Anti-social Behaviour, Crime and Policing Bill

Julian Huppert Excerpts

Monday 14th October 2013 Commons Chamber

[Damian Green]

If I may, I will first pay tribute to the hon. Lady, who has campaigned on these issues for a long time and deserves much of the credit for raising public awareness. If I may, I will come to the details of the offences shortly.

New clauses 14 and 15, and new schedule 1, will repeal the sexual offences prevention order, foreign travel order and risk of sexual harm order in England and Wales, and replace them with two new orders: the sexual harm prevention order and the sexual risk order. I welcome the engagement of hon. Members on this issue and I hope that my hon. Friend the Member for Oxford West and Abingdon will be pleased to note that we have sought to include her points as far as possible in the Government amendments. Indeed, following consultation with front-line professionals, including the police, the courts, the National Offender Management Service and the National Crime Agency, in a number of respects the Government amendments go further than her new clause 5.

The sexual harm prevention order will be available for those with convictions for sexual or violent offences. It may be made by a court on conviction, or by the magistrates court on application by the police or the National Crime Agency. A court may impose an order for the purposes of protecting the public in the UK and/or children or vulnerable adults abroad from sexual harm.

The sexual harm prevention order may prohibit the person from doing anything described in it, including preventing travel overseas. Any prohibition must be necessary for protecting the public in the UK from sexual harm or, in relation to foreign travel, protecting children or vulnerable adults from sexual harm. It lasts a minimum of five years and has no maximum duration, with the exception of any foreign travel restrictions which, if applicable, lasts for a maximum of five years but can be renewed.

The second new civil order is the sexual risk order, which will be available for those who have not been convicted of an offence but who none the less pose a risk of sexual harm to the public. It may be made by the magistrates court on application by the police or the new National Crime Agency where an individual has done an act of a sexual nature and poses a risk of harm to the public in the UK or adults or vulnerable children overseas.

[Dr Julian Huppert (Cambridge) (LD)]

When the Minister mentioned the sexual risk orders, he helpfully highlighted the fact that they will apply to people who have not been convicted of any offence. What level of proof and standard of evidence will be needed to show that someone has done something of a sexual nature, and what would be included in that?

[Damian Green]

There is a specified list, which applies to the existing orders, and they are the obvious acts of a sexual nature. I take my hon. Friend’s point and, like him, I am very keen to see proper safeguards. That is why even the sexual risk order has to be made by a magistrate, so it will have judicial oversight and will not simply be available on the application of the police. That is a significant safeguard, and I hope that he would welcome that.

Any prohibition in the sexual risk order must be necessary for protecting the public in the UK from sexual harm or, in relation to foreign travel, protecting children or vulnerable adults from sexual harm. Such an order will last a minimum of two years and has no maximum duration, with the exception of any foreign travel restriction which, if applicable, lasts for a maximum of five years, but can be renewed.

[Dr Huppert]

rose—

[Damian Green]

Before I give way to the hon. Gentleman, I will address the point made by the hon. Member for Stockport (Ann Coffey). The two new orders will apply to both over-18s and under-18s.

[Dr Huppert]

I thank the Minister for his earlier comments and for his understanding of the need for safeguards. I do not think he addressed the level of proof required in the court—whether it would be beyond reasonable doubt, or the balance of probability. Will he also explain, on the sexual risk order in particular, why the orders cannot be for less than two years? Why does he want to constrain magistrates?

[Damian Green]

We wish to avoid impracticalities in the system—we do not want to clog up the court system. The orders are serious enough to have that minimum period, and one hopes that it will make them effective and not mean a constant throughput of extra cases in the magistrates court. I will come on to more of the details, which I hope will reassure my hon. Friend.

The new regime will extend to England and Wales, although the protections afforded by the new orders will continue to relate to persons elsewhere in the UK, or beyond where necessary. We have included provision for cross-border enforcement and continue to liaise closely with the devolved Administrations.

I can perhaps answer my hon. Friend’s question directly by addressing what has changed. A number of key changes make the new sexual harm prevention order and the new sexual risk order more robust, more flexible and therefore more effective than previous orders. The new orders may be made to manage broader categories of risk, allowing them to be used in particular to manage risk against adults and vulnerable adults, as well as children. All members of the public deserve to be adequately protected from sexual harm. This change will ensure that dangerous individuals can be managed, regardless of to whom they present a risk.

Furthermore, the condition for the availability of the new sexual risk order is that the defendant has done an act of a sexual nature as a result of which it is necessary to protect the public. The previous “non-conviction” order required that the person concerned must have done at least two acts from a specified list of risky behaviour. The new provisions allow for an order as soon as an individual presents a risk.

As well as local police forces, the National Crime Agency will be able to apply for either of the new orders. This is a reflection of its expertise and access to intelligence on aspects of sexual offending, particularly against children. The NCA will be required to notify the relevant force area, which will continue to be responsible for managing offenders. I hope that that reassures my hon. Friend that the standard of proof will be the criminal standard of proof—the highest standard.

The remit of the new orders will be wider. For example, either will allow foreign travel restrictions to be applied. Our determination to prevent harm to children and vulnerable adults applies outside the United Kingdom as well as within. Individuals subject to the new sexual harm prevention order will be required to inform the police whenever their name or address changes. This will improve the police’s ability to monitor and manage individuals subject to these orders.

Those are the changes. What we are keeping are the aspects of the old orders that have been shown to be effective. In line with the old order, the new sexual harm prevention order will make the offender subject to the notification requirements for registered sex offenders—it will put them on the sex offenders register. For both new orders, in line with the existing position, breach is a criminal offence punishable by a maximum of five years’ imprisonment. Conviction for a breach of a sexual risk order would also make that individual subject to the sex offender notification requirements.

[Dr Huppert]

The Minister is being very generous in giving way and I thank him. One of the things he is keeping the same is the list of acts in the Sexual Offences Act, one of which states:

“giving a child anything that relates to sexual activity or contains a reference to such activity”.

There are some cases where that would clearly be inappropriate, but it might include a wide range of literature and textbooks, and that is presumably not the intention. How will the Minister ensure that there is no misinterpretation? We are keen to ensure the safeguards are correct.

[Damian Green]

As I said, I very much share the hon. Gentleman’s desire for the safeguards to be effective. That is why I laid great stress on the fact that this order will have to be made in court, so that if, as he suggests, a textbook has been given to a child, one imagines that—except in very odd circumstances—no sensible magistrate would regard that as in any way disturbing or warranting this type of activity. In this instance, we can rely on the protections that the courts rightly afford individuals to ensure that sensible decisions are made on these types of orders.

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[Dr Huppert]

I have been following everything that the hon. Lady says. I presume that she is not suggesting that someone should be jailed for five years without requiring a criminal standard of proof. Surely that is not what she is suggesting.

[Diana Johnson]

I find it extremely annoying that when Liberal Democrats get to their feet on child protection issues, when we are making sure that our children have the protection that we all want to see, this is the issue that is pursued. I am asking how best we can protect our children. There is genuinely a question to be asked about the standard that is used in the orders. The Government have chosen to introduce some new orders, which I fully support, but it is worth considering whose side we are on. Given some of the abuse cases that we have heard, particularly in the constituency of the hon. Member for Oxford West and Abingdon, we need to think long and hard about where our instincts should lie in ensuring that our children are protected.

[Dr Huppert]

rose—

[Diana Johnson]

I will continue, because I have a feeling that this debate could go on all night with the Liberal Democrats.

I want to ask the Minister and the hon. Lady whether they feel that the threshold might be too high. I accept—the Liberal Democrats will like this bit—that there is a significant cost to the individual on whom an order is placed, reputationally, and particularly if that becomes public. We know that, because of public disgust associated with sex crimes, the effect of a sex offence order being imposed on an individual, whatever it is called, will be devastating to that individual.

It has not helped that the risk of sexual harm orders that were previously in place have been called, I think wrongly, sex offence ASBOs, because the higher standard of proof makes that comparison unhelpful. At the same time, we must accept that there will be many occasions when the police have a well founded, reasonable belief that someone poses a risk to children but are not able to secure a conviction, because, for example, they cannot present in open court the evidence required. In particular, the situation could arise if a vulnerable witness is not in a position to give evidence in court. In such cases, we may want a civil protection order, precisely because we cannot get a conviction at the higher criminal standard. Will the Minister comment on whether the new orders will allow for far more cases to be subject to the orders?

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[Sir Paul Beresford]

I echo those congratulations. One thing I have discovered in this House is that it is possible for Back Benchers with a really good cause to push it and persuade a Government—whatever Government. The other thing to be said about this evening’s debate, at least until 7 o’clock, is that there is cross-House agreement —and, I hasten to add to the Opposition Front Bench, even the Liberal party is on board—and that has been the case on this area for some considerable time.

The Sexual Offences Act 2003 is the legislation being changed tonight. Although the Act came in under a Labour Government, I am sure the right hon. Member for Wythenshawe and Sale East (Paul Goggins), who was a Minister at about that time, would agree that there was huge cross-party support and thinking behind the scenes. Indeed, I was on the Home Office taskforce that did a lot of the work leading up to the child protection part of that Act.

Tonight, however, I want to focus on my new clause 7, which would amend section 62 of the Coroners and Justice Act 2009, entitled “Possession of prohibited images of children”. Those prohibited images are pornographic images, and they may take various forms, including photographs, pseudo-photographs, cartoons and computer-generated images. They may be moving or still, too. The link between the possession and the viewing and actual action against children is generally accepted, as the hon. Member for Kingston upon Hull North (Diana Johnson) said from the Opposition Front Bench.

The ludicrous situation is that an individual will be liable for prosecution for possession of photographs, pseudo-photographs, computer-generated images and so on, but not for the written word describing child sex abuse in pornographic, and often lurid, detail. All, including the written word in this form, are designed by the individuals concerned for sexual stimulation over the sexual abuse of children. If an individual wrote from his or her imagination a graphic description of child sexual abuse—which could, and often is, more emotive and more graphic than any picture of any form—even if he or she described one of those pictures or cartoons, that individual could not be prosecuted for the possession of this graphic material, even though for many of these individuals the written word is more powerful.

Let me give a simple example that I gave in speaking to my ten-minute rule Bill last Wednesday. CEOP provided me with the details of a man from Kent who wrote describing his wish to kidnap an early-teenage girl, strip her, sexually abuse her in an exceptionally unpleasant way and then, in an even more unpleasant way which I will not detail, slowly kill this girl. It is horrific, especially as his writings then inspired this individual to actually carry it out. He is in prison, hopefully for a very long time if not for ever, but the teenager is gone. One would have thought that the early discovery of the writings could have helped, but if the police had found them they would have had no power to act. This new clause has developed out of discussions with members past and present of the Metropolitan police paedophile unit and with the team leading CEOP in this area, and is supported by it, including Peter Davies.

CEOP last year published a research document on paedophile cases. It is mentioned in the report, almost as a sideline, that some offenders possess graphic notes or writings of child abuse. The Home Secretary has written to me on this matter stating she is asking for a report from CEOP on the need for this change. As the Minister will recall, some months ago both CEOP and the head of the Metropolitan police paedophile unit joined me in making a presentation to him. They brought some of the literature; I did not. The officers supported the need for this change. They explained that they had seen volumes of material in their search for illegal child abuse photographs. As the possession of such written material is not illegal, they obviously disregarded it, seeking only, at high speed and using computer technology, child abuse images.

[Dr Huppert]

The hon. Gentleman is clearly talking about some horrific material, and I am listening carefully to his case. He is far more expert in this area than I am. How does this link in with the Obscene Publications Act 1959? Does not that provide some protection in this area?

[Sir Paul Beresford]

No, it does not. I am looking at changes to the Coroners and Justice Act 2009, not to the Obscene Publications Act. Otherwise I would wander into deep mire, which I am sure that Liberal Members would help me wallow in further.

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[Dr Huppert]

It is a pleasure to speak in this debate. I pay tribute to my colleague on the Home Affairs Committee, the hon. Member for Oxford West and Abingdon (Nicola Blackwood), who gave a fantastic example of her grasp of the details of this subject and her attitude to it. I served with her on the Committee during its inquiry into child sexual exploitation in response to localised grooming, when we all shared experiences that will stay with me and, I am sure, with her for the rest of our lives. Some of the things we saw and heard about were absolutely horrific. It is to her great credit that she has responded in a very measured way to try to address this. Her speech was exemplary in that regard.

We all think that abuse of children and of any vulnerable adult is completely and utterly unacceptable. It is a heinous crime. Everybody in this House opposes it and wants to see it ended; that is absolutely clear. It is also clear that a crime of this nature is a crime regardless of where it happens. When people go overseas to abuse children, that cannot be okay just because those children happen not to be British. That much is absolutely, completely and utterly clear.

The hon. Lady outlined very well a number of improvements in what the Government are suggesting. For example, it seems odd that a rule was brought in saying that there must be two offences before a breach of something becomes a serious matter. I struggle to think of any other examples where someone would have to do something twice before there was perceived to be a problem. It is absolutely right to get rid of that.

I was very surprised by several of the comments by the hon. Member for Kingston upon Hull North (Diana Johnson). There is a danger that we get trapped in the idea that we must do anything to protect children. It becomes a mantra: “Won’t somebody think of the children?” We do need to protect children but in a way that will work and will not cause us problems. It is an important principle that people do not get jailed based on anything less than the criminal standard of proof. I was genuinely horrified by her suggestion that it would be worth considering something else. I accept that this is a deeply emotional area, and we all want to protect children. I hope that on reflection she will reconsider some of her comments about my perspective on that. We all want that protection to happen, but we must also ensure that we do not break some of the principles of the rule of law.

[Diana Johnson]

In discussing civil orders I merely raised a question about the appropriate standard of proof. I was not suggesting that we should move to a lower standard but merely questioning whether keeping the higher standard was the best thing to do and asking the Minister and the hon. Member for Oxford West and Abingdon (Nicola Blackwood) to reflect on that. I hope that the hon. Gentleman will express that properly when he refers to my views and not try to suggest that I was putting forward any other view.

[Dr Huppert]

I thank the hon. Lady for that clarification. My own view is that I would not even want to consider the idea of jailing somebody without going through the criminal process, because that is a fundamental position of our law. She was indeed only questioning it, but I am still surprised that it would even be questioned.

[Mark Reckless]

The record will of course show this, but does my hon. Friend agree that his point was to raise a concern that Labour Members might allow someone to be jailed for five years on the basis of balance of probabilities? All we heard back from the shadow Minister was an ad-hominem, or at least ad-party, attack on him, as though only a Liberal Democrat could object to such a thing. That is extraordinary.

[Dr Huppert]

I agree factually with the hon. Gentleman, but I do not want to dwell on that, because it detracts from the excellent work that has been done by the hon. Member for Oxford West and Abingdon and so many others.

Questions still need to be answered for us to understand the details and the guidance, as the hon. Lady said. That is critical. I listened carefully to her comments about the idea that not everyone subject to an order could be jailed, but I would hope that that would be the principal aim. I think we would all like people who abuse children or vulnerable adults to go to jail, rather than receive a civil order. The gap between the two should be closed as much as possible.

I am concerned that there will still be strange applications. The case of Simon Walsh was interesting—it was surprising that it was brought in the first place— and he was eventually found not guilty, but I think he might have been caught by new clause 5, so I remain concerned about how we can avoid that happening when people have been found explicitly not guilty. I think we will have a chance to look at that and clarify the details.

Finally, I accept new clause 5 and have no problems with it becoming part of the Bill. I congratulate the hon. Lady on tabling it and the Minister on accepting it. One of my key findings during the Home Affairs Committee inquiry was that, yes, there is room for legislative change, but the vast majority of the problem was caused by organisational failures and by people not trusting or listening to young people—a series of things that will not be fixed by legislation. We must not delude ourselves that passing a law that makes certain behaviour illegal and that implements orders will, in and of itself, make the difference needed.

[Simon Danczuk (Rochdale) (Lab)]

I am sorry that I was not able to be here for the beginning of the debate; unfortunately, I had Select Committee business. I have no doubt that I would have enjoyed the contributions, particularly the alleged verbal attack on the Liberal Democrats.

I want to discuss two things: first, the great contribution made by the hon. Member for Oxford West and Abingdon (Nicola Blackwood), and, secondly, the Government’s proposals on sexual predators and the use of the orders to prevent such behaviour.

I pay tribute to the hon. Lady for her exceptionally good campaign. Members will be aware of what has become known as the Rochdale grooming scandal. The Home Affairs Committee did excellent work on that and other cases of on-street grooming. My hon. Friend the Member for Stockport (Ann Coffey) has also done much to raise concerns about such issues. The campaign run by the hon. Member for Oxford West and Abingdon has been second to none, and that is a credit to her. It will play an important part—this should not be underestimated—in helping to protect young people from sexual predators, such as those we have seen not just in Rochdale, Oxford and Rotherham, but in many other towns and cities across the country.

I am pleased with and welcome the Government’s proposals, which consolidate and strengthen the provisions put in place by the previous Labour Government. Had the orders been in place some years ago, I am convinced that, had agencies such as Greater Manchester police used them, they would have stopped a lot of the abuse that occurred in Rochdale. We now know that there was a failure by Rochdale council social services and its exceptionally unhealthy culture at the time.

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[Simon Hughes]

I wish to speak to the new clause and amendments that I and the hon. Member for Aberavon (Dr Francis) tabled, and I will also say a word about the Government amendments and Labour’s amendment 96.

Our amendments all arise from the deliberations of the Joint Committee on Human Rights, which has just completed its report on the Bill. I welcome the Minister of State, Home Department, my hon. Friend the Member for Lewes (Norman Baker)—if I can have his attention for a second—to his new responsibilities. I hope it will help him and the House if I say that we do not intend to seek to divide the House on the new clause or the amendments, but I hope that he will be able to give me a positive and constructive response. On many occasions we have been on the same side, trying to get positive and constructive responses from previous Conservative and Labour Governments. We have not always succeeded, but I hope that the new form of double act will allow me to ask for some reasonable changes and him to agree, either today or very shortly, to the changes that we seek.

