2 Lord Faulks debates involving HM Treasury

Assisted Dying Bill [HL]

Lord Faulks Excerpts
Friday 7th November 2014

(9 years, 8 months ago)

Lords Chamber
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Lord Hunt of Kings Heath Portrait Lord Hunt of Kings Heath (Lab)
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My Lords, it is not for the Opposition Front Bench to state an official view as to what action should be taken in relation to these sets of amendments. It is up to our own individual consciences to make our own minds up. However, it is an opportunity for me to say to the Government that it is important that we have sufficient time to debate this important Bill. I hope the government Chief Whip will take to heart the comments that have been expressed—by noble Lords who have different views but who certainly think that we should have further time to discuss this.

Although the noble Baronesses, Lady Wheatcroft and Lady Hollins, and my noble friend Lord Campbell-Savours expressed doubts about bringing the courts into this process, essentially these two sets of amendments, although they differ about the role of doctors, bring the courts into the process, and can be said to respond to the debate at Second Reading about the need for safeguards. Given that, I want to put two points to the Minister, which I hope he will be able to respond to.

The first is about the capacity of courts to deal with applications in a timely manner. The noble and learned Baroness, Lady Butler-Sloss, spoke from great experience and she was clear that the courts would be able to respond very rapidly. I think she said that they would be able to deal with the process in a matter of 24 hours. Of course, we do not know how many cases are likely to be brought. I hope the Minister will be able to say a little about how the Government would respond in relation to capacity in the courts if it were needed.

The second point I want to put to the Minister is about the financial support available to persons who would go to court under the process envisaged in either set of amendments. It surely must be open to everyone to be able to go to court without fear of the financial consequences. We know that legal aid has been heavily reduced in previous years. I ask the Minister to reassure us that if either set of amendments appeared in the Bill, and it was eventually enacted, that public funds would be available to allow people to go to the courts.

It is important that the Minister clarifies these points as clearly they have an important bearing on the attitude that noble Lords may take to these amendments.

Lord Faulks Portrait The Minister of State, Ministry of Justice (Lord Faulks) (Con)
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My Lords, I congratulate the noble and learned Lord, Lord Falconer, on steering his Bill to a stage that no previous Bill on this difficult and controversial issue has reached. I know he will have listened very carefully to all contributions from your Lordships and that he will respond carefully to this amendment and to the others that will be debated here today. The number of amendments tabled is testament to the careful scrutiny of legislation that is characteristic of this House. The debate on this Bill at Second Reading was much admired outside the House, as well as within it, of course. The respect that was shown by those with very different views was remarkable for its lack of rancour. That has been echoed today and I am sure it will continue to be the case throughout the debate, whenever it concludes.

It may be helpful, in order to save time later—and perhaps your Lordships’ patience for listening to me—if I make some more general remarks while addressing this group of amendments. As I said at Second Reading, the Government believe that any change to the law in this sensitive area is an issue of individual conscience and a matter for Parliament to decide rather than one for government policy. It follows that the Government will take a neutral position in today’s debate and that these Benches will have a free vote should the House divide.

Inevitably, the extent to which I may usefully contribute to the debate is limited from a position of neutrality. It is for the noble and learned Lord, Lord Falconer, to respond to the amendments moved, and to respond as appropriate on whether the clause should stand part of the Bill. My role, as I see it, is to assist the Committee in any way that I can without compromising the Government’s position, and to draw the attention of the Committee to any discrepancy that I might identify at this stage between the intended purpose and actual effect of any amendment.

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Lord Carlile of Berriew Portrait Lord Carlile of Berriew
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I am very glad to answer the noble Lord’s two questions. To the first, there is a very straightforward answer: I do not anticipate any difficulty whatever. The medical profession will prioritise like the rest of us when needs must. So far as the chief coroner’s role is concerned, I anticipate the chief coroner receiving not only the independent expert’s report but possibly other representations and determining whether an inquest should take place in a particular case. I anticipate that there would be very few cases anyway if the recipe that I have proposed was brought into effect and I doubt that there would have to be any inquest in those cases. However, we have to keep open the possibility of an inquest, and it is much tidier to have the chief coroner decide whether there should be an inquest than, for example, to have judicial review proceedings arising as a result of the complaints of affected persons. I think that these are both very quick routes to deal with simple issues that might arise.

