Report (2nd Day) (Continued)
Clause 105: Sexual harm prevention orders and sexual risk orders, etc
87ZA: Clause 105, page 76, line 37, after “80” insert “to 85, 86”
My Lords, the amendments in this group—namely Amendments 87ZA to 87ZY, 94F, 96A, 96B and 100—make a number of essentially technical and drafting amendments to the provisions in Part 9 of the Bill. These provisions, particularly those to be found in Schedule 5 to the Bill, provide for two new civil orders designed to protect the public from sexual harm, namely the sexual harm prevention order and the sexual risk order.
The substantive amendments relate to three matters. First, youth courts deal with applications for sexual harm prevention orders and sexual risk orders in respect of persons under 18. The amendments to Schedule 5 provide for all such applications to be heard in the youth court. As noble Lords may be aware, the youth court provides a more appropriate setting for juvenile defendants. The magistrates receive specific training and are encouraged to engage in conversation and use plain language with the young person, who is encouraged to respond.
The House has already agreed amendments to Part 1 of the Bill, which enable linked application for an injunction involving respondents aged under 18 and others aged 18 or over to be heard together in the youth court. Amendments 87ZS and 87ZW make like provision in respect of sexual harm prevention orders and sexual risk orders. As in Part 1, the detailed provision will be made in the rules of court and the same test, namely the interests of justice, will apply to the court’s consideration of an application for two or more linked cases to be heard together. This will ensure the effective administration of justice while also allowing cases to be heard in the most appropriate setting.
Amendments 87ZS and 87ZW also make provision for rules of court in relation to individuals who turn 18 after proceedings for an application for an order have begun. The amendments allow rules of court to prescribe circumstances in which proceedings may or must remain in the youth court, or to make provision to transfer the proceedings to the magistrates’ court.
In addition to these amendments, the Bill includes provision for statutory guidance on the new orders and, in developing this, we will continue to work with the police, the Courts Service and others to ensure appropriate guidance on the application of the orders to under-18s is included. This will help to ensure that cases relating to under-18s are treated with the specialist consideration and sensitivity needed.
The second issue addressed by these amendments is to confer powers on the courts in Northern Ireland to vary a sexual harm prevention order or sexual risk order. The new civil order regime will extend to England and Wales only, whereas the relevant provisions in the Sexual Offences Act 2003 currently apply throughout the United Kingdom and will continue to operate in Scotland and Northern Ireland, where they relate to devolved matters. The Bill allows for the prohibitions contained in the new orders to be enforceable in Scotland and Northern Ireland, and for breaches to be prosecuted in the courts in those parts of the United Kingdom.
We have been liaising closely with the devolved Administrations in relation to cross-border enforcement. Amendment 87ZX will allow the court in Northern Ireland to vary a sexual harm prevention order or sexual risk order made in respect of a person who, following the making of the order in England or Wales, now either resides in or intends to come to Northern Ireland. This will be in response to application from the chief constable of the Police Service of Northern Ireland or the defendant. The court may vary an order to impose additional prohibitions if it is necessary to do so for the purposes of protecting the public in Northern Ireland and/or children or vulnerable adults abroad from sexual harm. As in England and Wales, the defendant has a right of appeal against any such variation. Finally, these amendments make consequential amendments to Armed Forces legislation in respect of the operation of the new sexual harm prevention order by the service courts.
Amendment 87ZY enables the service courts to impose a sexual harm prevention order at the point of conviction in respect of an individual who has been dealt with by that court. Under the current regime, service courts may apply sexual offences prevention orders at the point of conviction. This amendment ensures that service courts have the power to impose a sexual harm prevention order where the court considers this necessary for the purposes of protecting the public in the UK, or children or vulnerable adults abroad, from sexual harm.
As with orders imposed by the civilian courts, the defendant may appeal against the making of a sexual harm prevention order to the Court Martial Appeal Court where the order was imposed by the court martial. Where such an order was imposed by the service civilian court, the defendant may appeal to the court martial.
Amendment 87ZY also allows the service court, on application from a provost marshal or the defendant, to vary, renew or discharge a sexual harm prevention order in respect of a defendant who is subject to service law or service discipline at the time of the application. In line with the approach in the civilian court, a service court cannot discharge an order without the consent of the defendant and a provost marshal. Applications to vary, renew or discharge an order may be made by the defendant or a provost martial.
I trust that noble Lords will agree that these are all sensible refinements to the provisions in Part 9 and, on that basis, I beg to move.
Amendment 87ZA agreed.
Amendments 87ZB to 87ZY
87ZB: Clause 105, page 76, line 38, leave out “136ZB” and insert “136ZD”
87ZC: Clause 105, page 76, line 41, leave out from “Sections” to “extend” and insert “85A, 96A, 96AA, 110, 117A, 119 and 123 to 129 and Schedule 3A”
87ZD: Clause 105, page 77, line 3, after “80” insert “to 85, 86”
87ZE: Clause 105, page 77, line 9, at end insert—
“(3C) The references to section 96A in subsections (2A) and (3A) are references respectively to—
(a) the section 96A inserted by the Criminal Justice Act (Northern Ireland) 2013, and (b) the section 96A inserted by the Police, Public Order and Criminal Justice (Scotland) Act 2006.”
87ZF: Schedule 5, page 154, line 32, leave out “this Schedule” and insert “paragraphs 2 to 6”
87ZG: Schedule 5, page 156, line 7, leave out “whose commission area” and insert “acting for a local justice area that”
87ZH: Schedule 5, page 156, line 13, at end insert—
“( ) Where the defendant is a child, a reference in this section to a magistrates’ court is to be taken as referring to a youth court (subject to any rules of court made under section 103K(1)).”
87ZJ: Schedule 5, page 160, line 7, at end insert—
“( ) In subsection (5) “the public”, “sexual harm”, “child” and “vulnerable adult” each has the meaning given in section 103B(1).”
87ZK: Schedule 5, page 160, line 20, leave out first “a” and insert “an adult”
87ZL: Schedule 5, page 160, line 20, leave out second “a” and insert “an adult”
87ZM: Schedule 5, page 160, line 23, after first “any” insert “adult”
87ZN: Schedule 5, page 160, line 23, leave out “whose commission area” and insert “acting for a local justice area that”
87ZP: Schedule 5, page 160, line 25, after “order” insert “and the defendant is under the age of 18”
87ZQ: Schedule 5, page 160, line 28, leave out “whose commission area” and insert “acting for a local justice area that”
87ZR: Schedule 5, page 160, line 29, at end insert—
“( ) where a youth court made the order and the defendant is aged 18 or over, an adult magistrates’ court for the area in which the defendant resides or, where the application is made by a chief officer of police, any adult magistrates’ court acting for a local justice area that includes any part of the chief officer’s police area.In this subsection “adult magistrates’ court” means a magistrates’ court that is not a youth court.”
87ZS: Schedule 5, page 163, line 10, at end insert—
“103K SHPOs and interim SHPOs: supplementary
(1) Rules of court—
(a) may provide for a youth court to give permission for an application under section 103A(4) against a person aged 18 or over to be made to the youth court if—(i) an application to the youth court has been made, or is to be made, under that section against a person aged under 18, and(ii) the youth court thinks that it would be in the interests of justice for the applications to be heard together;(b) may, in relation to a person attaining the age of 18 after proceedings against that person by virtue of section 103A, 103E, 103F or 103G(6) or (7) have begun—(i) prescribe circumstances in which the proceedings may or must remain in the youth court;(ii) make provision for the transfer of the proceedings from the youth court to a magistrates’ court that is not a youth court (including provision applying section 103F with modifications).(2) A person’s age is treated for the purposes of sections 103A to 103J and this section as being that which it appears to the court to be after considering any available evidence.”
87ZT*: Schedule 5, page 163, line 34, leave out “whose commission area” and insert “acting for a local justice area that”
87ZU: Schedule 5, page 164, line 36, at end insert—
“( ) Where the defendant is a child, a reference in that section to a magistrates’ court is to be taken as referring to a youth court (subject to any rules of court made under section 122K(1)).”
87ZV: Schedule 5, page 166, leave out lines 29 to 34 and insert—
“(a) where an adult magistrates’ court made the sexual risk order, that court, any adult magistrates’ court for the area in which the defendant resides or, where the application is made by a chief officer of police, any adult magistrates’ court acting for a local justice area that includes any part of the chief officer’s police area;(b) where a youth court made the order and the defendant is under the age of 18, that court, a youth court for the area in which the defendant resides or, where the application is made by a chief officer of police, any youth court acting for a local justice area that includes any part of the chief officer’s police area;(c) where a youth court made the order and the defendant is aged 18 or over, an adult magistrates’ court for the area in which the defendant resides or, where the application is made by a chief officer of police, any adult magistrates’ court acting for a local justice area that includes any part of the chief officer’s police area.In this subsection “adult magistrates’ court” means a magistrates’ court that is not a youth court.”
