Clause 61: Appeal against decision under section 60
1: Clause 61, page 49, line 40, leave out “sheriff principal” and insert “Sheriff Appeal Court”
My Lords, these technical amendments relate to the rights of appeal in Scotland against decisions on seizure and forfeiture of substances used as drug-cutting agents. In Scotland, the appeal from the decision of a sheriff under Clause 60 is to the sheriff principal. The Scottish Parliament has recently passed the Courts Reform (Scotland) Act 2014. Among other things, that Act establishes a new right of appeal from the sheriff to the Sheriff Appeal Court and, in the process, abolishes the current right of appeal from a sheriff to the sheriff principal.
Amendments 1 to 5 to Clause 61 accordingly update the avenue of appeal. The consequential amendment, Amendment 10, to Clause 74 is a transitional provision. As it is not known for definite when the Courts Reform (Scotland) Bill will come into force, this amendment provides a mechanism to refer to an appeal to the sheriff principal, if circumstances arise where this is necessary. I beg to move.
Amendment 1 agreed.
Amendments 2 to 5
2: Clause 61, page 50, line 1, leave out “or sheriff principal”
3: Clause 61, page 50, line 2, leave out “or sheriff principal”
4: Clause 61, page 50, line 4, leave out “or sheriff principal”
5: Clause 61, page 50, line 9, leave out “or sheriff principal”
Amendments 2 to 5 agreed.
6: After Clause 65, insert the following new Clause—
“Protection of children from sexual communications
After section 12 of the Sexual Offences Act 2003 (causing a child to watch a sexual act) insert—“12A Protection of children from sexual communications and from communications intended to elicit a sexual response
(1) A person (“A”) commits an offence where A intentionally communicates with another person (“B”) in the following circumstances—
(a) A is aged 18 or over,(b) either—(i) B is under 16 and A does not reasonably believe that B is 16 or over, or(ii) B is under 13,(c) the content of the communication is sexual or intended to elicit a response that is sexual, (d) subject to subsection (3) below, A’s purpose in sending the communication or seeking a response is sexual.(2) The communication may be in any form including verbal, written or pictorial (which may include still or moving images) and may be conveyed by any means whatever.
(3) A does not commit the offence in subsection (1) above where the purpose of the communication is for the protection of the child to which the communication is sent.
(4) For the purposes of subsection (3), a person acts for the protection of a child if he acts for the purpose of—
(a) protecting the child from sexually transmitted infection,(b) protecting the physical safety of the child,(c) preventing the child from becoming pregnant, or(d) promoting the child’s emotional well-being by the giving of advice and not for a sexual purpose.””
My Lords, on Report I posed the question of whether it would be an offence for an adult to elicit from a child a sexual photograph or to send a sexual message to that child. I posed the example of a young girl in her bedroom on her smart phone, sending messages to her friends, one of whom was someone purporting to be a boy who was in love with her who was actually a man 30 years her senior. I asked whether, if she was encouraged, cajoled and coaxed into sending a sexual image of herself, that would be an offence committed by the older man. I posed that question because it was clear that it would be an offence in Scotland but much less clear that it would be an offence in England, Wales and Northern Ireland.
We had a useful and helpful discussion during Report. The Minister made several points during that debate when he stated that he believed that the offence of an adult sending a sexual message to a child was already covered by existing legislation. He stated, for example, that those convicted of an offence under Section 127 of the Communications Act,
“can be made subject to a sexual offences prevention order”.—[Official Report, 28/10/14; col. 1117.]
In reality, it is a little bit more complicated than that. If someone was convicted under the Malicious Communications Act or the Communications Act, the sexual offences prevention order would have to be applied for as a separate process. To apply for it, the prosecution would have to prove that the defendant posed a significant risk of serious harm. The Court of Appeal has had several cases in the past year in which it has criticised the use of sexual offences prevention orders in a number of sexual cases because the threshold of significant risk was not met.
It is not difficult to foresee a situation in which an adult is communicating sexually with a child and that threshold of serious harm has not yet been met. In the early stages of grooming—for example, when an adult may send a sexual message to a child—it is unlikely that he has actually met that threshold of serious harm. That is what the new clause that I propose today is all about. It is about trying to prevent harm before it is caused to the child.
The Minister made reference to the Obscene Publications Act 1959. The hint is in the title—it is the 1959 Act, which would potentially fail to cover a great deal of verbal communications through systems such as telephone, mobile telephone or Skype. Additionally, as new technology advances, new forms of electronic communication will no doubt further supersede what is dealt with in the Act. Reliance on the Obscene Publications Act would result in a person sending a text being potentially guilty but a person talking over the internet not committing the offence.
The Minister asserted that, under Section 10 of the Sexual Offences Act, it is an offence for a person over the age of 18 to cause or incite a child to engage in sexual activity. However, there are many cases where a charge of incitement may not be met. The question is: what is sexual activity and what is being incited?
The Minister rightly highlighted several common scenarios typical of online grooming which would be illegal. These include where messages are grossly offensive, indecent, obscene or menacing. The Minister affirmed that a message of this nature would fall foul of an offence under the Communications Act. However, the new clause that I am proposing is concerned with creating a stand-alone offence by which it would always be illegal for an adult to send a sexual message to a child. It would not have to be proved in court that it was grossly offensive, indecent, obscene or menacing, or that it caused the child distress. Similarly, it would not require an intent to meet the child. All that would be required is that the message was sexual or seeking to elicit a sexual response from the child. In most cases of online grooming the adult seeks to flatter the child, attempting to gain their trust, before inciting the child to share an indecent image of themselves. The purpose of this clause is to give the police greater powers to intervene earlier in the process of online grooming before the abuse escalates.