Lord Faulks Portrait Lord Faulks
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This has been another useful and well informed debate, following on from the first group. I do not think that it is necessary for me to add anything from the point of view of the Government. The noble Baroness, Lady Finlay, made a particularly helpful clarification about DNR notices. The difference between DNR and DNACPR is probably insufficiently understood and I think that the House is grateful for that clarification. One final thing I should say, in responding to what the noble Lord, Lord Davies, said about legal aid, is that nothing I said about exceptional funding, I am glad to say, was wrong, it having been reviewed. However, as yet no assessment has formally been done on availability to cover this situation. I am sure that the House will understand that.

Lord Falconer of Thoroton Portrait Lord Falconer of Thoroton
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I understood that. I do not think that the noble Lord, Lord Faulks, suggested anything to the contrary in his previous answer. We went over quite a lot of this ground in the first debate. Like the noble Lord, Lord Faulks, I agree that this has been a useful debate in a number of respects. However, the key point in the debate is the factor added by the judicial model proposed by the noble Lord, Lord Carlile. In addition to provisions required to ensure that the person has a firm and settled view and that he or she has the mental capacity, there is an additional very significant requirement—namely, that to refuse an order would amount to a breach of both Article 3 and Article 8 of the European convention.

In effect, the noble Lord, Lord Carlile, is suggesting that the judge should make a judgment about the quality of the life of the person who has applied and, in particular, whether the quality of life of the person applying in effect constitutes torture, inhuman or degrading treatment. Only when satisfied of that can the judge make an order under the proposal of the noble Lord, Lord Carlile. I totally reject that approach as being inconsistent with the essence of the Bill, which is subject to appropriate safeguards. It is not for a court to make that sort of judgment; it is for the individual. The purpose of the court’s involvement is to ensure that there has been no undue pressure and no lack of capacity in reaching that conclusion; it is most certainly not to make the sort of judgment that the noble Lord, Lord Carlile, suggests. That was my understanding from the way in which the noble Lord put his case in the first debate and it is my understanding that the House has rejected that approach.

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Yet the Bill as it stands does not provide for mandatory specialist assessment of decision-making capacity. It leaves it all to the attending doctor to decide—usually a GP who will almost certainly have had no psychiatric training. I gather that, until recently, many medical schools taught no psychiatry at all. The Bill’s supporters argue that there will be codes of practice to guide doctors on how to go about making these assessments—
Lord Faulks Portrait Lord Faulks
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My Lords, I am reluctant to interrupt the noble Lord, but the noble Lord will see the time.

Lord Swinfen Portrait Lord Swinfen
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I am sorry; I did not hear what the noble Lord said.

Lord Faulks Portrait Lord Faulks
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I suggested that he look at the Clock.

Lord Swinfen Portrait Lord Swinfen
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I have only a very short while to go.

I have no problem with codes of practice and I would expect that, if the amendment in the name of the noble Baroness, Lady Hollins, or a similar amendment is accepted, there will be a need for detailed procedures to be included in codes of practice to give effect to it. We cannot in this House agree to legalise assistance with suicide simply on the basis that others will decide what safeguards there should be. We need to see and to approve at least the outlines of those safeguards before we can responsibly take decisions on changing the law.

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Lord Hunt of Kings Heath Portrait Lord Hunt of Kings Heath
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My Lords, I sense that the House would like to make some progress. I will put a simple point to the Minister. He will know that the issue of capacity is clearly critical to our consideration of the Bill and he will have heard that we have had a number of amendments that seek referral on the question to a psychiatrist or other appropriate specialist. The noble Baroness, Lady Hollins, raised issues about the interconnection between the provisions in the Bill and the Mental Health Act and the Mental Capacity Act. My simple request to the noble Lord—and I do not suggest that he does it from the Dispatch Box—is that the Government help noble Lords with their analysis of the interrelationship between the two Acts and the Bill. That would be very helpful for the next stage of the Bill.

Lord Faulks Portrait Lord Faulks
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My Lords, it is a fundamental principle of the Bill before us that a person seeking assistance to end his or her own life should have the capacity to make such a profound decision. That is at the centre of the Bill and why it has taken up so much time—quite appropriately—in the course of this debate. Some of the amendments in this group seek to include capacity among the eligibility criteria in Clause 1. Noble Lords may see some merit in that approach, albeit that the issue of capacity is addressed in Clause 3.