87ZW: Schedule 5, page 169, line 41, at end insert—
“122K Sexual risk orders and interim sexual risk orders: supplementary
(1) Rules of court—
(a) may provide for a youth court to give permission for an application under section 122A against a person aged 18 or over to be made to the youth court if—(i) an application to the youth court has been made, or is to be made, under that section against a person aged under 18, and(ii) the youth court thinks that it would be in the interests of justice for the applications to be heard together;(b) may, in relation to a person attaining the age of 18 after proceedings against that person by virtue of section 122A, 122D or 122E have begun—(i) prescribe circumstances in which the proceedings may or must remain in the youth court;(ii) make provision for the transfer of the proceedings from the youth court to a magistrates’ court that is not a youth court (including provision applying section 122E with modifications).(2) A person’s age is treated for the purposes of sections 122A to 122J and this section as being that which it appears to the court to be after considering any available evidence.”
87ZX: Schedule 5, page 171, line 26, at end insert—
“136ZC Variation of sexual harm prevention order by court in Northern Ireland
(1) This section applies where a sexual harm prevention order has been made in respect of a person who now—
(a) is residing in Northern Ireland, or(b) is in or is intending to come to Northern Ireland.(2) An application may be made to the appropriate court in Northern Ireland—
(a) by the defendant, or(b) by the Chief Constable,for an order varying the sexual harm prevention order.(3) An application under subsection (2) may be made—
(a) where the appropriate court is the Crown Court, in accordance with rules of court;(b) in any other case, by complaint.(4) Subject to subsections (5) and (6), on the application the court, after hearing the person making the application and the other person mentioned in subsection (2) (if that person wishes to be heard), may make any order varying the sexual harm prevention order that the court considers appropriate.
(5) An order may be varied so as to impose additional prohibitions on the defendant only if it is necessary to do so for the purpose of—
(a) protecting the public in Northern Ireland, or any particular members of the public in Northern Ireland, from sexual harm from the defendant, or(b) protecting children or vulnerable adults generally, or any particular children or vulnerable adults, from sexual harm from the defendant outside the United Kingdom.(6) An order as varied under this section may contain only such prohibitions as are necessary for the purpose of—
(a) protecting the public or any particular members of the public from sexual harm from the defendant, or(b) protecting children or vulnerable adults generally, or any particular children or vulnerable adults, from sexual harm from the defendant outside the United Kingdom.(7) The defendant may appeal against the making of an order under this section, or the refusal to make such an order—
(a) where the application for such an order was made to the Crown Court, to the Court of Appeal in Northern Ireland;(b) in any other case, to a county court in Northern Ireland.(8) On an appeal under subsection (7)(b), the county court may make such orders as may be necessary to give effect to its determination of the appeal, and may also make such incidental or consequential orders as appear to it to be just.
(9) In this section—
“the appropriate court” means—(a) where the sexual harm prevention order was made by—(a) the Crown Court, otherwise than on appeal from a magistrates’ court, or(b) the Court of Appeal, the Crown Court (in Northern Ireland); the Crown Court (in Northern Ireland);(b) where—(a) the sexual harm prevention order was made by a magistrates’ court, or by the Crown Court on appeal from a magistrates’ court, and(b) the defendant is aged 18 or over,any court of summary jurisdiction in Northern Ireland;any court of summary jurisdiction in Northern Ireland;(c) where—(a) the defendant is aged under 18, and(b) paragraph (a) does not apply,any youth court in Northern Ireland;any youth court in Northern Ireland;“the Chief Constable” means the Chief Constable of the Police Service of Northern Ireland;“sexual harm”, “child” and “vulnerable adult” each has the meaning given in section 103B(1).136ZD Variation of sexual risk order by court in Northern Ireland
(1) This section applies where a sexual risk order has been made in respect of a person who now—
(a) is residing in Northern Ireland, or(b) is in or is intending to come to Northern Ireland.(2) An application may be made to the appropriate court in Northern Ireland—
(a) by the defendant, or(b) by the Chief Constable,for an order varying the sexual risk order.(3) Subject to subsections (4) and (5), on the application the court, after hearing the person making the application and the other person mentioned in subsection (2) (if that person wishes to be heard), may make any order varying the sexual risk order that the court considers appropriate.
(4) An order may be varied so as to impose additional prohibitions on the defendant only if it is necessary to do so for the purpose of—
(a) protecting the public in Northern Ireland, or any particular members of the public in Northern Ireland, from harm from the defendant, or(b) protecting children or vulnerable adults generally, or any particular children or vulnerable adults, from harm from the defendant outside the United Kingdom.(5) An order as varied under this section may contain only such prohibitions as are necessary for the purpose of—
(a) protecting the public or any particular members of the public from harm from the defendant, or(b) protecting children or vulnerable adults generally, or any particular children or vulnerable adults, from harm from the defendant outside the United Kingdom.(6) The defendant may appeal against the making of an order under this section, or the refusal to make such an order, to a county court in Northern Ireland.
(7) On an appeal under subsection (6), the county court may make such orders as may be necessary to give effect to its determination of the appeal, and may also make such incidental or consequential orders as appear to it to be just.
(8) In this section—
“the appropriate court” means—(a) where the defendant is aged 18 or over, any court of summary jurisdiction in Northern Ireland;(b) where the defendant is aged under 18, any youth court in Northern Ireland;“the Chief Constable” means the Chief Constable of the Police Service of Northern Ireland;“harm”, “child” and “vulnerable adult” each has the meaning given in section 122B(1).”
87ZY: Schedule 5, page 171, line 26, at end insert—
“Service courts(1) Section 137 of the Sexual Offences Act 2003 (service courts) is amended as follows.
(2) In subsection (2), for “104(1)” there is substituted “103A(1)”.
(3) For subsection (3) there is substituted—
“(3) Where the court making a sexual harm prevention order is a service court—
(a) sections 103A(3) to (8), 103F and 103J do not apply;(b) sections 103A(1) and (2), 103B to 103E and 103G to 103I apply—(i) subject to paragraphs (c) and (d), and(ii) as if they extended to the whole of the United Kingdom;(c) in relation to an application under section 103E in respect of a defendant who at the time of the application is a person subject to service law or a civilian subject to service discipline—(i) the application may be made only by the defendant or a Provost Martial, and must be made to the Court Martial;(ii) consent under section 103E(6) must be the consent of the defendant and a Provost Martial;(iii) an appeal against the making of an order under section 103E, or the refusal to make such an order, must be made to the Court Martial Appeal Court;(d) in relation to an application under section 103E in respect of a defendant who at the time of the application is neither a person subject to service law nor a civilian subject to service discipline— (i) the application must be made to the Crown Court in England and Wales;(ii) an appeal against the making of an order under section 103E, or the refusal to make such an order, must be made to the Court of Appeal in England and Wales.”(4) In subsection (4)—
(a) for “section “service court” means” there is substituted “section—“civilian subject to service discipline” has the same meaning as in the Armed Forces Act 2006 (see section 370 of that Act);“service court” means”;(b) at the end there is inserted—““subject to service law” has the same meaning as in the Armed Forces Act 2006 (see section 374 of that Act).”(5) After subsection (5) there is inserted—
“(6) Paragraphs (c)(i) and (d)(i) of subsection (3) have effect, in relation to a sexual harm prevention order made by the Court Martial Appeal Court, as if the reference to a service court in that subsection included a reference to that court.”
Amendments 87ZB to 87ZY agreed.
Clause 109: Offence of forced marriage: England and Wales
87ZZ: Clause 109, page 79, line 41, at end insert—
“( ) A person also commits an offence under the law of England and Wales if he or she causes another person to enter into a marriage and that other person lacks the capacity to consent to that marriage.”
My Lords, before I speak specifically to my amendment, I should like to mention a broader aspect of the discussion about forced marriage.
In Committee, my noble and learned friend Lady Scotland raised her serious concerns in detail with the Minister and, since that time, has had a meeting with him and his colleagues. She is unable to be with us today due to urgent family business and is disappointed not to be here because she believed that this matter would be discussed next week on Report.
Today, I have received a letter from Dr Aisha Gill, Sumanta Roy from Imkaan, and Hannana Siddiqui from Southall Black Sisters registering their opposition to the Government’s proposals to introduce a specific crime of forced marriage. I suspect that the Minister has received the same correspondence. On behalf of my noble and learned friend, I should like to put on the record, as I said in earlier proceedings on the Bill, that the route that the Government have chosen for this matter did not receive uniform support. I mention the Southall Black Sisters, the Ashiana Network, Imkaan, Rights of Women and the JAN Trust by way of counterbalance to the seemingly singular narrative that has been advocated for the victims of forced marriage. I know that the Minister this week intends to meet the stakeholders who share these concerns, and I therefore wonder if he will be taking their views into account over how we might do that at this late stage in the Bill.