I will put on record the relevant parts of the summary of the Joint Committee’s report, which we published on 9 October. It was the Committee’s fourth report of this Session. It states:

“The Anti-social Behaviour, Crime and Policing Bill was introduced in the House of Commons on 9 May 2013…It is a substantial Bill containing many provisions with significant human rights implications”.

The new clause relates to one of those implications. All the amendments in this group have human rights implications, which is why Mr Speaker has grouped them

We should like Ministers to pay attention to the issue of antisocial behaviour, which I shall come to expressly; to that of forced marriage; and, probably most politically controversially, to those of powers to stop, question, search and detain at ports, and compensation for miscarriages of justice. We shall come to those matters later in our deliberations.

We are grateful for the way the Bill team facilitated the Committee’s scrutiny of those issues, but we have three qualifications, as set out in our unanimous report. It states:

“First, we doubt whether the mechanisms for ensuring that a systematic analysis of the impact of laws and policies on children’s rights is carried out are yet embedded across Whitehall. We repeat our call for the Government to reassure Parliament that in future it will conduct a thorough assessment of the impact of legislation on the rights of children under the UN Convention on the Rights of the Child before the legislation is introduced. We propose to raise with the Children’s Commissioner the question of what can be done, in practical terms, to accelerate the Government’s progress towards implementing its undertaking to Parliament of nearly three years ago.

Second, the number of significant Government amendments to the Bill with potentially significant human rights implications has made our scrutiny—”

any Committee’s scrutiny, but ours in particular—

“of the Bill’s human rights compatibility more difficult”.

We take up that issue with the Leader of the House on a regular basis, because the more amendments are tabled late in the day, the more difficult Committees such as ours find it to report to the House and advise colleagues on how to respond. The summary continues:

“Third, the Government has not always provided us with information it has promised in sufficient time to enable us to scrutinise it adequately. We call on the Government, once again, to ensure in future that we are provided with the information we request in time to inform our scrutiny of Government Bills.”

Let me address the new clause and amendments to the antisocial behaviour proposals collectively, and then I will consider them individually although I do not anticipate detaining the House for too long. Parts 1 to 6 of the Bill reform current measures on antisocial behaviour, and the Committee’s view is that preventive measures against antisocial behaviour are, in principle, a welcome fulfilment of the state’s positive obligation to protect people against having their rights interfered with by others—that is the important context in which we consider all human rights implications of the Bill’s antisocial behaviour provisions.

New clause 33 would add to the Bill the requirement that

“The courts must take into account the best interests of the child as a primary consideration”

when imposing an injunction. It is a common principle of criminal and welfare law that the best interests of children be taken into account, and we would like that written into the Bill. The new clause simply states that the best interests of the child should be taken into account in four situations, namely when the courts are deciding to impose

“an injunction;

the terms of any prohibition or requirement;

sanctions for breach of an injunction; and

when determining reporting of a child’s case.”.

The Committee considered the human rights compatibility of the new civil injunction to prevent nuisance and annoyance—an IPNA. The Bill states that an IPNA may be imposed if the court considers it “just and convenient” to prevent antisocial behaviour—a lower test than the test of necessity required by human rights law. We also considered that the new IPNA definition of antisocial behaviour is too broad and not clear enough. I hope Ministers will consider positively the idea that the Bill should be as clear as possible and compatible with other legislation; we should not start introducing concepts not found in other legislation, which would mean that people would not know how the law would be interpreted.

In the Committee’s view, the Bill’s current provisions on the prohibitions and requirements that can be attached to an injunction are far too broad. Furthermore, we have not been persuaded that it is necessary to state expressly that prohibitions and requirements in an IPNA must “so far as practicable” avoid any conflict with religious beliefs. The Committee is clear—the House has been clear about this on many occasions—that the freedom to hold religious beliefs, or any beliefs that may not be from a religious perspective, is not a relative right but an absolute right that cannot be interfered with. The power to exclude a person from his or her home through the use of an IPNA is a severe measure, and the Committee believes further provision is required to ensure that such a power is used only when necessary.

As the new sanctions can be imposed on children as young as 10, the Committee also scrutinised the provisions and considered their impact on the rights of children. To reduce the potential negative impact of IPNA measures on children, we recommend that the courts must take into account the best interests of the child as a primary consideration in any IPNA legal proceedings. That explains the Committee’s position, and I will now consider quickly other amendments in the group.

[Dr Huppert]

My right hon. Friend is making an extremely good point. Has he had a chance to consider the report by the Home Affairs Committee which, during pre-legislative scrutiny of the Bill, came up with many of the concerns he has highlighted? Perhaps the fact that two different Committees raised the same concerns will mean that our hon. Friend the Minister might reflect more on the issue.

[Simon Hughes]

I am aware of the report by the Home Affairs Committee. One good thing is that since I started—my hon. Friend was very young; indeed, he may not have been alive, or just about, I think—Select Committees have become more useful and effective. They play a strong and useful part not just in considering issues, as the Home Affairs Committee has done, but in looking at legislation and reporting to the House. If we set up Select Committees like the Home Affairs Committee, or the Joint Committee on Human Rights, on which I and the hon. Member for Aberavon have the privilege to serve and which he has the honour to chair, it is nonsensical if our recommendations are not properly considered by the Government.

Amendments 158, 163, 164, 159 to 162, 165 and 166 relate to part 1 of the Bill. They do not require any great supporting speech as I hope they are drafted clearly and make their point. Amendment 158 would amend clause 1 on the power to grant injunctions, and would add to subsection (2) the words “might reasonably be regarded”. If amended, the clause would read:

“The first condition is that the court is satisfied, on the balance of probabilities, that the respondent has engaged or threatens to engage in conduct that might reasonably be regarded as capable of causing nuisance or annoyance to any person”.

That seeks to introduce an objective rather than a subjective test, which we believe would be helpful in ensuring the law is clear.

Amendments 163 and 164 go together and would mean that one test a court should apply when considering whether to impose an injunction, in addition to whether it is “just and convenient”, should be whether it is “proportionate”. That is a simple proposition, and as I know from my constituency work—and, I guess, the same is true for colleagues—it is always difficult to judge whether going to court and getting an injunction is the right way to deal with what may be growing, yet still relatively modest, antisocial behaviour. We think proportionality is appropriate and that it is better to write that into the Bill.

Amendments 159 to 162 ask for greater specificity about what the injunction prohibits, and we have tried to tidy up the language a bit—to put it bluntly—and remove some relatively loose wording. Clause 1(4) currently reads:

“An injunction under this section may for the purpose of preventing the respondent from engaging in anti-social behaviour—

prohibit the respondent from doing anything described in the injunction;

require the respondent to do anything described in the injunction.”

There is a prohibition provision and a requirement provision. We ask the House to consider whether, rather than “do anything” the clause could be a bit more specific—that is a pretty general phrase not normally found in legislation. Amendment 159 would prohibit the respondent from “specified actions”, so the injunction would state, “You cannot throw stones through windows”, rather than, “You cannot do anything,” which may or may not be specified. “You must stop behaving badly” seems a rather unsatisfactory and general instruction, whether it is men behaving badly, or women or anybody else.

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We hope that makes the provision clearer and we hope the Government will buy that proposal.

[Dr Huppert]

My right hon. Friend is making an extremely good series of points. Does he share a concern about positive actions? There may be cases where somebody, through no fault of their own, cannot perform a positive action. There were cases with indeterminate sentences, for example, where prisoners were required to do various courses, which in some cases were not available for them to do. Would that also be checked?

[Simon Hughes]

One of the things that I hope we do better now because of Select Committees is take time to get Bills right. We have pre-legislative scrutiny which—[Interruption.] The hon. Member for Kingston upon Hull North (Diana Johnson) knows that I was critical of large parts of the Health and Social Care Bill and I have been critical about the process for dealing with the Transparency of Lobbying, Non-Party Campaigning and Trade Union Administration Bill, which has just gone through this House. I said here, and I have not changed my view, that the Government should have submitted the Bill for proper pre-legislative scrutiny. Unless it is absolutely impossible, pre-legislative scrutiny should always take place because draftspeople may do a good first job, but they may not think of all the issues that we, representing all parts of the United Kingdom, might spot and be able to use our experience to deal with. I agree with my hon. Friend the Member for Cambridge (Dr Huppert), and I hope the Government will be positive. I am sure these issues crop up in Lewes as much as in Cambridge and in Bermondsey and Southwark.

The religious beliefs issue is the last in this set of amendments. We ask the Minister to consider removing clause 1(5)(a). At present there is a list of four things which the prohibitions and requirements in an injunction must, so far as practicable, be such as to avoid: any conflict with the respondent’s caring responsibilities, any interference with the times at which the respondent normally works or attends school or any other educational establishment, and any conflict with the requirements of any other court order or injunction to which the respondent may be subject. The fourth one is

“any conflict with the respondent’s religious beliefs”.

As I indicated earlier, we think that that cannot properly be there because somebody’s right to hold a religious belief is absolute and therefore should not be qualified by the words

“must, so far as practicable, be such as to avoid—

(a) any conflict with the respondent’s religious beliefs”.

I am encouraged to think that the Minister in particular will be helpful because he has a good human rights record and I am sure he will want to say, on behalf of the Home Office, that the Home Office is positive about that.

There is one more amendment in the group relating to part 1—amendment 166— which deals with whether people can be excluded from their homes. We are clear that the sanction of excluding somebody from their home should be a sanction of last resort. It is a very serious thing to take away that right. At present there is a power to exclude a person from home in cases of violence or risk of harm. Clause 12 states:

“(1) An injunction under section 1 may have the effect of excluding the respondent from the place where he or she normally lives only if—

(a) that place is owned or managed by a local authority or a housing provider,

(b) the injunction is granted on the application of the local authority or housing provider, and

(c) the court thinks that—

(i) the anti-social behaviour in which the respondent has engaged or threatens to engage consists of or includes the use or threatened use of violence against other persons, or

(ii) there is a significant risk of harm to other persons from the respondent.”

This is a well publicised issue. In my borough, both when my colleagues were running the administration and when it has been under Labour administration, there has been discussion publicly as well as among councillors about whether an injunction should be used to kick people out of their council home or their housing association home, and if so, in what circumstances. In a way, such a provision is slightly discriminatory because it applies only to people who are in publicly funded housing; it does not apply to someone in private rented property. That remains an issue. We want the Minister to be positive about our amendment 166, which would add to subsection (c) one more condition—that the court has to be satisfied that the exclusion is necessary and appropriate. Of course, if someone has engaged or threatens to engage in violence, or has threatened other people in the house, whether it is domestic violence among members of a family or household or otherwise, the logic might be that they should be excluded. I do not resile from that at all, but because it is such a draconian solution the court needs to be clear that it is necessary and appropriate. That is the run of amendments in relation to part 1.

There is a smaller number of amendments relating to part 2, which is about criminal behaviour orders. The Committee recommends that the appropriate standard of proof required to establish anti-social behaviour for the purpose of a criminal behaviour order, which is a new order being introduced by the Government, should be made clear on the face of the Bill. The reason we say that is that it could be assumed that it was a civil standard of proof, as opposed to a criminal standard of proof. We think we ought to make that clear, not just so that the public know, but so that law enforcers and the public authorities know.

The Bill provides that a criminal behaviour order may be imposed if the court considers it “will help in preventing” anti-social behaviour. The Joint Committee on Human Rights does not consider this to be an appropriate or clear legislative test and we recommend that it is amended. As with the previous section, we consider that the broad and open-ended definition of the prohibitions and positive requirements that may be included in a criminal behaviour order do not satisfy the requirement of legal certainty, and we recommend to colleagues and to Government that the Bill be amended to achieve greater certainty.

Amendment 167 inserts after “satisfied” the words

“according to the criminal standard of proof”

in clause 21.

Amendment 168 would replace the words “help in preventing” with the single word “prevent”. Deciding whether something will help in preventing some behaviour gets us into rather esoteric territory and does not provide as clear a standard of proof as we would wish.

Amendment 169 is the same as an amendment we suggested to part 1, and would mean that instead of using the words “doing anything” to describe the actions, “specified actions” would have to be set out.

Amendment 170 is also similar to one of our amendments to part 1, and would ensure that the criminal behaviour orders

“relate to the anti-social behaviour which the respondent has engaged in”.

That would mean that there was a link between the activity and the public response.

Amendment 171 is a further amendment to clause 21 to make it is slightly more specific and, again, uses the phrase “specified actions” rather than “anything”. Amendment 172 makes the same change as amendment 170 a little further on, ensuring that the order relates to the antisocial behaviour in question.

Amendment 173 would leave out line 3 on page 12, which contains the same qualification as earlier about religious beliefs. The amendment would mean that the absolute right to religious beliefs would not be qualified when prohibitions and requirements in a criminal behaviour order were being considered by the authorities. We are trying to ensure that parts 1 and 2 are consistent and we hope that the Government will be positive about that.

Amendments 174 and 175 would add the following sentence, which reflects the principle I set out at the beginning of my speech, to the end of clauses 22 and 29:

“The courts must take into account the best interests of the child as a primary consideration when determining reporting of a child’s case.”

We are seeking to ensure that the duty of the court is on the face of the Bill.

Amendment 176, the last in the group, applies to clause 34, which can be found on pages 19 and 20 of the Bill. Its last subsection states:

“A constable may not give a direction to a person under section 33 if the person is one of a group of persons who are—

(a) engaged in conduct that is lawful under section 220 of the Trade Union and Labour Relations (Consolidation) Act 1992 (peaceful picketing), or

(b) taking part in a public procession of the kind mentioned in subsection (1) of section 11 of the Public Order Act 1986 in respect of which…written notice has been given…or…written notice is not required”—

that is, a lawful public procession. We think that, after that, a provision should be included so that a police officer cannot give a direction if people are engaging in any other lawful form of public assembly. There are public assemblies that are not marches or picketing but that are perfectly lawful, and we do not think that they should be interfered with under the powers in the Bill. I hope that my civil libertarian colleagues on both sides of the House will fully support that.

That is part 3 dealt with, which leaves only part 5. It deals with the recovery of possession on riot-related antisocial behaviour grounds. The Committee’s view is simply put:

“While we recognise the seriousness of riot-related offences, we are not persuaded by the Government’s justification for the new discretionary ground of possession for riot-related anti-social behaviour. We are concerned about its potential serious implications for family members, and consider that it may disproportionately affect women and children. We also consider that it amounts to a punishment rather than a genuine means of preventing harm to others. We therefore recommend that this provision is removed from the Bill.”

Let me pause and say that I am conscious that that area is controversial. The controversy arose in my constituency a year and a bit ago, in the summer, when we had “riots” on the streets of Southwark and—not to a huge degree, but to some degree—on the Walworth road and in Peckham. Other cities in Britain as well as other parts of London were affected by riots. The question is how we deal with those who are caught rioting. The issue that was the subject of widespread discussion was whether it is right to take away a home when one of the people living there has been involved in rioting. Is it right that a 15 or 17-year-old youngster living in a council property in Lewes, Cambridge, Southwark, Kingston-upon-Hull or anywhere else, should have their home taken away?

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[Mr Reed]

I have given the hon. and learned Gentleman examples of how we successfully used ASBOs to drive down antisocial behaviour and offending of that kind, so I do not take his point.

[Dr Huppert]

The hon. Gentleman argues the case for ASBOs passionately, but I am not sure hon. Members agree that they were as effective as he suggests. Has he seen opinion polls such as the one done by Angus Reid last year? Its survey found that only 8% believe that ASBOs have been successful in curbing antisocial behaviour in the UK.

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[John McDonnell]

I am hoping that the relationship the right hon. Gentleman has with the Minister is so influential that accommodation can be reached on this matter. If there is not accommodation, I think the amendment will come back at a later stage, because the measure will be seen to be unacceptable. If it did go through, I think it would cause future Governments—here and elsewhere in Europe—immense difficulties as these matters are contested, because the right to free speech is being undermined, as well as the articles of human rights legislation that allow people to enjoy the freedom of being in their own home.

On that basis, I support the amendments and hope we will get a positive response to them from the Minister.

[Dr Huppert]

It is a pleasure to follow the hon. Member for Hayes and Harlington (John McDonnell). I agree with much of what he said, particularly about the consequences of the riots, which I shall come back to. Let me start by welcoming the Minister of State, Home Department, my hon. Friend the Member for Lewes (Norman Baker) to his new post and by congratulating him on his promotion to Minister of State. His injection of liberalism into this Department will be hugely welcome after decades in which Conservative and Labour Governments have clamped down on civil liberties and taken illiberal approaches wherever possible, playing to populism’s worst flaws. I greatly look forward to him playing his role as Minister of State in this Department.

I disagree with what the hon. Member for Croydon North (Mr Reed) said about the effectiveness of ASBOs. I do not think they were effective at all, but I do think substantial improvements can be made to the Bill. I hope this new Minister will take the opportunity to reflect on our comments and come up with something that takes them all into account.

[Stephen Phillips]

Whether or not ASBOs were effective originally, does my hon. Friend agree that, over time, they have become increasingly less effective? The breach rates are now so significant—up to 90% for most orders—that they have become utterly meaningless.

[Dr Huppert]

I agree; my hon. Friend is right that ASBOs simply do not work, so the idea of continuing them does not make much sense.

[Mr Jim Cunningham (Coventry South) (Lab)]

Before the 1997 election, my right hon. Friend the Member for Coventry North East (Mr Ainsworth) and I campaigned for ASBOs. We did so because when we knocked on doors in certain estates, we often found that elderly people were being terrorised by gangs. In that part of Coventry, those people used steel doors to protect themselves. That is why we need to be careful when we say that ASBOs work or do not work. It depends greatly on the local authority and the police to make ASBOs work. I do not quite buy what the hon. Gentleman said; he had better put something in place that is stronger than ASBOs. Anybody who deals with inner-city problems in Coventry, London and other places knows that people can be terrorised on estates. That is why we need to be very careful about what we do to ASBOs.