The Minister mentioned that the situation in Scotland was not as bright as has been claimed. I am sure it is always bright in Scotland; that is something we have all learnt in the past few months. Under the Sexual Offences (Scotland) Act 2009, it is an offence if a person,
“sends … a sexual written communication to or directs, by whatever means, a sexual verbal communication at”,
a child under the age of 16. It clearly embraces most modern forms of communication. I agree with the Minister that the Sexual Offences (Scotland) Act is by no means perfect because it states that the offence has to be for the purpose of obtaining sexual gratification which then requires proof in respect of the perpetrator. I understand that that has blocked prosecutions in some cases because it is too high a threshold.
The success of the Act in Scotland in catching adults entering into sexual communications with a child under 16 earlier in the grooming process is illustrated by a number of case studies. I shall give but one. In August 2013, 55 year-old Steven McLaren admitted sending sexualised written messages to a 10 year-old girl for the purposes of obtaining sexual gratification. McLaren was prosecuted, received a sexual offences prevention order, 300 hours of unpaid work and a £1,000 fine.
The concern is that the law as it stands is convoluted, complex and requires certain thresholds to be met before a prosecution can be made. For example, there to be a prosecution under some parts of the Sexual Offences Act, there has to be an intention to meet. If it were an offence under the Malicious Communications Act 1988, there would have to be an,
“intent to cause distress or anxiety”.
If it were an offence under the Communications Act 2003, it would have to be grossly offensive, obscene or menacing. In the instances I am talking about, where grooming is at the heart of what we are trying to stop, the perpetrator is not trying to be offensive or to frighten the child. The perpetrator is trying to coax the child and to convince the child that they are special, that they are being loved and that this is a loving act. That is the problem with the various ways in which other pieces of legislation are framed.
I am grateful to the Minister for organising a meeting yesterday and to the noble Baroness, Lady Williams of Trafford, for being there, along with a plethora of Home Office officials, in order to go through this. Following the debate on Report, they referred me to Section 10 of the Sexual Offences Act 2003 and to the definition in Section 78 of the word “sexual”. Section 10 relates to:
“Causing or inciting a child to engage in sexual activity”.
Most of it is about defining “sexual penetration”, and I will not burden your Lordships’ House with the degree of detail that the statute goes into. It essentially says that the adult commits an offence if,
“he intentionally causes or incites another person … to engage in an activity”,
and that activity is sexual. The section then goes on to talk about all forms of penetration.
Officials drew my attention to Section 78, which defines “sexual” for the purposes of the Act. It mentions “penetration” and “touching”, and then goes on to the part that is apparently important in this context,
“or any other activity is sexual if a reasonable person would consider that … it is because of its nature sexual, or … because of its nature it may be sexual and because of its circumstances or the purpose of any person in relation to it (or both) it is sexual”.
I confess that I am not a lawyer, but that phraseology strikes me as convoluted wording, which is difficult to formulate. The Home Office says that there have been some convictions using this convoluted wording. I asked this question yesterday, and maybe the Minister will be able to clarify this, but I would be interested to know whether those convictions were in the context of guilty pleas or were heard in court and led to a jury conviction, and whether they were in conjunction with a whole series of other offences that may or may not have been admitted as part of a package.
My point is that the law on what should be an offence —eliciting a nude photo from a child—is convoluted and confused. There needs to be a clear offence that makes it always an offence to send a sexual message or elicit a sexual message in reply. Rather than having to meet a series of criteria, the mere fact of sending a sexual message or eliciting a sexual message should be an offence.
The NSPCC tells me of a recent case where the perpetrator was asking a child to send an image of themselves topless. There was a prosecution under this section of the Sexual Offences Act and in court the defence argued that you could go to many beaches and see people topless, including children, so what they were doing was not sexual. It was simply as though you were on a beach. I find that a difficult argument to sustain, but it was clearly one that was used in court. I would have thought that we want to make the law quite clear. Whether or not there is a possible line of defence, it is simply not appropriate for an adult to ask a child to send such an image. I understand that it is not uncommon for the defence to make those sorts of arguments in mitigation for the actions that have been taken. We do not want to be in a position where a defence based on that sort of argument might succeed.
If you are caught speeding, it is a matter of fact. You have been speeding, and you are convicted of speeding. Why can it not be the case that if you are sending a sexual message to a child or eliciting a sexual message that should be clearly, unequivocally and without all these qualifications an offence? The real concern in all of this is that the law currently bites too late in the grooming process. These thresholds will have to be passed before the law can intervene. We need to intervene in a case before harm has been done to the child, before anything offensive has taken place and before the child is traumatised by the process that has happened. The convoluted wording means that it is simply more difficult for the police to operate. The provision sets a higher bar. Indeed, the police may never pass cases to the Crown Prosecution Service because they think that it is not worth pursuing in this way. The police need powers to intervene earlier in the grooming process so that even sending a message to a child along the lines of, “Say honey, you look hot in your bikini”, would be enough, potentially, to trigger action in this respect.
The purpose of the amendment is to make the law crystal clear that it is always an offence to send sexual messages or to elicit sexual messages from a child to make it easier for the police and the authorities to intervene at an early stage before harm is caused to the child. I beg to move.
My Lords, as I did on Report, I support the principle of this amendment. Listening to the last example given by the noble Lord—“Honey, you look hot in your bikini”—if I were a mother with a young teenage child who had received that message and I went to the police, showed them the message and was told, “There’s nothing wrong in law here”, I would have less confidence in our legal system.
I am not convinced that a new offence is not needed, as has been argued. I have not looked at Section 78; indeed, I have not done as much detailed work as perhaps I should. Listening to the noble Lord, however, I find quite a difficulty in a “sexual communication” that comes from someone and “sexual response”. It seems that a sexual response is needed for these offences, but that of course that is not at all how the child sees it. Yes, we are accustomed not to seeing but to knowing that there are a lot of photographs around with people topless on beaches, often celebrities seeking to attract attention. I am not sure that I would like to go down the route of trying to analyse their motives.