It is clear, however, that your Lordships are concerned to ensure that sufficient safeguards are in place properly to assess a person’s capacity to make these very difficult decisions. It is of course right, as has been observed during this debate, that capacity can vary over a period of time and that assessment can be complicated where a person has both a physical and a mental illness. We have heard in particular how depression can be both difficult to diagnose and can fluctuate. Therefore, several assessments over a period of time may be necessary adequately to assess capacity. That leaves aside the question of a change of mind, on which certain noble Lords were somewhat at cross-purposes. However, it nevertheless remains an important issue, the answer to which seemed to be given, I respectfully suggest, by the noble and learned Lord, Lord Mackay, which is that the reversibility of the decision is covered by Clause 4(2)(c).

On the question of mental capacity and the relationship between the Mental Capacity Act and the Bill, my noble friend Lord Swinfen correctly reminded us that the Mental Capacity Act presumes capacity. However, that Act emphasises that capacity is issue-specific. As I understand it, the purpose of the Bill is to identify the particular issue in order for it to be determined whether the individual has the capacity to make that particular decision. What we are asking here is: are there adequate safeguards to enable that decision and the capacity to make it to be adequately assessed?

I will of course consider the point made by the noble Lord, Lord Hunt, about trying to give further guidance. However, at the moment I am not convinced that there is any tension between the Mental Capacity Act and what the Bill does. Whether the House generally considers that the safeguards are adequate is a different matter and one on which there can reasonably be debate.

However, it is clear that there are differences of view about who should carry out the assessment, how many people should do it and whether there needs to be input by more than one person across a range of professions. Psychiatrists, of course, have been identified as key in this, but social workers are also experienced in assessing whether coercion or duress is being brought to bear. Increasingly, they are being asked to carry out capacity assessments for the Court of Protection, and they also play a leading role in safeguarding a person who may be at risk of harm from family or friends. The noble Baroness, Lady Hollins, was right to emphasise the importance of an assessment of the absence of mental disorder being critical when considering capacity. Your Lordships will have to reflect on whether there is a need for specialist assessment of capacity beyond that being carried out by the attending doctor and the independent doctor and, if so, what the requirements should be.

Finally, your Lordships may think that the noble Lord, Lord Griffiths, was right when speaking not altogether flippantly of the capacity of decision-makers to remind us that there is fallibility in experts just as there is fallibility in judges.

Lord Falconer of Thoroton Portrait Lord Falconer of Thoroton
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I am obliged to everyone who has taken part in this important debate. Capacity is central to the Bill. May I indicate how the Bill operates, so that we can then address the question of whether the safeguards are sufficient? I completely agree with the analysis given by the noble Lord, Lord Faulks, as to what the question for us is.

What the Bill requires before the prescription can be given is that the attending doctor and the independent doctor have separately examined the person and the person’s medical records and each, acting independently, must be,

“satisfied that the person … has the capacity to make the decision to end their own life”.

In addition, as a result of Amendment 4, which was made this morning, a justice of the High Court of Justice sitting in the Family Division must confirm that he or she is satisfied that the person has the capacity to make the decision to end his or her own life. Capacity is defined by reference to the Mental Capacity Act, in Clause 12. The noble Lord, Lord Faulks, is right in saying that that gives rise to no tension; how it operates is that, in considering whether the individual has capacity, the doctors and then the court ask themselves whether that individual has a sufficient degree of understanding and judgment to take this obviously very momentous decision. That means an understanding of what the decision is and what its consequences are. That is how the law defines capacity; it is a matter to be considered on a case-by-case basis.

Are the safeguards sufficient? The amendments identify a number of possibilities. First, I take the amendments proposed by the noble Baroness, Lady Hollins. She suggests that there must be a psychiatric assessment in every single case. That should be so, she says, even if the two doctors are satisfied and the judge is satisfied. Then there is the Butler-Sloss/Colville amendment, to call it so colloquially, which says that only when you are not sure and there are doubts do you make the assessment. The Murphy amendment also says that only if you have doubts should you have a psychiatric assessment.

My own view on this, although I need to consider it very carefully, is that if you have any doubts at all you could not be satisfied, whether you were the doctors or the court. In those circumstances, you might think that the case was much too doubtful and stop it straightaway, or you might have doubts because you do not know and are not qualified enough, so you should refer it to a psychiatrist. Like the noble and learned Baroness, Lady Butler-Sloss, the noble Viscount, Lord Colville of Culross, and the noble Baroness, Lady Murphy, I am not inclined to say that you have to get a psychiatric assessment in every single case. In my judgment, there will be cases where it is clear that there is no psychiatric element involved and it is the right thing to do because of the particular circumstances —and the idea that someone has to get a psychiatric assessment may look, on the facts of the case, wholly inappropriate.