[Dr Huppert]

I absolutely accept that there are problems of antisocial behaviour, including in many areas of my constituency. I am sure that all hon. Members’ constituencies are affected by it. The fact that there is an antisocial behaviour problem, however, and the fact that the words “antisocial behaviour” appear in the name of the order does not mean that the one is a solution to the other. I simply do not accept that they have been a very effective mechanism. Much better approaches have been taken by a number of innovative councils. Islington, for example, has tried antisocial behaviour contracts, which have been far more successful and there has been a range of successes elsewhere.

Simplifying the toolkit available is another issue. I welcome the idea of going down from 19 powers to six, which will make it much it much easier for people to find out what the options are. That is another reason why I reject the idea of keeping ASBOs together with IPNAs—injunctions to prevent nuisance and annoyance—which seems to me to be the worst of both worlds. The Bill must be aimed at trying to prevent harm and I hope that we will be able to solve that problem, helping people to get their lives back on track by dealing with the problems, rather than basing things on mediaeval punishment and state-aided revenge.

There are some concerns about the changes to IPNAs. ASBOs dealt with behaviour in

“a manner that caused or was likely to cause harassment, alarm or distress”,

while IPNAs talk about

“conduct capable of causing nuisance or annoyance to any person”.

I certainly hope that my hon. Friend the Minister causes nuisance or annoyance to the Secretary of State; I expect that to be part of a working relationship and I am rather nervous about Secretaries of State being allowed to apply for IPNAs on this basis, if only for health-related issues. There is concern about what is meant by

“conduct capable of causing nuisance or annoyance to any person”.

I suspect we all carry that out on a regular basis or could find people whose conduct could be described in that way. That worries me, as it could be used more broadly. We heard from the Association of Chief Police Officers that IPNAs could stigmatise and criminalise young people unnecessarily, and they also tend to blur the distinction between criminal activity and nuisance.

The report from the Joint Committee on Human Rights—I commend my right hon. Friend the Member for Bermondsey and Old Southwark (Simon Hughes) for his excellent speech, clarifying detailed and important amendments—says that

“the new…definition of anti-social behaviour is broad and unclear”.

I agree completely; the definition must become rather more defined.

When the Home Affairs Committee carried out pre-legislative scrutiny, we argued that there should be a test of intent or recklessness and that any action taken should be “necessary”. Something in that space is absolutely essential: whether it be through the wording used or by the introduction of a mens rea to try to offset the lower threshold to avoid hitting people with mental health issues, we need something to tighten up the definition of IPNAs without being overly broad.

My right hon. Friend was absolutely right about positive requirements. These are, in principle, very good and very helpful, but the concern was, as we heard in the Select Committee, that the councils would struggle to deliver those positive requirements in some cases. We know that the court

“must receive evidence of suitability and enforceability before a requirement is imposed”,

but not that the positive option will be available to someone. We must check that the positive requirements are doable, which I hope can be confirmed.

We have to deal with the issue of children because a huge number of these IPNAs will be issued to children. They have to be heavily involved in the resolution programme while being viewed as victims. I agree with new clause 33, sponsored by the Joint Committee on Human Rights, as the courts must take into account the best interests of the child as a primary consideration in any of these legal proceedings. I hope that the Minister will focus particularly on that.

[Simon Hughes]

Sometimes, of course, the best interest of the child is to have discipline from outside the family. It is not a one-way street that says that the best interest of the child is always a soft option; it may sometimes be a tougher option when the family is not up to the job.

--- Later in debate ---

[Dr Huppert]

My right hon. Friend is absolutely right, highlighting why it is important to have this provision.

Since I first saw the Bill in its pre-legislative form in the Home Affairs Committee, I have been extremely concerned about clause 17. This disapplies section 49 of the Children and Young Persons Act 1933 for both IPNAs and CBOs. It disallows the rules that say that children should not be named and shamed publicly. We should all be extremely alarmed about that because children make errors. They may do something very silly when they are 14. Particularly in today’s age when data is freely available, what they have done could stay with them for the rest of their lives, and there is very little that anybody could do to stop that. That makes it hard for them to rehabilitate, to grow up and to become someone who regrets what they did when they were 14, as so many people will do.

I have heard the Government comment that the intention is to apply this only in rare circumstances, so that judges would not automatically name and shame young people, but do so only where it was an essential part of the order. The guidance must be absolutely crystal clear on this—on minimising the naming and shaming. This should be disapplied only where it is necessary to do so rather than applying it willy-nilly. Otherwise we will breach the UN convention on the rights of the child and a lot of other provisions.

On dispersal powers, my right hon. Friend the Member for Bermondsey and Old Southwark said that in response to the Select Committee report the Government have protected peaceful picketing and public processions, but I think it would be good to go even further to ensure that we do not prevent peaceful protest when we deal with antisocial behaviour. I agree with the amendment on that.

Lastly, I agree with the comments made by my right hon. Friend and the hon. Member for Hayes and Harlington about clause 91, which deals with riot-related offences. These have arisen from the time of the riots and the Prime Minister’s reaction to them. Now, however, we have calmed down and recovered from those awful events, so it is time to reflect on whether we need this special sanction. As right hon. and hon. Members have said, these provisions deal with a situation for which solutions are already available, so we do need to deal with the problem in the way proposed. The JCHR’s report says that it recognises

“the seriousness of riot-related offences”,

but questions whether we need a special rule for riot-related antisocial behaviour, because it looks like

“a punishment rather than a genuine means of preventing harm”.

I therefore hope that the Government will reflect on whether the clause is still needed.

Overall, the Bill has been improved, but I hope it can be improved even further. I am very excited at the role that my hon. Friend the Minister will be able to play. I look forward to hearing his response to the amendments, which I hope, in the fullness of time, he will be able to recommend.

[Mr Elfyn Llwyd (Dwyfor Meirionnydd) (PC)]

I agree with what the right hon. Member for Bermondsey and Old Southwark (Simon Hughes) and the hon. Member for Hayes and Harlington (John McDonnell) said about amendment 158, and indeed about other amendments. Objectivity is vital. In the absence of objectivity, the police officer will be judge and jury, deciding everything on the spot, and—with the best will in the world—in a difficult, fraught situation on a busy Saturday night, things could go badly wrong. If we do not bring some objectivity to bear, we shall be on a very dangerous and slippery slope. I hope that the Government will consider this reasonable amendment.

--- Later in debate ---

[Norman Baker]

That is exactly right. The shadow Minister said that the recent crime survey showed that 80% of people think that antisocial behaviour is increasing. That suggests to me that the current regime is not working and needs to be replaced by something more efficient.

[Dr Huppert]

The shadow Minister mentioned a list of people who have concerns about IPNAs. I think they would agree with my right hon. Friend the Member for Bermondsey and Old Southwark (Simon Hughes) and I that we could look at those concerns, and I am sure that the Minister will do so. They do not support ASBOs, as he suggests; they would like to get rid of ASBOs and have an improved, more sympathetic IPNA.

[Norman Baker]

I am grateful for that intervention, which puts the matter on the record.

The shadow Minister expressed concern about the costs of dealing with IPNAs and the new regime that we propose to introduce. It is worth quoting the chief constable of Thames Valley police, Sarah Thornton, who said:

“So in terms of improving the effectiveness, yes we are going to have to train officers, but I think that is worthwhile…If there is a bit of additional training cost, it really would be well worth it in terms of additional effectiveness in tackling anti-social behaviour locally.”

In other words, the relatively modest amount spent on training on IPNAs will more than repay itself in terms of the results that accrue. It is also worth pointing out that ASBOs were not without their costs either; it would be foolish to think that they were. A cost was involved in dealing with breaches of ASBOs just as there is with anything else. If I remember correctly, the shadow Minister quoted a cost of £1.5 million for breaches of IPNAs—allegedly; I am not quite sure where that figure comes from—but ASBO breaches cost money as well. If he wants to make a fair comparison, he ought to include that in his assessment.

Let me turn to the amendments tabled by my right hon. Friend the Member for Southwark North and Bermondsey—[Interruption.] I am sorry—Bermondsey North and Southwark. I want to call it Southwark and Bermondsey because that it is what it was for so many years. Anyway, I mean my very old friend who moved the amendments. His amendments and those of the hon. Member for Aberavon (Dr Francis) pick up a number of points raised by the Joint Committee on Human Rights, which is of course a very important Committee of this House. I am grateful to the Committee for its detailed scrutiny of the Bill. Taken together, the amendments would introduce additional requirements that professionals and the courts would have to meet in order to use the new powers. While I agree that we must ensure that appropriate safeguards are in place, I believe that those are already built into the Bill and fear that the Committee’s amendments would lose some of the benefits of our reforms in streamlining powers and processes to help victims and empower front-line professionals.

New clause 33 is concerned with the use of injunctions in cases involving children and seeks to place in the Bill a requirement that the interests of the child are treated as a primary consideration when imposing an injunction, any associated conditions or sanctions for a breach. In shaping our reforms, we have, naturally, carefully considered the needs and rights of young people, which are important, so that we get the right balance between enforcement and helping those who commit antisocial behaviour to turn their lives around. I am a little concerned, to be honest, about the use of the word “primary” in new clause 33 with regard to setting that balance.

Anti-Social Behaviour, Crime and Policing Bill (Programme) (No. 2)

Julian Huppert Excerpts

Monday 14th October 2013 Commons Chamber

[The Minister for Policing and Criminal Justice (Damian Green)]

I beg to move,

That the following provisions shall apply to the Anti-Social Behaviour, Crime and Policing Bill, in place of paragraphs (4) and (5) of the Order of 10 June 2013:

(1) Proceedings on Consideration and proceedings on Third Reading shall be taken in two days in accordance with the following provisions of this Order.

(2) Proceedings on Consideration–

(a) shall be taken on the days and in the order shown in the Table

(b) shall (so far as not previously concluded) be brought to a conclusion at the times shown.

[Dr Julian Huppert (Cambridge) (LD)]

I am glad that we have more time available for debate, but does the Minister share my concern that the debate on schedule 7 to the 2000 Act, which we are supposed to have tomorrow, along with many other matters, from the Opposition’s proposals to ban synthetic caffeine through to much else, have at most a two-hour slot until 2.30 pm? Is there any way we could save time on the Deep Sea Mining Bill and have more time to discuss those matters?

[Damian Green]

I do not agree with my hon. Friend that there is an unfair allocation of time, either between this Bill and others, as he mentioned, or within the provisions of the Bill. I think that we have achieved a fair allocation of time among the many important issues the Bill addresses. That should allow the House sufficient opportunity to consider both the Government amendments and others that have been tabled. As I have said, underlying the programme motion is the fact that we have extended the time the House has to consider the Bill on Report from one day to two days. I hope that the House will agree to the motion quickly so that we can get on to debating the many substantive issues before us.

--- Later in debate ---

[Dr Julian Huppert (Cambridge) (LD)]

I congratulate the hon. Member for Birmingham, Erdington (Jack Dromey) on his new role and on his powerful speech, which came across very well and covered issues that he clearly cares about. However, I do not agree with his factual interpretation. If we do not pass this programme motion, we will be left with the programme motion that we passed unanimously in this House previously, which means that we will have only the rest of today for debate. I am afraid that the outcome of his suggestion is that we would have only five and a quarter hours to continue the debate, and I hope that we will not take up too much of it with this discussion. I understand the reason for his proposal, but unfortunately it suffers from the fact that it would curtail debate. He made an important point about having time to discuss dogs, and I am pleased to see that two hours are protected for that purpose. If we voted against this motion, we would risk having no debate on that issue at all.

My concern about the programme motion relates to the section covering the period until 2.30 pm on the second day, which deals with a whole collection of new clauses and new schedules on matters other than dogs, with a maximum of two hours available for debate. They include forced marriage in Scotland, on which I will not claim to be an expert, court fees and compensation, and a collection of policing and offences issues, including several that I would like to raise about schedule 7 to the Terrorism Act 2000, which needs to be curtailed. There are a range of other issues about drugs policy and a section on extradition. For all that, we have available a maximum of two hours, which would be limited even further in the event of any statements or urgent questions. I can accept voting for this motion because I have not tabled an amendment, and nor has anybody else, that would protect that time. However, in the event of there being statements or other things that delayed progress, will the Minister make sure that we have time to debate these very important subjects? Will he at least discuss with his colleagues whether there could be an amendment to the programme motion tomorrow to ensure that that crucial time, which many of us care about, is protected?

Oral Answers to Questions

Julian Huppert Excerpts

Tuesday 8th October 2013 Commons Chamber

[Chris Grayling]

Let me pay tribute to the team at Parc, who do a first-rate job. I have been there myself. There is no and has never been any intention to abolish the functions of the Youth Justice Board. It has been a question purely of what the best corporate structure is for it.

[Dr Julian Huppert (Cambridge) (LD)]

14. What steps he is taking to strengthen the prisons and probation ombudsman.

[The Parliamentary Under-Secretary of State for Justice (Jeremy Wright)]

We are reviewing the prisons and probation ombudsman’s terms of reference to make even clearer his independent status and role in investigating deaths in custody and in responding to complaints from detainees. I fully support the ombudsman’s steps to improve the quality and timeliness of investigations and to ensure that others can learn lessons from his findings.

[Dr Huppert]

I thank the Minister for his comments but the changes proposed to prison legal aid put a great deal of weight on the quality of the prisons and probation ombudsman. What certainty can the Minister give that that will increase the quality and speed of decisions and save money? Can he be sure that that will happen?

[Jeremy Wright]

We believe that this is a better way of resolving matters in the prison system than spending money on legal aid, but I can reassure my hon. Friend that the Secretary of State has met the ombudsman to discuss precisely the issues that he has raised, and we will work with the ombudsman to ensure that his office is capable of dealing with any additional demand that may be generated.

Criminal Legal Aid Reforms

Julian Huppert Excerpts

Wednesday 4th September 2013 Westminster Hall

[Dr Julian Huppert (Cambridge) (LD)]

I congratulate the hon. Member for Kingston upon Hull East (Karl Turner) on securing the debate. Many Members will remember that my hon. Friend the Member for Brent Central (Sarah Teather) led a well-attended debate on legal aid reform in June, which focused on civil legal aid and was helpful in moving the debate forward. Those of us with an even better memory might remember that two years ago I held a debate in this place on legal aid reform, before the previous legislation was passed.

We will not have time to touch on some things, such as the residency test, which I still consider pernicious, but I wish to talk through a whole range of issues. We accept, as I think everyone must, the principle of making savings. It has been accepted, I think, across the board. The Labour party’s manifesto at the last election stated:

“To help protect frontline services, we will find greater savings in legal aid”.

The question is how to do that.

As co-chair of the Liberal Democrat committee on home affairs, justice and equalities I wrote formally, with my colleagues, to the Lord Chancellor, and we received a detailed response to our suggestions. Sadly, I will not have time to go through all the suggestions or every aspect of the response, but I was pleased that he said:

“It is important to note that I have yet to make any final policy decisions.”

He is absolutely right not to have done so, and I am sure that he will listen carefully to the concerns we are all expressing. He also referred to a short period of further consultation, which I think we would all welcome.

The Lord Chancellor also talked about working closely with the Law Society. I was at the Law Society yesterday and had the opportunity to talk to it about some of the new proposals. I hope we will be able to come up with something that it will find not necessarily ideal but an acceptable way forward. As has already been said, the society’s suggestions for savings are definitely worth looking at; it has an improved model.

Our biggest concern as a committee was the lack of choice. When a scheme including that was tried in Scotland in 1998, under a different Government, there was substantial dissatisfaction with the representatives. It was clear that getting rid of choice did not work then, and I am pleased that the Lord Chancellor has taken the right decision to abandon that approach.

We must also look at quality. We saw the problems with the bulk contract awarded to Applied Language Solutions—now Capita—for interpreting services. It did not provide the quality that was needed, and we must avoid anything like the same problems again. The Lord Chancellor said that quality was

“critical to any future model of procurement”,

and that must be absolutely explicit. We do not want cut-price justice; we must ensure good quality, and that includes the smaller firms that many colleagues have spoken about. An idea that I have suggested is to encourage firms to work together in consortia rather than to have large bidders. There will be a firm operating in one town that can work happily as part of the same contract with one in a town somewhere else, in Cornwall, Cambridgeshire or wherever it might be. It does not make any sense that such firms should have to bid against each other. I hope that the Lord Chancellor has considered that and will respond in detail, with some helpful ways forward.

Judicial review is an important remedy. It is essential to have ways in which the state can be held to account at local government and national level. The proposals will not save a huge amount of money. I look forward to detailed suggestions about how to deal with cases of suggested misuse of the system without affecting the vast majority of cases that are important and which form a clear safeguard.

A particular concern has been put to me by several lawyers doing judicial review cases: because of the requirements for payment only when permission has been given, in a really strong case—for example, when a local authority that is failing to provide the care it should, gives up and settles at the point that there is a claim for judicial review, because it knows that it will lose—there may be no opportunity for the lawyer ever to be paid. I did not know until recently that a local authority will quite often settle, subject to not having to pay the fees. If the Government and the local authority will not pay the fees, the people with the strongest cases will never get paid. That is clearly not right and must be addressed in some way, because I am sure that it is not what the Government want to happen.

It is important to have a system of legal aid for prisoners. There may well be some trivial cases, but there are some incredibly serious ones. By all means, let them go through a complaints system that has to be used first, but if that is unsatisfactory, there must be a proper legal route and support for prisoners. The change will not save much money, so it should not be done purely for ideological reasons.

