Marriage: Humanist Ceremonies
Baroness Thornton Excerpts(8 years, 4 months ago)
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Baroness Thornton
To ask Her Majesty’s Government what plans they have to establish humanist marriage ceremonies in England and Wales.
The Minister of State, Ministry of Justice (Lord Faulks) (Con)
My Lords, the Government gave an Answer to the noble Baroness on 2 June last year saying that given the broader implications for marriage law, they would consider the next steps after the Law Commission had reported in December on its preliminary scoping study of the law concerning how and where people can marry in England and Wales. The Government are carefully considering the report and will respond in due course.
Baroness Thornton (Lab)
I thank the Minister for his Answer. He will understand why I keep returning to this because Scotland is a long way for one to go for one’s children to have a humanist marriage. Two gay people can now marry in a church but they cannot have a humanist wedding in England and Wales. It is two and a half years since this House agreed that it thought that should happen. Can the Minister say whether it would be possible, and indeed preferable, for a modest extension of the law to accommodate humanist marriage rather than overhauling marriage law, as recommended by the Law Commission report? If Scotland and other countries can do this in a simple way, should England and Wales not be able to do so as well?
Lord Faulks
What Parliament decided, in Section 14 of the Marriage (Same Sex Couples) Act 2013, was of course that the Secretary of State should arrange a review, which the Secretary of State did—that is the Law Commission review—and that he has a power rather than a duty to make the order which the noble Baroness refers to. It is of course quite right that Scotland has operated a different arrangement, whereby you may go to a registry office and have a schedule permitting you to get married anywhere. Marriages have taken place on the top of a mountain and in the middle of a loch, identified only by a GPS reference. However, these are serious matters. The Government think it necessary to consider marriage as a whole and it is interesting that the Law Commission’s thorough report does in fact not recommend simply activating that order-making power, as the noble Baroness will have seen.
European Union Referendum Bill
Baroness Thornton Excerpts(8 years, 6 months ago)
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Lord Faulks
That is precisely the point that I am not making. The point I am making is that they will not, and should not, regard it trivially. The question is whether it is appropriate for us to burden them with a responsibility which they will no doubt take seriously. It is not a question of simply saying, “This is a good thing for them to do. Therefore, we should grant them that right”.
Baroness Thornton (Lab)
A person’s mental ability has never been taken into account when considering their right to vote, so is the noble Lord getting on to dangerous ground here? People who lack mental ability still have the right to vote. Surely he is not saying that they should not have the right to vote because they may not have that maturity.
Humanist Marriages
Baroness Thornton Excerpts(8 years, 11 months ago)
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Baroness Thornton
To ask Her Majesty’s Government whether they plan to give legal recognition to humanist marriages in England and Wales, and if so, by what date.
The Minister of State, Ministry of Justice (Lord Faulks) (Con)
My Lords, the previous Government consulted on whether the law should be changed to allow non-religious belief organisations, including humanists, to conduct legal marriages. They concluded that there were broader implications for marriage law and asked the Law Commission whether it would conduct a review of the law on marriage ceremonies. The Law Commission is now undertaking a preliminary scoping study and is due to report by December. The Government will then consider the next steps.
Baroness Thornton (Lab)
It is quite remarkable that the Government felt that humanist marriages were such a threat that they had to call in the Law Commission to do their work. I do not think that the Minister's explanation is really very convincing. Why should the review delay humanist marriages, given that legal recognition is a simple measure, as has been proved in Scotland? Would he care to write and explain to my children why they would have to go to Scotland if they wished to have a legally recognised humanist marriage ceremony?
Lord Faulks
As the noble Baroness and the House will be aware, there is nothing to prevent humanists getting married and then having a humanist ceremony.
Lord Faulks
The quarrel, as I understand it—if the noble Baroness will allow me to continue—is that it is felt that both those ceremonies should take place at the same time. There having been a consultation, there was no consensus across the key stakeholders. The consultation raises a number of significant issues of a broader nature; in particular, the National Panel for Registration was concerned about the risk of forced and sham marriages. That is also a concern, incidentally, in Scotland, where there is a different system, based on the celebrant rather than the registration buildings and where there is also concern and a consultation about that very issue.
Criminal Justice and Courts Bill
Baroness Thornton Excerpts(9 years, 7 months ago)
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Baroness Thornton (Lab)
My Lords, I have a sense of déjà vu facing the Minister on this matter again, along with the two the noble Baronesses who have spoken to the amendments. It would be sensible for any Minister to listen very carefully to the eloquence of the noble Baronesses, Lady Meacher and Lady Finlay, with their expertise and their long record of dealing with these issues, and the concern that they have expressed for doctors and nurses. I agree with both noble Baronesses and with my noble friend about the need to take action about wilful neglect and bad treatment—obviously, absolutely, of course. However, the Minister needs to answer the points that have been put to him about the effect that the measure might have. I would like to know whether some impact assessment has been made on this proposal and, if so, what it said, because I searched in vain for that information. I also searched in vain for information from anyone lobbying on behalf of the badly paid social care workers, who are also included in this legislation, because they do not have the lobby that the doctors and nurses have, in the shape of the two noble Baronesses. I do not apologise for raising this right now, but it makes me wonder whether statutory regulation of social care workers might help in this matter. It is a shame that the Government have consistently set their face against that.
The government amendments in this group seek to add types of care providers to those already identified, and the types of third-party providers who exercise education or other children’s services functions on behalf of local authorities. Does that include private adoption agencies, free schools and academies? Who does it seek to cover? Looking at the Bill, I cannot see whether that is the case, or not, and I would be interested to know whether it is.
The Parliamentary Under-Secretary of State, Department of Health (Earl Howe) (Con)
My Lords, I thank all noble Lords for their contributions to the debate on these important new offences. I have listened carefully to all four speeches. If I may, I shall start with government Amendments 47, 48, 49 and 50. These are minor and technical amendments, which add additional types of excluded care provider to those already identified in Clause 21, for the purposes of the care provider ill treatment or wilful neglect offence in Clause 20.
The Clause 21 exclusion currently applies to local authorities when exercising their functions in respect of the provision of education and other children’s services and other organisations when exercising social work functions relating to children on behalf of a local authority. It has come to light that a small number of third-party providers might also exercise education or other children’s services functions on behalf of the local authority or instead of the local authority, following a formal direction from the Secretary of State, or, as the case may be, from Welsh Ministers. Clearly, it would be unfair for such provider organisations not to be excluded from the care provider offence to the same extent that the local authority would be if it were exercising the relevant functions itself. Amendments 47 and 48 therefore remove these organisations, to the extent that they are providing those services, from the meaning of a “care provider” for the purposes of Clause 20 in England and Wales.
Amendment 49 makes similar provision in relation to independent agencies that provide adoption support. Those providers that are run by local authorities will already be covered by the exclusion in Clause 21. However, as currently drafted, independent agencies with which a local authority has made arrangements for the provision of adoption support, will not. Amendment 49 corrects this small inconsistency. I hope that that is helpful to the noble Baroness, Lady Thornton. The organisations in question are “registered adoption societies” and “registered adoption support agencies”. Amendment 50 places definitions of these phrases in the Bill. I am sure that noble Lords will agree that it is important to make these changes, to ensure that there is consistency and equity in the application of the care provider offence across organisations. To answer the express question of the noble Baroness, Lady Thornton, who asked whether the exemptions included private adoption agencies, free schools and academies, the answer—as I hope she has gathered from my remarks—is yes.
Amendments 42 and 43A, in the name of the noble Baroness, Lady Meacher, seek to achieve two particular purposes, and try to put the individual care worker offence on a par with the care provider offence. They restructure Clause 19(1) so that the care worker offence is dependent on there having been a gross breach of a duty of care owed by the care worker to the victim of the alleged ill treatment or wilful neglect. I understand the point that the amendments seek to make—that there should be some kind of a threshold in order for the offence to bite.
However, there are real problems with the noble Baroness’s approach. We have approached the issue in a different and, I suggest, a better way. The “wilful” element of neglect, and the intent to cause harm required for someone to be found guilty of ill treatment, means that the threshold for this offence as drafted in the Bill is very high and, by its very nature, captures only the worst types of behaviours. Our view is that should a care worker ill treat or wilfully neglect someone in their care, that would always represent a gross breach of a duty of care. It seems to us that a care worker who is being paid to provide healthcare or adult social care services will always owe a duty of care to the individual to whom those services were being provided. That ill treatment or wilful neglect of the individual, which would involve some form of deliberate act or omission, would amount to a gross breach of that duty.
Regretfully, accepting the noble Baroness’s amendments would cause significant unnecessary confusion and complexity and it would risk diverting attention away from the central issue of what has been done by that individual care worker in respect of a person in their care. It would be unhelpful to introduce the concept of a duty of care explicitly. Moreover, specifying that there must be a gross breach of the duty of care in effect raises the threshold before the offence could come into play. There would be a very real risk that behaviour which anyone would recognise as ill treatment or wilful neglect could go unpunished. Any ill treatment or wilful neglect is totally unacceptable, and the care worker offence is drafted very carefully to reflect that. The Government could not accept any amendments that might undermine that and make it harder in practice to prosecute an individual care worker. The approach that we have taken is simpler, clearer and more logical.