My inclination is to consider the amendment proposed by the noble Baroness, Lady Murphy, as the right one. I also need to consider whether one needs to put in the Bill the sort of process that I have indicated, which reflects to some extent the approach of the noble and learned Baroness, Lady Butler-Sloss, and the noble Viscount, Lord Colville. On the basis of the debate that we have had, I think that is the right way to go but I will reflect on what has been said and consider the extent to which this needs to be in the Bill.

I ask noble Lords to remember that, subsequent to their tabling their amendments, the Pannick amendment, if I may call it that, has come in, so a judge will consider this issue. He or she will consider not just whether the right process has been gone through but will have to be satisfied—it is a primary question of fact for the judge—that the person applying to get the prescription has the capacity to make the decision, so you have that final safeguard. If the judge is not satisfied or thinks that a psychiatrist should be involved, there is the protection. I suspect that we should adopt something along the lines of the Butler-Sloss/Murphy approach. The question asked by the noble Lord, Lord Mawhinney, was answered by the noble and learned Lord, Lord Mackay of Clashfern. If the noble and learned Lord says what my Bill means, I accept his comments readily and enthusiastically.

The noble Lord, Lord Carlile, drew our attention to proposed new paragraphs (a) and (d) of his Amendment 65. As I understand proposed new paragraph (a), you cannot be satisfied that the person has capacity if he or she is,

“suffering from any impairment of, or disturbance in, the functioning of the mind or brain … which might cloud or impair his or her judgement”.

Again, I think that is going too far. What happens if someone has a brain tumour that might impair their judgment but the doctors are satisfied that that person’s decision to take their own life is one that they have reached completely aware of all the circumstances? To take another example, suppose someone is depressed because they are going to die imminently but the doctors and the judge are satisfied that, although the person is depressed, which might be an appropriate response to what is happening, they are absolutely clear that that is what they want to do. Therefore, I think that the amendment goes too far. Proposed new paragraph (d) of the amendment states that the capacity of an applicant,

“is not the subject of influence by, or a sense of obligation or duty to, others”.

With respect, I do not think that comes under “capacity” at all because capacity is about whether someone can make a judgment. A person can be completely able to make the judgment and conclude that they hate being dependent on other people. You might think that that is inappropriate and be guided by what the noble Lord, Lord Deben, says, but you certainly have the capacity to do it, so, although we should consider this under other headings, I honestly do not think that is a capacity issue.

The noble and learned Baroness, Lady Butler-Sloss, indicated three other points. First, she did not like the word “commensurate”. I have not used that word; it was the noble Lord, Lord Glenarthur—take it up with him. Secondly, she was keen—in my view, rightly—that the word “satisfied” should be used, as it is in her amendment. The requirement for the two doctors is that they must be “satisfied”. The requirement in the amendment of the noble Lord, Lord Pannick, is that the judge must be satisfied, so I agree with her and I think that that point has been met. Her third requirement was that of training. Under the Bill, the second doctor has to be an independent doctor who is,

“suitably qualified if that doctor holds such qualification or has such experience in respect of the diagnosis and management of terminal illness as the Secretary of State may specify in regulations”.

I am sympathetic to the noble and learned Baroness’s point and I think that it would be appropriate for certain training requirements to be met before you can be an independent doctor in this context. Therefore, I hope that I have dealt with her point.

I have dealt with Amendment 54 in the name of the noble Baroness, Lady Murphy. As regards Amendments 71 and 151, the noble Baroness, Lady Hollins, made a point that I had not seen reflected in her amendments but I am sure that is my fault—that is, what is the position of somebody who has been sectioned under the Mental Health Act 1983? I have assumed that they would not have capacity. It is not specifically raised as I read any of her amendments. However, I will need to consider that important point. My immediate assumption is that, if you are sectioned, you could not possibly have the capacity to make this decision but we need to look at the position in relation to that.