If there is to be an amendment, it must be right. The worst thing would be if there were inherent problems within it. I do as I did before and I hope it does not provoke teasing from the noble Lord; I assure him that I am trying to be supportive in this. I thank the NSPCC, with which I had the opportunity to meet briefly at the beginning of the week. I understand that it is consulting more widely on this. I do not want to refer to all the points that I have made, either in the previous debate or with the NSPCC, but I am glad to see that it is now suggested that the offence should be put into the Sexual Offences Act 2003, because that gives the context for penalties. I am not sure that there are penalties attached to this amendment.
I see that the words in proposed new subsection (4) come from Section 73 of that Act. I am not sure whether repeating them in a slightly different way in this amendment does not cause a bit more difficulty. In Section 73, they are a defence against aiding, abetting and so on. I think they may be interpreted there not as an exhaustive list, but there is a question in my mind as to whether in this amendment they are an exhaustive list.
Finally, in the context of online grooming, the terminology of “reasonably believe” in proposed new subsection (1)(b) causes me some concern about the evidential problems. Something like “making reasonable endeavours” to establish whether B is 16 or over would better lend itself to giving evidence to the court.
What all this amounts to is not opposition but urging us to get this right. Whether we get it right today or, as I said on Report, by an amendment during the Commons stages of this Bill, I hope that we end up with something that is workable, acknowledges current technology and is not simply defensive of the offences that are on the statute book at the moment. I am usually the first to say that if there is already something that covers this, we should not be looking for something else, but with this issue we should be looking for something else.
My Lords, I rise to speak in support of the amendment in the name of the noble Lord, Lord Harris. As we have heard, the amendment is supported by the NSPCC, with which I have had several discussions. The NSPCC believes that the amendment is wholly necessary because it specifically proposes that a new offence be brought in so that it is always illegal for an adult intentionally to send a sexual message to a child because this is another form of child sex abuse. This proposed new clause seeks to protect children from sexual communications.
I spoke in support of the amendment on Report and I remain committed to making it—I repeat—always illegal for an adult to send a sexual message to a child. We have to understand that the current law, a stand-alone offence as part of the Sexual Offences Act 2003, is inadequate in protecting children from online abuse. What is needed is to ensure that the law is absolutely clear that intentionally sending a sexual communication to a child is illegal. This will help prevent abuse escalating and keep children safe online in this new and dangerous world in which they are being brought up. We have to put all the necessary protections in place for every eventuality. We must make absolutely sure that there will be no place for perpetrators to hide.
The Minister’s response on Report perhaps focused too much on adults possessing indecent images of children. That is not what this proposed new clause is concerned with. My noble friend the Minister was correct to assert that if an adult incites and comes to possess an indecent image of a child, legislation such as Section 160 of the Criminal Justice Act would cover the possession of those images. However, this misses the purpose of this proposed new clause. Section 160 of the Criminal Justice Act makes it an offence only to possess indecent photographs of a child. For instance, it would not be illegal for a 40 year-old adult to send a message to an 11 year-old child saying, “I’d like to see a photo of you in your underwear”.
With regard to other legislation, under the Communications Act, whether a message would be deemed indecent or not is a subjective judgment. If an adult sent a message to a child describing in sexually explicit language what they fantasised about doing together, this would clearly be considered indecent and therefore illegal. However, if an adult sent messages such as, “Send me a photo of yourself, honey”, it is not clear that this could be deemed,
“grossly offensive or of an indecent, obscene or menacing character”,
as described in Section 127 of the Communications Act, but, in context, this clearly has a sexual intent. This is the gap that the proposed new clause attempts to fill. Its purpose is to catch offenders before the child has shared an indecent image because when, and if, a child is persuaded to send an indecent image of themselves, it could have devastating consequences for that child. They can become suicidal, start to self-harm and have low self-esteem, and be made to feel ashamed and dirty. This is what the NSPCC has found. I am sure that my noble friend and noble Lords across the House will agree with me about the risks a child faces once an image has been shared online, for it can be spread ever more widely at great speed without the child’s knowledge. We should do everything that we can to stop this behaviour before it happens.
The noble Lord, Lord Harris, has dealt with how the offence is not captured by various other legislation. Rather than restating his points, I will address the Minister’s belief that the Crown Prosecution Service does not currently feel that there is a gap in the law. In 2012, Phillip Pirrie was convicted for arranging to meet and sexually abuse a 13 year-old girl whom he had first contacted online. During the trial, it was revealed that he had previously contacted a 14 year-old girl through an online game. He sent that girl sexual messages. Luckily, these were found by the girl’s father, who took his concerns to the police. Sadly, no further action was taken as a meeting had not taken place between Pirrie and the girl. Under this proposed new clause, Pirrie could have been prosecuted and convicted in respect of the first victim, the 14 year-old. As a result he could have been placed on the sex offenders register and had a civil prevention order put in place. More importantly, this could have prevented him offending against the second victim, the 13 year-old. Think of the pain and suffering that this could have saved.
As I previously stated, last year ChildLine saw a 168% increase in contacts relating to online sexual abuse. This confirms that online sexual abuse is a new blight on our children’s well-being. Clearly we must do more in this area to enable action to be taken against offenders earlier and keep children safe online. What will we do to safeguard and protect our children in this modern world? I look forward to the Minister’s response on that point.
My Lords, I rise briefly to support the amendment of the noble Lord, Lord Harris. I will not go through all the arguments that have been made already. The Minister can easily read the NSPCC submissions, which are extremely pertinent. I will make three very different points.
I know that the Minister is extremely concerned about child abuse generally, and child sexual abuse and its prevention in particular. We are about to embark on a huge inquiry. We have discussed whether an inquiry looking at past abuse might obscure what is happening today. What we must do—I am repeating this and will continue to do so—is spend our time preventing abuse now. The lessons that we can learn from the past will help us, but it is crucial that we prevent abuse now.
