Baroness Smith of Basildon
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Serious Crime Bill [HL]
Baroness Smith of Basildon Excerpts(9 years, 6 months ago)
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“Anonymity of victims where female genital mutilation is alleged
In section 2 of the Sexual Offences (Amendment) Act 1992 (offences to which this Act applies), after subsection (1)(da) insert—“(daa) any offences under sections 1 to 4 of the Female Genital Mutilation Act 2003;”.”
Baroness Smith of Basildon (Lab)
My Lords, in moving Amendment 44, I shall also speak to Amendment 44A. I thank those who have co-sponsored the amendments: my noble friend Lord Rosser, the right reverend Prelate the Bishop of Rochester, the noble Baroness, Lady Meacher, and the noble Lords, Lord McColl of Dulwich and Lord Pannick.
There are a number of amendments in the group and I welcome that the Minister has tabled amendments that mirror ours. This is a real opportunity not only to ensure meaningful changes to the law but also to ensure that the law is enforced.
The term FGM is becoming more widely known. Many people have a vague understanding that it means that a female, usually a young girl, is cut and her genitals mutilated, but I am not convinced that the absolute horror and brutality of what is involved is as well understood as it should be. Let us be very clear about what we are talking about. The term “female genital mutilation” refers to all procedures involving the partial or total removal of the external female genitalia or other injury to the female genital organs for non-medical reasons. The World Health Organization has classified it into three different types, including clitoridectomy—I never thought that I would have to say that in your Lordships’ House—excision or infibulation. What does that mean? Clitoridectomy is the partial or total removal of the clitoris. Excision is the partial or total removal of the clitoris and the inner labia, sometimes with the excision of the outer labia as well. Infibulation, which then follows, is the narrowing of the vaginal opening through the creation of a covering seal. The seal is formed by cutting and “repositioning” the inner or outer labia. There are other harmful procedures too, but this is essentially what these amendments refer to.
You do not have to be medically trained to appreciate not just the abusive brutality of what we are talking about but the serious health risks for the girls and women who are mutilated in this way, both at the time of mutilation and in later life. The risks include severe pain, injury to the surrounding organs, haemorrhage, infections that can cause death, chronic long-term pain and the obvious complications that occur during child- birth. That does not even begin to cover the psychological trauma that the girls carry for the rest of their lives. Reliable estimates are that, around the world, 130 million girls and women have undergone female genital mutilation. In Africa, 101 million girls aged 10 and over have been subject to FGM, and every year a further 3 million girls are at risk of FGM in Africa alone.
If noble Lords think that this is something that happens in other places and cannot happen here, let me share some horrifying and ugly statistics. A recent report in the UK based on 2011 census data and ONS birth statistics concluded that there are 170,000 women aged 15 and over in England and Wales who are living with the consequences of FGM. It is even more shocking that today in the UK 63,000 girls under the age of 13 are at risk of FGM. It is a serious problem here and it is a serious problem now.
In trying to tackle this we have tended to focus mainly on prosecution but we have not seen as many prosecutions as we would like given the high incidence of this crime. Our Amendment 44, on female genital mutilation orders, is aimed at trying to address the issue through prevention. This proposal is a direct result of the experience of those trying to protect young girls. It would establish female genital mutilation protection orders, which would be civil orders modelled on the forced marriage protection orders that enable a court to make an order to protect a girl or woman. This was originally a recommendation of the Bar Human Rights Committee of England and Wales. We are very grateful to the committee for its advice and for the briefings it has provided. They have been invaluable in our examination of these issues.
These orders would allow the court to intervene to prevent potential victims being subjected to FGM and would therefore act as a strong deterrent against the practice. The orders provide a range of injunctive remedies to the courts and, crucially, they focus on the victim. The powers include the ability for a number of people—including the potential victim but also a friend or a local authority—to apply to the court, where it is suspected on clear and compelling evidence that a child is at risk of mutilation, for an order prohibiting any interference with the bodily integrity of the child. It would also allow the court to intervene on its own account. The order could contain such prohibitions, restrictions or other requirements that the court considers appropriate for the purposes of protecting a girl or woman. We, like the Government, have largely mirrored the forced marriage protection orders because they have been used successfully hundreds of times now and they share common features with the FGM protection orders.
Girls and young women at risk are often reluctant to provide evidence that would criminalise their families. They are, by definition, young; they are vulnerable and effectively socially silenced. A difference between our proposals and the Government’s is that our amendment amends the Family Law Act 1996 and not the 2003 Act. There are a number of benefits to such orders being applied within family law jurisdiction. For cases involving children, civil protection would complement the existing measures for child protection and judges would be able to consider the full range of options available to the family courts provided for in the Children Act 1989. Civil protection would be more flexible but it would still be backed by criminal sanctions for breach.
All that matters is that legislation works. I appreciate that the government amendment is seeking the same aim by amending the 2003 Act, rather than the Family Law Act. There is an opportunity to better protect the child by amending the Family Law Act, both in terms of the remedies available and the enforcement of the legislation. We have seen already with the existing 2003 legislation that that is quite difficult. I appreciate that the Government have a consequential amendment, Amendment 50A, that in effect links these provisions to the family law, but I hope that the Minister can help on this. I am curious as to why the Government have chosen that route. It is not the route that was used in other cases. I am convinced that we are seeking the same outcome but we want to be convinced that the Government’s approach will still ensure that the joined-up approach to child protection, which is so vital in these cases, will be there. We do not disagree with the Government at all on the intention and the principle. We just want to ensure that we have the right route. We prefer—and our evidence backs this—the route through family law as a better approach than amending the 2003 legislation.