I have dealt with all the specific points made on the amendments. The debate was fascinating, moving and gripping. One of the great temptations in these debates is to veer off from the amendment, because we are all so gripped by this subject, and go into issues that are slightly off piste. I know it is done with the best motives but I am keen that the Committee should give everyone’s amendments a proper shot. I am trying to be disciplined. I ask very respectfully, because the amendments are fascinating, can we try to focus a bit more on the amendments?

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Lord Faulks Portrait Lord Faulks
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My Lords, this last group has engendered a wide-ranging debate which has called for considerable mental agility on the part of the participants. They have shown themselves well able to do so. I could not attempt to summarise all the issues that have been raised, but well raised they have been, and they have given the noble and learned Lord, Lord Falconer, a great deal to consider.

I shall deal with one point only. The noble Earl, Lord Listowel, was concerned, as he always is—much to the benefit of the House—with those aged between 18 and 25, who have not been the main focus of our attention today. I can tell the Committee that the General Medical Council’s core guidance for all registered doctors on good medical practice makes clear that a doctor,

“should make sure that arrangements are made, wherever possible, to meet patients’ language and communication needs”.

This will include consideration of the age of the patient.

Lord Falconer of Thoroton Portrait Lord Falconer of Thoroton
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The last half hour has been a remarkably focused debate on a series of amendments. I wish to go through each of the points that have been made.

Amendment 11 in the name of the noble Lord, Lord Alton of Liverpool, seeks to insert at the end of Clause 1 that a condition of having a right to an assisted death is that someone,

“is able to administer to himself or herself a lethal dose of drugs through whatever route is normally employed for ingestion of food”.

As the noble Lord recognised, that is at odds with the terms of the Bill, which state that,

“an assisting health professional may … prepare … medicine for self-administration by that person … prepare a medical device which will enable that person to self-administer the medicine; and … assist that person to ingest or otherwise self-administer the medicine; but the decision to self-administer the medicine and the final act of doing so must be taken by the person for whom the medicine has been prescribed”.

The Bill then specifically says with reference to subsection (4) of Clause 4, which I have just read out:

“Subsection (4) does not authorise an assisting health professional to administer a medicine to another person with the intention of causing that person’s death”,

so it absolutely underlines that it has to be a final act by the patient himself.

I am against the amendment of the noble Lord, Lord Alton, as it would discriminate against weak patients who cannot easily manage medication orally, including weakened cancer patients as well as those suffering from motor neurone disease, where setting up a form of driver would be more appropriate, but leaving the patient to take the final action. Alternatively, a nasogastric tube or even an intravenous drip can be set up and still leave the patient in control of the final action. The key thing here is to make sure that the Bill underlines that it has to be the final act by the patient but gives some degree of flexibility.

Amendment 10, which was primarily referred to by the noble Lord, Lord Cavendish of Furness, and is in his name, seeks to add a condition that the request for an assisted death should be made,

“on the basis of a fully informed decision”.

The Bill currently says that the person has to make the decision,

“on an informed basis and without coercion or duress”.

The Bill also provides:

“In deciding whether to countersign a declaration under subsection (3), the attending doctor and the independent doctor must be satisfied that the person making it has been fully informed of the palliative, hospice and other care which is available to that person”.

As a result of the amendments made by the Committee, moved by the noble Lord, Lord Pannick, the Bill now states that the judge has to be satisfied that the person has,

“a voluntary, clear, settled and informed wish”.

As between the Bill and the noble Lord, Lord Cavendish, there is no dispute that the person should be informed. I would be happy to insert “fully” wherever “informed” is referred to.

The noble Lord, Lord Cavendish, also has a further amendment, Amendment 70, supported by the noble and learned Lord, Lord Mackay of Clashfern, and the noble Baroness, Lady Grey-Thompson, in which, in effect, they set out what one would expect to form part of the full information given before the decision is made. It includes what the consequences of the illness are, what palliative care and pain relief are available, and what the prognosis is in relation to the illness—considerable detail like that. I would expect all these matters to fall within the words “fully informed”, but I recognise the feelings of the noble Lords, Lord Cavendish, Lord Howard of Lympne, and the noble and learned Lord, Lord Mackay, all of which suggest support for further spelling out of the meaning of “fully informed”. Can I take that away and come back with a proposal on Report to spell that out? I should make it clear that the sorts of things referred to in Amendment 70 would have been what I would have expected to include in any event. However, I can see that the Committee would get more assurance if it were set out in the Bill.