I declare an interest as the vice-chair of the Lucy Faithfull Foundation, where grooming was first defined and understood. In relation to grooming, any of the experts will tell you that the perpetrator clears a number of hurdles to reach the full stature, if you like, of a paedophile. The first thing that they do is test whether they can gain the confidence of a child just through kindness, relationship and involvement. As I understand it, none of the current statutes would intervene at the point where a perpetrator sent a message saying, “I am really fond of you, I would like to see you topless or in your underwear”, or “I would like you to talk about sexual things”, or, as in one recent case, “I would like you to do something to your sister in front of me, so that I can see and understand how your relationship is going”. It gets worse as time goes on. As the perpetrator finds that they can cross one hurdle, they then discover that they are enabled to cross the next one, and the next one, until they are meeting children, and until they are fully abusing larger numbers of children. That is the history of grooming; it is how grooming works.
If we are serious about prevention, we need to prevent at that very first point. What the Minister will hear from the police—I am quite sure that he is in discussions—is that they find it quite difficult to sort out how they move forward among the enormously confusing entanglement of present legislation. I simply hope that the Government will have a look at this. I am not a lawyer; I only know what I experience in my day-to-day contact with the Lucy Faithfull Foundation, the NSPCC and other children’s organisations. They feel that not enough is being done, that one single law is needed to make it absolutely clear that we are serious about protecting our children, and that we should have an amendment—if not this one, something like it—to be able to act at the very first point.
My Lords, there appears to be a gap in child protection for the reasons that the noble Baroness has just given. I do not want to repeat them because everything she said was entirely accurate and always worrying. One has only to look at the stories that we have been getting around the country, not of historical abuse but of current abuse and abuse in the recent past—not just in the north but in other parts of the country. Sexual communications and the opportunity to encourage children to behave in a way that they think that they are doing to their peer group, is something that really needs to be sorted. I am no expert in this area of criminal law but if this area is not covered, as I understand to be the case, it is a serious matter that should be covered. I therefore ask the Government to look again, whether by means of this amendment or amendment of other legislation. It is not a matter to push into the long grass; it is urgent. If it is not covered, then it is urgent to cover it.
Another matter arises when a child finds that an adult is involved. If, say, this is stopped and the child finds that they were communicating not with a friend but with a grown-up, the embarrassment and distress to the child of having shown a tantalising photograph of herself or himself—remember boys are also vulnerable —has led children to commit suicide.
My Lords, those who have a sexual, and therefore illegal, interest in children know the law. They know the gaps and complexities in the law and rely on them, given the difficulty and lack of clarity, to set themselves on a path that may not start with, but certainly ends in, abuse. After a typically thoughtful, understated and well argued case from my noble friend Lord Harris of Haringey, I was rather surprised that the Government did not bring back an amendment today, following the meeting with him.
However, today the point was made with absolute clarity across the House: there is a gap in the law; a point is missing. The noble Baroness, Lady Howarth of Breckland, referred to communications between young people. On Report, I referred to a case of which I was aware, in which an 11 year-old girl was communicating with someone she thought was another 11 year-old girl, and sharing the kind of confidences that 11 year-old girls share when embarking on and discovering their own sexuality. However, she found out later that it was a 30-plus year-old man who was communicating with her when the relationship was developed.
There clearly is a gap in the law, which needs to be changed. It needs to catch up with what is happening today. The noble and learned Baroness, Lady Butler-Sloss, and the noble Baroness, Lady Howarth, made the point that abuse is happening now and there is an opportunity here to make changes to the law and do something that will make a difference and protect children today, tomorrow and the day after. I am disappointed that we do not have a new government amendment before us, but I hope that either the amendment from my noble friend Lord Harris will be accepted or we will hear a commitment from the Government to bring something back that addresses this problem, as the noble and learned Baroness said, very quickly indeed.
My Lords, I thank the noble Lord, Lord Harris, for the way in which he introduced this amendment and, too, noble Lords for their contributions to this debate. In many ways, I thought that this characterised many of the debates we have had, in that—as I am sure my noble friend Lady Benjamin would accept—there is genuine willingness and desire to make sure that all possible loopholes are tightened, and that we take this opportunity to afford every possible protection to the most vulnerable in our society, by sharing information and evidence. I have read the NSPCC’s report and we have talked to the Crown Prosecution Service and to the national policing lead about cases being brought. We will seek to move things forward. If I can, I will comment for the record in response to the very helpful meeting that we had last night with the noble Lord, Lord Harris, and the noble Baroness, Lady Howe. As I am doing so, I will try to touch on some of the points that have been raised.
As the noble Lord, Lord Harris, knows, there is no difference between us in that we agree wholeheartedly that we need to ensure that we have a robust body of criminal law to tackle predatory sexual behaviour by adults against vulnerable children. As I said on Report, this House rightly remains united in its condemnation of the sexual abuse of children. What is more, it is determined to do something about it. I also paid tribute on Report to the National Society for the Prevention of Cruelty to Children, which has proposed this new offence and brought its concerns to this debate.
I shall not repeat the description that I gave last time of all the offences that might be relevant in dealing with this type of behaviour. The House would not thank me for that, because the point is understood. There is a clearer point that the noble Lord, Lord Harris, raised today. However, it may be helpful if I address more specifically a couple of concerns raised on Report by the noble Lord, Lord Harris, and the noble Baroness, Lady Howe.
The noble Lord was keen that anyone seeking to persuade a child to send a naked image of himself or herself should commit an offence. As the noble and learned Baroness, Lady Butler-Sloss, pointed out, this issue affects both male and female children. He was concerned that naked photographs of children might not be caught by the definition of “indecent”. I now have had the chance to look into that particular matter and am pleased to say that the noble Lord’s concerns may be misplaced. Section 10 of the Sexual Offences Act 2003 provides that it is an offence to cause or incite a child to engage in a sexual activity. The noble Lord quoted Section 78 of that Act and that telling word in law, about which, as a non-lawyer, I am trying to get up to speed, although it is a well known test: what could be considered in the eyes of a “reasonable” person, or what people could reasonably conceive of, as sexual intent. Clearly, by any stretch of the imagination, a request to send a photograph of a child would fall within that category of reasonableness. The noble Baroness, Lady Hamwee, also referred to that.