I turn to government Amendment 46G on female genital mutilation protection orders. We were very pleased to see that the Government also want this provision to be part of the Bill, but I ask the Minister to consider our concerns around this. Again, it is a matter of definition. The government amendment uses the definition of FGM that is in the 2003 legislation. That was ground-breaking legislation at the time, but since its introduction it has become evident that not everyone interprets the law in the way that we intended. Specifically, the issue to be addressed is whether reinfibulation is covered. Infibulation is the removal of all the external genitalia and the fusion of the wound, in effect almost sealing the vagina. At childbirth women need to be deinfibulated to have any possibility of a vaginal birth. Noble Lords who were in the Chamber when we last debated this would have heard the noble Baroness, Lady Finlay, who unfortunately is not here at present. Her experience of helping a woman who needed to be reinfibulated in order to give birth, and the difficulties the woman faced in being unable to have a vaginal birth, is a description that will stay with me for a long time. Reinfibulation involves restitching to reclose and reseal the FGM. That is further mutilation following childbirth. Again we have taken advice, and we are very grateful to the Bar Human Rights Committee and Doughty Street Chambers’ lawyers—who, through their experience of dealing with such cases, have drawn the conclusion that the definition of reinfibulation in the 2003 Act is inadequate and confusing.
A recent report from the Home Affairs Select Committee reinforced that conclusion. It referred to the Director of Public Prosecution’s letter to Ministers which also asked for clarification of the law in respect of reinfibulation. It said that,
“infibulation, also referred to as Type 3 FGM, involves the narrowing of the vaginal orifice, it needs to be opened up during childbirth. The Intercollegiate Group told us there have been cases where women who were de-infibulated during delivery had returned in subsequent pregnancies having undergone re-stitching, i.e. reinfibulation … The Crown Prosecution Service, the Metropolitan Police, ACPO, the Intercollegiate Group and others all told us this meant there was a lack of clarity as to whether reinfibulation was covered by legislation”.
I have raised this matter directly with the Minister and I am grateful to him for discussing it this time. I fully understand that the Government’s opinion is that this is covered by the 2003 definition. Certainly that is what was intended when it was brought in. However, what matters is what happens in practice. Legal and medical practitioners are telling us something completely different from what the Government believe and what was the intent at the time. A note from Dexter Dias QC, who has acted in FGM cases, informs us of research undertaken by Professor Lisa Avalos—I can supply the Minister and the noble Baroness with this information—and they emphasise that the law’s silence about reinfibulation is causing confusion among practitioners for a number of reasons.
Lord Lester of Herne Hill (LD)
My Lords, I rise only because of my experience in piloting through the Forced Marriage (Civil Protection) Act 2007. I just want to say how glad I am—because we are dealing with a whole group of amendments—that the Government are not only toughening criminal law, but also mimicking, or copying, that Act in relation to female genital mutilation. That is dealt with as a new schedule in government Amendment 46G. I would like briefly to explain why that is very wise.
The problem about using criminal law in this area is that it depends upon all the safeguards of a fair criminal trial. It depends upon there being a prosecution before a criminal court to a high standard of proof, the burden being on the prosecution, and all the panoply of a criminal trial, which may terrify anybody, but certainly will in this sensitive area. It is therefore extremely difficult for a prosecution to succeed in a case of this kind. It is said, and it is the position of the Government, that it is very important to send a signal. I am not, on the whole, in favour of using law simply to send signals.
Although I understand why the Government are strengthening the criminal law, if we are serious about dealing with this odious and significant social evil, the civil law is much more likely to be effective, including the use of the family courts. This is because, as with the Forced Marriage (Civil Protection) Act, first of all you do not need the victim to apply. A third party can do so. In fact, you do not need anyone to apply; the court can do so on its own initiative. Secondly, the application will be heard in private. Thirdly, the outcome will not involve dishonouring the family. It is extremely important in an area of this kind that the victim is not put in a position where if she gives evidence she will be permanently alienated from her family.
I am delighted that the noble and learned Baroness, Lady Butler-Sloss, is in her place, because she has far more experience of this than I have. Certainly experience of the 2003 Act has been very good in that forced marriage civil protection orders have been made in their hundreds and been complied with. It has worked because it uses the civil route of family law and family courts with all the expertise of those courts, in a way that will not deter victims from coming forward and which will not mean permanent divisions within the family.
As I read what the Government are proposing, that is well understood. That is why the new schedule which is to be inserted on female genital mutilation protection orders largely mimics what we were able to achieve in that Bill. I will explain who I mean by “we”. That Bill had the support of women, including Asian women, bodies such the Southall Black Sisters and the refuges. They really took ownership of it and made sure that it was something that would work. That ownership is vital. What is contemplated here should do that.
Baroness Smith of Basildon
I would like to ask the noble Lord’s advice on this, because he referred, as I did, to the forced marriage protection orders. I understand that that was done by an amendment to family law. The point on which I was asking the Minister to come back on was whether, by not amending the family law in the government amendment, although we seek to do that in our amendment, we will make it more difficult to bring the law together and deal with it in a family court. Does the noble Lord have a view on that, having dealt with this previously?
Lord Lester of Herne Hill
That is a very good question, but I cannot really answer it. My reading of government Amendment 46G indicates that there is a copying in of what had happened with forced marriage. Furthermore, paragraph (7) of the proposed new schedule in the amendment amends the Family Law Act and gives jurisdiction to the family court. I may be talking complete rubbish and I may be corrected, either by the noble Baroness or by the Minister. I am simply trying to get across why the civil route is so important and the use of family courts is so important.