The noble Baroness, Lady Meacher, expressed her fear that our proposals might lead to an avalanche of cases and to innocent professionals being “hung out to dry”, as it was put. To address that point, it is important to note that employees of a hospital or a care organisation are already subject to other statutory duties in relation to the care of patients, for example with regard to negligence and to health and safety. The offence that we are proposing would only bite if someone behaves in a way that meets the criteria of the offence—the very worst cases where their behaviour amounts to ill treatment or wilful neglect. We do not share the pessimistic view of the attitudes of health and social care staff that—
Baroness Berridge
My Lords, I support the arguments made by my noble friends in relation to this matter. I am pleased to say that, unlike the previous amendment regarding knife crime, there has been agreement, particularly among the Back Benches and the government Benches, on the need to act. I pay tribute to my noble friend Lady Morris of Bolton, who joined me in amendments in Committee but is not able to be here today.
One point that I would make in addition to those that have already been outlined is that these images are not always taken with consent. The development of technology has meant that in situations unbeknown to someone, images are taken through hidden devices and mobile phones. So it might not even be an old Polaroid; people might be completely unaware that an image has been taken, and the first that they know of it is when their ex-partner releases it into the public domain, adding even greater trauma to what is an incredibly traumatic situation for any victim. Unfortunately, there has been the development of certain professional sites where people are making profit out of this situation.
I also join in welcoming the Government’s response in relation to this. I have never found a firm view at the Ministry of Justice on this matter; I have always found there to be an open door and a willingness to consider it. As has been outlined, technology has been leaping ahead in relation to this matter. I pay tribute to the work of organisations such as Women’s Aid and to my right honourable friend Maria Miller, who led a Back-Bench debate in the other place on this issue and has been campaigning vociferously in relation to it.
Baroness Thornton
My Lords, I am pleased to say that we on these Benches support these amendments. Some time ago my right honourable friend Yvette Cooper said that people who post intimate images of their former partners online in so-called revenge porn attacks, or who blackmail them with such images, should face new criminal charges, so of course we support the amendments.
The use of intimate, private sexual images as a weapon with which to embarrass, humiliate and degrade is a crime, and it is right that it should be recognised in law. The new offence is a positive step, although in itself it is not adequate to address the underlying societal attitudes and behaviours that create and legitimise sexual violence, abuse and harassment in all its forms, so a government commitment to addressing those issues is also vital. The noble Baroness, Lady Brinton, is quite right to raise the issue of young people and the importance of not criminalising them or, for example, having them put on the sex offender register at a very early age for doing the extremely stupid things that young people are sometimes prone to doing.
The Government’s amendments will ensure that this is enacted. However, we need to ask today how effective they will be. I therefore have a series of questions to put to the Minister and to the noble Lord, Lord Marks. Could the Minister explain why this offence was not made part of the Sexual Offences Act? Will convictions for this offence be recorded by the CPS as a sex offence—in other words, would the person convicted be on the sex offender register?
As it stands, depending on the interpretation of “distress”, the law will provide a remedy to a victim who is distressed, but not angry. Professors Rackley and McGlynn, who have been advising many Members of the House throughout the discussions about revenge porn and rape porn, explained that the focus of the law should be on the offender’s actions and the absence of consent, not on the victim’s response, and I think that is right. Does the distress element also place an unnecessary additional burden on the prosecution? Professors Rackley and McGlynn contend that the mental element of the offence should be the intentional act of posting private sexual images without consent, including for the purpose of financial gain. We have to ask whether the issue of distress could actually significantly limit the effectiveness of this offence.
There is concern about the restriction of the offence to identifiable images. It should be immaterial whether someone else recognises the person in the relevant image. The publishing of private sexual images without consent should be a criminal offence, whatever the motivation of the offender and whatever form the victim’s response takes. It is the absence of consent that is fundamental. Would the restriction of the offence to identifiable images result in unnecessarily complicated evidential debates in court?
I will speak briefly to my own Amendment 106. It seems to us that we need to monitor the effectiveness and the implementation of this new law. We believe that the proposals of Clause 31 do not fulfil the Prime Minister’s commitment to equate online restrictions with the BBFC’s guidelines. Although we recognise that legislation in this area is very complex, it needs to be recognised that the Government have not yet solved the problem. It is important that there is a commitment to review the provisions of this clause within a year or so to assess their effectiveness: the number of prosecutions brought, the number of convictions, et cetera. Following a review of the new provisions, if they have not proved effective, the Government should consider the wholesale review of the regulation of obscenity and pornography. This is to ensure that the law is fit for purpose in our technological age and to reorientate the law in this area away from disgust and distaste and toward a focus, perhaps, on cultural harm—a discussion that we have had in this House before. It is therefore important to put in the Bill that 18 months from enactment would be sufficient time to see what was happening to the new regime and that the principle should be that an independent review is conducted.
Lord Faulks
My Lords, I thank my noble friends Lord Marks, Lady Grender, Lady Brinton and Lady Barker for Amendment 98 on the issue of revenge pornography. As the House has been told, I recently met with my noble friends to discuss this amendment, which I believe seeks—and this has been confirmed in the course of the debate—to achieve the same aim as the Government’s Amendments 103 to 105, 113 and 186 to 188. We particularly discussed whether the government amendment’s definition of “sexual”, when defining the material that the offence will apply to, is sufficiently explanatory.
My noble friend Lord Marks asked me, in the course of the debate, whether the additional subsections added anything to “sexual” or, as he put it, widened the ambit. I confirm that they do. The use of the word “or” makes that sufficiently clear. A photograph or film is sexual if it shows an individual’s exposed genitals or pubic area or shows something that a reasonable person would consider to be sexual either because of its nature or given its overall content. However, it would not be helpful to go further than this on the face of the statute or now by, for example, listing particular types of sexual material that would be covered. Such a list is unlikely ever to be exhaustive and its inclusion could potentially hinder the judiciary’s ability to interpret the wording of the offence in a flexible way.
My noble friend’s amendment is constructed in a rather different way to the government amendment and omits some important information, but I need comment very little on those details in view of the fact that, after some useful discussions, it has now been accepted by my noble friends on the Liberal Democrat Benches that the government amendment captures what this offence is all about.
The disclosure of this sort of material is undoubtedly extremely distressing for victims. They feel humiliated and are left deeply distraught both by the disclosure of very personal, sexual images of themselves and by the breach of trust involved in sharing images that had been considered private.
I pay tribute to my officials for working extremely hard on what is a very difficult offence to capture appropriately. We all know what this is aimed at, but it has been a considerable challenge to reflect it in the legislation. My officials have been carefully considering this problem with the relevant agencies and interested stakeholders such as the NSPCC and Victim Support. The testimonies we received, together with the efforts of a number of parliamentarians—many of whom have been identified in this debate—confirmed our intention to create a specific offence that will punish this pernicious practice.
The current law can already punish instances of this behaviour in certain circumstances. A number of offences can be used, and the recently updated guidance from the CPS has made clear that, where intimate images are used to coerce victims into further sexual activity, offences in the Sexual Offences Act 2003 can be used both where the victim is an adult and where they are a child.
This offence, however, will target very different behaviour: namely, the malicious disclosure of private sexual photographs or films. The offence seeks to target material, the disclosure of which would have the potential to cause the most harm to an individual. It will therefore apply to the disclosure of private sexual photographs or films of people, such as those which show them engaged in sexual activity or depicted in a sexual way where what is shown is not the kind of thing usually seen in public. In determining whether the picture is sexual, the court will be required to take into account both the nature of what is shown and the context provided by the whole of the pictures’ content. To commit the offence, the disclosure must take place without the consent of at least one person featured in the image and with the motivation of causing that person distress.
I will respond to a query posed by the noble Baroness, Lady Thornton, about whether this is regarded as a sexual offence in the same way as an offence in the Sexual Offences Act 2003, such as a sexual assault or voyeurism, is regarded. We absolutely agree that revenge porn is a very serious issue, with the potential to cause great harm. That is why we have introduced this criminal offence, with a substantial period of imprisonment. However, we do not think that it is appropriate to view it as a particular sexual offence in the same way as these other offences. Research in previous cases has shown that revenge porn—the emphasis here being on “revenge”—is perpetrated with the intention of making a victim feel humiliated and distressed rather than to obtain sexual gratification, which is what defines an offence as sexual. Of course, the definition says, “with the intention” of causing distress, so you do not have to have evidence of distress or some rather unnecessary distinctions about what is distress, or anger, and so on. Therefore the intention is there, and revenge lies behind it. That is not to diminish the seriousness, but more accurately to characterise what is the mischief we are aiming at.
The offence will apply equally offline as well as online—not just to images transmitted electronically but also to those which are disclosed in more traditional ways.
These amendments provide three defences available to those charged with the offence. First, it will be a defence for the defendant to prove that they reasonably believed that the disclosure of an image was necessary for the purpose of preventing, detecting or investigating crime. That, I hope, is self-explanatory, and finds its echoes in other legislation.
Secondly, where an individual adduces sufficient evidence that the disclosure in question took place in the course of, or with a view to, the publication of journalistic material and they reasonably believed that, in the particular circumstances, the publication of that journalistic material was, or would be, in the public interest it will be for the prosecution to prove the contrary. This defence will, in the rare cases to which we expect it to apply—and rare they will be—enable journalists and their sources to disclose images, for example with a view to publishing a commercial newspaper story, if they genuinely and reasonably believed there was a legitimate public interest in the publication. This is a stringent test but we believe it is necessary to ensure that the offence will not inappropriately interfere with press freedom.