The definition of “sexual” is contained in Section 78 of the 2003 Act. That provides that an act is sexual if,
“it is because of its nature sexual, or … because of its nature it may be sexual and because of its circumstances”,
in which it takes place,
“or the purpose of any person in relation to it … it is sexual”.
In other words, the context is crucially important. Therefore, it is entirely open to the court to conclude that, if a middle-aged man is sitting in front of a computer urging a child to send him a naked photograph—which was an example that the noble Baroness, Lady Smith, gave—or to pose naked before a webcam, his purpose makes the sending of that image by the child sexual, even if the child is not pictured undertaking any overtly sexual activity. The offence can be committed whether or not the victim complies with the request. The courts have convicted on that very basis and imposed substantial sentences of imprisonment; we discussed one case, which was actually a sentencing appeal, where the individual had been sentenced to three years in prison for precisely that offence under the order. In the process, the offender may also commit offences relating to the taking or making of indecent photographs of children.
I repeat my undertaking that the Government are going to take this very seriously. Despite all the legislation that we already have in place, none the less a gap needs to be filled. In particular, we need to explore further how best to deal with contact between a predatory individual and his victim where the messages are sexual in nature but where the victim is not being asked to respond in any particular way. Again, I want to get that wording precisely on the record because I think that is something that we all recognise.
I was particularly interested in the contribution of the noble Baroness, Lady Howarth, who of course through the Lucy Faithfull Foundation does tremendous work in this area. She pointed to the way in which paedophiles prey upon their victims and pass certain stages, and therefore how important it is to be able to tackle things as early as possible. Earlier in the Bill we discussed clauses relating to protection orders and the possession of a grooming manual being an offence. It shows that the direction of travel is recognising that we need to move further upstream in intervening at an earlier stage.
As part of that consideration, the noble Lord, Lord Harris, was kind enough to come to see me yesterday afternoon, together with the noble Baroness, Lady Howe. I was accompanied by my noble friend Lady Williams. I think they will agree that we had a useful discussion, and they have given us much food for thought as the Bill goes to another place. I agreed at that meeting, and I am happy to repeat it here on the Floor of the House, that officials would arrange a further early meeting with the NSPCC to discuss this issue further. The noble Lord is welcome to attend that meeting. We will also explore with the national policing lead and the CPS what additional guidance could be given to the police and prosecutors on the options open to them in tackling such predatory behaviours. My noble friend Lady Benjamin mentioned some scepticism, perhaps, about where the CPS was on this, but it will attend that meeting and I am very happy for her to attend as well. I accept the point that was made; an example was given where the police did not intervene as they could and perhaps should have done in the first instance, which then led to a more serious offence, which is precisely the type of circumstance that we are trying to prevent, and we are united in that. We are very aware of the need to look at this.
We are grateful to the NSPCC for the work it has done in bringing this to our attention. We will have that further meeting and of course there will be that other opportunity, as the Bill progresses through another place, for legislation to be introduced if needed. Of course, this is something that we will be coming back to time and again, particularly as the inquiry gets under way. Without in any way prejudging what it might recommend, it is clear that there is going to be some tightening of the law, probably, in the light of new technology and new evidence that comes to mind.
I say again that I am very grateful to the noble Lord, Lord Harris, for introducing the amendment. As this is possibly the last time I will speak on the Bill, I also pay tribute to all noble Lords who have contributed to its passage, particularly the noble Baroness, Lady Smith, the noble Lord, Lord Rosser, and, of course, the noble Baronesses, Lady Hamwee and Lady Walmsley, who contributed to a reshaping of the Bill.
The large number of government amendments which have been brought forward shows that we recognise the seriousness of this and we are united about it. We want to tackle the issues raised. We are listening and we are responding, and we will continue to do so in this very important area. With that, I wonder if the noble Lord might feel able to withdraw his amendment.
My Lords, I am grateful to all noble Lords who have contributed to this debate. I should express my gratitude to the noble Baroness, Lady Howe of Idlicote, who signed the amendment. She would have spoken to the amendment but she was, as we spoke, moving an amendment to the Consumer Rights Bill. We agreed that I would do this and she would do that, as we both have an interest in the same Bills. I am also grateful to the noble and learned Baroness, Lady Butler-Sloss, to the noble Baronesses, Lady Howarth of Breckland and Lady Benjamin, and even to the noble Baroness, Lady Hamwee, who—despite her desire always to go through the minutiae of an amendment—indicated quite clearly that she supported the principles behind this. I am of course also grateful to my noble friend Lady Smith of Basildon for her support.
I pay particular tribute to the Minister, to whom I am very grateful for the way in which he has approached this. He has shown courtesy, and willingness to listen and to have a dialogue. That bodes well not only for the Bill before us today, but also for other Bills which may come before us with—no doubt—great frequency, given that we are talking about the Home Office. The essence of his argument is that, given what we have at the moment, it is open to the courts to say that the sorts of things we have been talking about are in fact sexual. However, I still hope that some form of words can be found, because I am concerned that if we leave things as they are it will create some lack of clarity as to what is or is not permissible.
Under those circumstances, that may mean that the Crown Prosecution Service—or, perhaps, the police, before they even take it to the Crown Prosecution Service—may set themselves a higher threshold for deciding whether or not they should take action. The noble Baroness, Lady Benjamin, gave us the example of the police having clearly made a judgment that something had not passed the threshold, yet it was on an escalator which could lead to all sorts of other things. In my view, the wording which has been identified as possibly covering these circumstances is convoluted, and it is quite difficult to follow. I would have thought it better for all concerned if the law was clear—which is always a good principle—and made it always illegal to communicate with a child in a sexual fashion or in a sexual way, or to elicit such a sexual response.
However, I am grateful to the Minister for indicating that the Government will take this seriously, and for the commitment that before the Bill progresses through another place there will be further discussions with the NSPCC and the Crown Prosecution Service, involving Members of your Lordships’ House if we are available. I hope that there would also be some involvement of the police, because this may not be an issue only for the Crown Prosecution Service. It may be the issue that has been identified beforehand.