I turn to the amendment and the issue that we discussed in Committee. This is a hidden problem. In cases of the forced marriage of a vulnerable adult, the violence, threats or coercion to which the Bill specifically refers are often not necessary to force a person to marry, due to the lack of capacity of the victim. Deception is not necessarily a factor and, consequently, the amendment seeks to make it an offence if a person forces another person to marry when that person lacks the capacity to consent to the marriage.
It is worth noting why forced marriages of people with learning disabilities happen. Marriage can sometimes be seen as a means of providing a carer and continuing support. Parents may be the primary carers and, as they get older and less able to provide support; they may view marriage as a means of ensuring continuing care for their son or daughter with learning disabilities. Marriage can be seen as a means of improving the chances of getting a visa to the UK. A person with learning disabilities may be seen as easy to deceive or coerce into such a marriage and then act as the visa sponsor. Families may believe that the marriage will cure the learning disability or allow a person with learning disabilities to lead a normal life.
It is difficult to find the figures for people with learning disabilities involved in forced marriages. The Forced Marriage Unit estimates that 115 of the cases it has received involve people with disabilities, but it is not clear whether they have learning disabilities or lack of capacity. I have seen an estimate of 50 in 2012. However, the Ann Craft Trust believes that this is the tip of an iceberg and that hundreds of adults who lack capacity are being forced into marriage. Mencap believes the same; its chief executive says:
“People with a learning disability can be particularly vulnerable to forced marriage … People with a learning disability have a right to express their emotions and sexuality, and to develop personal relationships, just like anyone else. The issue here is that incidences of forced marriage can involve people with a learning disability who are unlikely to have the capacity to consent to such a relationship”.
The guidelines that have been reissued recently are excellent in the way that they describe this problem and how to deal with it. It is the words in the Bill that concern me. On this side of the House we are still not convinced that they cover somebody who lacks capacity.
Another problem is the lack of facilities, experience or support for people with learning disabilities who are involved in forced marriage. I gather that there is one refuge that is equipped to deal with forced marriage victims who have learning disabilities. Asha Jama, the manager of Beverley Lewis House, a refuge in east London, says that there is a terrible lack of options for people with learning disabilities who are escaping abuse and forced marriage. She says that the problem is compounded by social care cuts and that statutory authorities are placing the victims in supported living service or care homes, which are not services geared to provide the specialist support needed to address the abuse that these people have faced.
The amendment seeks to add a third point to Clause 109 which recognises:
“A person also commits an offence under the law of England and Wales if he or she causes another person to enter into a marriage and that other person lacks the capacity to consent to that marriage”.
We think that provides completeness to this part of the Bill.
Finally, I ask the Minister how the Government intend to respond to what looks like an increasing incidence of people who lack capacity being forced into marriage. Can we have some assurance about monitoring and reporting the effectiveness of the legislation in dealing with this particular issue? I beg to move.
My Lords, I wish to make a brief intervention in support of the noble Baroness, Lady Thornton. Her remarks about forced marriage when someone lacks capacity are entirely right. We should be very concerned about this. I think there is evidence from the medical profession that many of these cases occur and could be on the increase, although I would not know that.
Secondly, on the debate about whether forced marriage should be a criminal offence, the noble Baroness listed organisations that were against that happening. I can list organisations that are in favour of that happening—Girls not Brides and the Iranian and Kurdish Women’s Rights Organisation, to give two examples. We discussed this issue in great detail in A Childhood Lost, the report from the All-Party Parliamentary Group on Population, Development and Reproductive Health, which I chair.
My Lords, I declare an interest as chair of the Freedom Charity, which works to provide education and support for individuals who may be at risk of forced marriage. The noble Baroness, Lady Tonge, is right to highlight that many organisations believe that the Government are correct in trying to make forced marriage a criminal offence. The Freedom Charity is precisely one of those organisations and, in my view, the Government’s approach to this is right.
However, the amendment moved by my noble friend Lady Thornton, as opposed to the general principle which seems to have been aired, raises another, separate and extremely important issue—the circumstances in which an individual who has been forced into marriage lacks proper capacity to consent to that marriage. I have no doubt that we will be told by the Minister that somehow that is covered by the phrase at the end of Clause 109(1)(b) about a person entering into a marriage,
“without free and full consent”.
I understand that argument, but it seems to me that nothing is lost and rather a lot is gained by specifically highlighting the problems of those who may not have the capacity to consent to a marriage.
I am in no doubt that there are instances where young people, or not so young people, who have limited capacity are being forced into marriages, perhaps from benign motives—that is, to protect or support them—but perhaps also from less benign motives. Forced marriage is pretty abhorrent in itself, but the implications of forcing into marriage somebody who does not even understand what is happening to them seems to me particularly vile and is something that I hope this legislation will address.
That is why the amendment moved by my noble friend Lady Thornton is important, and I hope that the Government will be prepared to accept and support it. As I said, I understand that they will no doubt say that,
“without free and full consent”,
covers the point but, unless it is highlighted and unless the particularly vulnerable state of people with limited capacity is made clear, a great opportunity is being lost. Making it a specific and separate criminal offence is important, and I hope that the Minister will be able to accept the amendment.
My Lords, when I first saw the amendment, I thought that, as the noble Lord, Lord Harris, has just said, it was covered by Clause 109(1)(b). However, I realised that it is not, because paragraph (b) comes into play only if paragraph (a) applies. Therefore, my question to the Minister is: what does “coercion” in paragraph (a) mean? If the argument is that it is covered, I think that we need to understand the extent of coercion and whether that covers the situation that the noble Baroness has set out.
While I am on my feet, perhaps I may say that I hope my noble friend Lady Tonge will seek the leave of the House to speak to her amendments in this group. She got so carried away with enthusiasm for the noble Baroness’s amendment that she forgot to cover them. I am intrigued by my noble friend’s amendments. We were all left floundering somewhat listening to the debate on their predecessor amendments in Committee, knowing that there were good intentions behind them but not quite finding the means to support them because we were rather doubtful about them. These amendments are much more comprehensible.
My Lords, with the leave of the House, I should like to carry on with my remarks, as I had intended to introduce Amendments 87A and 87B. They seek to make it an offence under the law of England and Wales if someone is,
“the parent or guardian of a child, and … gives consent for that child to enter into marriage before the age of 18 unless the written consent of both parties to the marriage has been obtained”.
The reason we have tried to clarify this is due to a lot of experience from all around in our all-party group. I must emphasise that we also want these provisions to apply to marriages contracted abroad, not just in this country. I must apologise for not being present at Committee stage; I was abroad at another conference so my noble friend Lord Rea spoke on my behalf.
We have good laws in place to make forced marriage illegal and these are strengthened by this Bill. I would like to commend the excellent work being done by the Forced Marriage Unit at the Home Office, which really is commendable. These amendments seek to close a loophole which I think still exists concerning children between the ages of 16 and 18. In general, not every forced marriage is a child marriage, but every child marriage is usually forced; hardly any take place with the agreement of the participants, who are often tricked into marriage by their families on the pretext of going on holiday or some treat or other.
According to the international Convention on the Rights of the Child, to which the UK is a signatory, a person is a child until the age of 18. I notice that in Committee some noble Lords felt that, if children could vote at 16 and join the Armed Forces at 18, they should be allowed to marry at 16 with the consent of their parents. However, I would contend that marriage is a very binding contract indeed, from which it is very difficult to escape. A young person can leave the Armed Forces and can refuse to vote, but they cannot easily get out of a marriage that was contracted sometimes without their consent.
If young people want to have, hopefully protected, sex—which many do; I was not born yesterday—they can do so legally after the age of 16. If they want to live together in many cultures now, they can do so legally after the age of 16. So what is wrong with asking them to delay the legally binding step of marriage until they are 18? That, however, is not the point of my amendment, but I had to say that because I feel very strongly about it. I know that noble Lords rejected that in Committee.
At present, any parent who wishes to force a marriage on their son or daughter can do so by claiming that consent has been given if the child is between 16 and 18. In Clause 109(1)(b), the Bill mentions the “full and free consent” of the individuals concerned. However, it does not specifically mention this group between 16 and 18, who can marry with parental consent. I think this needs clarifying. We must make as certain as possible that children involved have given their consent too.