We can do much in relation to savings, as has been touched on. The use of restrained funds, with appropriate judicial control and capping, would be a fantastic way forward. It seems odd to pay for legal aid for people who have money, but not allow them to spend it. That would be one way to save a substantial amount of money. That can be used in some cases—the Home Office has access—so let us make sure that it is available here.

I support the idea of dealing with high cost fraud cases by having a form of compulsory directors insurance or some other scheme—I do not mind about the exact details—so that we are not paying in cases where there is another substantial source of money. That would enable great savings.

Lastly, there could be more efficiency savings in how courts operate. The system too often does not work: the late arrival of prisoners due to transport failures has caused delays for a third of defence solicitors; half of solicitors have been delayed because the prosecution did not follow disclosure rules; and there are unnecessary adjournments and listing failures. The court system does not operate as efficiently as possible, which costs us money in legal aid. We could provide better justice for less money.

I look forward to the Minister’s response and the Lord Chancellor’s final decisions. Yes, we can save money, but it must not be at the cost of justice.

[Kate Green]

rose—

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[Jeremy Wright]

I am afraid that I do not agree with the hon. Lady, because we are not talking about changing that presumption of innocence. What we are saying is that people with the means to pay—sometimes, very substantial means to pay—should not have access to taxpayer-funded subsidy for their legal fees if they are, in the end, found guilty. If they are found innocent in the end, the amount that they have paid for their legal fees will be considered for refund. That is important, but it is not about a presumption of innocence, which remains intact, as—of course—it should.

I will say something about prison law, because that is an issue that many people have raised. The hon. Member for Stretford and Urmston (Kate Green) asked some sensible and detailed questions about it. If she will forgive me, I must say that in the five minutes I have left to me I will not have the opportunity to respond to those questions, but I will write to her about the specific points that she has made.

However, my hon. and learned Friend the Member for Harborough is entirely right that the nature of the case that is being considered and that may be litigated is crucial. It is not the case that every instance of grievance raised by a prisoner should be litigated through the courts. Also, the changes that we are proposing say that it is important that when a prisoner’s liberty or the length of their sentence are considered, they should still have access to legal aid. However, there are a whole range of other complaints that can be more properly and more effectively dealt with through other methods, rather than involving the courts and costly lawyers.

I will also say something about the residence test, because the right hon. Member for Tottenham and others expressed concern about it. Again, I think that in principle it is right that those who have a strong connection with the United Kingdom should have access to taxpayer-funded legal aid, and that those who do not have a strong connection to the United Kingdom should not have access to it. There are exceptions to that principle, which we have made clear. For example, these changes will not apply to refugees or asylum seekers. In general, however, applying that principle is the right thing to do, and I think that it will have the support of the public.

Judicial review has also been referred to. We absolutely support the principle of judicial review. Those who have spoken up in favour of it were right to do so; it is a crucial tenet of our system that the public should be able to hold Government to account through the judicial review system. However, it is equally important that that system should not be abused, and we simply have to face up to the fact that there has been a huge increase in the number of cases pursued through the judicial review process that are not found to have merit.

It is important that the crucial pre-court phase does not cover the initial preparatory work on a judicial review case. In that phase, lawyers should think carefully about whether a case has merit, and they should have something at stake when they do so. That is the basis for the proposals that we are making.

[Dr Huppert]

Can the Minister just clarify the position about really strong cases, where the case does not proceed because it is won so quickly through a settlement?

Oral Answers to Questions

Julian Huppert Excerpts

Tuesday 2nd July 2013 Commons Chamber

[Damian Green]

There are clearly a number of areas—my hon. Friend has mentioned one—in which the potential interpretation of the existing human rights legislation could lead to effects which many in this House and outside would regard as perverse. That is precisely the sort of area which we are looking at very carefully so that human rights can remain something that we all unquestioningly support.

[Dr Julian Huppert (Cambridge) (LD)]

I and my colleagues very much welcome the Minister’s commitment that this Government will stay within the ECHR. Does he agree that those who wish to leave ought to make it clear which articles of the convention they have a problem with, and which aspects they do not agree with? Are there any that he does not agree with?

[Damian Green]

Again, every member of the Government has made it clear that the original convention was written well and expresses views that all of us in the House share. Members in all parts of the House, even in the Labour party, might admit that the way the legislation is now being used brings human rights into disrepute and that we need to do something about it. That is the work that I am leading on behalf of the Conservative party.

Legal Aid Reform

Julian Huppert Excerpts

Thursday 27th June 2013 Commons Chamber

[Sarah Teather]

I certainly think that there are better ways of finding savings. I hope that some Members will refer to the way in which we manage some of the services that we privatise. The way in which contracts are managed is very important. The privatisation of the interpretation and translation services, for example, appears to have led to greater delay and driven up costs.

[Dr Julian Huppert (Cambridge) (LD)]

I congratulate my hon. Friend wholeheartedly on securing a debate that is clearly of interest to Members in all parts of the House. About two years ago, I too secured a debate on legal aid, which I think she attended, and that prompted a great deal of interest as well. The issue is incredibly broad, covering such matters as the residence test and, in the case of criminal legal aid, choice and diversity. Is it not important to ensure that small providers can continue to provide a service?

[Sarah Teather]

I think there are critical issues involving choice.

Interpreting and Translation Services

Julian Huppert Excerpts

Thursday 20th June 2013 Westminster Hall

[Dr Julian Huppert (Cambridge) (LD)]

Will the Minister give way?

[Mrs Grant]

Let me make some progress, and I will give way later.

Remuneration now more closely reflects the work being undertaken and is more closely aligned to the rates on offer for similarly qualified people in other public services. We do not deny that there were teething problems during the early stages of the new contract, and as the Ministry said in its response to the Justice Committee’s report, the initial performance was not satisfactory. Contingency plans were put in place quickly and had a direct effect. Disruption was kept to a minimum; we pushed Capita to improve matters urgently; and there was a significant outlay of investment on its part to improve services.

In the year 30 January 2012 to 31 January 2013, there were more than 131,000 requests for language services, covering 259 different languages, and the overall success rate was at 90%. That is a significant improvement on the 67% successful booking rate in February 2012. The number of complaints received, as against the number of bookings made, has fallen significantly. From February 2012 to August 2012, complaints fell from 10.6% to 1.7% in criminal courts; from 6.3% to 0.8% in civil and family courts; and from 19.2% to 5.6% in tribunals.

We take our responsibilities seriously, and we have ensured that each complaint is investigated. As has been said during the debate, lessons must be learned. I can assure hon. Members that lessons truly are being learned.

--- Later in debate ---

[Mrs Grant]

I am afraid I do not accept that. We do not have supply problems at the moment. The reality of the situation is that we are fulfilling contracts. Our changes equate to an average increase of 22% in remuneration rates, which will attract new and retain existing good-quality interpreters.

Regarding stakeholders, we continue to discuss developments with interpreters and with Capita. There has been open and frank dialogue between the Ministry and the Professional Interpreters for Justice group, and we seek to maintain a productive dialogue. We have a common interest in ensuring that language is not a barrier to justice, and that shared vision was clear to me at a meeting with the Professional Interpreters for Justice group that I chaired at the end of 2012. I recognised the commitment, the concern and the care.

In relation to quality, the contract allows for a greater range of acceptable qualifications and experience than previously, but there are, of course, suitable safeguards. All foreign language interpreters must provide evidence of their qualifications before they can undertake assignments, qualifications which in many instances are the same as those required by the National Register of Public Service Interpreters.

Tiering interpreters according to their skills is the right approach to delivering a sustainable system. Courts and tribunals expect as a minimum a tier 1 or tier 2 interpreter for a hearing, and that has been set out in staff guidance. There is, however, flexibility, and very occasionally the court or tribunal, together with the judge, can be asked to decide if the complexity of the case would allow for the appointment of a tier 3 interpreter. Our changes to remuneration should also attract more interpreters to tiers 1 and 2.

I accept the Justice Committee’s recommendation that a quality criterion within the framework should be independently evaluated, and the Ministry is initiating that work and will be in a position to update the Justice Committee in the autumn. I want to make it crystal clear, however, that it is the role of the service provider—namely, Capita—to ensure that those who work within the framework meet the required standards.

[Dr Huppert]

This matter has been raised with me by a number of constituents who have been affected both as interpreters and through the legal system. The Minister is right that things are not as disastrously bad as they originally were, but how will she ultimately decide whether the whole thing simply is not fixable? What test will she apply?

[Mrs Grant]

With respect, I do not think that we need to do that. I have no intention of being arrogant. I used to work in the system as a lawyer in an edgy London borough. We used interpreters regularly, and the system was not good. It was expensive and unpredictable, notwithstanding the fact that many of the interpreters we used were outstanding. The system needed to change, and it has. It needs to be noted, as I have already said, that we do not have supply problems at the moment. Where there have been problems, they have tended to involve the more challenging and unusual languages. We have also saved a considerable amount of money, which is welcome in these very difficult financial times.

With regard to performance data, the Committee raised issues about the clarity of our published performance figures, and I can confirm that the latest statistics were published on 28 March in accordance with the guidance issued by the UK Statistics Authority.

On cost savings, which several hon. Members have mentioned, we estimate that the cost of interpreters to the Ministry was previously around £30 million per annum. Based on cautious assumptions, we have made savings of about £16.7 million, against an expected forecast of £12 million, and as I have stated, we have invested £2.9 million back into the system, to make the contract sustainable.

[Dr Huppert]

I understand the drive to save money, but can the Minister be clear whether that £16.7 million saving takes into account the extra costs for cases that have had to be rescheduled, delayed or scrapped?

[Mrs Grant]

If my hon. Friend will bear with me, I will come to that point—I am barely halfway through and will go on for a fair bit longer.

The shadow Minister, the hon. Member for Hammersmith (Mr Slaughter), and my right hon. Friend the Member for Berwick-upon-Tweed (Sir Alan Beith) talked about participation in the online survey. As the Ministry of Justice had co-operated fully, we took the view that it would not be appropriate to invite court staff to submit further evidence via the online forum set up by the Select Committee. We took that action because the civil service management code and the Osmotherly rules state that officials

“should not take part in research projects or surveys designed to establish their personal views on Government policies”.

We considered it right and proper to follow those rules.

The right hon. Member for Kingston upon Hull West and Hessle (Alan Johnson) referred to the adequacy of the previous system. Setting aside my own experience, I can say that the system was inefficient because an MOJ audit found it to be risky, and the National Audit Office agreed that it was inadequate and did not provide good value for money.

The right hon. Gentleman also referred to due diligence, and I can tell him that the procurement process was fair and competitive and that due diligence checks were carried out. However, lessons must be learned from the comments made by the Justice Committee and the NAO, and those from our own assessment. Along with other hon. Members, he raised the suitability of ALS. ALS had a background in the sector, and we felt that it had the capacity to expand to meet our needs, but, of course, that was not the case.

A number of Members have mentioned inefficiencies in trials and the disruption and costs that have flowed from ineffective trials. Magistrates courts listed more than 80,000 trials in the first and second quarters of 2012. Just 345—0.4%—were unable to proceed because of interpreter problems. Although I absolutely acknowledge that it is not good for any trial not to proceed, contingency plans were put in place to make sure that disruption was as small as possible.

[Jim Sheridan in the Chair]

Quality of service has been a recurring theme. We are satisfied with the quality of the interpreters being used, but, as I mentioned, there will be an independent evaluation this year, and we will update the Justice Committee in the autumn on its progress.

The hon. Member for Hammersmith mentioned the cost of cases not going ahead. I am sorry that he has had so much trouble getting a satisfactory response. I am not sure whether I will do much better today, but I always like to try when I am facing him. All I can say is that courts deal with thousands of cases every day. Some cases do not go ahead, often for a variety of reasons, and calculating the cost could take a disproportionate amount of time and money.

The future is important. It might be worth saying that the NAO agreed that our procurement process was fair and competitive and that the contract should be fully implemented. Our review identified a number of processes that have since been improved.

Protecting Children Online

Julian Huppert Excerpts

Wednesday 12th June 2013 Commons Chamber

[Helen Goodman (Bishop Auckland) (Lab)]

I beg to move,

That this House deplores the growth in child abuse images online; deeply regrets that up to one and a half million people have seen such images; notes with alarm the lack of resources available to the police to tackle this problem; further notes the correlation between viewing such images and further child abuse; notes with concern the Government’s failure to implement the recommendations of the Bailey Review and the Independent Parliamentary Inquiry into Online Child Protection on ensuring children’s safe access to the internet; and calls on the Government to set a timetable for the introduction of safe search as a default, effective age verification and splash page warnings and to bring forward legislative proposals to ensure these changes are speedily implemented.

The motion is in the name of my right hon. Friend the Member for Doncaster North (Edward Miliband).

The whole country was shocked and revolted by the trials of Mark Bridger and Stuart Hazell, the two men who brutally murdered April Jones and Tia Sharp. They sent a shiver of horror down the spine of every parent in the land. In both cases, they were found to have huge libraries of child abuse images on their computers. In both cases, this was the first known offence against children. Surely it is now beyond doubt that what a person sees influences how they behave.

Let us be clear: there is no such thing as child pornography. There is child abuse online. Any image depicting a sexual act with or on a child under 18 is illegal. Child abuse images are illegal under international law and in every country on the globe. The Internet Watch Foundation is the UK hotline for reporting child abuse. It has pioneered this work since 1996. It can disrupt and delete content on the web within an hour and it protects child victims by working in co-operation with the police at the Child Exploitation and Online Protection Centre. It also aims to prevent people from stumbling across such images. We all owe an immense debt of gratitude to the IWF.

However, the surge in the scale of the problems threatens to overwhelm both the IWF and the police. The IWF’s independent survey by ComRes found that up to 1.5 million people have stumbled on child abuse images, yet last year the IWF received only 40,000 notifications and some 13,000 web pages were taken down as a result. Its latest figures show a 40% rise on last year.

[Dr Julian Huppert (Cambridge) (LD)]

I support the hon. Lady’s opening words. I declare an interest as an IWF champion; the IWF does great work. Does she accept that her figure of 1.5 million people having seen child pornography is based on a sample of 2,000 people, of whom about 50 said that they seen such images? We do not know how much people have seen, or if they have seen anything. To extrapolate that far may be misleading.

--- Later in debate ---

[Helen Goodman]

This is not an occasion for nit-picking—[Interruption.] It is important to take an international approach and I am disappointed in the Government for, among other things, not taking any international initiatives.

The police say their resources are inadequate to the task. Peter Davies, the head of CEOP, said that the police are aware of 60,000 people swapping or downloading images over peer-to-peer networks but they lack the resources to arrest them all. In any case, the IWF currently deals only with images on the web, not peer-to-peer images.

In answer to my parliamentary question last week, the Minister of State, Home Department, the hon. Member for Taunton Deane (Mr Browne) revealed that in 2012, despite the fact that the police are aware of those 60,000 people, only 1,570 were convicted of such offences. What do Ministers intend to do about the problem? I hope that in his winding-up remarks the Home Office Minister will tell us. There is no point huffing and puffing about the problem if Ministers do not take the necessary action. It is obvious to the whole country that the current situation is totally unacceptable. It is obvious that Ministers have not got a grip. It is obvious that we need a change.

That is why our motion proposes a complete shift in approach from a reactive stance to a proactive strategy. We are calling for three things—first, safe search as the default option. The industry has already made the filters that are needed to screen out not just child abuse but pornography and adult content generally. We are saying that the filters should be the default, either on all computers and devices connected to the internet or by requiring internet service providers to install them by default. Then we can institute the second part of an effective system: robust age verification. A person seeking to cross the filter would be asked to confirm their name, age and address, all of which can be independently checked. Again, we know that this works. It is what Labour did for gambling sites in 2005. It is what mobile phone companies do when someone opens an account and gets a SIM card. It is what people do when they get a driving licence.

[Dr Huppert]

Does the hon. Lady accept that if we had safe search and such controls, young people would not be able either to access information about homophobic bullying, about how to deal with child abuse and about a range of other subjects? Indeed, such things are already filtered out by mobile phone providers, to the great detriment of many children.

[Helen Goodman]

No, I do not accept that. I shall go on to explain why that is a misconception on the part of the hon. Gentleman.

The approach that we are suggesting would cut demand for sites as well as reducing the supply of them. It would tackle child abuse online and the other major issue addressed by the Bailey review and the independent parliamentary inquiry—children accessing unsuitable material online. In recent days I have had the benefit of energetic lobbying from Google in particular, pressing its view that except for child abuse images, which are illegal, all other images should be available unfiltered on the internet. I have heard its views and come to my own conclusion.

I hope the Government’s vacillation on this point is not because they cannot put children before powerful vested interests. I say safe search filters are not a free speech issue. This is not censorship. This is about child protection and reproducing online the conditions established over a long period in the real world.

--- Later in debate ---

[Mr Vaizey]

Companies that use the law to block sites that support pirated material seek an injunction through pre-internet copyright law. As has always been the case, what is illegal offline is also illegal online. People can therefore use existing law to attack sites. As I have said, the Internet Watch Foundation does block access to sites that host child abuse images.

[Dr Huppert]

The Minister is making a powerful case. Does he agree that it is somewhat misleading to imply that we have no powers to deal with such sites? In 2012, every one of the 73 UK webpages that hosted child pornography was removed within four days, and the vast majority within 60 minutes, of the IWF being notified.

[Mr Vaizey]

My hon. Friend makes a good point, but I must make progress because a lot of people want to speak on this issue.

We have responded to many of the recommendations of the independent parliamentary inquiry. For example, the report called for filtered public wi-fi. Through the UK Council for Child Internet Safety, the Government have secured a commitment from the main public wi-fi providers that they will offer family-friendly wi-fi in public places where children are likely to use it.