The objective should be clear. We need to be satisfied that the law is clear enough; that people are able to act on it; that they understand what it means; and that it shifts upstream the ability to intervene, so that it is possible to intervene before harm is caused to the child. On that basis and on the basis of the commitment made by the Minister, for which I am grateful, I beg leave to withdraw the amendment.
Amendment 6 withdrawn.
Clause 67: Offence of female genital mutilation
7: Clause 67, page 54, line 39, after “4” insert “of the Female Genital Mutilation Act 2003”.
My Lords, these drafting amendments simply seek to split Clause 67, which, as amended on Report, now deals with two distinct, albeit related, issues; namely, the extension of the extraterritorial reach of the offences in the Female Genital Mutilation Act 2003 and conferring lifelong anonymity on the victims of FGM.
I look forward to hearing what the noble Baroness, Lady Smith, has to say about her amendment before responding to it. I also understand that the noble Baroness, Lady Meacher, would like to put on the record some further observations about her proposed new offence of encouragement of FGM. For now, I beg to move.
My Lords, I am sorry not to hear further from the Minister about her amendments. We had a very helpful and productive debate on Report, where it was clear that your Lordships’ House was united in a desire to tackle FGM. The government amendment was welcomed, but it was agreed that the issues raised by our amendments, which I have again tabled today, were both valid and reasonable. There was no policy disagreement; the difference was one of approach and what would be most effective in achieving the aims that we all share.
The noble Lord, Lord Lester, emphasised the need to use civil law and family courts. The noble and learned Baroness, Lady Butler-Sloss, agreed with him and said:
“I would like to see what is good in each set of amendments put together”,
and expressed the hope that,
“the Opposition and the Government will get together … and thrash out what would be the best of everything and get that into one list that could go into Third Reading”.—[Official Report, 28/10/14; col. 1092.]
That explains why we have retabled our amendment here at Third Reading. We felt that the House would want to hear what progress we have made in those discussions.
There were two issues of difference between us and the Government. I say “difference” rather than “disagreement”, as the whole approach on this matter has been consensual. Our intention in tabling amendments is to ensure that the legislation, and its application, is the best it can be. That is why we sought advice not just on policy but from leading practising lawyers in this area. I put on record my thanks and appreciation to Kirsty Brimelow from Doughty Street Chambers and the Bar Human Rights Committee and Zimran Samuel from 42 Bedford Row Chambers. Their considerable practical experience and expertise have been of enormous assistance in understanding all the implications of the proposed legislation. We are grateful to them also for attending the meeting we had with the Minister and her officials. I am also grateful to Catherine Meredith of Doughty Street and Dexter Dias of Garden Court Chambers. I am not a lawyer, but I felt that I needed to be absolutely clear on the implications of the amendments before us—not just how they would be implemented in theory but how much difference they would make in practice. There is old saying: in theory, theory and practice are the same, but in practice they are often different.
As legislators, we must be concerned about practice— the very point made by the noble Lord, Lord Lester, and the noble and learned Baroness, Lady Butler-Sloss— when debating the use of civil law. There are two issues of difference, both relating to the Female Genital Mutilation Act 2003. We welcomed the Government’s support for our calls for FGM protection orders and were grateful to them for bringing forward their own amendment on Report. The issues of difference that merited further consideration were highlighted by the Bar Human Rights Committee, whose members proposed such an order in the first place and are experts in this area.
The first issue relates to where the orders sit in relation to civil and criminal law, and which Act the amendment relates to. It might seem just an academic argument, but if that were that case, I would not raise it today in your Lordships’ House. The 2003 FGM Act, which the government amendment seeks to amend, is a criminal statute and not necessarily familiar to family law practitioners. The Family Law Act 1996, on the other hand, is their first port of call. Forced marriage protection orders, which are used all the time in the family court, are in the Family Law Act and have been successful. Having FGM orders also in the Family Law Act would mean that they would sit beside and complement the existing regime for the protection of children in the Children Act 1989.
I appreciate that the Government’s proposal remains a civil order, but it is a civil order within criminal legislation. Those who are involved in family courts told us of the practical reasons why not all family court lawyers would know, understand or appreciate that they should also look to criminal law statutes for civil measures.
There is the issue of the deterrent factor for those whom we want to come forward, when a civil measure lies within criminal law. The difference may be understood by criminal lawyers or across the Dispatch Box in your Lordships’ House, but it is not necessarily understood by those whom the orders seek to protect.
I totally understand that from the Government’s point of view it makes policy sense to have all the legislation relating to FGM in one place. It sounds logical. But when those who will use this law, and who really care that we get it right, tell us that it could make application for and gaining of an FGM order harder and therefore less likely, I feel obliged to take their views and experience into account. What matters is what works in practice.
The second issue is about the definition. As I explained in Committee, the government amendment uses the definition in the 2003 Act. The Government believe, as was the intention when we reintroduced the legislation in 2003, that this covers reinfibulation. I am not going to test your Lordships’ House again with an exact explanation of what is involved. Last time, “Today in Parliament” put out a warning before I spoke, and gave the programme a G certificate, standing for guidance. I think that is the first time that that has happened, but it does convey some of the brutality and horror of what we are talking about.
The law was intended to include reinfibulation. Any definition or interpretation should include reinfibulation, which involves unnecessary and non-medical restitching to reclose the female genital mutilation following childbirth. However, the Bar Human Rights Committee and Doughty Street lawyers tell us that there is some misinterpretation. That is why we use the World Health Organization definition instead. That would ensure that our law is consistent with recognised international standards and understandings and clarifies any existing confusion around offending conduct such as reinfibulation.