I was horrified years ago, when I worked among Indian and Pakistani communities as a doctor, at how many of my patients were whisked away from school and married as soon as they were 16 years old. I remember two girls in particular, who were twins, who had done absolutely brilliantly in their O-levels. They were crying as they told me that it was now time to go back to the subcontinent to be married to men whom they had never seen, one of whom was illiterate. All their hopes of university and a career were dashed by parental consent to their marriage.
I thought the practice had nearly died out until the all-party group which I chair produced a report called A Childhood Lost. We heard from many witnesses who related their stories of being taken abroad for a holiday, only to be shut away on arrival until their marriage to an unknown groom had taken place. There were others whose religious marriage had been contracted during early childhood on a holiday and then was ratified with parental consent as soon as they were 16 years old. All of this happened with total disregard of the wishes of the young people concerned.
We know that marriage as early as 16 is a public health issue as well as a violation of human rights. It takes away opportunity for education and economic independence; it is associated with violence, rape and sexual abuse; it contributes to higher rates of maternal morbidity and mortality and contributes to poor child development. We know that around 5,000 to 8,000 young people are at risk of being forced into marriage in this country every year, based on research done by our Government in 2011. A higher number may not have been counted because they were over 16 and it will be argued that the parents have not forced the marriage but have given their consent.
This is my last ditch attempt to try to strengthen this Bill. I ask the House to support these amendments that I have put forward, which apply to Scotland as well, as an attempt to ensure that consent to marriages has also been given by the two children to be married in that age group. I think that the consent should be given verbally and in writing.
Before the Minister replies, perhaps I could say a word about Amendment 87B, which, as the noble Baroness has just explained, applies to Scotland. I am sure that it is very well intentioned and I hope that I will not alarm the noble Baroness too much when I say that there is an error in the way that these two amendments are presented. They assume that the law of Scotland is the same as the law of England. It is not.
The law of Scotland—which may alarm the noble Baroness—is that anyone over the age of 16 is free to marry, and parental consent is not required. That was common law for generations and is written into Section 1 of the Marriage (Scotland) Act 1977. It is actually one of the reasons why Gretna Green attracted attention. People could elope over the border to Gretna Green, establish residence in Scotland and marry without parental consent, provided they were over 16 and there was no other impediment to marriage.
That is a bit of history; the point is that the amendment as worded does not really fit in with Scots law. If the amendment were to attract Minister’s sympathy, I respectfully suggest that it would have to be altered. Proposed new subsection (2A)(b) would have to say that a person commits an offence if he or she,
“gives consent for that child to enter into marriage”,
that requires parental consent,
“unless the written consent of both parties to the marriage has been obtained”.
It is perfectly possible that two people living in Scotland want to contract a marriage somewhere else where parental consent is needed. In that situation, indeed, if the amendment is reworded it would have some force. But as it is put, it would seem to completely revolutionise the law of Scotland as a whole. That is not really appropriate because of the existing statutory position in Scotland. An amendment as radical as that would need the consent of the Scottish Parliament, which I do not think has been obtained. If the wording was changed, as I suggest, to remove the words,
“before the age of 18”,
and to add, “which requires parental consent”, it would fit exactly with what the noble Baroness intends.
I thank the noble Lord for his advice. I was aware of the situation in Scotland, but I was not aware that we could not actually alter the amendment in the way that I intended. However, I thank him for his advice.
My Lords, I thank all noble Lords who participated in this debate. I am particularly grateful to the noble Baroness, Lady Thornton, and my noble friend Lady Tonge for setting out the case for their amendments. The noble Baroness, Lady Thornton, talked about the general issue of forced marriage. In Committee, full discussion took place with the noble and learned Baroness, Lady Scotland, who I regret is unable to be with us today. My noble friend Lord Taylor of Holbeach and I had several meetings with her on this issue. I want to put on record my personal appreciation, and that of the Government, for the sterling work that she did in her various capacities as a government Minister, particularly her role in establishing the Forced Marriage Unit. I know that she comes to this issue with great expertise and knowledge, which have been a useful and extremely important part of the debate that we have had.
As was said by the noble Baroness, Lady Thornton, and by my noble friend Lady Tonge, whichever way you look at this particular issue, we are all agreed that coercion in marriage and forced marriage are things that need to be tackled. The previous Government took the issue forward in positive ways, and I fully acknowledge that in the course of our considerations and debate, and in our discussions both in Committee and outside the House, opinions have been expressed on all sides of the argument.
I have heard the reservations, and the noble Baroness mentioned the meetings that my noble friend Lord Taylor of Holbeach will be having in this regard. We hope that all organisations, wherever they stand on the issue of criminalisation, will support and work with the Government to ensure that the implementation of these proposals is effective and—what is most important—will help support those who are the vulnerable victims of this terribly tragic and heinous crime. There is no better way of explaining what this issue is.
As I said in Committee, after considering everything, we believe that the issue of marriage without consent or without the capacity to consent—I will come on to the specific proposals in a moment—is totally unacceptable. By making forced marriage a criminal offence, we believe that we will send out a clear and unequivocal message that this brutal practice will not be tolerated in the UK. The Government are clear that we want to capture forced marriages where someone does not or cannot consent.
I turn now to Amendment 87ZZ. The noble Baroness, Lady Thornton, explained that the amendment seeks to ensure that the Bill considers an individual’s ability to consent to marriage. The noble Lord, Lord Harris—again, I commend him on his work in this regard—also mentioned that this would be the Government’s response. We retain our position that we believe that Clause 109 provides that a person commits an offence if he or she,
“believes, or ought reasonably to believe, that the conduct may cause the other person to enter the marriage without free and full consent”.
A person who lacks capacity to enter a marriage is of course incapable of giving free and full consent to it. While I appreciate the intention of the noble Baroness, I am not persuaded that the amendment is necessary. I am satisfied that the definitions in the Bill are adequate and already capture the intended effect of the proposed amendments. Multi-agency practice guidelines have been in existence since 2010 to support practitioners tasked with tackling forced marriage involving victims with a learning disability. Where necessary, the Forced Marriage Unit works closely with adult social services to ensure that a capacity assessment is carried out to determine whether the individual does indeed have the capacity to consent to marriage. As I indicated, I share the noble Baroness’s wish to see all instances of forced marriage comprehensively dealt with, particularly in the case of vulnerable adults.
I shall refer briefly to the guidelines mentioned by the noble Baroness. I acknowledge and appreciate her specific comments on them. They provide step-by-step advice for those who work with people with learning disabilities. After all, they may have only one chance to speak to the potential victim and therefore only one chance to save a life. This means that all professionals working in the statutory agencies must be aware of their responsibilities when they come across suspected forced marriage situations. I fully acknowledge that this is even more important for people with learning disabilities. There is an even greater onus on the practitioner to recognise the warning signs. We hope and intend that the guidance will ensure that all practitioners working with people with learning difficulties are aware of their responsibilities and will not let one chance to save a victim be lost. In this regard, after the passing of the legislation, we hope to revisit the guidelines to further strengthen the hand of practitioners and to increase awareness of this issue.
I turn to some of the specific questions that were raised. The noble Baroness, Lady Thornton, talked about how we will review the legislation and take it forward. We regularly take NGO partners’ views into account, as demonstrated by our public consultation on criminalisation. Let me assure the noble Baroness as well as your Lordships’ House that all views were considered and all shaped the way the legislation has come together. The quarterly meetings of the forced marriage NGO partnership board are the forum for reviewing current and future guidance documents, and membership of this group comprises a number of key organisations that are both in favour of and, indeed, against the introduction of criminalisation. These include organisations such as Southall Black Sisters, mentioned by the noble Baroness.
My noble friend Lady Hamwee referred to Clause 109(1) and to how the two paragraphs might be used. The Government’s view is that the clause, taken as a whole, provides protection for such vulnerable individuals, and that the definition of coercion that my noble friend asked for, in this context, means the application of pressure. The phrase,
“any other form of coercion”,
is deliberately drafted very broadly—we have discussed this with legal counsel across government—so as to encompass a wide range of behaviours. For example, I am sure that many noble Lords have come across a situation where various pressures are put on people who find themselves in this situation. The pressures could be financial, emotional or—
I thank the Minister for allowing me to press him on this point. Actually, the point is that there will be no coercion. There does not need to be any coercion as the person lacks capacity. Therefore, they cannot consent, or withhold their consent, because they do not know that they can do either of those things. The parents concerned may think that they are doing exactly the right thing for that son or daughter, whether a young person or not. In other words, the Bill as drafted does not cover that point. No coercion is being used, and no coercion is needed, as the person lacks capacity. I do not think the definition of coercion that the Minister has mentioned at previous points in the Bill covers that.
Again, I totally understand and respect the noble Baroness’s position. She is correct in saying that, often, the people who may be forced into a marriage would be unaware of the situation. The point she raised about parents is also well made. However, as the legislation stands, they would not have given their “full” consent, which means that they had the capacity to give that consent. I see that the noble Lord wishes to speak.