Baroness Williams of Trafford
I apologise to my noble friend. I am sure that if other countries or jurisdictions want to take on our legislation, that would not be a problem. I will confirm that with the noble Lord in a letter and also put a copy of that letter in the Library, but I assume that to be the case.
I have been on my feet for some time, but I hope that I have set out in a little detail the effect of the government amendments. I am grateful to the House for bearing with me and commend the government amendments to the House.
Baroness Smith of Basildon
My Lords, I am grateful to the noble Baroness. She need not apologise for having been on her feet for a long time, as she did as much as she could to address the many issues which were raised in the debate.
On the issue of FGM protection orders, I think there is not a cigarette paper between us on what we are trying to achieve. However, I still do not fully understand—I am not a lawyer, but even the noble Lord, Lord Lester, could not help me out on this one—why the Government have chosen this approach and not the family law approach. That is the other point. I will look again in Hansard to see what she said, but given the comments that have been made around the House, I thought there was a willingness from the noble Baroness and from others for the Government to talk to us and say, “Have we got it right? Can we look at this?”.
Baroness Williams of Trafford
I thank the noble Baroness, and I think there is a further conversation to be had, perhaps outside the Chamber. I am very willing to engage with her and other noble Lords who may wish to meet with me before Third Reading.
Baroness Smith of Basildon
I am grateful to the noble Baroness for that, because we just want to get it right. On the basis that she is prepared to discuss it and bring something back at Third Reading, we will be happy to withdraw our amendment. I am grateful and I appreciate that.
However, I must express my disappointment with her comment around the legal definition. I was unusually —and somewhat, I would say, embarrassingly—graphic about what reinfibulation actually means. I know that the Government believe that it is covered in law, and I said that in my comments. We believed that we covered reinfibulation when we brought in the law in 2003, but the evidence is that it is not. If the Royal College of Midwives and the Royal College of Obstetricians and Gynaecologists say that it is not covered, we have to accept that there is a lack of clarity and there is some doubt. With the best will in the world, the noble Baroness saying to me that the Government believe that it is covered is not good enough. I ask her whether, on the same basis, she would be prepared to look at this and discuss this with us.
Baroness Smith of Basildon
I am extremely grateful. On both those issues, therefore, we would be happy not to press our amendments on the basis of further discussion before Third Reading.
Baroness Benjamin
My Lords, the NSPCC asked me to speak to this amendment because it believes that it will be beneficial to many young girls. I am pleased that this is being discussed. As this House recognises continually, FGM is child abuse and we should do all we can to tackle this cruel and painful practice. It is important that legislation is clear on this, but we have to be realistic on FGM that the law can only do so much, as has been said time and time again today. Until the social norms in which FGM operates are challenged, it will be difficult for members of communities to come forward to share their concerns about children who are vulnerable to FGM.
The NSPCC has stated that the amendment proposed is to be welcomed, given that it would create a specific offence and make it easier to bring cases against those who support FGM, even indirectly, whether they reside in or are just visiting the UK. This would help to support the excellent work being done to tackle the practice in communities—work that can be hampered when community leaders, family members and others continue to promote and encourage the practice of FGM.
I am aware that, as we heard on the previous amendment, there are existing FGM laws in place, but I believe that this amendment is probing what further can be done to stop this barbaric practice. We must always have children’s well-being at the top of our priorities. Young girls suffering the horrors of FGM need to know that not just laws but members of society will protect them from the suffering that many young girls are going through today.
Baroness Smith of Basildon
My Lords, first I congratulate the noble Baroness, Lady Meacher, on bringing this forward. We debated this in Committee and have looked at it before. I have had discussions with the noble Baroness, and indeed with the same lawyers to whom she has been speaking. We have to try to find a way forward on this issue.
I agree very much with the noble Lord, Lord Dobbs, on the issue of clarity and on the need for prosecutions. In the previous debate on FGM protection orders, we heard that the right for victims to be anonymous will help to bring some of those cases forward. However, a telling point was made by both the noble Baroness, Lady Meacher, and the noble and learned Baroness, Lady Butler-Sloss, when they said that the purpose of the amendment is as a deterrent. It seems to me that in some of the laws we bring forward we fail when we have to prosecute. The very purpose of the law is that we should not have to prosecute because the law is what stops an offence taking place.
This is a difficult area. We had these discussions in Committee, but I can see exactly what the noble Baroness, Lady Meacher, is trying to do in protecting girls and women from female genital mutilation. It is about those who would persuade, not just by suggesting that it is a good idea but by encouragement and advocacy, while knowing that they have to avoid a charge of incitement. They would not instruct someone to commit an offence but encourage and lead them to believe that it is the right thing to do. I am sympathetic to and supportive of the need to address the problem. The NSPCC has made the point and the Local Government Association has brought forward its concerns as well.
It strikes me—indeed, I am convinced—that, if we are to wipe out FGM within the UK, we have to address the specific issue of encouragement, promotion and advocacy. We know that some of the best persuasion is subtle. There are those families who believe in the practice not through somebody within that family or the community saying, “You must have your daughter cut”, or have FGM, but through comments, persuasion, advocacy and encouragement that can lead families to be fearful if they do not proceed with the process.
Obviously, we do not want to go down the road of criminalising people for the comments they make. I wonder whether the noble Lord, Lord Dobbs, has read the clause in its entirety. He talked about tribal customs or something, but the proposed clause refers specifically to female genital mutilation and that is the only offence in this context.