I was reassured on Report by the willingness of Ministers to discuss this further and, as a result, I agreed to withdraw our amendments. The lawyers who advised us attended the meeting with the noble Baroness and her officials. We were looking forward to the meeting, and we were optimistic that we would make the kind of progress that the noble and learned Baroness, Lady Butler-Sloss, and others, had wanted us to make. However, I have to tell your Lordships’ House that we are very disappointed with the outcome. It appeared to us in that meeting that the Government were not prepared to take on board any of the points raised by us or, more importantly, by the barristers who deal with this issue on a regular basis. On the issue of definition the Government are now concerned that such clarification as we have called for could affect any existing or current cases. I am surprised that that was not mentioned on Report. That assessment is questioned, including by senior lawyers who we have spoken to. Perhaps the noble Baroness and I could pursue that at another time.
No one is suggesting that the law is wrong; there is a problem with interpretation. When the Royal College of Midwives and the Royal College of Obstetricians and Gynaecologists say that the definition does not include reinfibulation, that seems to me to be an excellent case for clarification. Despite the clear will of your Lordships’ House that such discussions should take place with the intention of ensuring that whatever was brought forward works well in practice, I deeply regret that I do not consider that we had productive discussions. The Government clearly have no intention of making any modifications or improvements in this area.
I do not intend to press the amendment to a vote. The government amendments are not wrong, but they could be better. We believe that this is a lost opportunity, and I ask the following questions.
First, can the Minister tell us what the Government will do to raise awareness among practitioners and the public that these orders exist? Secondly, will she agree to report to Parliament on the number of orders that have been made after, for example, one year of operation —although that might of course be under a different Government—so that the effectiveness can be considered? Thirdly, will she clarify the legal aid position? My understanding is that legal aid will be made available because these are civil FGM orders, even though they sit within criminal legislation. Without such legal aid, these orders would fail. How does the Minister intend to make that clear, or is my understanding of legal aid wrong? Fourthly, will the Government consult on the interpretation of the definition of FGM?
While we are disappointed that we do not have the best outcome, we feel that we have done all we can to make the case. The proposals from the Government are important, they are a significant improvement and we want to see them be as effective as possible.
I am most grateful to the Minister for tabling Amendment 7, which enables me to speak briefly about the need to create an offence of encouragement of female genital mutilation, which we discussed on Report. I want to thank the Government for agreeing to have further discussions about the new amendment, drafted by Dexter Dias QC, and about the new evidence from our QC adviser. To be frank, that evidence is extremely powerful and it is a pity that we did not have access to these arguments earlier in our debates. I hope the Government will table the Dias amendment, or something very like it, in the other place, but I understand that they are in no position to make any commitment of that kind at this stage.
I will not repeat the arguments we rehearsed on Report in favour of focusing attention upon those who encourage the practice of FGM rather more than upon the families who practice this appalling form of child torture. I want to put on record only that the Dias amendment would provide an effective legal intervention because it is modelled on what is known to work: comparable powers used to combat the dissemination of encouragement to commit acts of terrorism. FGM is of course an entirely different crime from terrorism but the model for the two types of crime is similar.
The Dias amendment recognises the awful social pressure that parents are placed under by some communities. In traditional societies, which are intensely hierarchically structured, elders and preachers exert enormous influence. I think that most of us are not familiar with that or have not experienced it. We believe that the encouragement amendment will complement the important community work being done to dissuade preachers from encouraging FGM.
Mr Dias QC refers to our international obligations, which more than justify the creation of an offence of encouragement of female genital mutilation to cover anyone who makes a statement that is likely to be understood by some or all of the members of the public to whom it is published as direct or indirect encouragement or other inducement to them to mutilate the genitalia of a girl. That is the essence of his amendment. These international obligations include: the Convention on the Elimination of All Forms of Discrimination against Women of 1979; the UN Convention on the Rights of the Child of 1989, under which the UK has positive obligations in international law to ensure that children are not subjected to cruel, inhuman or degrading treatment; and, finally, the UN Convention Against Torture of 1984, which has been ratified by the UK.
Mr Dias presents four pages of powerful arguments in support of the amendment he has drafted, which I hope very much that the Government will consider most seriously, as I have indicated. I will not repeat all these arguments here today—this is, after all, Third Reading—although I believe that your Lordships’ House would find them extremely persuasive. The only remaining point I want to make is that I am advised that our strong international obligations justify overriding Article 10 of the Convention on Human Rights, the right to freedom of expression. This is a very important point, particularly because we all wish to preserve that right whenever it is appropriate. All that we are saying is that in this very specific case, it is appropriate to override it.
Again, I give my thanks to the Minister for providing this opportunity for me to reiterate certain points. I hope that the Minister can confirm to the House today the Government’s agreement to have further discussions on this important issue.
My Lords, had the noble Baroness, Lady Meacher, tabled this amendment I would have put my name to it. I do not want to take up time at Third Reading to repeat what the noble Baroness has said, but I ask the Minister to be in touch with those in the Home Office who will be dealing with the Bill in the other place, and not to disregard what she has said. It is really worth having a further look at this serious matter. There are communities which, as the noble Baroness, Lady Meacher, has said, are different from most of us and where there is a degree of not just influence but power among certain elements of those communities. That leads to this appalling FGM taking place on children in this country. I am also supportive of what the noble Baroness, Lady Smith, said. This is a good part of the Bill and the Government are to be congratulated on it. However, they could do better.
My Lords, the Government have made enormous progress in addressing the legislation so well, to the extent that a Government can in practice respond to FGM. Like others, I encourage the filling of a gap which seems to have been identified. I do not want to say more this afternoon but I wanted to put on record my support for the noble Baroness and my admiration for her keeping going on this issue.
My Lords, I thank all noble Lords who have taken part in the discussions to enable the progress mentioned by my noble friend Lady Hamwee to take place. I think we all want the same thing; there is a slight difference of opinion in how we get there. I thank specifically the noble Baronesses, Lady Smith and Lady Meacher, and my noble friend Lady Hamwee for the time they have taken in the discussions.