The next group of amendments were from the noble and right reverend Lord, Lord Harries, who was keen in Clause 1 to insert a provision that the decision was being made voluntarily. I am sorry to be wearisome, but the Bill currently requires that the two doctors must be satisfied that the person,

“has a clear and settled intention to end their own life which has been reached voluntarily, on an informed basis and without coercion or duress”.

In addition, as a result of the amendments made this morning, the judge has to be satisfied that the individual,

“has a voluntary, clear, settled and informed wish to end his or her own life”.

There is therefore no doubt that the requirement for voluntariness is there at two stages already. With all respect to the noble and right reverend Lord, Lord Harries, legally it will not make much difference to add that provision elsewhere also.

However, the noble and right reverend Lord touched on the deeper issue of whether we as a House would consider a situation whereby, even though one wished to live, one decided, because one was a burden to those one loved, to go down the route of an assisted death. I would say that that was not voluntary because one wanted to live. That may be an oversimplification in many cases—there may be other cases where the situation is more complicated—but I would not be in favour of putting anything to that effect in the Bill.

Anti-social Behaviour, Crime and Policing Bill

Lord Faulks Excerpts
Tuesday 12th November 2013

(10 years, 8 months ago)

Lords Chamber
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Therefore, I ask the Minister how this particular offence will be prosecuted. How will we differentiate between this offence and cases where someone may have been kidnapped or falsely imprisoned, for which the punishment could potentially be up to life imprisonment? How will prosecutors and others implementing this new offence differentiate between those more serious offences and the offence of forced marriage, where the activity used to try to coerce or oblige the individual to enter into a marriage will be one of those offences? I am concerned that we might downgrade the offence if it involves a forced marriage. The effect would be that if you kidnap someone simpliciter, you may be subject to a potential penalty of life imprisonment, but if you kidnap someone for the purpose of forcing them into a marriage and you are then prosecuted for the offence of so doing, under this legislation you will be subject to the lesser penalty. I am very concerned about what we may be saying to the public if we do that.
Lord Faulks Portrait Lord Faulks (Con)
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Would not the answer to the dilemma that the noble and learned Baroness quite rightly identifies be for the prosecuting authorities to have different counts on indictments so that they include, for example, Section 18 or Section 20 and the offence of forced marriage?

Baroness Scotland of Asthal Portrait Baroness Scotland of Asthal
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My Lords, that, of course, is the way forward. However, the question that I pose is this: how are the prosecutor and the police officer to decide which offence to go for? Criminal prosecutions, as the noble Lord will know, will be carried out on the basis of proving things beyond reasonable doubt. If you look at the forced marriage provision, you have to identify a course of behaviour that is coercive. In so doing, the prosecutor will have to identify what criminal act was alleged against the defendant. For example, is it alleged that the accused hit the person or that they threatened the person? It seems to me that in order to prove the forced marriage provision, you have to identify a substantive criminal act which it is asserted that person committed. If one then has a jury, what will we say to the jury? How do we differentiate the forced marriage allegation from the substantive allegation made in relation to the other offence? I am asking this probing question to understand how the Government expect this to be done, because you cannot have an alternative in the way that we have just debated unless there is clarity about what the prosecutor is seeking to establish. In the case of a kidnapping, in order to satisfy the jury that a forced marriage offence was committed, how do you differentiate between those two if the accused is found not guilty of the kidnapping but guilty of the forced marriage based on the kidnapping? There is an inherent difficulty.

The only element of this offence that seems not to be currently covered is coercion on an emotional basis. I take as an example a devout Jewish family which discovers that one of its children wishes to marry outside the faith. A matchmaker has arranged a marriage within the community and the child rejects the suggestion made by the parent. The parent then says, “If you do not do this, I will rend my garments, I will sit shiva for you”—which means, in effect, “I will treat you as if you were dead”—“and you will break my heart”. That is coercion inasmuch as it is emotional blackmail, perpetuated for the sole purpose of making the child change their mind, but it is genuinely felt by the parent, who believes that to refuse will be detrimental to the child’s long-term being. Looking at this offence, it seems to me that it would be possible to prosecute such a parent under this legislation. I want to be clear as to whether the Government believe that such a prosecution would be merited and is what they wish to achieve.