The point here is not the consent but whether coercion has taken place. The noble Baroness, Lady Hamwee, put it very clearly: for an offence to be committed, both paragraphs (a) and (b) have to apply. It is not a question of whether consent has been given or not under paragraph (b) but a question of whether or not there has been coercion. This will not necessarily be coercion. It may simply be suggestion, which I do not think counts as coercion. The context is that you have to do both (a) and (b), so there has to be either the use of “violence” and “threats”—which does not necessarily have to happen—
“or any other form of coercion”.
However, this will not necessarily be coercion. I will carry on explaining the point to allow assistance to come from the Box. It is an extremely important issue.
There is the question of coercion, which leads to somebody entering into a marriage, and the question of consent. I think we all agree that people with limited capacity will not be able to give consent. However, that, in itself, does not create an offence, because they may not have been coerced. A highly suggestible person with learning difficulties may simply have been told, “This is going to be nice, you are going to enjoy this and this is going to be fun. So-and-so is going to look after you and take you to the cinema”. I do not know what the form of suggestion might be, or how it might be put, but that is the context in which it would happen. It is not the same as coercion—that is the difficulty. As far as I can tell—the noble Baroness, Lady Hamwee, put it very clearly—you need both coercion and the failure to consent before you have committed an offence. That is why my noble friend Lady Thornton’s amendment is so important.
I thank the noble Lord and the noble Baroness for their interventions and will return to that point before I conclude my comments. The point is well made and understood, but I will continue while I await clarification. My understanding on this issue is that any person taking part in a marriage would have to give their consent. The view is that, if no consent is given, it would not be deemed to be a valid contract. However, as I said, I will clarify that point in a moment.
I turn to Amendments 87A and 87B tabled by the noble Baroness, Lady Tonge. I shall explain that these amendments relate to the process by which a young person aged 16 or 17 may consent to the marriage. Following the Committee stage, I have had the opportunity to meet the noble Baroness and I welcome the opportunity again to discuss this important issue today. These amendments would make it an offence for the parent or guardian to consent to a marriage of a person or persons before the age of 18 unless the written consent of both parties to the marriage has been obtained. The offence would also extend to marriages contracted outside the UK.
I understand that the noble Baroness is concerned that under the current law parents may give consent to force marriage on a 16 or 17 year-old who may not wish to marry. However, I do not believe this amendment is necessary because the law already provides adequate safeguards for children who are aged 16 to 17 and are entering into marriages.
The law in England and Wales, as contained in Section 2 of the Marriage Act 1949, provides that if a marriage, be it civil or religious, is solemnized and either or both of the parties is under the age of 16 that marriage will be void. If the child is aged 16 or 17, Section 3 of the Marriage Act 1949 requires the consent of the child’s parents or guardians, unless the child is a widow or a widower.
I appreciate that Amendment 87A seeks to add additional safeguards to the current law rather than preventing the marriage of 16 and 17 year-olds outright. However, I consider that the additional need for the written consent of parties is unnecessary. If any person is forced into a marriage without their consent, the provisions in this Bill which will make it a criminal offence to seek to force someone to marry will apply regardless of the age of the party concerned. In addition, any forced marriage would be voidable under Section 12(c) of the Matrimonial Causes Act 1973 on grounds of lack of valid consent.
If someone is being forced into marriage, it is foreseeable that they could be forced to provide written consent. Therefore, I do not believe that this provision would achieve the noble Baroness’s desired effect of preventing forced marriages. However, I understand totally the noble Baroness’s concerns and I share her desire to ensure that we do everything we can to protect 16 and 17 year-olds—as well as others—from forced marriage. In regard to the points made by the noble Baroness, I will keep the provisions in the Bill under review and, as we have previously discussed, consider the issue of how the legislation is currently drafted to see whether there is something more that we can return to at Third Reading.
Turning to the application of such a provision to marriages contracted outside the United Kingdom, there is no legislation in England and Wales on this issue and matters of recognition of such marriages in England and Wales are for the courts to determine. However, I consider that the courts already have the necessary powers to provide adequate safeguards for children entering into marriages outside the UK. Generally speaking, the validity of a marriage contracted outside the UK will be governed by the law of the country in which it was contracted. However, if there were questions as to the capacity or age of one or both parties to such a marriage, the courts in England and Wales could refuse to recognise the marriage for the purposes of England and Wales law.
I therefore consider that the need for the written consent of parties is unnecessary in respect of marriages contracted outside the UK. We also do not believe that applying this sort of provision to marriages contracted outside the UK would be practical or appropriate. For example it would, in our view, be extremely difficult to enforce.
Finally, I turn to Amendment 87B, which seeks to make identical provision to Amendment 87A in respect of Scotland. This is a devolved issue, as the noble and learned Lord, Lord Hope of Craighead, underlined.
Perhaps I may turn to the issue just raised on Section 109. The Forced Marriage Unit carried out a full review of the cases dealt with in relation to victims with learning disabilities and mental health issues and could not find any cases in which there was no element of coercion. Where there is an element of coercion, we do not wish to criminalise the behaviour concerned. Rather, the appropriate recourse is for the individual to apply to the court for the marriage to be declared void under Section 12 of the Matrimonial Causes Act.
This House has a reputation for dealing with issues to do with mental capacity. We have spent many months discussing the issue of capacity and how best to protect people who lack it. We have a great body of legislation which protects people who lack capacity. I ask the Minister to look again as to whether this really protects people who lack capacity as people in this House believe that it does not. It would be awful if we found, further down the track, that we got this wrong and we were not protecting people who lack capacity.
Hearing what the noble Baroness and, indeed, the noble Lord, have said, with the leave of the House, I will return to this issue. I will consider its practical application with my noble friend. When the noble Lord, Lord Harris, was speaking, I was listening attentively but, as he rightly said, I was waiting for inspiration from the Box. This is too important an issue to deal with in a non-comprehensive way so, as I said, I would like to return to it.
My Lords, when the Minister is considering this with his advisers, on the point about an application to the court, will he consider both the practicality and the legal capacity of the people we are concerned about to make that application?
That is a valid point. I have had discussions with officials on the issue of ensuring assistance. If someone has not had the mental capacity to consent, would they have the mental capacity to take up the issue? That is a point understood and well made.
I hope that, based on the assurances and clarification that I have given that we will look at the issue again, at this juncture the noble Baroness will be prepared to withdraw her amendment.
I thank the Minister for his usual comprehensive and comprehensible response. I am very grateful for the fact that the Government have agreed to think about this again and, of course, we will be very happy to help them to do so. I beg leave to withdraw the amendment.
Amendment 87ZZ withdrawn.
Amendment 87A not moved.
Clause 110: Offence of forced marriage: Scotland
Amendment 87B not moved.
88: Clause 110, page 81, line 21, leave out “2” and insert “7”
My Lords, Clause 110 creates two offences of forced marriage in Scotland that mirror the offences in Clause 109 for England and Wales. The Scottish Parliament is currently considering the necessary legislative consent Motion. The amendment relates to the penalty on conviction on indictment for the new offence. Initially, the Scottish Government opted for this to be imprisonment for a period not exceeding two years, as that was in line with similar penalties in Scotland. The Scottish Government have given further consideration to the issue and concluded that if we are providing consistency across the UK by criminalisation, we should seek to extend the consistency by applying the same maximum penalties on indictment. The maximum sentence of seven years has been set to cover the most serious behaviour imaginable under the offence. We have looked closely at other existing offences, international comparators and related maxima in proposing the new maximum sentence. I beg to move.
Amendment 88 agreed.
89: After Clause 110, insert the following new Clause—
“Part 10AForeign enlistmentOffence of participation in armed conflict against a foreign state at peace with Her Majesty
In the Foreign Enlistment Act 1870, after section 5, insert—“5A Participation in armed conflict against a foreign state at peace with Her Majesty
(1) It shall be an offence for a British citizen or British subject, without the licence of Her Majesty, to—
(a) participate as a combatant in armed conflict against any foreign state at peace with Her Majesty, or(b) induce any other British citizen or British subject to participate in armed conflict against any foreign state at peace with Her Majesty. (2) It shall be a defence for a British citizen or British subject charged with an offence under this section to—
(a) notify the Secretary of State in the Foreign and Commonwealth Office before such participation in such armed combat, or(b) prove that they acted in self-defence.(3) A notification under subsection (2)(a) must be made in writing, and the sharing of any information therein by the Foreign and Commonwealth Office with other organisations is permitted notwithstanding any requirements of the Data Protection Acts.