Criminal Justice and Courts Bill
Baroness Thornton Excerpts(9 years, 10 months ago)
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Baroness Thornton
“Parliamentary procedure for designation
(1) Where the Secretary of State proposes to make a designation under section (Licensing of foreign pornographic services)(11), he shall lay particulars of his proposal before both Houses of Parliament and shall not make the proposed designation until after the end of the period of 40 days beginning with the day on which the particulars of his proposal were so laid.
(2) If, within the period mentioned in subsection (1), either House resolves that the Secretary of State should not make the proposed designation, the Secretary of State shall not do so, but without prejudice to his power to lay before Parliament particulars of further proposals in accordance with that subsection.
(3) For the purposes of subsection (1)—
(a) where particulars of a proposal are laid before each House of Parliament on different days, the later day shall be taken to be the day on which the particulars were laid before both Houses; and(b) in reckoning any period of 40 days, no account shall be taken of any time during which Parliament is dissolved or prorogued or during which both Houses are adjourned for more than four days.”
Baroness Thornton (Lab)
My Lords, this group of amendments deals with the licensing of foreign pornographic services. As noble Lords can see, I am getting all the fun issues today. I will take noble Lords briefly through what each of the amendments seeks to do and will then talk a little about the background that led us to table them.
Amendment 42A would outline the parliamentary procedure by which the Secretary of State designates which body may be a licensing authority for foreign pornographic services for the purposes of Amendment 42B. Amendment 42B would require providers of foreign pornographic services to be licensed, a licence being granted only to providers with effective age verification mechanisms. Amendment 42C would define a foreign pornographic service for licensing purposes, and Amendment 42D would introduce a maximum sentence of six months’ imprisonment or a fine not exceeding £5,000 for a provider of foreign pornographic services which is convicted of failing to secure a licence. These amendments were tabled, but not chosen for discussion in the Commons, by my honourable friends Dan Jarvis, Andy Slaughter, Diana Johnson and Helen Goodman.
The background to the amendments is that in July 2013 the Prime Minister, David Cameron, asked internet service providers to offer family-friendly filters to all customers, ensuring that they had effectively to choose to turn the filters off. The four major ISPs rolled out these filters to new customers at the beginning of 2014 and will have offered the choice to install filters to all existing customers by the end of 2014. However, Ofcom has found that more than half of parents do not use the parental controls, nor are the controls a complete solution in themselves. Recent research by on demand regulator ATVOD shows that shocking numbers of those aged under 18 are still accessing adult material online, and I shall come back to that in a moment.
Lord Faulks
My Lords, these amendments seek to establish a licensing regime for non-EU providers of pornographic content. I am grateful to the noble Baroness, Lady Thornton, for her explanation and for meeting me last week to discuss in general terms the proposals contained in the amendments. I am also grateful to the noble Baroness, Lady Howe, for her support for these amendments and for her continued interest in this particular unfortunate aspect and her determination in trying to achieve through legislation better control of access to pornography.
The Government agree that the aim of protecting children from accessing inappropriate content is one that should be pursued, but for the reasons that I shall explain, we are unable to accept these amendments. As the noble Baroness explained, the intention behind this amendment is to build upon the current regulatory system in place, deriving from the Audiovisual Media Services Directive, which applies to services situated in the UK and the EU. So far the Government have taken the consistent approach to regulate only UK-based TV-like video on demand content that might seriously impair the development of children, since this can be actively enforced. This is in line with the Audiovisual Media Services Directive. However, we intend to introduce secondary legislation to make clear that material that has been or would be classified R18 by the British Board of Film Classification must only be provided behind effective access controls.
The Government’s approach for protecting children from other content of this nature that originates from beyond the EU focuses on giving parents the tools they want to limit access to certain types of content, via parental controls and filters. These technological solutions have the advantage of dealing with all types of content, regardless of whether the provider is situated in the EU. Consequently, children in homes with the filters enabled will not be able to access pornographic material on the internet.
With regard to the degree to which filters are established, all new TalkTalk, Sky, BT and Virgin customers are now being given an unavoidable choice about installing family-friendly filters. Hundreds of thousands of homes have already taken up the option of a whole-home family-friendly internet filter. TalkTalk has already started to contact existing customers and give them an unavoidable choice about installing filters when they log into their password-protected “my account” space. It has contacted more than 1.5 million already. BT, Sky and Virgin are developing their own individual solutions to enable them to prompt existing customers. By the end of 2014, they will have given the 19 million households that they supply with an internet connection an unavoidable choice about installing filters. Rollout will be done in phases to avoid overloading the systems.
Like current device-level filters and filters used by every school in the country, filter software is provided to the ISPs by well established web-filtering companies. These are very dynamic and use a combination of web trawling and human intelligence to ensure that acceptable sites are not filtered in error. Solutions also allow parents to apply different levels of filtering depending on the age of the family. As to the remaining internet service providers beyond the big four, the Internet Service Providers’ Association, which represents the smaller ISPs, has confirmed that overall these smaller ISPs are open to considering the options available to them for delivering additional controls. We welcome their commitment to keep the Government updated on progress and to share best practice between the smaller ISPs.
The difficulty with this amendment is that it would effectively be unworkable because it creates a two-tier system whereby non-EU providers of pornographic content would be subject to stricter regulation than UK and EU providers. It creates a different definition of pornographic material to be regulated and will therefore create uncertainty, inconsistency and lack of clarity rather than more security. Secondly, extending the scope of the type of content from TV-like content to include film clips and static images that originate from outside the EU would create further uncertainty and inconsistency across the full scope of the content in question.
The noble Baroness, Lady Howe, asked about the R18 legislation. I understand that the legislation has been drafted and is currently at the notification stage in Brussels. We hope to implement it in the autumn.
We of course share the concern that has been expressed all around the House about access to pornographic material, particularly by children, and are concerned to do all that we reasonably can. However, we are not convinced that these amendments are the answer and respectfully ask the noble Baroness not to press them.
Baroness Thornton
I thank the Minister for that answer and the noble Baroness, Lady Howe, for her support on this. That is disappointing. The Government are complacent about this issue and are depending too much on filters and on parental controls. We know that it is not working and that too many of our children are accessing hardcore porn too easily. The Minister needs to acknowledge that. The evidence is absolutely clear: the damage is already being done to our children and the Government are not doing enough to stop it. I fear that we will return to this subject at a later stage of the Bill. I beg leave to withdraw the amendment.
Criminal Justice and Courts Bill
Baroness Thornton Excerpts(9 years, 10 months ago)
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Lord Mackay of Clashfern
My Lords, as a member of Barnardo’s, I am delighted on this occasion to be able to agree with my noble and learned friend.
Baroness Thornton (Lab)
My Lords, we on these Benches welcome the amendment. I welcome it personally because I took part in the debates in 2003 on the Sexual Offences Act and argued this case on behalf of Barnardo’s, Action for Children, the NSPCC and ECPAT. All the voluntary organisations concerned with child safety had already realised that the law would increasingly not cover the issue of the threat to children through new media. I thank Barnardo’s for its excellent briefing on this, my honourable friend Sarah Champion for leading such an excellent review of the law and the Government for bringing forward the amendment.
Lord Faulks
I am grateful for those brief but welcome interventions by a number of noble Lords, not least of course the noble Baroness, Lady Thornton, whose own interests in this matter she correctly recorded. I am grateful for that short debate. That concludes the debate on this issue.
Baroness Thornton
Baroness Thornton
My Lords, I am pleased to introduce a group of amendments that seek to tighten up Clause 28 and make it more effective. I welcome the clause, as I did at Second Reading. We on these Benches definitely welcome the Government’s efforts in this regard but think that there are some issues that need to be taken account of.
I place on record my thanks to Professors Rackley and McGlynn of Durham University for making their research and commentary available to us all, and to End Violence Against Women for its briefing and campaign. I also thank the British Board of Film Classification for coming to the House last week and giving a presentation—which, it has to be said, at times was really rather horrible—to explain how and why it sometimes does not give a classification to rape and extreme pornography. Several noble Lords attended the presentation, and I think that we all now have a greater understanding of where Clause 28 might not quite do the job that the Government intend. This particularly concerns the issue of context, definitions of penetration and realistic rape. I thank the Minister for his time in starting the discussion about these matters, and have suggested that he and the Bill team might also get the BBFC to come and discuss this clause with them; it is not a pleasant experience but it is very enlightening indeed.
I turn to the amendments. Amendment 36A would remove the requirement that the image be grossly offensive, disgusting or otherwise of an obscene character. The current law provides that for an image to be “extreme”, it must also be,
“grossly offensive, disgusting or otherwise of an obscene character”.
The current amendment would preserve this provision. We urge reconsideration of the use of language regarding obscenity. The use of the term “obscene” has long been criticised on the basis that it is typically deployed to capture material that is not only harmful but causes offence and disgust, and is typically focused on the impact on the consumer of material, rather than the wider consideration of harm, which is what this clause is actually about. We suggest that the Government should explore whether their description is compatible with justifying the original Clause 28 on the basis of cultural harm, not obscenity. We also contend that the criminal law is not used to prohibit material on the basis that it is considered disgusting. We recommend, therefore, the removal of the requirement that an image be,
“grossly offensive, disgusting or otherwise of an obscene character”.
