriage or a civil partnership, by other family members who may live in the same household, or by employees. The defence does not apply if the husband is 100 metres away when the crime is committed. Neither wives nor any other person need this defence, because of the defence of duress and the ability to mitigate by reference to relevant circumstances. The existence of this special defence has repeatedly and consistently been criticised, including by the 1922 Avory Committee and by the Law Commission in its 1977 report, which concluded that the defence was not “appropriate to modern conditions”.

I hope that by Report the Minister will be able to tell the House that the Government agree that Section 47 is unnecessary, arbitrary and should be repealed. I beg to move.

Amendment 19 withdrawn.

Clause 154 agreed.

My Lords, before I move that the House resumes and, thereafter, adjourns, I would like to inform the House that, by agreement with the usual channels today, our business next Monday has changed. It will be the second day in Committee on the Anti-social Behaviour, Crime and Policing Bill and it will not be the first day on Report of the Financial Services (Banking Reform) Bill.

That change and other agreed changes to our business over the next couple of weeks are reflected in the new edition of Forthcoming Business. I thought that it would be for the convenience of the House, particularly as we are about to go into recess, if I brought forward the publication of Forthcoming Business to today, rather than leaving it until tomorrow, so that the Convenor and the Chief Whips of all groups may send out that information as soon as possible. I am grateful to the noble Lord the Opposition Chief Whip for his co-operation in this matter.

My Lords, I thank the noble Baroness the Chief Whip for the Government for the gracious way in which she has dealt with this issue and record my thanks to her and the Government for responding positively and flexibly to our proposals to reorganise business. I hope that the House is happy with that, it having been somewhat unhappy at an earlier stage. This all helps to ensure that the usual channels work as well as possible for all concerned.

House resumed.

House adjourned at 6.44 pm.