(4) A person guilty of an offence under this section shall be punishable by—
(a) fine and imprisonment, or either of such punishments; and(b) forfeiture of any United Kingdom passport held by the person, or(c) deprivation of citizenship under section 40(2) of the British Nationality Act 1981.””
My Lords, I apologise for detaining the House rather late on a quite different subject from that which we have been discussing in the past hour or so. Let me first explain why I am moving Amendment 89, to add a new section to the Foreign Enlistment Act 1870 to make it an offence to participate as a combatant in armed conflict against a foreign state without the licence of Her Majesty. My purpose in doing so is to defend the realm, which is the first duty of any British Government.
As the world recovers from six years of financial crisis, the determination of the expanding Islamic jihadist factions to wage terrorism in the West is a growing threat to the stability and future of our citizens. The growth of Islamist jihad is now as dramatic as anything that has been seen since those decades of expansion that followed the death of the Prophet Muhammad in 632 AD. This now includes persecution of Christians in many Muslim countries, particularly Pakistan, Iraq, Nigeria, Egypt and now Syria, which was once an oasis of religious tolerance. It is reminiscent of Stalin’s description to Beria of the Bolsheviks as,
“a sort of military-religious order”.
The brutal ferocity, using a combination of guerrilla warfare and terrorism, with which jihad is being pursued by a relatively small number of fanatical Islamists is hard to counter. The Islamist challenge is the one issue on which the five permanent members of the UN Security Council share a common interest.
Components of the disorder that has followed the Arab spring include: a desire for freedom; an aspiration for better living standards; hope for democracy; tribal conflicts; revenge on oppressors; incitement to new human rights abuses and other activities—all of which are overlaid with the historical and tragic hatreds between Sunni and Shia, which are reflected both nationally and regionally. Both Sunnis, led by Saudi Arabia, and Shias, led by Iran, struggle for hegemony. Over that hovers the shadow of the Islamist Wahhabi agenda, of which the new generation al-Qaeda is the guardian and choreographer for a world-scale jihad to install Sharia law under a Sunni caliphate in as many countries as possible.
In Libya, the operation of various militant groups has now raised the risk to a level where international construction companies are starting to withdraw their personnel from major development programmes. In Iraq, the ferocity of the Sunni backlash against the Shia majority has led to rapid escalation of sectarian terrorism with a massive death rate. With the establishment of al-Qaeda-dominated Islamist factions in Yemen, the Government are struggling to maintain control over the country.
It is now clear that American and European policy towards Syria has been a disaster. Western moral support with implied crucial military backing for the rebellion against Bashar Assad sustained and expanded the struggle to a point where the brutality of Assad’s resistance outraged international opinion. Then in August, plans for the imminent military action by the US, Britain and France to achieve regime change in Damascus were aborted after the British participation was voted down by Parliament. By then, the Islamists had taken control of the rebel forces and any hope of democracy in Syria was replaced by the wholly unacceptable prospect of an al-Qaeda-dominated Islamist state perhaps even worse than the present Government.
The Islamist influence is spreading rapidly inside Africa. In Nigeria, a particularly vicious form of hostage-taking terrorism by al-Qaeda is prominent. In Mali, the French have intervened against al-Qaeda. Similar intervention by French forces is taking place in the Central African Republic. In Somalia, 6,000 mulitnational Sunni militants of al-Shabaab, another al-Qaeda offshoot, are fighting 17,000 African Union troops, who are attempting to defend a weak Somali Government. In predominantly Christian Kenya, al-Shabaab is expanding its attacks, for example with the September attack on the Nairobi shopping mall.
During 2013, more British citizens were killed by terrorism overseas than in the previous seven years combined. In Pakistan there is almost total anarchy, with the army appearing ambivalent about the fight against Islamist extremists. A real indicator of the hold that the Taliban fundamentalists have over Pakistani thinking is the way in which the schoolgirl Malala, who in December 2012 was shot in the head by the Taliban for demanding education for girls, has now been demonised in certain parts of Pakistan.
All that is the backdrop to my amendment, so let me now come to the specific risks. In this, I have been guided by the evidence given on 7 November 2013 in a rare public meeting of the Intelligence and Security Committee of Parliament by the director of GCHQ, Sir Iain Lobban, the director-general of the Security Service—MI5—Mr Andrew Parker, and the chief of the Secret Intelligence Service—MI6—Sir John Sawers. They outlined some aspects of the direct threat to this country from British jihadists who go to fight overseas.
The head of MI6 said:
“The threat comes from those countries which are either secretive states, where there is ungoverned territory where terrorists can operate … the Middle East, South Asia, Africa”.
If there is a terrorist there, he said,
“it is important for our security, in the UK, that an eye is kept on him, that he is surveilled, that he is monitored. Maybe he needs to be detained and arrested at some point”.
The head of MI5 said:
“A very important strand of the threat we face is the way in which there is interaction between people who live in this country, who sympathise with or support the Al-Qaeda ideology and they travel to areas where they meet these Al-Qaeda groupings, either Al-Qaeda itself in South Asia or some of these other groupings … they meet British citizens who are willing to engage in terrorism and they task them to do so, back at home where they have a higher impact in this country”.
He went on to say that the threat,
“has grown recently and is growing … because of Syria. Syria has become a very attractive place for people to go for that reason”.
He referred to:
“Those who support or sympathise with the Al-Qaeda … message … We have seen low hundreds now of people from this country go to Syria for periods and come back, some large numbers still there, and get involved in fighting”.
He went on to say,
“the vast majority of the plots come from people who live here. There are several thousand individuals in this country who I would describe as supporting violent”,
terrorism or being “engaged in it”. I hope that I may have convinced your Lordships of the threat.
My amendment, which builds on earlier legislation, discriminates against no one. It merely means that any British passport holder who takes part in armed conflict as a combatant against a foreign state with which we are not at war, or who induces any other British citizen to do so, will be subject to penalty unless he has informed the Foreign Secretary before doing so. There could be three penalties according to my amendment: a fine or imprisonment; the forfeiture of a British passport; or the deprivation of citizenship. It would send a clear message to those considering taking part in armed jihad. It would necessitate HM Passport Office being aware of the details of other passports that British passport holders have. This is something that I have urged for a long time, as part of the better methods of defending our national borders, and I hope that my noble friend the Minister will at least be able to tell me that that is now in place.
I should perhaps add that there are already substantial powers to deal with terrorism. Indeed the Supreme Court, in R v Gul in 2013, emphasised that while there is no internationally agreed definition of terrorism in international law, in British law terrorism is very widely defined. My amendment is therefore neither needed nor intended to deal with terrorism per se; it is intended to control actions which, according to the heads of our intelligence services, could lead to people becoming terrorists. It is therefore a preventative measure, and one with sufficient sanction to deter those who might be led into terrorism by military adventure overseas.
Finally, it is because the jihadist threat is a new threat that I believe this is necessary. There was in days past a tradition of British citizens going to fight in other people’s battles with which they identify—the Spanish civil war is an obvious example—but this is quite different. In any case, the opportunity as well as the need, in effect, to get consent from HMG before becoming an overseas combatant, would ensure that no one need fear victimisation for their political or religious convictions. I believe I would have the support of the great majority of the British people in raising this issue today. I beg to move.
My Lords, I am very grateful to my noble friend Lord Marlesford for tabling this amendment, not least because it provides your Lordships with an opportunity to consider the Foreign Enlistment Act 1870—not something that we do every day, or night. The Act prohibits British nationals from fighting in the armed forces of another state, against friendly states. The new clause would go further by creating a new offence of participation in armed conflict against any foreign state at peace with Her Majesty. My noble friend’s amendment raises an important and topical issue: that of people from the United Kingdom seeking to engage in combat abroad in so-called “theatres of jihad”, such as the civil war in Syria, to which my noble friend referred.
Although the issue of British nationals fighting abroad is not a new one, or one specific only to Syria, it is something that the Government take very seriously. Syria is now the number one destination for jihadists anywhere in the world, and there are currently thousands of foreign fighters in Syria, including a large number of Europeans. We judge that more than 200 UK-linked individuals have travelled to Syria to join the fighting. Of course, not all individuals who travel to Syria are extremists. Many simply want to support humanitarian efforts. However, those who do travel there are putting themselves and innocent Syrians in danger, and we know that a number of Europeans have already been killed in the conflict. Moreover, we know that some individuals travel to Syria—or other places such as Yemen or Somalia—to engage in fighting with terrorist groups.