Amendment 36B deletes lines 6 to 42, and the following amendments in the group would replace them. Amendment 36B would replace the existing language of the offence, and state that an image would be covered by this clause if it portrayed,
“sexual activity which involves real or apparent lack of consent or any form of physical restraint which prevents participants from indicating a withdrawal of consent”.
Amendment 36C seeks to clarify the definition of a realistic image, and would replace the requirement that the image portrays rape and assault,
“in an explicit and realistic way”,
with a requirement that the image be of,
“real or simulated depictions of”,
rape and assault by penetration.
The requirement that an image is “realistic” does not require the act depicted to be real, although we know that the clause seeks to cover real rape that has been filmed and made available to people. This is why the law refers to images which are “realistic”, meaning those that resemble or simulate real life. The use of the term “realistic” also mirrors international provisions on pornography, which similarly include real and simulated images. Article 9 of the Council of Europe Convention on Cybercrime 2001, on,
“Offences related to child pornography”,
extends to “realistic images”. The notes in our briefing tell us about the inclusion of real and simulated images.
The current laws on extreme pornography, and the proposed new provision, thus cover both real and simulated images. There is little doubt that Section 63(7)(c) of the Criminal Justice and Immigration Act extends to include “realistic” images of necrophilia where the “dead” person is not in fact dead. Similarly, in the proposed new law, a “realistic” explicit image of rape and/or assault by penetration—that is, an image of a simulated rape—should be covered by our amendment. However, in view of the fact that there has been some debate over the meaning of “realistic”, we suggest that this amendment is included in the Bill for the avoidance of doubt. Obviously, in all these amendments, if the Minister has something better to suggest, that would be even more wonderful. An amendment to the effect I have described was moved and discussed in the House of Commons Public Bill Committee. However, it was withdrawn in light of an explanation that the Bill’s Explanatory Notes would clarify that the offence would,
“cover both staged and real depictions of rape or other penetration”.—[Official Report, Commons, Criminal Justice and Courts Bill Committee, 18/3/14; col. 215.]
This assurance is not sufficient and, for the purposes of clarity, we would much rather see this made clear in the Bill.
Amendment 36D would provide that an image would be caught by Clause 28 if it portrayed any sexual activity involving real or apparent lack of consent. This is also covered by Amendment 36B. This is an important clarification because, as the BBFC showed noble Lords last week, it is possible to have an image that does not involve anyone else except, for example, a woman and no penetration but, because of the depiction and what is being done by binding, gagging, other positioning or other horrible things, this is definitely sexual activity and there is a lack of consent, whether real or apparent. In the terms that the Government have used to justify this clause, the cultural harm of depiction of rape and non-consensual sexual activity would appear to be covered by our amendment. I ask the Minister seriously to consider it.
Amendment 36E would provide that possession of an image of sexual activity would be caught by Clause 28 if it fulfils certain criteria. It refers to sexual activity where a participant,
“is portrayed in such a way as to make them appear under 18”;
where a participant is,
“with someone who is depicted as a member of their immediate family; and … sexual activity incorporating sexual threats, humiliation or abuse”,
which are not part of a “consenting role-playing game”.
Amendment 36F would ensure that the context of an image—the descriptions and sounds accompanying it—is considered when determining whether it is extreme. The BBFC gave us an insight into the need to take context into account, which might include grooming, stalking or other kinds of threatening behaviour that leave no doubt as to what is happening or what is about to happen. Music, sounds, text and banner headlines would also be captured by this amendment.
I ask the Minister to see these amendments in the light in which they are proposed, which is to help to make the clause work better. I beg to move.
The Deputy Chairman of Committees (Lord Colwyn) (Con)
I remind the Committee that if Amendment 36B is agreed to, I cannot call Amendments 36C to 36F; if Amendment 36C is agreed to, I cannot call Amendment 36D; and if Amendment 36D is agreed to, I cannot call Amendment 36E, all by reason of pre-emption.
Lord Faulks
My Lords, I am grateful for the concern shown by the noble Baroness, Lady Thornton, and other noble Lords over these important provisions, which criminalise the possession of extreme pornographic images depicting rape. I appreciate that the intention behind the amendments is to ensure that we capture the appropriate material.
I also thank the noble Baroness, Lady Thornton, for meeting me, just as she thanked me for meeting her, to discuss these amendments. I was not invited to attend the BBFC meeting. I gather that it was a pretty horrific event, but clearly it has influenced all those who attended and I am mindful of that when considering the amendments.
I assure the Committee that I am aware of the sensitivities involved when discussing the sort of images that we are targeting. These images are at the extreme end of the scale and are most disturbing. Alongside the images targeted, however, there are of course depictions that, while deeply distasteful, might not warrant the full intervention of the criminal law. It is a difficult area but we must ensure that our distaste at some of this material is balanced, rightly, against the legitimate personal sexual freedoms of consenting adults.
Before I address the amendments, I should like to provide some background to the law as it currently stands and our proposals for reform. First, I should make it absolutely clear that the extreme pornography offence is an offence of simple possession, not one of publication, dissemination or broadcast. That is already covered by the Obscene Publications Act 1959. Section 63 of the Criminal Justice and Immigration Act 2008 makes it an offence to possess some kinds of obscene images. Such images must be pornographic and must explicitly and realistically portray necrophilia, bestiality or violence that is life-threatening or likely to result in serious injury to the anus, breasts or genitals. Clause 28 amends that category of material to include depictions of non-consensual penetration.
The offence was created following a full public consultation. There was considerable concern among respondents, and during the passage of the legislation through the other place, that the offence could have an unwarranted impact on the private sexual behaviour and personal freedoms of fully consenting adults. The offence was deliberately drafted with those sensitivities in mind, and I believe we should bear those in mind here. The offence targets only the most extreme obscene material—for example, images depicting extreme sexual violence and serious physical harm. It was not designed to make it criminal merely to possess every obscene image, however distasteful, although, as I have mentioned, the dissemination of that material will be an offence.
Last year, the Government were contacted by a campaign led by Rape Crisis South London and other women’s groups to extend the existing boundaries of the extreme pornography offence to capture extreme images depicting rape in the same terms as the equivalent Scottish offence. The Government listened to those concerns and agreed to extend the offence.
Against that background, I now turn to consider the amendments in question. Amendment 36A would remove the requirement that images of non-consensual sexual penetration be,
“grossly offensive, disgusting or otherwise of an obscene character”,
in order to be regarded as extreme pornography. Those terms are already well known to prosecutors and courts alike. They were drafted deliberately into the offence, and included in our amendment to that original offence, to ensure that the extreme pornography offence does not criminalise the simple possession of the sorts of images that it would not be illegal to circulate or distribute. To remove this necessity would be inconsistent with other aspects of the criminal law and would result in a possession offence that is too broad.
For convenience, I shall deal with Amendments 36B and 36D together, as they have similar, although not identical, effects. Amendment 36B would replace the Government’s amendments to the extreme pornography offence, including the relevant defence, with a broad provision that would criminalise the portrayal of any sexual activity that involves real or apparent lack of consent or any form of physical restraint which prevents participants indicating a withdrawal of consent. This is very broad. It could have the effect of bringing into the terms of this targeted offence the possession of pornographic images that depict any form of non-consensual sexual activity.
In the light of the balance that this Government have sought to strike with this offence, we believe that such an extension to the offence would be going too far. It would, I believe, widen inappropriately its scope and could make too wide a range of sexual activity subject to serious criminal sanction.
Amendment 36D also seeks to extend the parameters of the existing offence but would retain the necessity that the material be “explicit and realistic”. However, it would still extend the parameters of the offence too far and could capture a wide spectrum of sexual contact.
Amendment 36C seeks to explore the issue raised both at Second Reading and in the other place about the ability of the offence to deal with simulated rape scenes. I assure your Lordships that our provisions as they stand are already capable of covering the depiction of real or simulated non-consensual penetration. Both the amendment and the existing offence cover any portrayal or depiction of the acts in question. While the requirement is that the portrayal is realistic, it does not have to be real. As the noble Baroness, Lady Howe, mentioned, we have clarified this point in the Explanatory Notes to the Bill in response to these concerns.
Amendment 36E seeks to widen the scope of the existing offence to cover depictions that appear to portray incest, underage sexual activity and scenes involving sexual threats, humiliation or abuse. The protection of the country’s children from sexual abuse is a government priority. We have a robust range of offences and sanctions to deal with this truly dreadful offending, and it is a credit to the efforts of this House that our legislation in this area is rightly respected across the world. It is of course right that we keep the law in this area under review to ensure that it is fully equipped to protect our children.
Images of children are not specifically excluded from our extension of the extreme pornography offence, but we already have offences to cover the possession of indecent photographs and films of children. These offences have suitably robust sentencing levels and much lower thresholds in respect of the content of the images than the extreme pornography offence.
Finally, Amendment 36F would add to our provisions a requirement that, when evaluating images for the purposes of the offence, contextual material of certain kinds is taken into account. I appreciate that this reflects the drafting approach taken in the equivalent legislation in Scotland. However, we do not believe that the amendment is necessary: the court is already entitled to take into account all relevant evidence in determining whether material meets, or indeed does not meet, the requirements of the extreme pornography offence. Prosecutors and the courts already take the “context” of images into account when considering the existing extreme pornography offence. I hope that provides some reassurance to the noble Baroness.