I acknowledge that this amendment has been tabled only recently and we have not had a full opportunity to distil the detail, and I understand that the Minister will say that the Bill team does not believe that this will address the problem. However, I hope that that is because the noble Baroness realises that there is a serious problem. Young girls in this country are undergoing this barbaric process and procedure because somebody in their community thinks it is the right thing to do. It is shocking that mothers and grandmothers, as mentioned by the noble Baroness, Lady Tonge, having gone through the process themselves, inflict it on their children and grandchildren. Unless we break that cycle and persuade mothers and grandmothers that it is wrong, we will not be able to stop children in this country going through it. That is the point the amendment is trying to make.
We need to break that link—that cycle—of people saying, “This is the right thing to do. You must do this. Your child must be clean”. We have to break the cycle so that we do not have the encouragement, advocacy and pressure that children should undergo FGM. That is the only way we can wipe it out in this country.
Baroness Smith of Basildon
It could be argued that that was a considerable clarification. I am grateful to the noble Baroness.
If the Minister’s Bill team does not believe that this addresses the problem, and we in your Lordships’ House all understand what the problem is, can we look at it again? The Minister has been very good and I greatly appreciate her co-operation. We can have discussions before Third Reading and full debates in the other place as well. This is the only opportunity, as we will not have another Bill on this in the short term. We have an opportunity here to get it right. We would welcome discussions with the noble Baroness, Lady Meacher, and the noble and learned Baroness, Lady Butler-Sloss, as well as the lawyers who have tried to find a way through on this without encroaching on the kinds of issues that the noble Lord, Lord Dobbs, rightly addressed, or on issues of free speech. We can find a way through and this is the only chance we have. If we are to wipe this out in the UK, we have to address it.
Baroness Williams of Trafford
Again, this has been a further excellent debate on the role of the criminal law in helping to put a stop to the practice of FGM in this country. I am grateful for the constructive approach that the noble Baroness, Lady Meacher, and others have adopted in both debates and in the discussions we have had outside and inside the Chamber.
As many noble Lords have said, we are aiming to get to the same end. It is slightly unfortunate that the amendment was tabled quite late and that there is a difference of opinion in terms of what the amendment seeks to achieve. My noble friend Lady Hamwee rightly pointed out, on the point about “other or others”, that the amendment does not seek to achieve what was sought in the original amendment, if that makes sense.
I also thank my noble friend Lady Tonge and the noble Baroness, Lady Meacher, for pointing out quite strongly that this is not a religious matter. There is nothing in any religious text that points to FGM being something that should be carried out on young girls. It is a specific cultural practice that exists in certain communities in the world and has found its way to this country. Legislation alone cannot eradicate a practice that is so deeply ingrained in the culture and traditions of those who practise it and have been doing so for centuries, but I agree that the law is a very important part of our response to the abhorrent practice of female genital mutilation, and it is right that we should change it where necessary.
We believe that the new offence that we have just debated of failing to protect a girl from risk of genital mutilation gets to the heart of the issue. The Government’s new offence focuses on those who allow this dreadful abuse to be perpetrated on their daughters rather than on those who may only encourage them to do so. That is not to suggest that encouraging female genital mutilation, or indeed any crime, is in any way acceptable.
I take the point made by the noble Baroness, Lady Hamwee, that such behaviour also constitutes an offence under the provisions of Part 2 of the Serious Crime Act 2007, which contains inchoate offences of: intentionally encouraging or assisting an offence; encouraging or assisting an offence believing it will be committed; and encouraging or assisting offences believing one or more will be committed. As the noble Baroness observed, the revised wording of the proposed new offence follows closely the wording of the existing inchoate offences. That is both its strength and, dare I say, its weakness. As a result, it would not cover behaviour that is not already covered by the existing 2007 Act offences.
We are not persuaded that creating a specific offence of encouraging FGM is necessary or appropriate. The provisions in Part 2 of the Serious Crime Act 2007 apply to all criminal offences precisely so that it is not necessary to create specific encouraging or assisting offences for every crime. We agree that the behaviours now referred to in the noble Baroness’s revised amendment should be criminalised, but that is already the case. This amendment would not advance the criminal law in this area—I suspect this is where we are going to have a further conversation.
We believe that changing the culture and attitudes that allow female genital mutilation to persist will be better achieved through the awareness raising and community engagement that the Government have already embarked upon, rather than through the creation of another, arguably unnecessary, inchoate offence.
I wholeheartedly commend the aims of the noble Baroness, Lady Meacher, and others in tabling her amendment. As I have said, this House is united in its desire to eradicate FGM, even though we may differ on how best to achieve that end. I hope the noble Baroness will agree that the government amendments that we have just debated represent a substantial package of measures to strengthen the civil and criminal law to tackle FGM. I firmly believe that they offer a better way forward, and on that basis I ask the noble Baroness not to press her amendment.
Baroness Benjamin
My Lords, as we have already heard, the NSPCC supports the amendment and, as it always hold children’s best interests at heart, it is good that we are debating why it does so.
For children and young people, the internet is an exciting extension of their offline world, a source of information and communication and a way to expand their social lives and networks. However, along with the great benefits of the internet there is also a considerable amount of risk—a dark side, from which we need to protect children by putting measures in place.
As the noble Lord, Lord Harris, said, ChildLine last year had a 168% increase in contacts relating to online sexual abuse year. This is a most disturbing trend. Young people have told ChildLine that they are experiencing all sorts of new abuse on a scale never before seen, and many parents say that keeping their children safe online is a key concern for the welfare of their child.