I am conscious of the time, so I will wrap up with a number of key points. On child abuse images, we will work with the industry to secure appropriate funding for the IWF. We will work with the IWF on its peer-to-peer and international work. We will also work with CEOP and the IWF to ensure that their work is co-ordinated effectively. We have made huge progress on protecting children from inappropriate content online. New customers are now provided with filters that are in place when they first access the internet. ISPs regularly contact existing customers through e-mails and on their bills to tell them about internet filters. On age verification, ISPs are bringing in closed-loop e-mails so that when the filters are changed in a home, an e-mail is sent to the account holder and, therefore, to the adult. I hear the point about splash pages and it is worth debating. It is important to analyse whether that would be an effective change.

I will make one wider point in conclusion. When I held a meeting with my hon. Friend the Member for Devizes and other hon. Members some years ago, about 80 Members turned up from across the political divide. All of them, from the über-libertarians to the ultra-authoritarians, wanted action. We have made progress. The ISPs and others should be in no doubt about the mood of this House. If not enough is done, legislation will be required. We must get the message across to them that this is not something on which they should consider the competitive advantage, but something on which they have to work together and co-operate. They must work together on issues such as publicity and education for parents.

The summit that the Secretary of State for Culture, Media and Sport has called next week is an important staging post. I pay tribute to everyone in the House who has campaigned on this issue, because they have pushed it up the agenda. The people who can make a difference have been left in no doubt that no amount of weasel words or hiding behind technical obfuscation will stop this House taking the action that is needed to protect our children and clamp down on child abuse images.

--- Later in debate ---

[Dr Julian Huppert (Cambridge) (LD)]

I was not planning to speak, but I found the tenor of so much of what has been said so frustrating in its lack of accuracy that I had to speak. I would exempt some speeches, particularly that of the hon. Member for Vale of Glamorgan (Alun Cairns), who used technical accuracy, which does matter. It is a pleasure to follow the hon. Member for Slough (Fiona Mactaggart), for whom I usually have great respect, but she gave it away when she complained about “the technocrats”. Technical accuracy matters if we are going to do things that work. We need to know exactly what “inviting urls to a meeting” is supposed to mean.

There is a huge danger of falling into the trap of the politician’s syllogism: we must do something; this is something; therefore we must do this. That is the danger we face. Is there a problem? Absolutely, there is a huge problem with child pornography, which is nasty, cruel and illegal. We have to stop it. The Internet Watch Foundation does an excellent job in trying to do so. Is there a problem with young people having inappropriate access? Yes. Is there a problem with online grooming? Yes. Is there a problem with online cyber-bullying? Absolutely. Is there a problem with the widespread sexualisation of young women in particular? Absolutely, and I pay tribute to the Under-Secretary of State for Women and Equalities, my hon. Friend the Member for East Dunbartonshire (Jo Swinson) for her consistent work to combat it.

The approach highlighted today, particularly by the hon. Member for Bishop Auckland (Helen Goodman), simply will not work. I find that frustrating, as it does not engage with the facts or reality of what is happening. The right hon. and learned Member for Camberwell and Peckham (Ms Harman) was heckling earlier and said that we should not focus on the detail. If we do not focus on the detail, we will not get something that works.

What would work? I absolutely endorse the work of the Internet Watch Foundation. It does excellent work and I am delighted to see it getting more funding, as I think it should have extra support. I am pleased, too, that the Government are supporting CEOP so that when we find people carrying out illegal activities, we take the correct legal action. That is what should happen. We should never allow a situation in which the police simply do not have the money to arrest somebody who they know is doing something illegal.

The things we have heard about today will not make a difference. The people who are heavily engaged in child pornography will not be tackled. Those people are very internet savvy. They will use virtual private networks that are not listed, so nothing we have heard about today will tackle any of those problems. We have to work at the technical level to get things right rather than just try to make it look as if we are doing something.

In some ways, child pornography is easier to deal with because it is possible to define it. We know what is illegal and there are clear definitions. The IWF has a manual check for the sites. Certain sites can be blocked only when it knows that there is something wrong. That is very different from the space around legal material, or trying to come up with ways of filtering out things that are fundamentally legal and making a judgment call based on them.

[Helen Goodman]

We are making judgment calls all the time.

[Dr Huppert]

The hon. Lady is absolutely right, but writing algorithms to do that on millions and millions of websites simply cannot be done correctly. I shall come back to that, although I know that the hon. Lady and the right hon. and learned Member for Camberwell and Peckham are not concerned about the errors that would be made.

It is absolutely right to provide tools for parents to control what is happening. They should be the ones empowered to look after their children. I would rather trust the parents to look after their children than require state-level controls. It is absolutely right to have those available for people to use and to make them easy and clear to use. I think there should be no default because I think we should encourage parents to engage with the question before they make a decision. They should be faced with a box that they have to tick, but they should be in charge. The Byron review was very clear that a false sense of security could be created if we just tell people that everything is safe.

[Sheila Gilmore (Edinburgh East) (Lab)]

The problem here is that we are not dealing with simply looking at a book or magazine and deciding whether it is suitable for a child. We are dealing with something that many people have said—this has been the focus of much of the research—they find very difficult to operate. The outcome is that many parents are not able to use those filters.

[Dr Huppert]

The hon. Lady is right, which is exactly why we need simpler filters. The work done by Talk Talk and others provides precisely that. There should be simple clear filters with simple clear questions so that parents can have a look and make a simple clear decision. I do not want to force parents to abdicate that responsibility because there are other consequences of these filters.

Any filtering system will have large errors. There will be errors that mean it does not filter out some things that we might want it to filter out because it cannot be sorted out perfectly. There is no way of indentifying automatically what counts as pornography and what does not; what is appropriate and what is inappropriate. That is simply impossible to achieve, so stuff will get through that we are not expecting to get through. There is also the problem of filtering some useful things out. There are already many cases—when it comes to advice for lesbian, bisexual and transgender issues, for example—where mobile phone providers automatically filter out the content, which can cause serious harm to young people trying to get advice. Trying to get advice about abortion services is another problem. There are a whole range of such issues that are automatically filtered out by many mobile phone providers. If we are telling children that we do not want to let them have appropriate information, that can be damaging.

[Tim Loughton]

I should declare an interest as a champion of the Internet Watch Foundation. I am slightly disappointed at the rather defeatist attitude taken by the hon. Gentleman. The solution is not a silver bullet. It is not any one of the individual things that have been mentioned; it is a jigsaw. Empowering and giving resilience and confidence to our children—and confidence, resilience and expertise to their parents to be able to filter what they believe to be right and wrong—is an important part of that jigsaw. Filters have their flaws, but they are part of that jigsaw as well. Will the hon. Gentleman admit that some of the things mentioned during the debate are part of the solution and that we should not dismiss them simply because they are not absolutely perfect?

[Dr Huppert]

I agreed with almost everything the hon. Gentleman said, until the end. Yes, I think we should empower parents to make the correct decisions, and I believe we should educate children so that they can think for themselves and be empowered. I absolutely agree with all of that, but that is not what the motion says and it is not what the hon. Member for Bishop Auckland emphasised. The hon. Gentleman and I would agree that there are some important measures for empowerment: the problem is, if we provide an illusion of protection, which gives people a false sense of security, that can make people less safe. It can leave children more exposed than doing things that actually work. It also downgrades the role of parents and parenting.

Moreover, we must accept that any filter can be bypassed. It is easy for those who know what they are doing to carry out a quick Google search and find out how to bypass any filter that they encounter, and there is no way in which we could prevent that from happening. We must therefore try to engage with people rather than introducing state control in the form of legislation to force search engines to run in a particular way, because that does not work. [Interruption.] The motion calls for legislation. If the hon. Member for Bishop Auckland does not believe that it should, that is her problem. Perhaps it suggests that motions should be tabled rather earlier than a few hours before the deadline for any changes.

Yes, we must do something, but what we do must work, must be proportionate, and must make things better for the people about whom we are concerned. That, rather than what was suggested by the hon. Member for Bishop Auckland, is the way forward. I commend the Minister—it is good to see him back in the Chamber—for his work on the issue, for his commitment to trying to deal with the problems in a way that will make a difference, and for the position that he has taken today.

--- Later in debate ---

[Sheila Gilmore]

We must not approach this at cross purposes. I do not think that anyone is saying that any of the proposals are perfect; we are merely seeking to improve the situation and to give greater protection. I have no doubt that there will be some very clever people who can find ways around all sorts of things—we know that that happens—but to say that we should not put such measures in place for that reason would be wholly wrong.

Let me address some of what the hon. Member for Cambridge (Dr Huppert) said. He seemed, perhaps surprisingly, to be setting the state against the parent in a way that is not helpful. Of course parents should be making decisions for their children, but there are many circumstances in which we have to rely on others in schools and in the wider world to protect our children. That is not an abdication of parental responsibility, because parents cannot be with their child all the time. They will not be able to supervise every social contact they have. As a parent, I would certainly prefer to be confident that I could let my children out into a world that I could regard as reasonably safe—whether that was the physical or virtual world—than to be unable to do so. Perhaps that is not what the hon. Gentleman was suggesting, but that was how it came across to me. Suggesting that such an approach somehow does not leave things to the parents and that it wants the state to step in is a wholly wrong way of considering the matter.

[Dr Huppert]

The concern is that the filters will be easy to bypass and that a huge proportion of young people will be able to get past them. If parents are led to believe that such things mean that their children will not be able to access inappropriate material when they are up in their room on their computer, that will lead them to make the wrong decisions about how best to look after their children. It is not that parents do not know how to do that—as we know from when parents were asked about the subject by Ofcom, this is a question of supervision, which is far more effective than a misleading sense of security.

[Sheila Gilmore]

One of the practical problems with that approach is the notion that someone is, in any sense, going to be there supervising their children through all this—we all do our best. We attempt to instil the values and behaviours that we want in our children, but it would be wrong to suggest that that will always work, even for those of us who think, or hope, we are or have been very good parents. Children grow older and they are out in that wider world—in friends’ homes or out in all sorts of other social contexts. I want my children to be protected from being able to buy alcohol when they are too young to buy it. I do not want to have to accompany them everywhere to make sure they do not do that; I want to be sure that they are, within reason, protected. However, I know that that can be got round as well, because I know that children are very good at getting fake IDs. That does not mean that we should just abandon the attempt to control these things.

Oral Answers to Questions

Julian Huppert Excerpts

Tuesday 21st May 2013 Commons Chamber

[Chris Grayling]

As the hon. Gentleman will know, the principle of price competitive tendering was first proposed in a report commissioned by the last Government eight years ago. We have looked carefully at the best way in which we can deliver better value in our legal aid system, which we have to do to meet financial targets. We will do so in a way that protects the interests of the justice system, but no change is simply not an option.

[Dr Julian Huppert (Cambridge) (LD)]

I understand the drive to try to save money in this area, but the Justice Secretary will be aware of many of the concerns. Will he look carefully at ideas that have been raised with him such as making more use of frozen assets to pay for cases or dealing with fraud cases more efficiently, to try to reduce the legal aid bill in that way?

[Chris Grayling]

I have a lot of sympathy with what my hon. Friend says on frozen assets. Of course, they are already used to fund police, the Crown Prosecution Service and victims’ services, so this is not an untouched resource. In the Crime and Courts Act 2013, we have taken powers to extend the use of frozen assets, but I do not believe that the amounts of money available are sufficient to make a material difference to our proposals.

--- Later in debate ---

[Chris Grayling]

I have already met a number of lawyers from the north-east and Newcastle, and I will listen to all the representations that I receive to try to get this as right as I possibly can. However, the hon. Lady should not believe, and no one in the House should believe, that the Administration can avoid difficult financial decisions. I am trying to take those decisions in the way that provides the best balance between justice and value for the taxpayer, and that is what I will continue to do.

[Dr Julian Huppert (Cambridge) (LD)]

There seem to be ways of both making substantial savings and providing a better service and improving the way in which the courts operate, particularly by using more digital information so that documents do not get lost and fail to arrive in court at the correct time. What work has the Ministry of Justice been doing to try to achieve that?

[The Minister for Policing and Criminal Justice (Damian Green)]

I completely agree with my hon. Friend that the digitisation of the whole criminal justice process, not just in the courts but including the police, is absolutely essential to ensuring not only that we continue to provide proper justice but that we do so more speedily and efficiently. A huge amount of work is going on inside the Department, and announcements will be made.

Marriage (Same Sex Couples) Bill

Julian Huppert Excerpts

Tuesday 21st May 2013 Commons Chamber

[Kate Green]

I do not accept that. I do not wish for one second to impugn the messages received from officials. It is quite possible that there was some gulf in understanding between those who delivered the message and those who heard it. I was not present at the conversations myself, and the Secretary of State is, of course, right to put forward her description of what took place, but my understanding is that the way that they concluded led the British Humanist Association, which is advising me, to understand that a more tightly worded proposal, such as the one that I have put before the House this afternoon, would meet the concerns. Although that may not have been the intention intended to be conveyed, it was certainly the intention that it came away with.

[Dr Julian Huppert (Cambridge) (LD)]

The hon. Lady is making an extremely strong and compelling case, and I look forward to expressing my support for it in more detail later. I have here a letter from the Culture Secretary and Minister for Women and Equalities, saying:

“I note the changes that have been made to narrow the scope of the amendments to cover the humanist organisations only, as we discussed.”

Does the hon. Lady agree that that strongly suggests the Government supported this change?

[Kate Green]

I am grateful to the hon. Gentleman for that helpful intervention.

--- Later in debate ---

[Sir Tony Baldry]

Of course I will give way to the hon. Lady, but may I finish the point?

Those locks are based on the assumption enshrined in English marriage law: English marriage law is based on buildings and not on celebrants.

[Dr Huppert]

Will the hon. Gentleman give way?

[Sir Tony Baldry]

I am going to give way to the hon. Lady, but let me finish the point because it is important.

In Scotland, there is celebrant-based marriage, whereas the protections in marriage in England are based on buildings. If new clause 15 is passed, it will in effect unpick all the protections in the Bill that relate to the locks and to the protections for other faith groups.

The Speaker acknowledged earlier that he was an anorak. There are degrees of anorakism in the House, and I too am a bit of an anorak, in the sense that I believe that if public Bills that will make substantial changes to public law are to be introduced, there should be proper consultation. As the hon. Member for Stretford and Urmston (Kate Green) honestly and properly acknowledged, there has been no consultation with faith groups on the proposed provisions, which would completely unpick the protections in the Bill that Parliament has sought to give to faith groups.

--- Later in debate ---

[Dr Huppert]

I think that the hon. Gentleman has now accepted that he was not correct to say that all marriage in this country is tied to place, because as has been discussed, that is not the case for Jews and for Quakers. He has consistently made the case that the Church of England and other groups should be able to produce ceremonies in their way. Can he explain why, while believing that the Church of England should be protected and allowed to have its ceremonies in its way, humanists should not be allowed to have their ceremonies their way? I can assure him that humanists—the British Humanist Association—are not seeking protection from same-sex marriage; they very much welcome it.

[Sir Tony Baldry]

My hon. Friend is wrong. I have made it quite clear throughout that English marriage law is buildings-related, except, for historic reasons, where it relates to Quakers and Jews; it has never been celebrant-related.

Let us consider the Scottish example. In Scotland we have seen pagan weddings celebrated, spiritualist weddings celebrated, and weddings celebrated by the White Eagle Lodge. That is a question on which our constituents should properly be consulted. I cannot speak for other Members of the House, but I have had enough problems in my constituency with same-sex marriage. If I go back to the shires of Oxfordshire and tell constituents that Parliament is about to endorse pagan marriage in England, they will think that we have lost the plot completely. If they think that the Opposition support pagan marriage and masonic marriage, they really will think we have lost the plot.

--- Later in debate ---

[Sir Tony Baldry]

I want to conclude by making a further and serious point.

Those of us who were opponents of the Bill and who voted against it on Second Reading have taken on good faith—and it has been delivered in good faith by the Government and the proponents of the Bill—that there would be protections for faith groups and that they would not be compelled to carry out same-sex marriages if they did not wish to do so. My understanding was that that approach was supported by the Opposition Front-Bench spokesmen as well. With legislation of this kind it is important that people feel confident that it will not in some way be unpicked in the future, and that the protections for faith groups will endure, irrespective of any change of Government.

The Opposition Front Bench’s approach this afternoon causes me concern. I point out that the Church of England has been wholly approachable to the Opposition—of course it would be—throughout the Bill’s passage. It is a matter of some concern that at no time have the official Opposition, who have adopted the new clause—it has not been moved by a Back Bencher; it has been proposed by a member of the shadow Front-Bench team—sought to consult the Church of England or other faith groups, as the hon. Member for Stretford and Urmston has acknowledged and admitted, on the import or impact of the new clause.

In every way, this is a bad new clause. It is bad because it has not been properly consulted on; it is bad because it will unpick the protections—

[Dr Huppert]

rose—

[Sir Tony Baldry]

No, I am about to finish. [Interruption.] I have given way to the hon. Gentleman on a number of occasions. I am sure that he can make his own speech in his own time.

The new clause is bad, because it will unpick the protections enshrined in the Bill, and it is bad because it will lead to unforeseen consequences, upon which no one in this country has been consulted. If Opposition Front Benchers really believe that the new clause is tenable, I challenge them to consult their constituents and ours on whether people in England want to see the prospect or possibility of pagan marriages taking place in England.

--- Later in debate ---

[Dr Huppert]

Six hundred.

[Pete Wishart]

Two thousand five hundred a year.

--- Later in debate ---

[Kelvin Hopkins]

At some time, somebody can explain to me the difficulties. I just do not accept those difficulties. It is a simple thing to allow a significant proportion of our population to be married according to their own beliefs, in the same way that other people are married according to their beliefs. I cannot see that it threatens anyone else in so doing.

[Dr Huppert]

A couple of hon. Members have said that the new clause would unpick the locks, but they have so far failed to say in what way—I hope that the hon. Gentleman agrees—because we already have exemptions for Jews and Quakers, who are not tied to a place. Does he also agree that if Members are to claim that, they should do more than simply asserting it to be true? They should try to provide some sort of evidence and reason why they think it is true.