The Government are working with the police and security services to disrupt travel by individuals of concern. Your Lordships will understand why I am unable to provide specific details of all of the actions that are being taken to this end—but rest assured, we support the use of the full range of available measures. In particular, where there is evidence that individuals are planning, promoting, funding, facilitating or participating in terrorist activities overseas—including terrorist fighting—the police and Crown Prosecution Service will look to prosecute them, before they go or on their return. A very wide range of offences already exists on the statute books to capture such activity, not least in the Terrorism Acts 2000 and 2006, which provide extraterritorial jurisdiction in relation to certain activities. Although my noble friend’s amendment seeks to add a further offence to the disruptive arsenal, I fear that this amendment, as drafted, entails a number of drawbacks that would undermine its effectiveness.
Firstly, the amendment recognises that, while the 1870 Act already deals with fighting for another state’s armed forces, many modern conflicts involve an array of non-state actors and irregular militias. However, like the 1870 Act, this amendment deals only with,
“armed conflict against a foreign state at peace with Her Majesty”.
Hard distinctions of war and peace made sense in 1870; Tolstoy’s masterpiece had been published just the year before. But the bases for modern conflicts are no longer so binary. The UK has not been in a declared condition of war since the defeat of the Axis forces in 1945. Today we are at peace with all states, at least in the classical sense of international law.
Secondly, the defence of notification to the proposed new offence has the potential to severely undermine the disruptive utility. Whether it was my noble friend’s intention I do not know, but the amendment as drafted gives the Secretary of State no additional power to prohibit a person who gives notice of their intention to fight overseas from going. A number of existing powers might be used to prevent such a person from travelling—and, of course, the Bill augments these by providing powers to seize passports cancelled on public interest grounds. But the amendment adds nothing to these powers. Indeed, the proposed offence bites only when a fighter who previously failed to notify returns to the UK. Anyone who does notify the Secretary of State would be completely free from the sanctions which this amendment seeks to put in place.
Thirdly, any offence that hinges on such a notification regime is likely to raise significant difficulties in enforcement. A committed jihadist is unlikely to inform the authorities of his travel plans for fear of disruption, either before or after the fact. Evidence that a person has engaged in fighting abroad would be extremely difficult to obtain, so the evidential difficulties in securing a prosecution may be no less than for the other relevant offences available.
Fourthly, although self-defence has a well understood meaning in relation to ordinary offences against the person, how it would apply in the context of overseas conflicts is unclear. Many jurisdictions have laws to deal with the use of defensive force in situations of immediate danger, and we expect British nationals to comply with local laws wherever they are. But the idea of participating in armed conflict as an act of self-defence is a difficult matter. We must take care not to legitimise the wrong-headed extremist narrative that paints so-called jihadists as fighting a war of self-defence on behalf of Muslims internationally.
Finally, the amendment proposes sentences for the new offence that could include forfeiture of a passport and deprivation of British citizenship. As noble Lords will recall from our discussion in Committee of what is now Clause 138, passports are issued under the royal prerogative. The Home Secretary already has the power to refuse or withdraw passports where she believes that a person’s activities—past, present or proposed—are so undesirable that the grant or continued enjoyment of passport facilities is contrary to the public interest. The British Nationality Act gives the Home Secretary powers to deprive persons of their British citizenship when she is satisfied that deprivation is conducive to the public good, provided that the person is not left stateless as a result. As such, these sentencing options would not be necessary.
I thank my noble friend Lord Marlesford for raising the issue of British nationals fighting overseas. I assure your Lordships that this is something that the Government take extremely seriously. Nevertheless, for the reasons that I have set out, I do not believe that the amendment would be the right way to proceed and I ask my noble friend to withdraw it.
My Lords, I am most grateful to my noble friend for having raised so many points so clearly and in such detail. I hope very much that there will be action under the present provisions of the law to ensure that, wherever possible, British citizens who have engaged in jihadism overseas, will be prosecuted on their return to this country—as he said that they already can be under the existing law. I hope very much that the removal of passports—and, if appropriate, of British citizenship—will take place.
This is a very serious subject. The evidence given by the security chiefs to Parliament was chilling. I had no idea what a serious situation we face, and I am delighted that the Government have stated that they are well aware of it and are dealing with it. I therefore beg leave to withdraw my amendment.
Amendment 89 withdrawn.
90: Before Clause 111, insert the following new Clause—
“Local community safety plans
In section 6 of the Crime and Disorder Act 1998 (formulation and implementation of strategies) after subsection (1A) insert—“(1B) In exercising functions under subsection (1), each of the responsible authorities for a local government area must set out their approach to making use of the powers conferred by Parts 1 to 5 of the Anti-social Behaviour, Crime and Policing Act 2014.””
In moving Amendment 90 I shall also speak to Amendment 91. These two amendments are intended to be entirely helpful to the Government. I am surprised that that suggestion provoked hilarity from the Government Front Bench, because that is genuinely the case. If the Minister has in front of him a brief from his officials suggesting that he should oppose these amendments, I hope that by the time he has finished listening to what I have to say he will realise that that advice is perhaps an example of civil servants approaching amendments to a Bill as if not a tiny hair of its precious head should be interfered with, because obviously it is an object of complete perfection. I hope that by the end of my speech the noble Lord will realise that I am trying to improve the Bill and make it fit more coherently with other legislation on policing and anti-social behaviour.
Amendment 90 requires that each of the responsible bodies in a local community safety partnership should set out its approach to using the anti-social behaviour powers in the Bill. As part of the production of a community safety plan, the various relevant organisations —the local authority, the local police commander, and possibly the health bodies and so on—should set out how they will use the powers given to them by the Bill.
Amendment 91 requires that police and crime commissioners should include in their policing and crime plans objectives for the use of the anti-social behaviour powers in the Bill. Before the Minister assumes that I must have had some sort of Damascene conversion to the concept of police and crime commissioners, let me tell him that this is nothing of the sort. I am simply trying to make this legislation that the Government are trying to get through consistent with other legislation that Parliament has already passed. I am not saying that previous legislation is perfect or does not need changing; I am simply trying to make this legislation consistent with it.
The aim of the amendments is to integrate what is in the Bill with other legislative requirements. They would ensure that plans were made for how the various powers—the new injunction powers, the dispersal order powers and so on, which we have spent many happy hours debating—would be used in any local area. The requirement that the intentions of the various responsible authorities be set out in the local community safety plans and the force-wide policing and crime plans will ensure that there is public consultation on the approach to be taken. It will also require buy-in from all the local partners to the approach being taken. Above all, we are trying to ensure that some sort of coherent strategy for the use of Parts 1 to 5 of the Bill is articulated. At the moment, that is not an obligation for those who will enforce it.
In my view, local community safety plans are the building blocks of local collaboration. The 1998 Act that created them, and the subsequent amendments of the law that have strengthened and added elements to them, are the mechanism by which, at local level, the police service, the local authorities and other relevant parties come together to decide on the best way of dealing with what, in the original formulation and language used, was called crime and disorder. In this context, that would include anti-social behaviour. What is the best way of addressing that? My amendment would involve the local authority sitting down with the police and identifying the circumstances in which they can both make a difference, so it is about the sort of collaboration that the Minister, in responding to a number of provisions, has talked about as being the sine qua non of what the Government are trying to achieve with the Bill. Therefore, the amendment follows the principles set out by Ministers but provides a framework in which they will be discussed at local level by the relevant parties. The amendment would also provide coherence and enable the relevant intentions to be set out clearly. It sets out a mechanism for this to take place and a mechanism for partnership around what the Government want to see achieved at local level with regard to anti-social behaviour. It also sets out a mechanism whereby those approaches can be agreed.
The amendment would deliver transparency at local level with regard to how the measures in Parts 1 to 5 are to be used—without the amendment, I am afraid that the Bill simply does not have that—and introduce a much clearer system of local accountability as the local objectives in regard to the use of Parts 1 to 5 would be set out. It would also provide a mechanism to achieve consistency of approach in the way that the powers in Parts 1 to 5 are used within a force area and even within a local authority area. Above all, it would institutionalise effective collaboration. I cannot see what there is in these amendments for the Government Front Bench not to like. As I say, they are genuinely put forward in a spirit of trying to be helpful and make this piece of legislation consistent and compatible with other legislation that requires collaboration and working together to protect local communities against anti-social behaviour. I beg to move.
My Lords, I entirely agree with what lies behind these amendments but have one concern about them, with which the noble Lord may be able to help me. We heard in an earlier debate on the Bill that a number of police and crime commissioners are already dealing with anti-social behaviour as one of their objectives. I assume that, as they are doing that, they are able to do so. Therefore, I wonder whether it is necessary to refer specifically to this Act, as it will be, in the second of the noble Lord’s amendments in this group.