The whole question of forced marriage is a very delicate and difficult issue. If emotional blackmail, which is not yet on the statute book, is the only offence, do the Government intend this provision to apply to parents who use it? Emotional blackmail can be devastating; if you think your mother is going to kill herself, that the family are going to be shamed, that your father will never again be able to raise his head and that you will be thrown out of your community, that is very powerful coercion, directed specifically to cause the child to comply with the request. It seems to me, looking at the offence created, that that behaviour could be caught by this provision. I would very much like to know from the Minister whether that is the Government’s intent. Let us be clear. If a loving parent disagrees with a child and seeks to persuade them to do something, which the child does not want to do but which the parent believes to be right—no matter how wrong that parent is and if they do it lovingly—they could find themselves in difficulties. I need to understand from the Minister whether that is indeed his intent.

The other issue is to see how the legislation is currently working. From the evidence that I have been able to cull, the forced marriage protection orders appear to be a very effective tool. Between November 2008 and the end of 2010 there were 257 applications for forced marriage protection orders, of which 181 had power of arrest attached. By June 2011 339 orders were recorded. A study carried out in 2011 at Roehampton University shows that of the 74 written responses received from a range of groups, including local authorities, organisations concerned with domestic violence, faith groups, police and lawyers, 50% of respondents thought it should not be criminal, 38% were in favour, 13% were unsure, 57% thought it would be more difficult for criminals to come forward, and 64% thought that the existing legislation was enough. So 64% thought that what we have now is enough. The real issue that came forward strongly was the enforcement of the forced marriage protection orders.

Before we step into an area where there may be unforeseen consequences, I should like to hear from the Minister how it is proposed that this offence will operate and what guidance the enforcement agencies—the police and the CPS—should be given. If, however, as my amendment proposes, the Government were minded to make it an “aggravating feature”, that would be a very useful tool for the courts. Forced marriage involves a breach of trust. It is not just that you kidnap, falsely imprison or assault someone you are supposed to love, it is that you do so to force them to enter into a relationship that will have lasting impacts on their lives, and maybe negatively so.

Just as we punish more severely those who breach our trust if they steal from us as an employer, it is equally important to say that if you commit any of these substantive offences which are grievous and egregious in their own right, and you do so for the express purpose of forcing someone for whom you have responsibility directly or indirectly into a marriage or otherwise, you deserve more trenchant punishment than if you did it to a stranger—somebody that you did not know. We would be able to keep all the substantive offences, punish them appropriately in accordance with the gravity of what was done, using the legislation that is already there, but we could do so more trenchantly because they did it in the framework of forcing someone into marriage. We would do what the Government want, which is to make it very clear that it is a criminal offence, will be taken seriously and needs to be punished, but we may be able to do it within a context that will not bring about some of the unforeseen consequences that some of us foresee now.

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Baroness Uddin Portrait Baroness Uddin (Non-Afl)
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My Lords, I stand somewhat hesitantly and ask for the House’s leniency, as I did not take part at Second Reading. I hope that the House will indulge me for a few minutes, as someone who chaired the initial work on forced marriage in 1998, alongside the noble Lord, Lord Ahmed, instructed by the then Home Secretary. I was inspired by the comprehensive understanding of the noble and learned Baroness, Lady Scotland. I have no words of expertise to be able to relay the issues she laid before the House. I was also deeply inspired by the noble Lord, Lord Hussain. All those years ago, in 1998, such a speech would have been unthinkable from a Member of the House of Lords coming from the Pakistani community. The noble Lord, Lord Ahmed, also comes from the Pakistani community and, although he took a little pulling in on my sisterly part to bring him along to the discussions, when he did, he did so with vigour. We are standing on the shoulders of giants regarding much of the work that was done across the country.

We went across the country for 18 months, talking to various sections of the community: we left very few stones unturned, whether it was the Jewish community, the Irish community, the Scottish borders or the Welsh community. We did not leave any of the women’s organisations out of the debate. Out of it came the Forced Marriage Unit, which is very laudable, and the work it has subsequently done. I support the amendment moved by the noble and learned Baroness, Lady Scotland, because it is critical. All those years ago, women really wanted some protection and their consensus, which was right across the board, led to forced marriage protection orders. However, our report made it very clear that we proposed that this should have been done under the protection of domestic violence legislation and child protection legislation. Whether it is kidnapping or murder, we wanted to mainstream the issue of forced marriage into the criminal legislation. That did not happen at that point.