The problem is that there is inadequate protection for children from adults who send obscene or disturbing material to them—in the majority of cases, over the internet. The current law in this area is fragmented and confused, making it hard for police to deal with sexual messaging appropriately. Existing legislation, such as the Sexual Offences Act 2003, predates the widespread use of the internet and the huge growth in the number of offenders targeting children online.
Evidence has shown that, increasingly, offenders have no intention of meeting the child because the internet gives them new ways to control and influence children without ever having to touch them. The end goal may now be to persuade, coerce or groom a child to get them to perform sexual acts via a webcam. This can sometimes leave children feeling mentally abused, with low self-esteem, and is often the start of self-harming.
Under the current law it is hard to tackle grooming behaviour at an early stage, meaning that intervention can often be made only when the abuse gets to a more serious and extreme level, such as when the child sends an image of themselves, or when arrangements are made to meet and abuse the child. There have been suggestions that there is adequate provision in existing law to cover online grooming. However, the NSPCC and other children’s charities do not agree. Under existing legislation, many of these offences would not be captured because the defence would argue that the threshold required for the communication to be covered by the offence had not been met. What is the solution? The NSPCC believes that this amendment would close a gap in the law, to better protect children online.
A YouGov poll found that three out of four adults believe that it is already illegal for someone over 18 to send a sexual message to a child under 16. The fact is that no such specific offence exists. Eight out of 10 people polled by YouGov said that they would support a change in the law. This simple and sensible change would have a number of positive effects in relation to protecting children from online abuse, primarily helping to protect children from unwanted and distressing sexual contact online and enabling action to be taken against offenders at an earlier stage of the grooming process, thereby helping to prevent abuse escalating. I hope that the Government will give full consideration to this amendment, to protect our children. I look forward to the Minister’s response.
Baroness Smith of Basildon
My Lords, my noble friend Lord Harris and the noble Baroness, Lady Howe, have undertaken a service to your Lordships’ House by tabling this amendment for debate today. There is no doubt that, alongside the advantages that modern technology brings, it also brings new dangers for children. Looking across your Lordships’ House, I suspect that when any of us went out to play as kids, our parents would tell us, “Careful how you cross the road, and don’t talk to strangers”.
If I am honest, my parents were happiest if they thought that I was safe upstairs in my bedroom with my friends, playing my music or pretending to do my homework. Nowadays, parents have those same fears while the child is at home in their bedroom, on their computer or mobile phone. It is very difficult for parents always to understand or put in the controls that need to be there. The danger has moved; it can now be in the home or in the child’s bedroom. The law has to keep pace with the changes that have come about. The technology has moved, and the law has to move too.
I am very grateful to the NSPCC for what I thought was a very helpful briefing. I also agree with the point that my noble friend Lord Harris made about the “slow burn” of these types of offences. I recall dealing with a case some time ago where there was a man in his 30s, who had a family, who was corresponding with an 11 year-old girl in another country, who thought that she was in contact with another 11 year-old girl. In that case, he was stopped before it went too far, but it is easy to see how over a period of time somebody can believe that the person they are in contact with is someone just like them. It is their friend, whether it is a boyfriend or someone of the same gender. This is the grooming that is referred to.
I will not go into the detail of the legislation, because my noble friend Lord Harris explained that, but I am sure that the Minister’s file covers this area. When he took up his post, he was kind enough to meet me. He thought that I had been a Home Office Minister. I was not; I was a Home Office PPS. Part of my duties as a PPS was to run two paces behind my Minister, clutching the file as he went into Committee. On every page, against an amendment put down by a member of the Opposition was a line which read, “Resist, it is covered by other legislation”. I expect that the noble Lord has a very similar file in front of him today.
I will give the Minister the benefit of my experience on this issue. This came up previously when we were debating the anti-social behaviour Bill in your Lordships’ House. I was brought a proposal from the Manchester police and crime commissioner about how to shut down more quickly premises that have been used for grooming young girls for sex. I was told “We do not have the powers”. I had a letter from Norman Baker, the Home Office Minister which said, “Of course you have the powers; this can be done; you can use the prostitution laws”. How could you use the prostitution laws with an 11 or 12 year-old girl? You could not. However, the advice from the Home Office in correspondence after correspondence was that it was already covered by existing law.
We often hear that it is covered by existing law, but our experience when we see offences being committed, but not being prosecuted, is that the existing law is inadequate. On that occasion we tabled an amendment. The noble Baroness, Lady Hamwee, had the same concerns then as she has expressed today about it not being the right kind of legislation and said that it should be in another Bill. Where there is a will, there is a way. If we really want to address some of these problems, we can. The noble Lord, Lord Taylor, was very helpful on that occasion. I withdrew my amendment. The Government came back with their amendment which we were delighted to support and were very grateful to do so.
There is an opportunity here. The wording may not be perfect; I am sure that the Minister has his note saying, “resist”; but there is an issue here that has to be addressed. Failure to address it now will mean that we lose the opportunity until the next Home Office Bill. I know that they are like double-decker buses sometimes, but we have an opportunity here to bring the law up to date. The law exists in Scotland and is used for prosecutions in Scotland when other laws fail. So here is an opportunity. I hope that the Minister can just put his file to one side and not resist, just until Third Reading, to see whether there is a way forward to address what is becoming a pretty serious problem.
Lord Bates
I am tempted by the Baroness’s offer to put my file aside, but I will stick with it a little because, as we have seen through this whole process of discussion in Committee, which she has been following right from the beginning, it is not the case that “resist” is there because it is something that someone just does not want to consider. All the way through, we have seen the openness of officials to have meetings with groups and with Back-Bench Peers. The genuine government amendments that have been brought forward, and the responses, not least today and on other matters, show that we are all very much on the same side on all of the issues, whether it is FGM, mandatory reporting, or indeed this one.