[Kelvin Hopkins]

I thank the hon. Gentleman for his intervention. Those Members sitting on the Government side of the Chamber will no doubt explain that in their speeches, and I will listen with interest.

I like to equate humanism with other belief systems, some religious and some non-religious. It is interesting that in France, a strictly secular country with a strong separation of the state and religion, humanists are treated in the same way as religious organisations. Humanists cannot attain any kind of support at all from the state, in the same way that Churches cannot, because if they did so the Churches might try to claim it as well; so they are treated in the same way.

In my constituency, which has many religions and strong support for them, we have a council of faiths that does wonderful work in bringing people together. It has produced a colourful pamphlet showing a rainbow spectrum of different beliefs and belief systems, including humanism, so it treats humanism on a par with other belief systems. I think that we should do the same by allowing humanists to be married.

--- Later in debate ---

[Geraint Davies]

I very much agree with that important point. We are all aware of the political difficulties in the Conservative party and the differences within the coalition and across the House. Same-sex marriage is an important measure and it is imperative that we deal with it now. If it does not happen now, political complexions may change as we approach the 2015 election and we might miss the opportunity. People may make the calculated gamble that if the issue is pushed into the long grass, it will stay there. Thousands of people want us to move forward on same-sex marriage, a large and growing community of people want us to move forward on humanist marriage and, as we have heard Government Members say, there are people who want us to move forward on civil partnerships. I hope that the review on that matter makes rapid progress and that the options are provided in a fully informed way.

I was very surprised by the Attorney-General’s intervention in which he seemed to say that new clause 15 would be in breach of article 14 of the European convention on human rights and would open the door for people who wanted to marry in the name of tiddlywinks. That was very peculiar. I am a member of the Parliamentary Assembly of the Council of Europe, to which the European Court of Human Rights has regard. I have not heard it suggested in any serious chamber that there ought to be parity between the rights of those who want humanist weddings, which are already an option in Scotland, and those who demand tiddlywinks marriages.

[Dr Huppert]

Will the hon. Gentleman give way?

[Geraint Davies]

I did not know that the hon. Gentleman was a tiddlywinks fanatic.

[Dr Huppert]

I am not a tiddlywinks expert, but I am a humanist. I am a member of the British Humanist Association and the all-party humanist group. The hon. Gentleman may be aware that there has been a judgment on the what test should be for serious beliefs in such cases. The judgment in Grainger plc v. Nicholson states:

“The belief must be genuinely held, must be a belief and not an opinion based on present available information and a weighty or substantial aspect of human life and behaviour”.

None of that could really apply to tiddlywinks.

[Geraint Davies]

I am grateful for that intervention. It elaborates the point that we should not spend too much time talking about tiddlywinks. However, it was brought up by the Attorney-General and I thought that I had better deal with the matter because he said that his best criticism of new clause 15 was that it would be in breach of article 14 of the European convention on human rights. That seems very unlikely, to put it mildly. It is scraping the barrel and was a bizarre thing for the Attorney-General to say.

I realise that the intention behind new clause 14 was to start a discussion, but it would abolish marriage and civil partnership and replace them with civil union. People who had been married in good faith would wake up one day and find that they were no longer married. That is not something that we should seriously consider. In the cut and thrust of political dialogue, it was famously said that people who went to bed with Nick Clegg might wake up with David Cameron. This proposal is akin to that idea. One day people would be married and suddenly, after a change in the legislation, they would no longer be married.

--- Later in debate ---

[Mr Blunt]

I am grateful to the hon. Gentleman. I cannot see anything wrong with the point he has just made, but it is obviously open to my right hon. and hon. Friends to put their points and contradict him.

[Dr Huppert]

The hon. Gentleman is making a powerful speech and is generous in giving way. There is an issue of how to deal with legal advice. Does he agree that the law is capable of being constructive and not just a constraint and that it would therefore behove the Attorney-General and the Government to come up with ways to change the new clause to make it compatible with the law, rather than saying, “This doesn’t work; try again.”?

[Mr Blunt]

To be fair to the Attorney-General, that is precisely what he said. He thought it would be perfectly possible to address these issues. He raised objections to the House. I happen not to agree with or believe them, but he said that it should be possible to address the issues being raised. Unless Members are prepared to stand up in the House and say that they oppose humanists being allowed to carry out marriages in principle and explain to me and the rest of the country what their reasons are, we owe it to humanists to do our damndest during the passage of the Bill to enable them to enjoy the ability to marry under their belief system with the same rights that we give to others.

--- Later in debate ---

[Simon Hughes]

I will not, but with respect I want to say a word about humanism and speak to my new clause 18, which is in this group, on the difference between the church and the state.

Let me say to the hon. Member for Hackney North and Stoke Newington (Ms Abbott) that of course marriage is never only for the production of children. Many people get married without that intention, and it might be impossible for some. That is not the argument. In the theological tradition, one purpose of marriage is to have children, and that is not possible, biologically, between two men or between two women. Some churches believe that marriage is a sacrament or holds another special position.

We move from that position of faith to one where we legislate. My right hon. Friend the Member for Berwick-upon-Tweed (Sir Alan Beith) intervened earlier to make it clear that Methodists, Quakers, Jews and the Free Churches had to fight for the right to perform marriages in their churches. Now, places that have nothing to do with churches or faiths are licensed to carry out marriages—civil marriages became possible. The position of registrar was set up and people are able to have entirely civil marriages in a registry office. That is still the case. Marriages can be held in a place that is entirely civil—in a state-authorised location—or in a place of worship, which can also include the legislative provisions that the state requires.

In all my time in the House, I have argued that we should try to separate those two things. New clause 18 suggests a way of doing that, just as new clause 14, tabled by my hon. Friend the Member for Leeds North West (Greg Mulholland), does. I believe in the disestablishment of the Church of England. I am a member of the Church, but I believe in its disestablishment. Just as the Church in Wales has been disestablished, I have always believed that in England we should separate as much as possible the activities of the Church and the activities of the state. Marriage, therefore, between a man and a woman in a Christian or religious sense is different from marriages, partnerships or unions that are secular, or between people of the same sex.

I pray in aid the view, which has been quoted already, of the hon. Member for Rhondda (Chris Bryant). It was referred to in the Public Bill Committee and goes back to what he said in 2004. When he was asked whether he agreed with the proposition about same-sex marriage, which is at the heart of the Bill, he answered:

“I do not support that; I believe that marriage is an institution that is ordained of God and should be celebrated between a man and a woman. However, I also believe that two men or two women can have a relationship that in many ways mirrors that between a man and a woman but is not identical. Therefore, I believe that we should have in law separate institutions that reflect that reality.”—[Official Report, Standing Committee D, 21 October 2004; c. 68-70.]

That has always been my position too. We should give equal rights to gay and straight couples to form partnerships, unions or relationships that give the same pension rights and status, but are not the same as the traditional marriage between a man and a woman.

Colloquially, people talk of equal marriage, and I understand that. People who are in civil partnerships talk of being married, and of their husbands and wives. We are not going to be able to put the clock back, which is why new clause 18 talks about “civil marriage” and not civil union. Many of my Christian friends say that that is an unacceptable compromise, because the Christian view of marriage cannot be changed by calling it civil marriage. We have to wrestle with that issue and sort it out, because we could have civil marriage that is different from faith, Christian or religious marriage, and I think that people would reasonably understand the difference.

[Dr Huppert]

I respect my right hon. Friend on many things, but I disagree with quite a lot of what he is saying. Is he genuinely saying that he would deny faith groups, which believe marriage should truly be equal, the ability to do that, because of his personal belief? Is he refusing to allow them to call it a proper marriage or a faith marriage?

[Simon Hughes]

If my hon. Friend will bear with me, I do not believe that and I am not arguing that. They should of course be entitled to hold that view.

This group of amendments seeks to give humanists the right to have humanist weddings. I support that proposal. I understand the objection to the technical drafting, and perhaps that needs to be considered. However, the principle—my hon. Friend the hon. Member for Reigate (Mr Blunt) made the point—of allowing humanist weddings seems to me to be the right one. The hon. Member for Foyle argued that that is what happens over the border in Ireland. Humanists have a belief, and therefore they should be entitled to have weddings according to their belief. Constituents have argued for that, it happens already in Scotland, and, like other people, I too have been to a humanist ceremony—not a wedding, but a funeral.

As a light intervention, we should not be overly afraid of the word “pagan”. My dear late mother, who lived in a village in Herefordshire, in her latter years went to a pagan wedding in the orchard in Hampton Bishop. She said it was one of the most enjoyable weddings she ever attended. Of course, there was a civil ceremony beforehand. People should be allowed to have the practice they want, including humanist weddings.

--- Later in debate ---

[Mike Weatherley]

People ignore legal advice for all sorts of reasons. I am saying that I would like that legal opinion to be put to the test. We should not simply say, “Oh well, if that is the case, we will just sit back and not do this.” It is up to us to find a way of doing it. I do not happen to think that that interpretation is the correct one, and I would like to see it put to the test, as would many other people.

It is evident from what is happening in Scotland that there is a huge latent demand for humanist marriages, as well as for equal marriages. If humanism was right for my father, I for one would like to see equal marriages extended to include humanist marriage ceremonies. I would find it odd if those who supported same sex equal marriage did not also support equal marriage for others, which is why I am supporting the new clause.

[Dr Huppert]

It is a great pleasure to follow the excellent speech by my hon. Friend the Member for Hove (Mike Weatherley). I also want to pay huge tribute to the hon. Member for Stretford and Urmston (Kate Green). It has been a great pleasure to work with her during the passage of the Bill, and her speech today set the scene extremely well. I pay tribute to her, although I am not sure whether that will help or hinder her future plans. I thought that she did extremely well.

There are two issues that we need to debate today. One is the principle of whether we should allow humanists to conduct weddings; the other relates to the process of how we might get there. This is all made much more complicated because our marriage laws are incredibly complicated. They have exceptions and exemptions all over the place. The Second Church Estates Commissioner, my hon. Friend the Member for Banbury (Sir Tony Baldry), who speaks for the Church of England, and who I imagine knows the Marriage Act 1949 quite well, has spoken of how the rules are all tied to places. Section 26 of the Act states that marriages may be solemnised in

“a registered building…in the office of a superintendent registrar”,

and

“on approved premises”.

It also permits

“a marriage according to the usages of the Society of Friends (commonly called Quakers)”

and

“a marriage between two persons professing the Jewish religion according to the usages of the Jews”.

So we already have an exception and, as far as I can tell, the world has not fallen apart since those provisions were passed in 1949. They have worked without any problems. There are other areas of marriage law that are just complicated. We do not have a simple, clear system, and we are not going to get one as a result of any legislation that we pass today. That will involve further work.

Let me turn first to the question of principle. Is there a desire to allow humanists to conduct weddings? This was mentioned by the hon. Member for Reigate (Mr Blunt). If any Member here in the Chamber disagrees with the principle of humanists being allowed to conduct weddings, I would be grateful if they intervened on me to say so. If no one expresses such a view, we will take it that there is no dissent on that principle.

[James Duddridge (Rochford and Southend East) (Con)]

The hon. Gentleman is presuming; the fact those people who are currently in the Chamber do not express disagreement with him does not mean that he is right or that they all agree. That is blatantly obvious.

--- Later in debate ---

[Stephen Doughty (Cardiff South and Penarth) (Lab/Co-op)]

The hon. Gentleman is making some strong points. Anecdotally, in my constituency, a former member of the Welsh Assembly who is a humanist celebrant tells me that from her experience, if the provisions were made legal, the numbers would increase. She certainly sees a demand from the people of Cardiff South and Penarth.

[Dr Huppert]

I thank the hon. Gentleman for making that point. I should declare that I am a member of the British Humanist Association and an officer of the all-party parliamentary humanist group, and I have spoken to a number of people who have confirmed that there is a demand for this to happen. People wish to do humanist marriage and there does not have to be a majority before we think that it is the right thing to do.

What are the problems? This takes us to the process of how to get there. The Second Church Estates Commissioner, the hon. Member for Banbury, and others have asserted that this would unpick the lock. What I never heard—perhaps we will hear it from the Minister—is exactly why the locks that protect faith groups would be unpicked by allowing humanists to act as registrars for a wedding. It is really not clear. I have heard it implied that it is because this would involve celebrants and it would not happen at a registered place. We have heard that Jews and Quakers are already exempt from the requirement to have a registered place. If the lock has already been unpicked by that, why should it be a problem? We have simply not heard any detailed analysis; it seems that people are saying things because they have been told that they are true. That is not really good enough.

I am concerned about the process that has brought us here. The Second Church Estates Commissioner—sadly, he is not in his place—suggested that the proposal was put through at the last minute and there was not enough time to deal with it adequately. I tabled my amendment initially on 5 February, immediately after Second Reading. I vividly remember it because I was slightly annoyed that somebody else had tabled another amendment before I had even got to the Table for mine. I was delighted that it received support from across the House and that my hon. Friend the Member for Bristol West (Stephen Williams) led on it in Committee with the support of the Labour Front-Bench team.

There was time from 5 February to make comments, and comments were made. There was detailed discussion, for example, between the British Humanist Association and Government officials. A couple of comments were made about how the provision would fit in with the locks and, interestingly, about its breadth. My original amendment would have allowed all approved organisations to participate, with a few safeguards, and did not specify humanism. The Government advice from the meetings with officials was that that should be changed. I know that the Minister disagrees, but it is entirely consistent with the letter and I was very specifically told by the BHA that it was given the advice to limit the provision to humanism.

I am happy to read out again the relevant section from the Minister’s letter:

“I note the changes that have been made to narrow the scope of the amendments to cover humanist organisations only, as we discussed.”

The letter went on to say that

“we remain of the view that”

humanist ceremonies

“cannot be dealt with in isolation”.

That is simply not consistent with the idea that the Government had no role in this.

[Maria Miller]

I am sorry, but I must complete what the letter sent by the Under-Secretary of State for Justice, my hon. Friend the Member for Maidstone and The Weald (Mrs Grant), said. It went on to state clearly that

“the Marriage (Same Sex Couples) Bill is the wrong mechanism to effect the changes to marriage law that you desire. Therefore the Government is unable to support your amendments.”

I am quoting directly from the letter. That clearly shows no opaqueness in the situation. I think that the hon. Gentleman’s previous comments were not entirely consistent with what is written in the letter.

[Dr Huppert]

I thank the right hon. Lady for reading out the rest of the letter, and I am happy for anybody to see it; I see that her Parliamentary Private Secretary has copies of it. She is right that it did not say that the Government supported the amendment or that they had another way of delivering it; it does not say, “Here are amendments that could make it work.” It says that the Government do not support the change because it is the wrong mechanism; it does not say, “We see you have now reduced the scope and we are very worried about this because we think you should broaden it back out again to be ECHR-compliant.” It is quite clear that the strong impression formed by the BHA from the meetings—I am sure there will be minutes—is that it was given strong advice to tighten the amendment. If that is not the case, it is hard to understand why it would choose to change the original version, which is obviously available for anyone to read. There has been ample time for the Attorney-General to consider the new clause, to be consulted on it and to be asked for his ruling on whether it would accord with the European convention on human rights. Strangely, however, that did not happen until the very last moment.

There have been other meetings. For instance, we had a detailed discussion with the Minister of State, Department for Culture, Media and Sport, the right hon. Member for Faversham and Mid Kent (Hugh Robertson), and I thank him for his time. As he will no doubt recall, the objections that were expressed did not centre on the fact that the new clause would make the whole Bill non-compliant with the convention, but there was talk of the cost of updating the computer system to allow an extra field for humanist weddings. He is nodding. A number of other issues were raised: for example, concern was expressed about the possibility that the measure would allow humanists to conduct weddings out of doors, which members of other faiths are not allowed to do under our marriage law unless they are Jews or Quakers.

I find it truly bizarre that if there is concern about challenges with regard to the proposals before us, there is not fundamental concern about challenges to legislation under which the rules governing Jews and Quakers differ from those governing any other group. We have plenty of legislation that singles out the Church of England and the Church of Wales, because they are, or were, connected to the state. I would be grateful if the Minister, or anyone else, could tell me how many times the fact that Jews and Quakers are listed, but not Hindus, Sikhs or any other group, has been subject to a legal challenge. In fact, that simply has not happened.

I respect the Attorney-General’s position, but I do not understand how he can have formed his opinions. I hope that we will be able to see a detailed analysis, from him or from the Minister via him, explaining exactly what the objections are. Above all, however, I believe passionately that the law could be constructive. The Government do not have to agree with humanist weddings, and they do not have to agree that this is the best way to legislate, but if they are acting in good faith in relation to the concerns that are being raised, I hope that they will say not just what the problems are but how they could be fixed, because many of us want them to be fixed.

I do not mind whether this wording is retained or other wording is introduced. I do not mind if an amendment is tabled that merely adds an extra line specifying humanists beneath the words

“professing the Jewish religion according to the usages of the Jews”.

I do not mind if the Government present, or find time for, another Bill to deal with the issue. I simply want humanist weddings to take place. I hope that the Minister and the Attorney-General will not just erect barriers, but will help this Parliament to do what it clearly wants to do.

[Stephen Williams]

I echo my hon. Friend the Member for Cambridge (Dr Huppert) in paying tribute to the shadow Minister, the hon. Member for Stretford and Urmston (Kate Green). In Committee, the debate took place the other way around: I spoke to the amendment first, and she spoke second.

It has been a pleasure to work across and among parties on this issue, because it is not a divisive issue. We all genuinely want to correct what we consider an anomaly in the law. I am, however, deeply disappointed that we have found ourselves where we are today. As my hon. Friend said, the Second Reading debate took place on 5 February, and the sitting of the Bill Committee during which I proposed the original amendment took place on 12 March. I know that two Departments are considering the Bill, and that No. 10 and the Deputy Prime Minister have been involved as well, but there has been quite a lot of time for the issues to be resolved.