The women’s organisations listed by the noble and learned Baroness, Lady Scotland, have played a critical part in leading to the changes that have occurred and we have to acknowledge how much change there has been, led by community organisations, faith organisations and the women’s organisations themselves. If they are now saying that criminalisation will impact on the numbers of women and young people reporting, I suggest to the Committee that we take that very seriously. I have attended a number of meetings with these organisations, both here in the House and outside, and they have consistently asked that the Government recognise their work and expertise. They are saying that criminalisation will make it very difficult for them to work because, whatever we say about the amount of resources available outside, we have done very little since 1998 to empower those marginalised women economically and to address their welfare needs and their education. Women, in particular, will not be confident to come forward, whether it is to report violence against them or to report rape or forced marriage, unless we address the issue of their economic well being. I suggest that this added burden of criminalisation will be a very deep-seated aggravation, compounding the levels of pressure women face within the community. I hope that we will listen to some of the women’s organisations. I think that the amendment moved by the noble and learned Baroness is the right way to go about it and I hope that the Government will concede.

Lord Faulks Portrait Lord Faulks
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My Lords, I am a member of the Joint Committee on Human Rights, which looked at this issue, as with other issues in the Bill, and realised that there was a great deal of knowledge and experience in your Lordships’ House, some of which we have heard today. We came to the conclusion that we cautiously accepted the Government’s reasoning for the criminalisation of forced marriage, but we recommended, among other things, that the Crown Prosecution Service should develop a strategy on prosecutions over forced marriage and that, in developing such a strategy, there should be consultation with the relevant stakeholders. It was very much a cautious acceptance of the Government’s reasoning.

I appreciate that the noble and learned Baroness has put this down as a probing amendment rather than anything more and I accept it in that spirit. I counsel some caution, however, about having an offence which one commits if there is an aggravating feature in relation to another offence. It causes difficulties in sentencing in other cases in which this form of offence has been introduced. It seems to me, as I suggested in a brief intervention on the noble and learned Baroness, that it would be perfectly possible to have an offence of forced marriage and to have an offence if the context required it—a further offence, perhaps, in Section 20 or Section 18—of whatever other offence had been committed. However, I understand the spirit of the amendment and I look forward with interest to what the Minister has to say.

Baroness Thornton Portrait Baroness Thornton
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Did the human rights committee consider the proposal that has been put forward by my noble and learned friend? If it did not, does it think it would be a good idea if it did now do so, if there is time?

Lord Faulks Portrait Lord Faulks
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I do not, of course, speak for the committee, as I am only one member. This particular amendment was not considered; I can certainly take it back to the committee and ask that we consider it.

Baroness Hussein-Ece Portrait Baroness Hussein-Ece (LD)
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My Lords, I, too, pay tribute to the noble and learned Lady, Baroness Scotland, for all the work she has done in setting up the Forced Marriage Unit and for her commitment and dedication over many years on this issue, as well as on domestic violence and related issues. She speaks with great authority. My concern is that we need a clear message, a deterrent, to go out to many of these communities and my fear is that some of the messages we are hearing in the debate today are not as distinct as they could be.

I agree with my noble friend Lord Hussain that education is needed and that far more should be done within all the various communities. We are talking about a range of communities; it is not just one or two. Moreover, we are seeing people coming here from the first generation, particularly from certain African countries, who are still bringing these sorts of customs with them. They do not always understand what is and is not acceptable in the United Kingdom in the 21st century.

As I said in my earlier contribution, I have some personal experience of this. I know what it is like to be threatened with being ostracised from your family and to have to leave home. No child wants to feel the pressure of being ostracised and losing contact with their family. They cannot be in touch with their extended family. For many of us, our communities and families, particularly the immediate family, are very important to us. It is our whole world. Let us make no mistake, this is a terrible thing to happen. It is not always done with violence, but certainly with intimidation.

I want something that will work. Whatever we agree to, it has to be able to prevent this happening to young women. Unfortunately, the evidence shows that although we have made a lot of progress, this is still happening to far too many young women and, as my noble friend said earlier, to boys as well. Many young people are at risk and are being affected by this. The figure must still be in the thousands and that cannot be right. We have to do something about it.

On prevention, I heard what the noble Baroness, Lady Uddin, said about the voluntary organisations. The vast majority of community organisations that are working with their respective communities do not want to see the people who are in their communities being criminalised. No one would want that. The idea is that this would prevent people doing these things and entering into this sort of behaviour. It would prevent criminalisation.