The extension of this offence is well structured to ensure that the images we wish to capture fall within its parameters. The extension is in the spirit of the original offence and balances the need to criminalise the most extreme and potentially harmful or damaging material with the need to protect the lawful sexual freedoms and rights of others. Given the sensitivities involved, that balance has not been easy to achieve but I believe that we have achieved it with this reasonable, proportionate and important provision.
For those reasons, while I entirely understand the concerns expressed, the Government do not feel able to support these amendments. I hope that, with those assurances, the noble Baroness will feel able to withdraw her amendment.
Baroness Thornton
I thank the Minister for his considered, if somewhat disappointing, response. The point of the Committee stage of this sort of legislation—the House of Lords is particularly good at this—is to test whether this kind of clause does its job. I appreciate that the Minister thinks it does but I have to say that some of us think that one or two things in this clause need some attention. I am not going to delay the House any further by repeating what they are. The Minister said that the Government thought they had the balance right all the way through. I think there are one or two things to do with context that suggest the Government may not have got the balance right. We do not want to find ourselves in five years’ time with either no prosecutions because we did not get the balance right or with people not being prosecuted because we did not look at the things that experts are telling us are loopholes. Obviously I am happy to withdraw the amendment at this stage—apart from anything else I do not think it and my other amendments are as competent as they should be, for which I apologise—but I fear that we will be returning to this at a later stage in the Bill. I beg leave to withdraw the amendment.
Baroness Barker
My Lords, I will address the point made by the noble Baroness, Lady Kennedy of The Shaws, that the way in which this amendment is worded is of the utmost importance. Our amendment tries to focus not on the definition of what is pornographic but on the act of revenge. That is why, in our amendment, we have concentrated on the initial posting of an image rather than the reproduction or the recommunication of it, because the act of revenge happens in the initial posting.
To respond to the noble Baroness, Lady Berridge, we have no problem with making this a sexual offence. Quite clearly it is. We do have a number of problems with the way in which her amendment is drafted. For example, it requires that the image be of the two people involved, but you can make a very good attempt at ruining somebody’s life by producing pictures of them with somebody else. I did not think that we would get to the headless man today, but we have—the point there was precisely that it was not the two people in the relationship.
The noble Baroness, Lady Kennedy, is right to make us focus on consent. There are a lot of people out there who one would best call amateur pornographers and who actually want to share the lives on the web. I do not know why, and do not ever want to see it or have anything to do with it, but they do. It should therefore be a defence that they had reason to believe that there was consent on the part of the other person. However, if we are going to make this sufficiently robust and—what we really want it to be above all else—a deterrent that makes it absolutely clear to people who are thinking of committing such an act that they may go to prison, she is right that we need to focus on that. Our amendments are not perfect but they take us quite a long way to where we want to go.
Baroness Thornton
My Lords, this has been a very good and interesting debate. We on these Benches support the principle of bringing forward legislation, probably along the lines that my noble friend Lady Kennedy suggested. We do not think that either of these amendments get us to the point where we want to be, as I think those who tabled them would admit, but they take us along that road and I hope we will see something emerge that does get us there.
Images described as “revenge pornography” are indeed a form of harassment and abuse. They constitute stalking and are humiliating. However, as well as a specific offence, what is also needed is the strong political will to tackle the underlying culture that creates and legitimises sexual violence, abuse and harassment in all its forms. That requires not only a government commitment to headline-making legislative reform but to ensuring effective implementation of any new offence and bringing forward compulsory sex and relationship education in our schools. The noble Baroness, Lady Brinton, referred to what goes in our schools. It is not good enough that this is done by voluntary organisations; it should be part of our curriculum. For the protection of our children, it really needs to be mandatory in our schools.
We on these Benches have problems with both these amendments, for different reasons, some of which have already been mentioned. For example, the amendment in the names of the noble Baronesses, Lady Berridge and Lady Morris, says that to commit the offence, the defendant must distribute the images,
“with the intention that he or a third person will”,
gain “sexual gratification” from doing so. That provision is problematic. As it is framed, no offence will be committed if the defendant discloses the image with a view purely to humiliate and embarrass the person in it. The motivation behind revenge porn is not typically to distribute pornography but to humiliate, embarrass and harass the victim. We need legislation that emphasises that, not the pornography aspect.
Likewise, with the amendment in the name of the noble Lord, Lord Marks, and his colleagues, we do not see why the offence should be limited to the circumstances where the individual is identifiable. As noble Lords have said, the motivation for this offence is to harass and abuse victims, and the harm will be done whether or not he or she is identifiable to others. There is some work to be done and, because we will have a long summer break before Report, I hope that we have time to undertake it. We on these Benches would be very happy to help to do that.
Lord Faulks
My Lords, this has been a very useful debate indeed. I will deal with Amendments 37, 38, 39 and 40 together, as they are clearly designed to deal with broadly the same issue, albeit in slightly different ways. They all seek to create a new offence banning the uploading or publishing of material that has come to be known as “revenge porn”. First, I will say that I have great sympathy for the intention that lies behind these amendments, as I said at Second Reading. The posting or publication of intimate material is despicable and cowardly, and we must ensure that such behaviour is appropriately dealt with by the criminal law.
Revenge porn is a broad term used to describe a range of offending behaviour. Usually, it involves an individual, often an adult ex-partner, uploading on to the internet sexualised images of the victim to cause them distress. Although revenge porn does not always specifically involve content that would be regarded as obscene, there is no doubt that the online sharing of intimate images without the subject’s consent can cause great distress and upset to the victim. Some of these images are posted widely across the internet and are often extremely difficult to remove.
Criminal Justice and Courts Bill
Baroness Thornton Excerpts(9 years, 10 months ago)
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Baroness Thornton (Lab)
My Lords, I am sure everyone in the House will be most grateful to the noble Lord, Lord Black, for that intervention. I fear I am not going to be quite so brief. I will address Clause 28 of the Bill, concerning the possession of pornographic images of rape and assault by penetration. I will support my noble friends Lord Beecham and Lord Kennedy throughout the passage of the Bill.
The Bill amends Section 63 of the Criminal Justice and Immigration Act 2008 to extend the current offence of possession of extreme pornography to include possession of pornographic images depicting rape and other non-consensual sexual penetration. Possession of such pornography is an existing criminal offence in Scotland. We on these Benches welcome the Government’s intention to extend the extreme pornography offence. I wish to thank Professors Clare McGlynn and Erika Rackley of Durham University for all the research they have done and the excellent evidence and briefs they have prepared at every stage of the Bill. I also thank End Violence Against Women and Rape Crisis South London for the research they have carried out and the work they have done in their campaign to ban rape porn, which involved writing to the Prime Minister in June last year. I will quote some of this letter, which states:
“The vast majority of images depicting rape are lawful to possess, although they are banned in Scotland under its Extreme Pornography legislation”.
It goes on to say:
“We are talking about sites that explicitly advertise sexually violent content and with titles such as ‘Father Raped Drunk Daughter’ and ‘Incest With Daughter at Family Cabin’”.
Fifty of the top accessible rape porn sites can be found through a Google search. Some 78% advertise rape content of under 18 year-olds—in other words, schoolgirl rape. Some 67% advertise rape content involving knives and guns; 44% advertise rape content involving incest; and 44% advertise rape content where the woman is unconscious, drugged or semi-conscious. Of those being assaulted, 100% are female; 82% of perpetrators use restraint by force; 65% of the women express pain; and 71% show signs of visible distress.
The Government have a coherent strategy on violence against women. In the Bill they recognise the failure of the current law to take a strong stand against the normalisation of sexual violence. Indeed, the Joint Committee on Human Rights says in its report on the Bill:
“We welcome, as a human rights enhancing measure, the provision in the Bill to extend the current offence of possession of extreme pornography to include possession of pornographic images depicting rape and other non-consensual sexual penetration. We consider that the cultural harm of extreme pornography, as set out in the evidence provided to us by the Government and others, provides a strong justification for legislative action, and for the proportionate restriction of individual rights to private life (Article 8 ECHR) and freely to receive and impart information (Article 10 ECHR)”.
None the less, criminalising the possession of extreme pornography is a serious matter. Legislative action and any potential restriction of an individual’s rights under Articles 8 and 10 must be taken only if we can be certain that there is sufficient justification. Our liberal democracy rightly champions the values of equality and dignity, which are directly challenged by much violent pornography, especially rape pornography, thus demanding regulatory action. Surely the law has a precautionary role to anticipate, preclude and counter the risk of harm to society and individuals.
There has been in the past a demand for evidence of direct causal links between pornography and sexual violence. I think it is now accepted that that is oversimplistic. Understanding the drivers that lead to the commission of sexual offences is extremely complex and cannot be reduced to simple explanations. Challenging and seeking to prevent sexual violence will require a multifaceted approach, including challenging the normalisation of sexual violence through pornography.
The argument is not that the person who views extreme pornography, such as pornographic images of rape, will then go on to commit rape: rather, it is that the proliferation and tolerance of such websites and images, and the messages they convey, contribute to a climate in which sexual violence is condoned and seen as a form of entertainment. Rape pornography sustains a culture in which a “no” to sexual activity is not taken seriously. It promotes the myth that women enjoy being coerced into sexual activity, and that they enjoy violent, non-consensual sexual activity. The cultural harm posed by such depictions is a strong justification for legislative action and for the proportionate restriction of an individual’s rights.