It is disappointing that today, almost at the eleventh hour and 59 minutes, the magic bullet, or nuclear weapon, of the Attorney-General has been wheeled out to tell us that the new clause falls foul of the European convention on human rights. That was never put to us on Second Reading or in Committee, or during the many bilateral private discussions which have taken place between the various parties and Ministries that have been involved in putting the new clause together.

Other, spurious, objections have been made at various times. It has been said, for instance, that the new clause would create an exception. However, as a number of people have pointed out, the law in England and Wales already makes exceptions for the Jewish community and for Quakers. Even more spurious objections have been presented, and leaked to the Daily Mail. Another thing that I find deeply disappointing is that both the Daily Mail and The Sun specifically named both the hon. Member for Stretford and Urmston and me as being in favour of Jedi weddings—or the pagan ceremonies in Scotland about which we heard earlier from the hon. Member for Banbury (Sir Tony Baldry), who speaks for the Church of England.

--- Later in debate ---

The hon. Member for Luton North (Kelvin Hopkins) made several important points about Scots law, the Council of Europe and whether there would be an issue for Scotland. Scots law is not incompatible with the ECHR, as other belief organisations can conduct legal marriages. That is our point, and in a way he has proved my point for me: the amendments would not enable that, that is why they would leave the Bill in a very difficult position.

[Dr Huppert]

There are many points on which I would love to tackle the Secretary of State, including the idea that the amendments are allowing everybody in one version, and not enough people in another, and that either way they fail the Goldilocks test. She makes the case, as I understand it, that if we allowed a route that was not premises-based, it would mean completely redoing marriage law. Does she accept that marriage law already has routes for Jews and for Quakers that are not premises-based, and that to have a route that is not premises-based simply cannot fundamentally weaken marriage law, as it would have done so since 1949 and before then?

[Maria Miller]

My hon. Friend reads my mind, because I was about to go on to that very point. He is right: it is important that we recognise that those of the Jewish faith and Quakers have a particular position, and we have been accommodating their needs since marriage was first regulated in this country back in 1753, as the hon. Member for Rhondda (Chris Bryant) mentioned. That is a long-standing historical arrangement designed to respect and accommodate ancient and religious traditions. My hon. Friend will understand that because it has been established in time, it cannot be changed retrospectively and it is therefore entirely consistent with the position set out by the Attorney-General.

--- Later in debate ---

[Maria Miller]

Will my hon. Friend allow me to respond to his intervention before he intervenes on me again?

This is a particularly difficult area. Marriage law and the principles behind it have evolved over many centuries, as the hon. Member for Rhondda pointed out. Yes, there are anomalies in some areas, but we are talking about a particular set of amendments relating to humanists and the problem that would be faced if they were incorporated in the Bill. It is not the Government’s policy to extend marriage in the way that my hon. Friend is talking about. Humanists can already get married. The Bill is all about ensuring that people who cannot currently get married—same-sex couples—are able to do so. That should be the focus of our discussions.

I also draw hon. Members’ attention to the confusing and contradictory nature of the amendments. Is humanism non-religious, as suggested in the definition of approved organisations in new clause 15? If so, would the protections in the Bill for religious organisations apply? There was some confusion about that, particularly as to whether this would allow the marriage of same-sex couples. Or is humanism religious, as suggested in amendments 20 and 21, which add reference to approved organisations to the definition of a “relevant religious organisation”? Are we clear what humanism means in legislative terms, and who the definition would catch? The amendments simply highlight some of the problems that would arise from trying to shoehorn a new category of marriage into the current legal framework.

[Dr Huppert]

I do not think that the Secretary of State quite addressed the question put by the hon. Member for Reigate (Mr Blunt), which was whether in principle—if there was a way that did not involve the Bill, did not have ECHR problems and did not cause any other problems—she and the Government would support the concept of humanist weddings.

I am really rising because I am so shocked at the concerns about the extra amendments, which again were inserted at the suggestion of Government officials. The BHA has changed this to suit the Government, and the Government then complain about the changes.

[Madam Deputy Speaker (Dawn Primarolo)]

Mr. Huppert, it is not necessary to restate at length a previous question. I remind you that interventions should be brief, not a series of questions. It would help enormously if we stuck to those conventions.

--- Later in debate ---

[Kate Green]

I appreciate the Attorney-General’s concern that there could be human rights challenges on those grounds. It would be useful to know how he assesses the chances of such a challenge being successful and to understand on what basis a challenge might be argued. It would also be useful to know what precedent there is of such challenges being successful elsewhere.

I am prepared to wait for the fully analysed opinion to be presented to the House. I welcome the Secretary of State’s commitment to provide that in good time before the Bill proceeds through the House of Lords. I hope that she will take note of our interest in having a proactive opinion, as the hon. Member for Reigate (Mr Blunt) said, that identifies how any defects in the proposal could be cured, as the Attorney-General has mentioned. Given the commitment from the Secretary of State, I beg to ask leave to withdraw the motion.

Clause, by leave, withdrawn.

Clause 9

Conversion of civil partnership into marriage

[Dr Huppert]

I beg to move amendment 15, page 10, line 24, at end add—

‘(9) Where a civil partnership formed under part 1, section 96 of the Civil Partnership Act (Civil Partnership with former spouse) is converted into a marriage under this section—

(a) the civil partnership ends on the conversion, and

(b) if both partners so elect, the resulting marriage is to be treated as having subsisted since the marriage dissolved under Schedule 2 of the Gender Recognition Act 2004 was formed.’.

[Madam Deputy Speaker (Dawn Primarolo)]

With this it will be convenient to discuss the following:

Government amendments 25 to 39.

Amendment 49, in schedule 4, page 33, leave out from line 42 to line 4 on page 34 and insert—

‘(2) Omit sub-paragraph (1).’.

Government amendments 40 to 47.

Amendment 13, in schedule 5, page 36, leave out lines 10 to 37 and insert—

‘Section 4 (successful applications): for subsections (2) and (3) substitute—

“(2) The certificate is to be a full gender recognition certificate if—

(a) the applicant is not a civil partner and does not request an interim gender recognition certificate,

(b) or the applicant is a civil partner who does not request an interim gender recognition certificate and the Panel has deceided to issue a full gender recognition certificate to the other party to the civil partnership.

(3) The certificate is to be an interim gender recognition certificate if either—

(a) the applicant is a party to a protected civil partnership and the other party to the civil partnership has not made an application under section 1(1).

(b) the applicant is a party to a protected civil partnership and the Panel had decided not to issue a full gender recognition certificate to the other party to the civil partnership,

(c) or the applicants is party to a protected marriage, requests an interim gender recognition certificate and the application includes a statutory declaration of consent from the applicant’s spouse.

(3A) If a gender recognition panel issues a full gender recognition certificate under this section to an applicant who is a party to a marriage or civil partnership, the panel must give the applicant’s spouse notice of the issue of the certificate.”.’.

Amendment 14, schedule 5, page 39, line 39, leave out

‘(by virtue of section 4(2)(b) or (4A)’.

Amendment 18, in schedule 5, page 40, line 18, at end insert—

‘One-off compensation payment to couples whose marriages were annulled to permit a person to obtain a gender recognition certificate

9A Schedule 4 (Effect on Marriage): at beginning insert—

“(1) This section applies to a formerly married couple whose marriage was annulled in order to permit one or both partners to that marriage to obtain a full gender recognition certificate, provided that—

(a) the marriage was annulled following the coming into force of the Gender Recognition Act 2004, and

(b) the formerly married couple either—

(a) (i) formed a civil partnership with each other within six months of the annulment of their marriage, and continue to maintain their civil partnership, or

(ii) have continued to live together as a couple in the same household since the annulment of their marriage.

(2) The couple shall be compensated from public funds to the amount of £1,000 by way of apology for the distress and costs incurred as a result of the annulment of their marriage.”.’.

Amendment 22, in schedule 5, page 40, line 18, at end insert—

‘Reinstatement of marriages annulled to permit a person to obtain a gender recognition certificate

9A Schedule 4 (Effect on Marriage): at beginning insert—

“(1) This section applies to a formerly married couple whose marriage was annulled in order to permit one or both partners to that marriage to obtain a full gender recognition certificate, provided that—

(a) the couple have continued to live together in the same household since the annulment of their marriage, and

(b) both partners to the former marriage give notice to a registrar that they wish their marriage to be reinstated.

(2) When notice is given under (1)(b), the marriage shall be reinstated with effect from the date the couple give notice to have it reinstated.”.’.

Amendment 16, in schedule 5, page 40, leave out lines 30 and 31 and insert—

‘(a) the registration of qualifying marriages,

(b) the registration of qualifying civil partnerships,

(c) the issue of replacement marriage certificates displaying the new details of the parties to the marriage but maintaining the original date,

(d) the issue of replacement birth certificates where the application is shown on the certificate, with the consent of the other parent named and—

(i) where the child has reached 16 years of age, the consent of the child to whom the birth certificate relates,

(ii) where the child has not yet reached the age of 16 years, the consent of the other parent named on the birth certificate, where present.’.

Government amendment 48.

Amendment 12, schedule 7, page 50, line 37, at end insert—

‘24A Section 12 (grounds on which a marriage is voidable): omit paragraph (h).’.

[Dr Huppert]

We now move on to a rather different subject, but it is still an important one that affects a number of people greatly. A range of issues apply specifically to people who change their gender, who transition between genders or who are transgender. There may not be a huge number of people in that category and they may be a small minority, but they have been subject to some of the worst discrimination over many years and decades. Indeed, that has happened partly because there are not as many people in that group as in other groups.

Another group that we will not talk about specifically today is that of people who are intersex and who do not associate with one gender for a range of reasons. My right hon. Friend the Member for Bermondsey and Old Southwark (Simon Hughes) has tabled some amendments to clarify the position for such people. I assume that it is clear that the Government’s intention is that marriage will be equal and will not exclude those who do not identify as male or female. I assume that there is no intention to discriminate. We therefore need to focus on the specific issues for the small group of people who are transgender.

Last Friday was IDAHO—the international day against homophobia and transphobia—and I spoke to people who have suffered such discrimination at an event in my constituency. My constituency is perhaps uniquely blessed in having not only a number of people who are out about the fact that they are transgender—many people, for understandable reasons, are cagey about admitting that they are transgender—but a number of transgender people who have been elected to the local council. Indeed, we had the first transgender mayor in the country. She was very proud of that role.

There is far too much transphobia, which many people have to face. Like other hon. Members, I have worked with Trans Media Watch, which keeps an eye on the truly disgusting articles that appear in the press about people who are transgender. I heard a number of awful stories at a recent event. To give one of the many examples, Lucy Meadows, a primary school teacher, killed herself after a very nasty article came out in the Daily Mail shortly after she transitioned. That is not acceptable in society, and we need to make a stand against it.

Sometimes, such things happen because people wish to be actively nasty. Sometimes, problems are caused for people who are transgender because of problems with the legislation that we produce. We do not always think of people who are transgender when we are writing legislation and there can be unintended consequences. I do not believe that this Government or the last Government have ever intended to discriminate against people who are transgender, but it has happened by accident.

We have had a few specialist debates—for instance, about which gender of police officer should search people who are transgender. I proposed that we should just ask people whom they wished to be search by, which would resolve the problem.

--- Later in debate ---

[Mike Freer (Finchley and Golders Green) (Con)]

Does my hon. Friend agree it is bizarre that a man or woman who is transitioning can have surgery and change their name but cannot have a gender realignment certificate without spousal approval?

[Dr Huppert]

I find it very bizarre. There are a number of anomalies in the whole process because of how it is set up, but a gender recognition certificate may be applied for only two years after someone has transitioned into the acquired gender full time, so there has already been quite a long time to try to sort out other issues. Amendments 13 and 14 would simply end the spousal veto, so that people who transition do not have to rely on their spouses to give approval. Some spouses will not give permission for that to happen.

Amendment 16 deals with marriage and birth certificates when there are transgender issues. It argues that replacement marriage certificates should be available for people who have transitioned, so that we do not force them to be outed every time they have to show a marriage certificate. We would reissue a marriage certificate with the original date and new names. That is a simple thing, but it will make a big difference. Not everybody who has transitioned wants to be known as somebody who transitioned. Many people just want to be known by their new name and new gender, and they do not wish to explain their past in every case. They already face that often enough when dealing with various institutions and medical issues. We should not force people to out themselves every time that they need to present a marriage certificate.

[Bob Stewart]

There will be problems with police records, for example, if people change names like that, and that will cause a big problem.

[Dr Huppert]

The hon. Gentleman makes an interesting point. In many cases, of course, there is no problem, and there are technical ways in which the issue has been resolved. It is already possible for people to transition and the state manages to cope—income tax, HMRC and other systems manage to cope and each have detailed arrangements. I do not think that would pose a problem for somebody transitioning to avoid their previous criminal record, but it would avoid their being outed inadvertently or accidently, which is a genuine fear for a large number of transgender people.

At the moment, a child’s birth certificate cannot be reissued on the parent’s transition. Again, that raises concerns about privacy and outing, not just for the transperson but for their families, for example, when applying for school places. Under the amendment, replacement birth certificates could be issued with the new gender and with the consent of the child once they have reached an age at which they are able to consent. Older children should clearly have some say in this. Such a provision would protect the privacy of the person who has transitioned where such information should not be revealed.

Clause 12 relates to an interesting aspect of the Matrimonial Causes Act 1973, which gives grounds to void a marriage. It states that a marriage can be voided if

“the respondent is a person whose gender at the time of the marriage had become the acquired gender under the Gender Recognition Act 2004.”

If somebody marries somebody who has already transitioned, they can at any point cancel the marriage on that ground. Technically, that applies only if the person did not know that their partner had transitioned, but the problem is that, if someone is not public about the fact that they have transitioned, they are at risk of their partner, at any time, saying, “I did not realise.” There would be little proof, unless we expect transpeople always to tell others.

We could get rid of that anomaly and still allow normal divorce proceedings to be started. The marriage could still be ended if there was an incompatible breakdown when a person discovers the history of their partner—there would still be a way out for them if they feel they cannot continue—but we should remove the automatic sense that somebody has done something wrong simply by being transgender. That is a real concern. There have been such cases in Scotland—they were not to do with marriage, but with other sexual interactions—and there have been sex-by-fraud cases simply because somebody was transgender. We simply should not allow that to happen. Those are small and specific issues, but the proposals will make a difference to a persecuted minority within our country.

Government amendments on pensions and transgender people are welcome. I thank the Government for making that step, which is welcomed by the trans community and is to be supported.

Before I conclude, I want to highlight amendment 49, which is in the name of the hon. Member for Brighton, Pavilion (Caroline Lucas). I hope she does not mind my speaking to it before she does. The amendment would end a bizarre anomaly. If I marry somebody and die, they get a survivor’s pension related to the amount of time that I have spent in work. However, if I have a civil partnership with somebody and die, the payment they receive is related not to the time when I started work, but to the time when civil partnerships came into existence. That is bizarre. Any insurer would not know whether I would choose a marriage or civil partnership. It seems odd that one pension is backdated to when I started work, and the other goes only part way. It would make sense if both pensions dated back to the date of the marriage—I can understand the logic, although I do not believe that that is the right solution—but there is a blatant and odd inequality.

Most employers pay no attention to the anomaly because they are keen to be helpful to their employees. Many of them can nominate people to whom they are not married to receive the survivor’s pension. However, we should not have such inequality written in law. I apologise to the hon. Lady for saying that before she has had a chance to do so.

I hope that the Government take those issues seriously, because we can fix anomalies of the past and avoid making further ones in the present.

--- Later in debate ---

[Mrs Grant]

As an optimist, I would prefer to decide what action is appropriate if that happens. I do not want to prejudge the appeal.

I shall now deal with the non-Government amendments on gender reassignment. Amendment 15 would enable a marriage to be held to be continuously valid from the date of the original marriage solemnisation, effectively restoring the original marriage. Amendment 22 would allow couples who have continued to live together following the annulment to apply to have their marriage reinstated from the date on which they notify the registrar of their wish to have their marriage reinstated.

I understand the concerns that prompted hon. Members to propose those amendments, and the Government have great sympathy for couples who felt required to make the difficult choice to end their marriage to enable one party to obtain gender recognition. However, it is not possible to reinstate a marriage that has been lawfully ended by an order of the court. It will be possible to backdate converted marriages to the date of registration of the civil partnership, as the civil partnership will not have been lawfully ended.

Couples who have continued to live together will be able to marry by virtue of the changes in the Bill. I realise that that will not be a reinstatement of the original marriage, but I sincerely hope that couples will feel able to make use of these important provisions. I realise that some transsexual people in this situation may be disappointed, but we need to ensure that a person’s legal relationship status is completely clear at all times in the eyes of the law.

Amendment 18 would enable a one-off payment of £1,000 from public funds to be made as compensation for the distress caused to and costs incurred by couples who had their marriages annulled to enable one or both parties to get gender recognition. I cannot support that amendment because we have to take the law as we find it. It is not fair arbitrarily to compensate couples who decided to end their marriage under the law that applied at the time. There will be other couples who felt unable to end their marriage and who may have suffered distress as a result of not being able to obtain gender recognition. We have taken on board the issues that the hon. Member for Brighton, Pavilion and my hon. Friend the Member for Finchley and Golders Green (Mike Freer) have raised, and we will continue to listen carefully.

The first part of amendment 16 would provide a power for the Registrar General to make regulations about the issuing of new marriage certificates to couples in which one or both parties have obtained gender recognition that reflect the trans party’s acquired gender, but retain the original date of registration. That could include the date of registration of a marriage that had been annulled. I assure the House that that part of the amendment is unnecessary because the power provided in the Bill is wide enough to deal with those matters. We will give serious consideration to the registration date that should be referred to on any new marriage certificate issued to a couple who are to stay married following gender recognition. We will also need to ensure that the certificate does not inadvertently reveal that one party has gender recognition.