However, there are genuine differences between people in some NGOs about the best way of achieving this. Officials are using their knowledge and expertise of the system to ask whether this is actually something which is going to strengthen our hand. A great forecast was made by the noble Lord, Lord Harris, of what was actually in my speech. I can assure him that I shall not disappoint him in referring to those specific Acts. One reason why I shall not disappoint him is that the Ministry of Justice has met with the NSPCC, as you would expect, and talked to it about its concerns in this area. It has shared its thoughts on the amendment.
I will try to be as helpful as I can, but I need to get some remarks on the record. If the House could bear with me in my responses, I will come back to the specific issues raised. I share the noble Lord’s objective, which is to ensure that we have a robust body of criminal law to tackle predatory sexual behaviour by adults against vulnerable children. The House remains united in its condemnation of the sexual abuse of children, and it is through the work of noble Lords across all parties and none that we have some of the strongest and most respected criminal laws in the world to deal with this dreadful offending.
I thank the National Society for the Prevention of Cruelty to Children, which has proposed this new offence and brought its concerns to this debate. Its efforts, and those of its supporters, have helped to create a tough range of criminal sanctions and provided support to help to protect children. I also thank the NSPCC for engaging in constructive talks with my officials about this new clause. I also mention ChildLine in this context.
The new clause would create a new criminal offence prohibiting an adult from communicating with someone under 16 who they do not reasonably believe to be over 16, or someone who is in fact under 13 years of age, where that communication is sexual or intended to elicit a response that is sexual. The person’s purpose in sending the communication or seeking a response would need to be sexual.
As I said, we have some of the strongest and most robust laws in the world to deal with sexual offences against children. Although we are examining this issue, our preliminary view is that the behaviour targeted by this amendment is already captured under existing law.
I hope that noble Lords will bear with me while I outline some of the existing relevant provisions. If a message is sent by means of a public electronic communications network—that would include the internet—and its content is grossly offensive, indecent, obscene or menacing, it will fall foul of the offence in Section 127 of the Communications Act 2003. Those convicted of this offence who pose a risk of serious sexual harm to the public can be made subject to a sexual offences prevention order. The noble Lord, Lord Harris, mentioned that the situation in Scotland was much better, but in this regard the Communications Act 2003 does not apply to Scotland. It does apply in England and Wales, and there have been 1,314 prosecutions under Section 127 of the Communications Act in 2013 alone. This will cover a range of issues, not the specific ones that he is concerned about, but it is certainly not something that the police feel that they have no opportunity to prosecute under the Communications Act 2003.
I realise that this offence would not apply to non-electronic communication or perhaps private communications networks, but our other laws here are broad enough to capture sexual messages to children in this manner. If the messages, including any sent images, are indecent or grossly offensive, sending them may fall foul of Section 1 of the Malicious Communications Act 1988. I readily acknowledge the point made by my noble friend Lady Benjamin, who talked about 1988 certainly predating the world-wide web in that context, but some of the laws that are in place for offensive materials and activities relating to other media are still relevant to the new media, and we should not just disregard them. They fall foul of the Act provided that they are sent with the purpose of causing distress or anxiety to a person to whom the material is communicated, or intended to be communicated.
Baroness Hamwee
My Lords, I hate to disappoint the noble Lord, Lord Harris, but I fear that I am going to, as I simply have a question for him. I speak from a basis of almost no technological knowledge, but I would have thought that, presumably, all the services are open to abuse. Can I just ask what consultation there has been on this? The noble Lord talked about the responsible, innovative and exciting—if you are that way inclined—work being done by some of the ISPs. Like him, I have found the big players to be very responsible and wanting to be seen to be responsible. However, the proposed provision would obviously put an obligation on them. I would be interested to know how they have responded to it, if the noble Lord has had the opportunity to ascertain that.
Baroness Smith of Basildon
My Lords, I rise to speak briefly on this issue. During the Recess we had a meeting with Microsoft to discuss how it approached this matter. I was grateful for that because I probably share only one thing with the noble Baroness, Lady Hamwee, and that is that I have no technical knowledge or expertise and felt quite at a loss when looking at these issues. Microsoft officials gave us an understanding of the comments made by the noble Lord, Lord Harris, about the codes used to identify photographs and the hash code it used and they discussed whether it was an offence to store the coded photograph itself. Microsoft has developed its PhotoDNA technology that enables it to identify minor changes that abusers make in trying to slide past any checks and balances in the system, so it is carrying out impressive work to try to address this issue.
In listening to the presentation, I was particularly shocked by the sheer number of photographs and images, and the numbers of people involved, worldwide. At the beginning of his comments, the right relevant Prelate the Bishop of Derby, I think, referred to a recent case in Southend. That is close to where I live, so noble Lords can imagine that my local papers had a tremendous amount of coverage of that and I had commented on it. The case involved the head teacher of a local private school, who was interviewed by the police following the fact that his name came to light in an investigation carried out originally in Toronto. His name was passed to the UK, but it took far too long—well over a year—for him to be interviewed, following delays at CEOP and the police. When he was finally interviewed, he was found dead the following day. The amount of information that was found on his computer was staggering. Time will tell us the outcome of this as the investigations progress, but presumably that head teacher must have had links with people in other parts of the country and elsewhere in the world, and photographs may have been exchanged; certainly, he obtained photographs from others.