All this was recognised in the United Nations fourth World Conference on Women report, which refers specifically to depictions of rape as contributing to the context of continuing violence against women. It states:
“Images in the media of violence against women, in particular those that depict rape or sexual slavery as well as the use of women and girls as sex objects, including pornography, are factors contributing to the continued prevalence of such violence, adversely influencing the community at large, in particular children and young people”.
This is also a culture in which, as research for the Children’s Commissioner suggests, young children are turning to pornography for guidance on sex. They are engaging in risky behaviour as a result of viewing pornography. They are uncertain about what consent means and are developing harmful attitudes towards women and girls.
That does not mean that there are not areas which we might hope to explore during the further stages of the Bill in relation to this clause. The first is whether there should be the inclusion of a provision stating clearly that the “realistic” portrayal of acts in question refers to both real and simulated images. We will suggest that we may need an amendment to clarify that exactly. An amendment to this effect was moved and discussed in the House of Commons Public Bill Committee. However, it was withdrawn in the light of an explanation that the Bill’s Explanatory Notes would clarify that the offence,
“would cover both staged and real depictions of rape or other penetration”.—[Official Report, Commons, Criminal Justice and Courts Bill Committee, 18/3/14; col. 215.]
This may not be adequate, and I would appreciate some clarification, which might appear on the face of the Bill.
Secondly, we might consider the inclusion of a provision requiring reference to be made to the context—the description, sounds and narrative—of the image when determining whether it is one of rape. The context of an image is valuable in determining whether pornographic images are “extreme”. Simulated images of rape are widely available on free-to-access pornography websites. The images are often accompanied by banners and text which glorify rape and sexual violence: “These girls say no but we say yes”; “See what happens when men lose control … whether she says yes or no … Damn, the guys enjoy a ‘no’ more”, for example. The narrative of the story similarly conveys such meaning, as does the soundtrack. This contextual material makes it clear that the image is intended to be of rape and other non-consensual sexual activity. The non-consensual aspect, or what makes an image one of rape, is therefore clear from the overall context.
The Criminal Justice and Licensing (Scotland) Act 2010 includes a provision to ensure that the context of the image—the descriptions or sounds accompanying it—is relevant to deciding whether an image is extreme. This ensures that simulated images of rape come clearly within the remit of the legislation, whether or not the act was itself consensual—that is, whether the actors in the image were consenting.
Thirdly, we need to think about whether we clarify the defence of “participation in consensual acts”. The target of the extreme pornography legislation is not, and should not be, private depictions of consensual sexual activity. Consideration might be given to clarifying the scope of this defence so that it permits the possession of images which are taken of those participating in consensual acts and which are for private use only.
We might also have the inclusion of a “public good” defence. Section 4 of the Obscene Publications Act 1959 includes a defence where the material in question is for the public good. The absence of a “public good” defence in the extreme pornography law reinforces the fear that the provisions could be used to criminalise the possession of legitimate works of art, film and such-like. The introduction of a “public good” defence might demonstrate that there is no intention of bringing educational, legitimate artistic or similar works within the scope of the legislation, and it would help to ensure that only harmful material is covered by the provisions.
Your Lordships’ House may also wish to consider the issue of an image being obscene. The current law provides that for an image to be extreme, it must be one which is,
“grossly offensive, disgusting or otherwise of an obscene character”.
The use of the term “obscene” has long been criticised on the basis that it is typically deployed to catch material which is not only harmful but causes offence or disgust. I would appreciate a discussion on that because I am not clear whether that is an expression that we should continue using.
On the other hand, my honourable friends Diana Johnson, Helen Goodman and Dan Jarvis in the Commons brought forward an amendment which used that description. They proposed it in response to the fact that the Prime Minister has promised to equate online and offline restrictions to regulate pornography. It was a promise that we in the Opposition welcomed and we would like to see it implemented. We think that the Government’s proposals in this Bill are a welcome step forward, but they are quite a small step forward and we would like further clarification.
The Government’s proposal is to ban the possession of pornography which is deemed to be,
“grossly offensive, disgusting or otherwise of an obscene character”,
and a realistic depiction of rape or assault by penetration. Both elements of this test are complex and open to wide interpretation. Therefore, we may propose an amendment which leaves in place the first part of this test and replaces the second part with the description of rape employed by the British Board of Film Classification—that is, content depicting,
“sexual activity which involves real or apparent lack of consent. Any form of … restraint which prevents participants from indicating a withdrawal of consent”.
This simplifies the law in two ways. First, it makes it clear that we are criminalising the possession of porn depicting rape scenes, even if they are staged. Secondly, our amendment would ensure that content was banned if it showed sexual assaults and maybe even rapes but not the act of penetration. Has the Minister had any discussions with the British Board of Film Classification on this matter? I should say that I intend to invite the board to come to the House to discuss these matters with any noble Lords who may be interested.
I am looking forward to the discussions and I am very grateful to the Minister for agreeing to see me to talk about these matters.
Anti-social Behaviour, Crime and Policing Bill
Baroness Thornton Excerpts(10 years, 6 months ago)
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Baroness Thornton
“( ) 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.”
Baroness Thornton
My Lords, this amendment, in my name and those of my noble friend Lady Smith and the noble Baroness, Lady Hussein-Ece, seeks to test whether the Bill adequately covers the issue of capacity; in other words, the capacity of a vulnerable adult who may be forced into a marriage. Almost by definition, they are very often not in a position to give free or full consent to a marriage, or otherwise. We are looking at Clause 108(1)(a) and (b). Paragraph (a) says,
“A person commits an offence … if he or she … uses violence, threats or any other form of coercion for the purpose of causing another person to enter into a marriage, and”,
paragraph (b) continues,
“believes, or ought reasonably to believe, that the conduct may cause the other person to enter into the marriage without free and full consent”.
Both those points assume that the person has capacity either to resist or to consent to a marriage. Of course, we know that a proportion of the cases dealt with by the Forced Marriage Unit concern people who have not given consent to a marriage. An article published in the Guardian in August which quoted the Forced Marriage Unit said that,
“The government dealt with 114 cases of forced marriage last year that involved mentally disabled people”.
However, the Forced Marriage Unit recognises and admits that that is probably only the tip of an iceberg and does not reflect the full scale of the abuse. I think that everybody would agree that we should be concerned that disabled or mentally disabled people are protected in this legislation and do not suffer forced marriage.
My second question, which is linked to but is not only about capacity, is: how can marriages be voided in these circumstances? When is a forced marriage voidable? How does it go forward and, in particular, if there is no capacity to agree to the marriage, how can it be ended? In recent times there was a judgment in which the courts decided not to end the forced marriage of somebody who they admitted lacked capacity. That has troubled many people who are concerned about this area. That is the issue we would like to probe, and I would like to know whether the Government have taken that into consideration. I beg to move.
Lord Ahmad of Wimbledon
My Lords, I thank the noble Baroness, Lady Thornton, for her amendment. I also thank my noble friend Lady Hussein-Ece and the noble Lord for their contributions. The noble Lord alluded to the Freedom charity, which carries out notable work in this field, and I acknowledge his work and engagement in that arena.
Marriage without consent or the capacity to consent is totally unacceptable. Clause 108 specifies that an offence is committed if the perpetrator uses coercion and believes, or ought reasonably to believe, that their conduct may cause another person to enter the marriage without free and full consent. A person who lacks capacity to enter into marriage is incapable of providing free and full consent to marriage. In the cases that have come to the attention of the Forced Marriage Unit, some form of coercion has invariably been involved in forcing a person who lacks capacity to consent to a marriage. The new offences would therefore cover this behaviour.
Although I totally understand the noble Baroness’s concerns and those of other noble Lords, the definition of the new offences in Clause 108 already captures in practice the types of cases intended to be covered by this amendment. I take on board the point that the noble Lord made about looking specifically at this issue. Certainly, between Committee and Report we will look at the issue once again in the context of Clause 108. However, I assure noble Lords that Clause 108 is intended to capture that particular element. Marriage is voidable under Section 12(c) of the Matrimonial Causes Act 1973 on the grounds that,
“either party to the marriage did not validly consent to it, whether in consequence of duress, mistake, unsoundness of mind or otherwise”.
The issue was also raised of a vulnerable person getting a decree of nullity. The procedure to do so is available and a person can apply for a decree of nullity by filing a petition at any time after the marriage ceremony. If the application is not opposed, there is unlikely to be a court hearing and the person will not have to attend court. Following the petition, the court will issue a decree nisi and, following this, the applicant can apply for a decree absolute. The Family Procedure Rules make provision to ensure that these matters are straightforward for unrepresented applicants. However, having said all that, I fully acknowledge the points made by noble Lords about the special circumstances that they have mentioned. Having explained the scope of Clause 108, I hope that the noble Baroness is minded to withdraw her amendment.
Baroness Thornton
I thank the noble Lord for that explanation, which was a good attempt to describe the position. However, I am not convinced that capacity is covered in the Bill. Therefore, I will ask a lawyer what they think. Depending on what they think, and perhaps after further discussions with the Bill team, we shall see whether we need to return to this at a later stage. I beg leave to withdraw the amendment.