The noble Baroness, Lady Smith, raised two substantive points. The first concerned whether there would not be advantages in placing the provisions in respect of FGM protection orders in the Family Law Act 1996 rather than in the FGM Act 2003 and the second concerned whether the statutory definition of FGM should be updated expressly to refer to reinfibulation. I will take the two points in turn. I am very grateful to the noble Baroness and her advisers for discussing with me the issues she raised on Report. On the first point, I believe that the noble Baroness accepted that the Government’s provisions would allow proceedings for FGM protection orders to be heard in the family court or in the family division of the High Court as family proceedings with the full range of the court’s powers. However, she was concerned that civil or family law practitioners might not be able to find the FGM protection order provisions in a criminal statute and that victims would be deterred from availing themselves of them.
As its Long Title indicates, the FGM Act 2003 restates and amends the law relating to FGM. It is not exclusively a criminal statute nor do I think that is a particularly helpful label. We remain of the view that is sensible to have all the provisions relating to this area of the law in one place—that point was made on Report. We will work with the legal profession and others to ensure that the FGM provisions in the Bill are widely publicised when we come to bring them into force. I think this is crucial because it is not just the law but the reinforcement and the engagement with communities that will be so important.
With regard to the definition of FGM, I also had a helpful discussion with the noble Baroness, Lady Smith, and her advisers on whether there should be an explicit reference to reinfibulation in the FGM Act 2003. I have tried to persuade the noble Baroness of the Government’s firm view, which I set out on Report and reiterate today, that reinfibulation is already covered by the wording of the 2003 Act. As infibulation is an offence under that Act, so is reinfibulation. That reinfibulation or resuturing is an offence is clearly stated in the multi-agency practice guidelines on FGM and in the guidance of almost all of the relevant royal colleges. There may of course be a need to communicate this point to practitioners more effectively—I think there will be—but we do not accept that there is currently any need to clarify the law.
The noble Baroness also asked about the legal aid position. The Government are giving this further consideration and will clarify the position on legal aid in due course. The noble Baroness also asked whether there would be a report to Parliament on FGM protection orders after one year. We expect that the provisions of this Bill will be subject to post-legislative scrutiny in the normal way. We will ensure that our report on the working of the Bill gives figures as to the number of FGM protection orders made. I think that will be very important. It will, of course, be open to any Member of your Lordships’ House to table a Question at any time seeking such information.
I will now respond to the points made by the noble Baroness, Lady Meacher. Again, I am grateful to the noble Baroness for the constructive way in which she has pursued her and the Local Government Association’s campaign for a new offence to outlaw statements that encourage the promotion of FGM. As I indicated on Report, the Government remain to be persuaded of the case for such an offence. The Government believe that the provisions added to the Bill at Report stage are a far more targeted, and therefore more effective, way of dealing with the problem.
Of course, as well as this now strengthened body of criminal and civil law, there is more that can and should be done to overcome the culture and attitudes that allow FGM to persist. That is why, at the Girl Summit in July, we launched a declaration condemning FGM, signed by more than 200 faith and community leaders from all major religions. The faith leaders have declared that FGM is not required by their religions and is a form of child abuse. The declaration has it made clear that all religions will work together to end FGM for good. The support from faith leaders has been overwhelming and the Government are committed to turning these signatures into further action through education and community engagement, which, as I have said, are crucial. Our aim must be for all these powerful voices from authoritative and respected local leaders to drown out the minority, to whom the noble Baroness referred, who advocate and encourage FGM.
Finally, we have real concerns about the necessity and proportionality of an offence of encouraging the promotion of FGM, given that it would engage Article 10 of the European Convention on Human Rights which protects freedom of expression. None of us would condone such statements, but it does mean that we have to tread carefully before introducing what amounts to a speech crime. The noble Baroness has briefly touched on these points and has referred to the advice she has recently received from Dexter Dias QC. I am ready and willing to meet both the noble Baroness and Dexter Dias to discuss these issues further. I hope that the offer of a further meeting will go some way to reassure the noble Baroness that we will continue to explore the issues she has raised, although I hope she will understand that I cannot offer her any commitment to bring forward a government amendment on this matter during the remaining stages of the Bill.
I say again that the whole House is united in seeking to eradicate the vile practice of FGM both from this country and across the globe. Your Lordships’ House is sending the Bill to the Commons with a powerful suite of new measures to help achieve that objective. I hope that, having heard the Government’s reasons for the approach we have taken, particularly as regards FGM protection orders, the noble Baroness, Lady Smith, will not press her amendment—as she has stated she will not—and will join me in commending the government amendments to the House.
Amendment 7 agreed.
8: Clause 67, divide Clause 67 into two clauses, the first (Offence of female genital mutilation: extra-territorial acts) to consist of subsections (1)(a), (b) and (d) and (3), and the second (Anonymity for victims of female genital mutilation) to consist of subsections (1)(c) and (2)
Amendment 8 agreed.
Clause 69: Female genital mutilation protection orders
Amendment 9 not moved.
Clause 74: Transitional and saving provisions
10: Clause 74, page 79, line 16, at end insert—
“( ) Before the day on which section 103 of the Courts Reform (Scotland) Act 2014 (abolition of appeal from a sheriff to the sheriff principal) comes into force—
(a) the reference to the Sheriff Appeal Court in subsection (3)(b) of section 61 is to be read as a reference to the sheriff principal;(b) the references to the court in subsections (5) to (7) of that section are to be read as including references to the sheriff principal.”
Amendment 10 agreed.
Clause 75: Extent
Amendments 11 and 12
11: Clause 75, page 80, line 1, leave out “and (2)”
12: Clause 75, page 80, line 2, leave out “68 and” and insert “(Anonymity for victims of female genital mutilation) to”
Amendments 11 and 12 agreed.
Clause 76: Commencement
13: Clause 76, page 80, line 31, after “67” insert “, (Anonymity for victims of female genital mutilation)”
Amendment 13 agreed.
A privilege amendment was made.
Bill passed and sent to the Commons.