The scale of that activity is phenomenal and it is a tall order to expect the police to visit every single person involved in it. Having said that, I am critical of the fact that so few people, who we know have committed these abuse offences and have inappropriate images of children, have been visited by the police. I think that we could do far better in that regard and the delays are a cause for concern. However, we are talking about a massive number of people, so if technology is available that can block these photographs or allow the police to identify people more quickly, we should take every available opportunity to use it.
As I say, I was very impressed by the efforts being taken both by Microsoft, which briefed us, and by others to ensure that they can identify photographs, code them and pass on information. As I think the noble Baroness, Lady Hamwee, said, the amendment of the noble Lord, Lord Harris, does not place an obligation on internet service providers but allows them to take action. It basically says that they should consider the issue and, if there is a material risk, they should look at what they can do and take reasonable steps that might,
“mitigate, reduce, eliminate or other disrupt said behaviour”.
There are no sanctions or penalties for failing to do so, but it allows the internet service providers to take some action—action that we would want them to take and, I think, they would want to take.
The noble Lord, Lord Harris, has already said that he does not feel that he has a monopoly on being the world’s greatest drafter and is prepared to accept that there occasionally may be things that could be improved. He has, however, hit on something here. It is an issue to be addressed. I hope that the Government are having urgent meetings with the ISPs to see how they can work together on this. This amendment provides an opportunity to do so, and I would be interested to know what discussions the Government are having with internet service providers. It is an issue that we need to address. If we can deal with it at source and identify those who are responsible early on, it seems to me that would be a huge step forward in protecting children from this kind of abuse.
Lord Thomas of Gresford (LD)
My Lords, it is a pleasure to follow the noble Baroness, Lady Cohen of Pimlico, and to make the same point from the point of view of the Bar. I do not think that legal professional privilege is fully understood. Certainly in the criminal field, there may be a perception that defence barristers get together with their client and cook up some story, and if only the police could have access to the instructions of the barrister or the solicitor, all would be revealed. The contrary is the truth.
If I can bowdlerise a little bit, when I see a client for the first time, I say to him, “Will you please not tell me any bull? I want to know the truth. Unless you tell me the truth, I am not able to help you. I am not able to give you proper advice, just as though you went to the doctor saying that you had a pain in your toe when in fact the pain was in your head. Tell me the truth”. It very often happens that the client will then come out with a story which you can then check against the other evidence in the prosecution case, and go back to him and say, “You did tell me a lot of bull. I really need to know the truth if I am to represent you properly”. He will change his story in some instances and will tell the truth. With that truth, you can win cases or you can mitigate the just punishment that will ultimately be imposed on him and advise him to plead guilty if that is the right thing to do.
It is an extremely delicate relationship between the client and the barrister or solicitor—I have been in the solicitor position as well—that many people do not understand. A judge understands it. If a judge, on a proper application being made to him, decides that it is in the public interest that this relationship should be investigated, and if there is something about the way in which the case is being conducted that gives rise to suspicion so that prying into the papers of the defence is an appropriate thing to do, the judge from all his experience—all judges will have been through the mill themselves and will know precisely how these things should be approached—will give the ultimate permission for the file or the papers to be looked at. Generally speaking, though, he will not do so, and it is quite wrong if the police use RIPA powers—legislation that was intended for a completely different purpose—to break into that very delicate relationship and break it up.
That is the importance of the amendment moved by the noble Lord, Lord Strasburger, and I support it entirely.
Baroness Smith of Basildon
My Lords, I can be fairly brief in this debate because I think the Minister will have heard the very real and deep concerns across the House on this. It is not the first time that concerns have been raised about the use or misuse of RIPA. In this instance we are talking about the rights of journalists obtaining information from confidential sources to retain that confidentiality without which some information may never come to light. Previously, there had been anecdotal reports of local authorities using the legislation, which the noble Lord, Lord Black, mentioned, including identifying whether parents were living in a school catchment area. These issues raise serious concerns and have serious implications for individuals and for issues of collective privacy.
I will say something about the wider and serious implications of misuse of the legislation, but I want to address the specific role of journalists’ sources. In effect, we are discussing how new technology has brought with it new challenges for a free press and for personal privacy. Thirty years ago, if the police wanted access to journalists’ sources, they would have to go to a court to obtain their notes. There were no mobile phone records they could access at that time. Similarly, we would not have seen journalists illegally hacking into private phone calls, as shamefully came to light more recently.
Over the weekend, like other noble Lords, I read some of the obituaries of Ben Bradlee, and this amendment came to mind as I was reading about his editorship of the Washington Post. I also watched “All the President’s Men”, which is one of my favourite films. The main people portrayed in that film—Bob Woodward, Carl Bernstein and Ben Bradlee—uncovered the most serious corruption at the highest level of government. I might tag this amendment as “the Watergate amendment” because, although the jurisdictions are entirely different, the principle is the same. Would that story, with all the implications for democracy and secrecy, ever have been told if the Nixon Administration had been able to identify the Deep Throat source or access the records of the journalists he was speaking to? If Nixon had been able to obtain mobile phone records in secret, would we ever have found out what was going on? There will be parallels in the UK, although perhaps they will not be so dramatic. That underlines the value and importance of serious investigative journalism. I am not talking about sensationalist stories about people that most of us have never heard of, but about the best kind of journalism, which I hugely admire, acting in the public interest, not just on what is of public interest.