Lord Hope of Craighead (CB)
My Lords, I had not intended to say anything about this amendment, but two points occurred to me in listening to the noble Baroness, Lady Berridge, which I mention in case they might be of any assistance to the Minister in looking into the matter. First, I should have thought that it would be plain that if the individual is not capable of entering into a marriage at all, because he or she was underage or simply did not have the mental capacity to agree, one could not treat that as a valid marriage for the time being until it was annulled. There may be something to be said for some categories which are not in that very stark situation; where there was initially the capacity to marry, but there has been enforcement or something like that which has persuaded the individual to enter into it. It is rather as in the law of contract: there are some contracts which are void ab initio and some which are voidable. There may be room for that distinction: no doubt the Minister will wish to research that further.
Secondly, when I was at the Bar in my junior days I used to do cases in Scotland which were described as “nullity of marriage cases”. The ground of nullity in those cases was lack of capacity to consummate the marriage. An individual who found that the husband or wife could not consummate the marriage was entitled to come to court and if that fact could be proved—it was very often not disputed, which was just as well—the marriage would be set aside. I do not know how the law is in England, but there must be a similar process where the marriage cannot be consummated. It may be that those cases are precisely in the category that Amendment 11 is talking about, where somebody has a choice. An individual who finds that the marriage cannot be consummated may feel that the marriage should go ahead for other reasons—simply because they enjoy living with each other. Nobody forces them to apply to the court to have the marriage set aside. It may be that there is an analogy there which can be drawn upon, to follow up the point that the noble Baroness is making.
Baroness Thornton
The noble Baronesses, Lady Berridge and Lady Cox, have raised very valid but different points. The issues to do with property and assets and differential treatment are very valid indeed, particularly with regard to Amendment 11. I look forward to hearing what the Minister has to say because these issues need to be addressed.
Lord Ahmad of Wimbledon
My Lords, I thank my noble friend Lady Berridge and the noble Baroness, Lady Cox, for raising these important issues, which I shall address in turn. As both noble Baronesses will know, I take this issue very seriously: it needs to be addressed and the issues that have been raised are perfectly valid, as the noble Baroness, Lady Thornton, has said. I also thank the noble and learned Lord, Lord Hope of Craighead, for his contribution. He has raised one or two matters which I shall certainly take back to officials to discuss further.
As my noble friend has explained, it is crucial for victims of forced marriage to be able to ensure that the marriage that they have been forced into is subsequently rendered void as a matter of law. While I agree that this is important, especially to the victims of this crime who rightly want clarity on where the marriage stands in the eyes of the law, there are reasons why the Government feel that this amendment is unnecessary. Under the current law, if a forced marriage takes place, victims can apply to the court to end the marriage by divorce or annulment. If a victim wishes to apply for an annulment, it must be shown that the marriage was either void or voidable. The grounds on which a marriage is void or voidable are set out in the Matrimonial Causes Act 1973.
A forced marriage is voidable by virtue of Section 12(c) of the 1973 Act, which provides that a marriage will be voidable on the grounds,
“that either party to the marriage did not validly consent to it, whether in consequence of duress, mistake, unsoundness of mind or otherwise”.
If a victim wishes to apply to the court for an annulment on these grounds, and the court grants the decree of nullity, the annulment will take effect on the date on which the decree of nullity is issued. This amendment would mean that if a conviction for an offence of forced marriage occurred, the court would be required to issue a decree of nullity. The date on which that decree of nullity would take effect would be the date on which the perpetrator was first charged with the offence. I understand totally the sentiments behind the amendment tabled by my noble friend, but I do not agree that the process by which a victim can seek to end a forced marriage, and the date on which that marriage ends, should be determined by reference to whether a conviction for forced marriage has taken place. Such an approach provides no flexibility for victims whose perpetrators are convicted of an offence of forced marriage to choose how they wish to end their marriage. It would also be unfair to those victims whose perpetrators are not found guilty of the offence of forced marriage, and who would have to continue to rely on the current law to end their marriage.
Victims of forced marriage experience a range of specific extenuating factors, as a consequence of which they may wish to have a divorce rather than an annulment. For example, there may be children involved, as my noble friend pointed out, and property rights to consider. As a result, they may prefer a specific legal route to end their marriage. Preserving a victim’s choice is the intention behind the Government’s proposals. We are seeking to provide flexibility to victims who, on seeking legal advice, can end their marriage as and when they see fit. I hope that, having heard this explanation, my noble friend is reassured about where the Government currently stand on this issue.
Perhaps I may now turn to religious marriages, the issue focused on by the noble Baroness, Lady Cox. I pay tribute to her because I know that she represents women’s interests very widely and that this is an issue on which she does not seek to target any particular faith or community. However, she recognises fully that many, if not all faiths, protect such marriages. Unfortunately, it is the case that some of the practices do not live up to the theology. As the noble Baroness has explained, the purpose of her proposed new clause is to create a new criminal offence, under Section 75 of the Marriage Act 1949, of solemnising a marriage according to any religion so that the couple getting married believe they are validly married when in fact the marriage is not valid under that Act. This proposed new offence clearly arises from a desire to help couples who have a religious marriage ceremony that they think is perfectly valid, but which has no legal status because the requirements of the law in England and Wales have not been complied with.
The legal position in respect of religious marriages in England and Wales is that anyone who wishes to contract a religious marriage and acquire a legal marital status has two options. They can either have a religious marriage and a separate secular civil ceremony or they can choose to solemnise their religious marriage in a place of worship registered to conduct marriages, thus removing the need for a separate civil ceremony. Where a marriage is invalid for want of the appropriate formalities or other elements, this does not necessarily leave the parties without any remedies. If the marriage purports to be in accordance with the provisions of the Marriage Act but does not fully comply with those provisions, it may be void under Section 11(a) of Matrimonial Causes Act 1973. This section enables a party to the marriage to apply to the court for a decree of nullity and the court is able to make orders in respect of children and the division of property in the same way as on divorce. We believe that this will provide protection for some of the couples whom the noble Baroness seeks to protect with her amendment.
The Government accept that there will be some religious marriages to which Section 11(a) will not apply. In such cases, the courts may be able to view the marriage as being valid in principle and, as such, susceptible to a decree of nullity. The court will determine such issues on a case by case basis and will consider issues such as whether the ceremony or event set out or purported to be a lawful marriage, whether it bore all or enough of the hallmarks of a marriage, and whether the parties acted in good faith. If the court is not able to make such a finding, again, that does not mean that the spouse will be left without any form of redress. For example, it would still be possible for the court to make an order for financial relief in respect of any children under Schedule 1 to the Children Act 1989. While the Government are keen to ensure that any person who enters into a purported religious marriage in good faith has adequate protection before the law, we do not consider that making the solemnisation of purported religious marriages a criminal offence is the correct way forward. This would, in our view, involve unjustified interference in people’s private and religious lives.
However, the Government take these matters, as raised by the noble Baroness, Lady Cox, very seriously. Even though we may differ in how best to deal with it, the sentiments are certainly much the same. We want to ensure that couples seeking a religious marriage are aware of the need to have a civil marriage as well. If this is to be achieved, it must be with the support of religious leaders and must not be seen as an attempt to dictate to them or undermine them.
Lord Hylton (CB)
My Lords, earlier today we had an interesting and worthwhile debate on whether it was better to deal with forced marriages by criminal or civil sanctions. In the light of that, there is a need for reporting on the effect of this legislation. I support the intention of the amendment in the name of the noble Baroness, Lady Manzoor, although the precise wording may need to be widened.
Baroness Thornton
My Lords, I added my name to that of the noble Baroness, Lady Manzoor, on this amendment because we think that if we end up criminalising forced marriage, we need to look very carefully at how that works out. I very much agree with my noble friend Lord Harris that this should be about the totality of the work of the Forced Marriage Unit. How the Government decide to do it is not the point. It is important that these things are monitored regularly, so I think that “in due course” is probably not a satisfactory answer on this occasion.
Lord Ahmad of Wimbledon
My Lords, first, I thank my noble friend Lady Manzoor for her amendment. I welcome her to what I think is her first contribution to legislation in this Parliament. As has been demonstrated today and in her maiden speech, her contributions are always welcome and based on her great expertise and experience, of this issue in particular.
The proposed new clause would place a duty on the Secretary of State to report to Parliament annually on the effectiveness of the criminalisation of forced marriage under Part 10 of this Act. The Government are indeed happy to update Parliament on the progress of our work in this area. I hope that the various exchanges and discussions we have had, which I have certainly found very valuable, as I am sure all members of the Government and, I hope, the House have, underline the Government’s commitment to look at this issue very seriously.
Noble Lords are correct: this is not about coming back “in due course”. I say to my noble friend Lady Hamwee that I will not be saying that. What I will say is that the Government are concerned that this issue is addressed and dealt with appropriately and that the appropriate debates, discussions and questions take place as and when, but the issue remains one of Parliament. Parliament has open access here. Questions and debates can be tabled as appropriate. I do not, however, believe for a moment that an issue as important as this will be left, for us to return to at some future point. I am sure that the Government will be seeking to update Parliament regularly on work in this important area.
I will allude briefly to the issue of female genital mutilation. I accept that although a law has been enacted, prosecutions have not followed, but let me again reassure my noble friend, the Committee and the wider House that the Government take this seriously. My right honourable friend the Foreign Secretary has made this a personal priority. I will talk about it in a moment.