Given that we already have a requirement under new subsection (1A) of the relevant Act for each of the responsible authorities to have regard to the police and crime objectives, I am not sure whether the proposed new subsection (1B) is necessary. We often hear that things are not necessary but it is helpful to be clear about them. However, my real concern is whether, by referring specifically to the Anti-social Behaviour, Crime and Policing Act, there might be a suggestion that it should have priority over other legislation which could be listed among the objectives. The relevant police reform Act, the obligations of the police and crime commissioners and the police and crime plans use wide and general terms. The Anti-social Behaviour, Crime and Policing Act, as it will become, will not be the only legislation to which all responsible authorities need to have regard, so I am concerned about knock-on effects outside what we are considering at the moment.
I understand the noble Lord’s eagerness to accept this, and it may have something to do with the hour, but, just occasionally, I have a few words to say on the proposals put forward by my noble friend Lord Harris of Haringey. I must admit that when I first looked at these amendments I had a slight concern about the role of the community safety partnerships and their responsibilities. My own CSP has seen a massive cut in its budget and its capacity to deal with some of the issues before it. But when resources are short, planning is most essential. It would be extremely useful to have the kind of co-ordination function that is laid out in the amendments.
I am sorry that the Minister laughed when my noble friend said how helpful he was trying to be. He has been accused of many things during the course of proceedings on the Bill. He was accused of being mischievous when he was trying to be helpful. He put on record that he is trying to be helpful now and there was hilarity from the Benches opposite, which I genuinely think is most unfair. This is the kind of amendment that sets in place how the objectives of the Bill can be achieved by those responsible for implementing it.
There are new powers in this Bill. It is important that all the partners understand their role and the expectations. I give one example. The noble Lord will recall that I proposed amendments in Committee on dispersal orders. One of the issues is that there is no longer a responsibility on the police to consult the local authority when issuing dispersal orders. The new orders that the Government are proposing are wider and can last longer than the ones in place at the moment. There is also no obligation to consult the local authority, but the guidance says—I cannot remember the exact phraseology—that there is the opportunity to discuss or that that is expected or is likely. Before any dispersal orders were issued, would it not be helpful if discussions took place within the community safety partnership about what the expectations would be when it came to the point of issuing one? It is fitting to have that kind of co-ordination, to know what the expectations and responsibilities are, to ensure that the legislation being put forward by the Government has an impact, that it does not disappear into the ether somewhere but can be worked on. I would expect that this is the very least that the Government would expect—to have this way of taking the new legislation into the existing framework.
I certainly accept my noble friend’s comments that he is seeking to be helpful. It is a very helpful amendment. I trust that the Minister will be able to take that on board.
I thank the noble Baroness for that comment. Indeed, I thank the noble Lord, Lord Harris of Haringey. I am quite prepared to accept that he has a helpful side to his nature. I am very grateful that he has presented these amendments. I sense the spirit in which he has tabled them. My noble friend Lady Hamwee is always helpful. I am grateful for her contribution to this debate.
I will talk about the issue in general and then talk about how it happens specifically. This is about how police and local councils will use the powers running right through Parts 1 to 5 of the Bill. I will deal with Amendment 90 first and then I will come on to Amendment 91. I have listened to the noble Lord’s comments on the amendment. Although I appreciate the helpful intent behind the amendment, I do not believe that it is necessary. As the noble Lord will be aware, Sections 5 to 7 of the Crime and Disorder Act 1998 already require local authorities and the police to co-operate with each other and other local agencies in formulating and implementing strategies to reduce crime and disorder. The noble Baroness, Lady Smith, is absolutely right. The Government expect local authorities and the police to co-operate together. The formulation and implementation of those strategies would manifestly include a consideration of anti-social behaviour. I am sure that the noble Lord will be aware of the London Borough of Haringey’s current community safety strategy which identifies six outcomes, one of which is to:
“Prevent and reduce acquisitive crime and anti-social behaviour”.
It is in implementing such strategies that it goes almost without saying that the responsible authorities will take full account of the new powers in Parts 1 to 5 of the Bill, as well as existing less formal interventions, to tackle such behaviour.
As a result of our extensive consultation on the new powers with local authorities—the Bill has been drafted with local authority consultation as its backbone—as well as other agencies, I am confident that they are fully aware of the importance in ensuring that the use of the powers is underpinned by a coherent strategy and good partnership working. Indeed, local authorities have played a major role in shaping the new powers and would no doubt be keen to ensure that they work effectively in their areas. Moreover, along with their individual strategies and the Government’s statutory guidance, local authorities will issue their own guidance to front-line professionals on the use of the new powers and their approach to them. This is what they do with their existing powers and I see no reason why that practice would not continue.
I turn to Amendment 91. I will repeat the point that I made in Committee. The election of police and crime commissioners put the public back at the heart of our drive to cut crime, thereby giving them a greater say in how their local area is policed by these directly elected representatives. I admit that it will be a great day when I can get the noble Lord, Lord Harris, to admit that the policy has achieved that objective—but that task is not beyond us.
Under the provisions of the Police Reform and Social Responsibility Act 2011, PCCs are required to issue and publish a police and crime plan for their local area and must consult with their chief constable in drawing up the plan. Such plans must include objectives for reducing crime and disorder. As I indicated in Committee, 30 of the police and crime commissioners have put tackling, preventing and reducing anti-social behaviour as one of their key priorities in their plans. Another eight have put reducing the impact and keeping people safe from anti-social behaviour as one of their individual priorities; and the remaining three commissioners want to encourage the reporting of anti-social behaviour.
Perhaps I may give the noble Lord an example. London’s Police and Crime Plan 2013-2016 states that,
“tackling anti-social behaviour … or quality of life crime, is critical to addressing perceptions of disorder in a neighbourhood, and although MOPAC”—
the Mayor’s Office for Policing and Crime—
“is setting no explicit targets for the police in this area, ASB is one of the three priorities for the London Crime Reduction Board, chaired by the Mayor”.
It is obvious that the successful implementation of this and other police and crime plans when it comes to tackling anti-social behaviour will necessarily involve an assessment of how the new powers in the Bill can be put to best use.
This was reflected by Sir Graham Bright, the Cambridgeshire police and crime commissioner, who said about the Bill in October last year:
“Police and Crime Commissioners have been closely following the progress of the Anti-Social Behaviour, Crime and Policing Bill. We want the police to be given effective powers to tackle anti-social behaviour that provide better protection for victims”.
Sir Graham went on to say:
“It is also important to have a multi-agency approach to tackling anti-social behaviour as the police are only one part of the solution. By working with local authorities, housing associations and other agencies we can effectively combat anti-social behaviour and empower victims and communities”.
In short, the police, local authorities and other agencies recognise the importance of understanding how to use the new powers in the Bill effectively to protect the public from anti-social behaviour. The statutory guidance provided in the Bill will undoubtedly help them in this regard.
In practice, I believe that on this issue there is little between the Government and the noble Lord, Lord Harris. We are at one in recognising the importance of partnership in working to tackle anti-social crime and anti-social behaviour, and of this being reflected in local crime and disorder strategies and police and crime plans. This is what the Government expect local authorities to do.
In implementing such plans, in so far as they relate to tackling anti-social behaviour, we would clearly expect the police, local authorities and other agencies to make effective use of the new powers in the Bill. While we seek the same outcome, I do not believe that these amendments are needed to achieve it. I therefore invite the noble Lord to withdraw his amendment.
My Lords, I am grateful to the Minister for his courteous endorsement of my intention to be helpful on this occasion. I suggest that my espousal of the current arrangement for police and crime commissioners will have to wait for another occasion; we are certainly not going to get there tonight.
I have some difficulty with his response. It is very useful that he set out for the record the Government’s commitment that the use of the powers under the terms of the Bill should be very much part of local planning in terms of the preparation and delivery of community safety plans and in terms of police and crime commissioners setting out their objectives. The reality is that most police and crime commissioners have said, “Yes, this is one of our priorities”. They have not—partly, of course, because the legislation has not been passed—specified exactly how they intend to approach these issues. But of course, at the moment, there is no obligation on them to refer to the content of the Bill. That is what would be changed.
My noble friend Lady Smith talked about the dispersal order powers. This is one example of where we beg to differ on the subject of whether there should be prior consultation with local authorities. If there was at least a formal agreement and protocol on the circumstances in which both sides will expect those powers to be used, that would be helpful to the legislation and might avoid some, although I fear not all, of the problems that were identified when we talked about this on a previous occasion.
I do not think that the Bill requires the sort of collaboration that I think is necessary and that the Minister thinks is necessary. I think it is unfortunate that the Bill is so silent on how this fits in with community safety plans and police and crime plans, but I am at least grateful to the Minister for what he has said on the record today. In the light of that—I will read the debate carefully to make sure that he has not left too many gaps—I beg leave to withdraw the amendment.
Amendment 90 withdrawn.
Amendment 91 not moved.
Consideration on Report adjourned.
House adjourned at 10.18 pm.