The second part of amendment 16 would provide a power for the Registrar General of England and Wales to make regulations providing for amended birth certificates for transsexual people’s children to reflect the transsexual person’s acquired gender. The amendment does not seem to be directly related to equal marriage, and in any event I cannot accept it as section 12 of the Gender Recognition Act 2004 makes it clear that gender recognition does not affect the status of a transsexual person as the father or mother of a child. That section is necessary to ensure the continuity of parental rights and responsibilities and to protect the right of children to know the details of their biological parents.

Amendment 12 is intended to remove the provision in the Matrimonial Causes Act 1973 that makes a marriage voidable when a transsexual person marries a non-trans person but does not inform that person of their trans status prior to the marriage or at the time when it takes place. I cannot accept the amendment, because the current provision in the 1973 Act and the corresponding provision in the Civil Partnership Act 2004 provide important protection for the non-trans spouse. If a non-trans person finds themselves in a marriage to which they did not fully consent, it is only right that they should be able to apply to annul the marriage rather than have to wait to bring time-consuming and often costly divorce proceedings.

Amendments 13 and 14 would require the Gender Recognition Panel to issue full gender recognition certificates to all applicants in protected marriages, irrespective of the non-trans spouse’s views. It would then be open to the non-trans spouse to issue divorce proceedings. I understand that the amendments are intended to remove the so-called “spousal veto” in schedule 5. However, let me be clear that non-trans spouses will not be able to veto their spouses obtaining gender recognition. I also understand that the amendments are intended to deal with the problem of hostile or obstructive non-trans spouses who deliberately seek to delay nullity proceedings. I have not seen any evidence that that is a widespread problem. If the grounds for the marriage being voidable are met, the hostility or absence of the non-trans spouse should not delay a court in issuing a decree of nullity. If there is evidence that unnecessary delays are occurring, we believe that it should be a matter for the court.

It must be remembered that a marriage is contracted between two people who should have an equal say in the future of that marriage. We consider that it would be unfair to remove the right of every non-trans spouse to have a say in the future of their marriage before gender recognition takes place. I therefore ask hon. Members not to press their amendments relating to gender reassignment.

Finally, I thank all right hon. and hon. Members who have contributed to this important debate. I am conscious of time and know that I need to leave a little time for the hon. Member for Cambridge (Dr Huppert) to respond, so I will conclude my remarks.

[Dr Huppert]

We have discussed some important and detailed issues that matter intensely to a range of people. I am grateful for the tone in which the debate has been conducted by almost everybody; it has been productive. I know that people from the trans community and other minority sexual communities who have been watching are impressed that Parliament is able to discuss these matters.

The hon. Member for Bournemouth East (Mr Ellwood), who is no longer in his place, said that there is no pent-up anger about some of these issues. I would quote comments sent to me by some of my transgender colleagues, but I suspect the language would be rather unparliamentary. There is certainly pent-up anger among people about their stolen marriages.

As I am sure the Minister is aware, I disagree on some of the detail about these amendments and I maintain that there are some concerns. I was worried by some of the language about not fully consenting to a marriage, although I am sure the Minister did not mean to imply that people need to be protected from transgender spouses or transgender people—I am sure that is not what was intended. I was grateful to hear her say that the Government will continue to listen carefully on such issues. I hope there will be further discussion in another place and that the Government will reflect on what more they are able to do.

There has been some progress and I acknowledge some of the Government amendments. On stolen marriages, amendment 15 was always an ideal, and I am well aware of the Government’s objection to backdating. It would be wonderful if it were possible to do so, and I am sure the Attorney-General is a good enough lawyer to find a way to do that. The Minister highlighted the fact that couples will be able to backdate their new marriage to the date on which their civil partnership was formed, so there is some form of backdating, which is welcome. In many cases, there will be a one-day gap between two otherwise identical marriages, which is slightly odd, but I am grateful for that progress. Amendment 15 was always somewhat optimistic, but I hope we can make progress on some of the other issues.

Amendment 49, tabled by the hon. Member for Brighton, Pavilion (Caroline Lucas), is critical. It has been noted that the current position gives rise to some truly odd anomalies. We are introducing—quite correctly—protection for someone who is transgender and transitions, so that they do not lose out on pensions by virtue of that, but we are leaving in place a slightly bizarre anomaly, mentioned by the hon. Member for Finchley and Golders Green (Mike Freer), regarding people who have a same-sex relationship, because we are not backdating that to before 2005. That seems deeply anomalous and I am sure the Attorney-General will give clear advice about discrimination on that basis.

[Mike Freer]

I raised that question because of the anomaly that a gay man or a straight man joining the pension scheme will pay contributions at the same rate but receive different benefits, which is discrimination.

[Dr Huppert]

It is absolutely discriminatory. It is also the case that a bisexual man or woman would pay at the same rate and would get a different pension transferred depending who they happen to end up with. That seems truly bizarre. The position is not at all sustainable and if the hon. Member for Brighton, Pavilion presses her amendment to the vote, I expect that I and my colleagues will support her. It is a free vote but I promise my support. However, given that Opposition Front Benchers have said they will not support the proposal, I will understand if the hon. Lady wants to leave her amendment for consideration in another place. The situation is completely unsustainable and it should not last the passage of this Bill. Amendment 15 is right in principle, but I accept that it will not win support, so I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 11

Effect of extension of marriage

Amendment made: 25, page 11, line 8, leave out from ‘other’ to end of line 10 and insert

‘ecclesiastical law (whether or not contained in England and Wales legislation, and, if contained in England and Wales legislation, whenever passed or made).’.—(Maria Miller.)

Clause 15

Orders and regulations

Amendments made: 26, page 12, line 36, leave out from ‘order’ to ‘would’ in line 38 and insert

‘or regulations under this Act, except an order under section18(3), containing provision which’.

Amendment 27, in clause 15, page 12, line 40, leave out ‘consult’ and insert ‘obtain the consent of’.

Amendment 28, in clause 15, page 12, line 41, leave out from ‘order’ to ‘would’ in line 42 and insert

‘or regulations under this Act, except an order under section18(3), containing provision which’.—(Maria Miller.)

Clause 17

Extent

Amendments made: 51, page 14, line 1, at end insert

‘, except for section (Review of civil partnership)’.

Amendment 52, in clause 17, page 14, line 5, at end insert

‘, except for section (Review of civil partnership)’.—(Maria Miller.)

Schedule 2

Extra-territorial matters

Amendment made: 29, page 21, line 26, leave out sub-paragraph (5).—(Maria Miller.)

Schedule 3

Interpretation of legislation

Amendments made: 30, page 23, line 30, leave out from beginning to ‘legislation’ in line 32 and insert

‘In existing England and Wales’.

Amendment 31, page 24, line 7, leave out

‘which has effect as indicated in section 11(2)’.

Amendment 32, page 24, line 21, leave out

‘which has effect as indicated in section 11(2) and’.—(Maria Miller.)

Schedule 4

Effect of extension of marriage: further provision

Amendments made: 33, page 26, line 28, leave out from ‘courts)’ to end of line 30 on page 27 and insert

‘is amended in accordance with this paragraph.

‘(2) Subsection (1): after “entertain” insert “any of the following proceedings in relation to a marriage of a man and a woman”.

(3) After subsection (5) insert—

“(5A) Schedule A1 (jurisdiction in relation to marriage of same sex couples) has effect.”.

(4) Subsection (6): after “Wales” insert “(whether the proceedings are in respect of the marriage of a man and a woman or the marriage of a same sex couple)”.

7 Section 6 (miscellaneous amendments, transitional provision and savings), subsection (3): after “Act” (in the first place) insert “, or by virtue of Schedule A1 to this Act,”.

8 Before Schedule 1 insert—

“SCHEDULE A1

Jurisdiction in relation to marriage of same sex couples

Introduction

1 This Schedule shall have effect, subject to section 6(3) and (4), with respect to the jurisdiction of the court to entertain any of the following proceedings in relation to a marriage of a same sex couple—

(a) proceedings for divorce, judicial separation or nullity of marriage;

(b) proceedings for an order which ends a marriage on the ground that one of the couple is dead; and

(c) proceedings for a declaration as to the validity of a marriage.’.

Amendment 34, page 27, line 32, leave out ‘a divorce order’ and insert ‘divorce’.

Amendment 35, page 28, line 3, leave out ‘a nullity order’ and insert ‘nullity of marriage’.

Amendment 36, page 28, line 28, leave out from ‘for’ to ‘even’ in line 29 and insert

‘divorce, judicial separation or nullity of marriage’.

Amendment 37, page 28, line 32, leave out from ‘for’ to end of line 38 and insert

‘an order which ends a marriage on the ground that one of the couple is dead on an application made by the other of the couple (“the applicant”) if (and only if)—

(a) at the time the application is made, the High Court does not have jurisdiction to entertain an application by the applicant under section 1 of the Presumption of Death Act 2013 for a declaration that the applicant’s spouse is presumed to be dead, and’.

Amendment 38, page 28, line 44, leave out ‘of validity’ and insert

‘as to the validity of a marriage’.

Amendment 39, page 29, line 47, at end insert—

8A (1) Schedule 1 (staying of matrimonial proceedings in England and Wales: interpretation), paragraph 2: after “kinds” insert “(whether relating to a marriage of a man and a woman or a marriage of a same sex couple)”.

Transitory provision until commencement of Presumption of Death Act 2013

8B (1) This paragraph applies if section 1 of the Presumption of Death Act 2013 has not come into force at the time when the amendments of the Domicile and Matrimonial Proceedings Act 1973 made by the other provisions of this Part of this Schedule come into force.

(2) Schedule A1 to the Domicile and Matrimonial Proceedings Act 1973 has effect with the following modifications until section 1 of the Presumption of Death Act 2013 comes into force.

(3) Paragraph 1 has effect with the following provision substituted for paragraph (b)—

(b) proceedings for death to be presumed and a marriage to be dissolved in pursuance of section 19 of the Matrimonial Causes Act 1973; and”.

(4) Schedule A1 has effect with the following provision substituted for paragraph 3—

3 The court has jurisdiction to entertain proceedings for death to be presumed and a marriage to be dissolved if (and only if)—

(a) the applicant is domiciled in England and Wales on the date when the proceedings are begun,

(b) the applicant was habitually resident in England and Wales throughout the period of 1 year ending with that date, or

(c) the two people concerned married each other under the law of England and Wales and it appears to the court to be in the interests of justice to assume jurisdiction in the case.”.’.

Amendment 40, page 34, line 4, at end insert ‘, or

(c) married to a person of the same sex in a relevant gender change case.

“(1B) The reference in sub-paragraph (1A)(c) to a relevant gender change case is a reference to a case where—

(a) the married couple were of the opposite sex at the time of their marriage, and

(b) a full gender recognition certificate has been issued to one of the couple under the Gender Recognition Act 2004.”.’.

Amendment 41, page 34, line 13, after ‘(2)’ insert ‘—

(a) paragraph (a): after “man” insert “, or a woman in a relevant gender change case,”;

(b) ’.

Amendment 42, page 34, line 18, after ‘woman’ insert

‘(other than in a relevant gender change case)’.

Amendment 43, page 34, line 27, at end insert—

‘( ) After subsection (9) insert—

(10) In relation to an earner who is a woman, a reference in this section to a relevant gender change case is a reference to a case where—

(a) the earner is a woman by virtue of a full gender recognition certificate having been issued under the Gender Recognition Act 2004, and

(b) the marriage of the earner and her widow (that ends with the earner’s death) subsisted before the time when the certificate was issued.

(11) This section is subject to regulations under section 38A.”.’.

Amendment 44, page 34, line 29, after ‘woman’ insert

‘or a woman married to a woman in a relevant gender change case’.

Amendment 45, page 34, line 32, after ‘woman’ insert

‘(other than in a relevant gender change case)’.

Amendment 46, page 34, line 34, at end insert—

‘( ) After subsection (3) insert—

(4) In relation to an earner who is a woman, a reference in this section to a relevant gender change case is a reference to a case where—

(a) the earner is a woman by virtue of a full gender recognition certificate having been issued under the Gender Recognition Act 2004, and

(b) the marriage of the earner and her widow (that ends with the earner’s death) subsisted before the time when the certificate was issued.

(5) This section is subject to regulations under section 38A.”.’.

Amendment 47, page 34, line 35, leave out paragraph 20 and insert—

20 (1) Section 37 (alteration of rules of contracted-out schemes) is amended as follows.

(2) For subsection (4) substitute—

(4) The reference in subsection (3) to a person entitled to receive benefits under a scheme includes a person who is so entitled by virtue of a qualifying relationship only in such cases as may be prescribed.

(5) For that purpose a person is entitled to receive benefits by virtue of a qualifying relationship if the person is so entitled by virtue of being—

(a) the widower of a female earner;

(b) the widower of a male earner;

(c) the widow of a female earner, except where it is a relevant gender change case; or

(d) the survivor of a civil partnership with an earner.

(6) In relation to a widow of a female earner, the reference in subsection (5)(c) to a relevant gender change case is a reference to a case where—

(a) the earner is a woman by virtue of a full gender recognition certificate having been issued under the Gender Recognition Act 2004, and

(b) the marriage of the earner and her widow (that ends with the earner’s death) subsisted before the time when the certificate was issued.

(7) This section is subject to regulations under section 38A.”.

20A Before section 39 insert—

“38A Regulations about relevant gender change cases

(1) The Secretary of State may, by regulations, make provision for—

(a) section 17,

(b) section 24D, or

(c) section 37,

to have its special effect in relevant gender change cases only if conditions prescribed in the regulations are met.

(2) Regulations under subsection (1) may, in particular, prescribe conditions that relate to the provision of information by—

(a) one or both of the members of married same sex couples, or

(b) the survivors of such couples.

(3) The Secretary of State may, by regulations, make further provision about cases where (because of regulations under subsection (1))—

(a) section 17,

(b) section 24D, or

(c) section 37,

does not have its special effect in relevant gender change cases.

(4) Regulations under subsection (3) may, in particular, provide for the section in question to have its ordinary effect in relevant gender change cases.

(5) Regulations under subsection (1) or (3) may, in particular, modify or disapply any enactment that concerns information relating to—

(a) the gender or sex of a person, or

(b) the change of gender or sex of a person,

including any enactment that concerns requests for, or disclosure of, such information.

(6) In this section, in relation to section 17, 24D or 37—

(a) “relevant gender change case” has the same meaning as in that section;

(b) “special effect” means the effect which the section has (if regulations under subsection (1) of this section are ignored) in relation to relevant gender change cases, insofar as that effect is different from the section’s ordinary effect;

(c) “ordinary effect” means the effect which the section has in relation to same sex married couples in cases that are not relevant gender change cases.”.’.—(Maria Miller.)

Schedule 6

Marriage overseas

Amendment made: 48, page 45, line 31, at end insert—

‘(2) In the case of an Order in Council containing provision which would (if contained in an Act of the Scottish Parliament) be within the legislative competence of that Parliament, no recommendation is to be made to Her Majesty under this paragraph unless the Scottish Ministers have been consulted.

(3) In the case of an Order in Council containing provision which would (if contained in an Act of the Northern Ireland Assembly) be within the legislative competence of that Assembly, no recommendation is to be made to Her Majesty under this paragraph unless the Department of Finance and Personnel has been consulted.’.—(Maria Miller.)

Title

Amendment made: 54, title, line 4 after ‘overseas,’ insert

‘and for the review of civil partnership,’.—(Maria Miller.)

[Several hon. Members]

rose—

--- Later in debate ---

[Mr David Lammy (Tottenham) (Lab)]

rose—

[Dr Huppert]

rose—

[Mr Burrowes]

Unfortunately, we are running out of time.

What is pernicious is equating hon. Members’ opposition to redefining marriage with previous discrimination on the basis of race. That plays into the hands of those who have accused me and many hon. Members of being homophobic or bigoted simply for standing up for marriage—[Interruption.] I will give way to the right hon. Member for Tottenham shortly. Such intolerant reaction to our belief in marriage runs the risk of being fomented by the state orthodoxy in the Bill about the new gender-neutral meaning of marriage. For our constituents—those who really matter—those who disagree risk vilification and discrimination and they certainly will not get the protection they deserve under the Equality Act 2010.

--- Later in debate ---

[Dr Huppert]

I will try, Mr Speaker.

On the Liberal Democrat Benches, we believe that the state should not bar a couple who love each other from marrying just because of their gender or sexuality, whether they are straight, gay, lesbian, bisexual, transgender, intersex or whatever, and that the state should not ban groups who wish to conduct same-sex marriages from doing so.

This is an important day, and it is a day to celebrate. When my party passed a motion on equal marriage in the UK three years ago, I did not think that we would be able to get to this legislation so quickly. I pay tribute to my hon. Friend the Member for Hornsey and Wood Green (Lynne Featherstone), the previous Equalities Minister, for her determination which has transformed the issue and made sure that we could get here. I also pay tribute to the two Stephens, my hon. Friends the Members for Bristol West (Stephen Williams) and for St Austell and Newquay (Stephen Gilbert), who served on the Bill Committee. The Bill is right today and will seem even more right in future. In five, 10 and 20 years’ time, we will look back and see that it was the right thing to do.

I am proud of the Bill as it is, although it could be better, and we have discussed some of the possible improvements over the past two days. Equal civil partnership is the right thing in theory and in practice, so we need to find the right opportunity and the right vehicle for introducing that. We have heard no good reason why in principle humanists should not be allowed to conduct weddings. The Attorney-General is an excellent lawyer, so I am sure that he will be able to find a way to ensure that we allow that to happen legally.

This is a very positive day, but we should remember that there is still homophobia and transphobia in the UK, and it is even worse in other parts of the world, where people fear for their lives and it is illegal for them to be who they are. We must take steps to ensure that that finally ends. We must not send people back to places where they will be persecuted for who they are. I urge all hon. Members to support the Bill.