Once this piece of legislation receives Royal Assent, there is a period of three to five years for post-legislative scrutiny. As I have indicated, the Government accept that, on an important issue such as this, we will be returning to it earlier than that. In the case of the forced marriage provisions, the Government’s Forced Marriage Unit, through its direct work in assisting victims and those at risk of forced marriage, has the capacity and function to monitor the difference that legislation will make to victims of forced marriage. The unit, as many noble Lords will know, runs a helpline providing confidential advice and support to victims and to practitioners charged with the responsibility for safeguarding children and vulnerable adults, ensuring they are fully informed on how to handle such cases. The number of reports to the helpline has steadily increased since the unit was established in 2005. In 2012 the Forced Marriage Unit provided advice and support in almost 1,500 cases. It will regularly update Ministers on any issues identified with the new laws and make recommendations on any necessary policy changes.
My noble friend Lady Manzoor referred to the lack of prosecutions for FGM and asked whether forced marriage will be different. I would like to reassure my noble friend that we will also monitor the number of prosecutions brought, and we will want to understand the reasons why cases are either not referred to the CPS or not proceeded with by the CPS if that should prove to be the case. That said, it is important to remember that the Government’s priority in criminalising forced marriage is prevention, a sentiment I know is shared across the House. This legislation has been designed to send the clear message that forced marriage is unacceptable, it is a breach of human rights, and perpetrators will be punished.
My noble friend talked about options. We know that legislation alone is not enough to address issues, and we will endeavour to work with partners across government, with non-government organisations and other experts in the field to ensure that victims and potential victims of forced marriage are aware of the support and options available to them. As I said to my noble friend Lady Hamwee in an earlier debate, it is important that a civil remedy remains available to victims. This means that victims could choose to take a civil route or go to the police, as they can now. I reassure my noble friend that, in respect to FGM, the Government will do everything in their power to ensure that victims can come forward and their abusers face the full force of the law.
The Department of Health is working to improve the information collected by the NHS on FGM. The Home Office has recently announced it will help fund a new study into the prevalence of FGM in England and Wales. The Department for International Development has established a £35 million programme to address FGM in Africa and beyond, with the ambition to end FGM in one generation. The level of international co-operation to which my noble friend alluded is certainly working well there.
The Government have also joined forces this year with the NSPCC and the Metropolitan Police to establish a dedicated FGM helpline. But as we know, there is much more that needs to be done, which is why the Home Office is working closely with the CPS to ensure that the Government are doing everything they can to help secure a prosecution. I am greatly encouraged by the assessment of the Director of Public Prosecutions that it is only a matter of time before a perpetrator is brought to justice.
I will just pick up on one or two other issues that were raised. The noble Lord, Lord Harris of Haringey, and my noble friend Lord Faulks mentioned the importance of coming back to Parliament on this. As I have already said, the Government take this issue seriously. I hope that has come across in today’s debates. I also acknowledge the very important point made by the noble Baroness, Lady Kennedy, that education must be a major component of how we start to address some of these issues of marriages, particularly those that take place in certain communities. As for marrying into families and that continuing, my noble friend Lord Hussain talked about how clans and tribes work. He used the word “brathries”—I am not sure Hansard needs a translation, but it generally means within a brotherhood. I hope that clarifies that for the Hansard writers.
This is the last amendment in the group on forced marriage. I share my noble friend’s desire—and that of all noble Lords—to ensure that new legislation is effective. I will be happy to update the House on the progress of our work in this area. The Government would of course expect to be held to account through the usual parliamentary oversight channels.
Before I ask my noble friend to withdraw her amendment, I just say this: forced marriage is a terrible act; it is a heinous crime. Coercion in marriage has no place in our or any society. The Government seek ultimately to strengthen a victim’s access to justice. I know that is a sentiment we all subscribe to. Our country is an incredible place, one that encompasses all people, all communities and all faiths, but we must hold those who commit these crimes to account and help those who suffer as victims to ensure that they have the opportunity to take to task those who commit these crimes. On that basis, and with the explanation I have given on this issue, I hope that my noble friend will be minded to withdraw her amendment.
Inheritance (Cohabitants) Bill [HL]
Baroness Thornton Excerpts(11 years, 7 months ago)
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Baroness Thornton
My Lords, I thank the noble Lord, Lord Lester, for his able, comprehensive and indeed brief introduction to the Bill. I am not going to speak for long because most of the things that need to be said on this issue have already been said. However, I want to say that these Benches support the Bill; we did in Government and we do so now. Indeed, I agree with Professor Elizabeth Cooke, the commissioner who led the review, when she said:
“When a family member dies the process of grieving and of adjustment to change can be made far worse by uncertainty and anxiety about money or belongings. It is vital that the law remains relevant and up to date, reflecting the reality of modern society and reasonable expectations of those who have been bereaved”.
The words of my noble friend Lady Kennedy, the noble and right reverend Lord, Lord Harries, and the noble Lord, Lord Marks, are the right, compassionate and fair way to look at this issue.
It would be amazing if there were agreement in your Lordships’ House about such an issue, and I respect the fact that noble Lords have concerns, which they have expressed today. However, I confess that I was saddened by the tone and content of the remarks by the noble Baroness, Lady Deech, which seemed to unnecessarily overstate the effect and exaggerate the malign purpose of this, I think, rather modest Bill; I agree with the noble Lord, Lord Marks.
The first thing that needs to be said on the whole issue is that we have to emphasise the importance of people drawing up wills. I think that the whole House would agree with that, and it is important that we do everything that we can to encourage people to do that. We do not oppose the extension of the qualification to cohabitants under intestacy. I thank the noble Lord, Lord Lester, for introducing the Bill, and we wish it well.
Legal Aid, Sentencing and Punishment of Offenders Bill
Baroness Thornton Excerpts(12 years, 3 months ago)
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Baroness Northover
(d) accommodation, or accommodation of a description, for the time being specified by order under section 107(1)(e) of the Powers of Criminal Courts (Sentencing) Act 2000 (youth detention accommodation for purposes of detention and training order provisions).”
Baroness Northover
My Lords, this is a substantial group of amendments, many of which are minor and technical. However, there are a number of substantive amendments which the Committee will be interested in and which I will go through briefly. These relate predominately to the functions of the Secretary of State and the Youth Justice Board and are set out in Clauses 95, 96 and 97.
Amendment 178ZAE expands the definition of youth detention accommodation currently set out at Clause 95(2) to include any new form of youth detention accommodation specified by the Secretary of State under Section 107(1)(e) of the Powers of Criminal Courts (Sentencing) Act 2000. In recent years we have seen a significant reduction in the number of young people sentenced to custody. Although the number of those remanded has not shown the same reduction, we believe that the remand proposals contained within Chapter 3 have the potential to bring about a fall in the level of secure remand to youth detention accommodation also. If this occurs, and demand on the secure estate continues to fall, this may provide further opportunities to plan and pilot new forms of youth detention accommodation. Such accommodation would be developed with the aim of improving outcomes for children and young people, and this amendment would allow it to be used to accommodate remanded young people as well as those who are detained post-sentence.
Amendment 178ZBC extends the power in Clause 96 that gives the Secretary of State the power to make arrangements with providers of secure children’s homes to accommodate remanded young people so that the Secretary of State may also make such arrangements for the use of newly specified types of accommodation.
Amendments 178ZBA and 178ZBE provide for the Secretary of State’s functions in Clauses 95 and 96 to be exercisable concurrently with the Youth Justice Board. That is, both the Secretary of State and the YJB may exercise the power. They also allow the Secretary of State by order to provide that these functions should be exercisable solely by him or her. This order-making power is subject to the affirmative resolution procedure, as set out in Amendment 178ZBG.
In tabling these substantive amendments, the Government have responded to Parliament’s decision not to abolish the Youth Justice Board. These amendments ensure that the Youth Justice Board can continue to carry out its placement and estate management functions in relation to remanded young people. These amendments also provide a concurrent power, with the Secretary of State, for the Youth Justice Board to make payments to and recover costs from local authorities. Payments will be made to local authorities to enable them to take on greater financial responsibility for the costs of secure remand and to invest to help ensure that remands to custody occur only when appropriate. The clear intent is that this funding will be used only for the provision of youth justice services.
The last set of substantive amendments in this group, Amendments 178ZBJ, 178ZBK, 178ZBL and178ZBM, amend the test set out in Section 3AA of the Bail Act 1976 that a court must apply when deciding whether it may impose electronic monitoring on a child or young person as a condition of their bail. The amendments allow for imprisonable offences committed by a child or young person while remanded in custody under existing provisions or remanded in youth detention accommodation under the provisions of the Bill to be taken into account by the court when determining whether a child or young person has a history of offending. This change is consistent with the equivalent condition in Clause 87 relating to electronic monitoring of a child remanded to local authority accommodation.
Amendments 178ZBB, 178ZBH, 178ZBN, 178ZBP, 178ZBQ and 178ZBR are minor and technical amendments associated with the provisions in Chapter 3.
I should mention that we will arrange for the letter that my noble friend Lord McNally recently sent to all Peers regarding the Government’s youth justice amendments, to which I referred earlier, to be placed in the House Libraries. I beg to move.