Noble Lords will recall that, when the Government brought in new powers into the DRIP Act by fast-track legislation to deal with serious and organised crime, including terrorism, we were highly critical of the way in which they acted and of the need to use the fast-track process. Part of our demands in supporting that legislation was that there should be a complete, thorough and independent view of RIPA. We have said for some time that it is becoming increasingly clear and obvious that RIPA is out of date and does not have the right kind of framework or the safeguards we need. Recent reports that RIPA has been used to access journalists’ sources reinforce that. It is right that the Interception Commissioner is looking at it, but in addition it is essential that we get a clear guarantee from the Minister today that this issue will be included as part of the comprehensive review of RIPA led by David Anderson, the independent reviewer of terrorism legislation, that was agreed by the Government during the debates on DRIPA.
For many, the world seems less safe today. We must be vigilant against organised and serious crime and terrorism. I believe that the public understand and support the need for measures that the Government must put in place to deal with these threats to our safety. In order to have and maintain that public support, it is vital that such powers are only ever used for the purpose for which they were intended. If those powers are abused, whether by government, police or local authorities, it undermines public confidence in the very measures needed for the most serious issues, and that puts us all at risk.
Of course, journalists are not above the law. Like anyone else, they need to be investigated if they have committed a serious crime, and I do not think anybody is arguing otherwise. As noble Lords have pointed out, there is already an independent judicial process with prior jurisdiction needed by which the police can apply for access to journalists’ information, but we have a long tradition of additional safeguards in law to recognise the role of a free press in a democracy and to protect whistleblowers, and this should not be compromised.
That is why we need the RIPA legislation to be examined in its entirety, including in context and in application, to ensure that the legal framework enables the police to access the data they need to solve serious crimes and to ensure that it does not have a chilling effect on free speech and the free press on which our democracy depends. The Government must ensure that David Anderson’s review is ambitious enough in scope to resolve these problems and to respond positively to the issue before us now. We seek an assurance from the Minister that this matter will be considered in the review. In addition, the Government must make it clear by whatever means are appropriate that such legislation must only ever be used for the purpose for which it was intended.
Baroness Williams of Trafford
My Lords, I am grateful to my noble friend for explaining the purpose of this amendment. I do not believe there is any difference between my noble friend and me, or indeed any of your Lordships who have contributed to this debate, on the key issue at stake here. We all agree that a free and fearless press is fundamental to a democratic society. A key element of journalism is the protection of sources, and I can assure your Lordships that the Government do not wish to do anything which would undermine the operation of the vibrant and independent press that operates in this country.
The amendment which my noble friend has moved seeks to require public authorities who acquire communications data under the Regulation of Investigatory Powers Act 2000 to seek the authorisation of a judge when the material requested is subject to legal privilege or relates to journalistic sources. However, this is unnecessary, given the strict regulation RIPA already contains and the additional safeguards we are already putting in place.
Communications data—the who, when and where but not the content of a communication—would reveal the telephone number a journalist or lawyer calls, but would not reveal any of what was said or written in a communication. Last month, the independent Interception of Communications Commissioner issued a statement in which he said that communications data,
“do not contain any details of what was said or written by the sender or the recipient of the communication. As such, the communications data retained by CSPs”—
communications service providers—
“do not contain any material that may be said to be of professional or legal privilege—the fact that a communication took place does not provide what was discussed or considered or advised”.
None the less, I recognise that this is a sensitive issue. It is personal information and RIPA already applies rigorous controls on its acquisition.
Communications data can only be obtained when their acquisition is necessary for a specified purpose, such as preventing and detecting crime, and then only when it is proportionate to do so. Anyone can complain to the Investigatory Powers Tribunal if they think the powers have been used unlawfully against them. The whole system is presided over, and reported on, by the Interception of Communications Commissioner, a senior judicial figure.
These controls apply to all requests for communications data, and I believe we have one of the most stringent systems to be found anywhere, with both strict internal controls and independent oversight. If any of your Lordships have doubts on this point, I would recommend reading the annual report of the Interception of Communications Commissioner. Sir Anthony May’s report, published in April of this year, includes a detailed account of how the system works and a full statistical breakdown of communications data requests.
However, we recognise the special considerations that apply to journalists, lawyers and a number of other professions which may involve access to sensitive information. We have announced plans to update the Acquisition and Disclosure of Communications Data Code of Practice. These changes will make clear that specific consideration must be given by the senior authorising officer to the level of possible intrusion in cases likely to involve the communications data of those engaged in certain professions who may have obligations of professional secrecy. These professions include journalism, as well as those of lawyers, doctors and Members of Parliament, and will also include those known to be close contacts of members of these professions. Any application for communications data that are known to be the data of members of these professions or their close contacts will have to state this clearly in the application. It will also require that relevant information is available to the authorising office when considering necessity and proportionality. This change will make clear in the statutory code what is already existing best practice.
We will publish the updated draft code of practice for public consultation as soon as possible, noting the acting Interception of Communications Commissioner’s request to expedite publication of the code. It is also worth pointing out that on 6 October the acting Interception of Communications Commissioner, Sir Paul Kennedy, announced that he had,
“launched an inquiry into the use of RIPA powers to determine whether the acquisition of communications data has been undertaken to identify journalistic sources”.
It would certainly be premature to take any legislative action in advance of knowing his findings.
The noble Baroness, Lady Smith of Basildon, asked whether David Anderson’s review of RIPA would cover this area. I am sure that David Anderson will wish to look at all aspects of RIPA interception and communications data, including this issue.
In the light of the protections already available, the very clear commitment to strengthen these through the code of practice and the ongoing inquiry by Sir Paul Kennedy, I invite my noble friend to withdraw his amendment.