Council of Europe Convention on Preventing and Combating Violence against Women and Domestic Violence

Lord Sharpe of Epsom Excerpts

Monday 27th June 2022 Grand Committee

[Lord Sharpe of Epsom (Con)]

My Lords, I thank all noble Lords for making some powerful contributions to this debate. In particular, I thank the noble Baroness, Lady Hayter, and her colleagues on the International Agreements Committee for their report on the Istanbul convention, which was the genesis of today’s debate, and I thank the noble Baroness for her warm words about where we are now. I know that her committee has maintained a close interest in this treaty for a considerable time.

In a moment, I will come on to the reservations that have been at the heart of the debate, but it is important first to stand back, acknowledge and indeed celebrate where we are now. We are at the point of fully ratifying the Istanbul convention—a vital instrument and a real touchstone of a country’s commitment to tackling violence against women and girls. Like my noble friend Lady Sugg and the noble Earl, Lord Sandwich, I was delighted to see the Ukrainian Parliament last week give its approval to ratifying the convention.

With our ratification, we send a clear message to women in the United Kingdom—in answer to some of the powerfully made points of the noble Lord, Lord Coaker—and to our partners overseas that we are in the vanguard of seeking to drive these crimes out of our society. I know that there has been real excitement at the Council of Europe about our proximity to ratification. There is a genuine belief overseas, which has been made clear to us in many different interactions, in the vital importance of the United Kingdom in particular ratifying the convention.

The noble Baronesses, Lady Hayter and Lady Northover, and, indeed, everybody else, asked why it took so long—10 years—to ratify this convention. There is a powerful or compelling answer to that, which is that first we had to be compliant with all its many provisions. If we were to ratify a treaty before we were compliant with all its provisions, we would go against clear, long-standing government policy and risk being in breach of our legal obligations. That reflects the UK’s dualist legal system, whereby no treaty can have effect in domestic law without specific legislation. Several other countries—my pronunciation may be a bit off here—have “monist” legal systems, meaning that the treaty forms part of domestic law. That can make ratification swifter, which is part of the reason why it took us longer than many other countries.

The main reason why we could not ratify in recent years was the need to pass legislation to make us compliant with Article 44, on extraterritorial jurisdiction. A legislative vehicle for that was identified in 2017 with the planned Domestic Abuse Bill. That was subject to consultation then pre-legislative scrutiny, then it was introduced in three different parliamentary Sessions before achieving Royal Assent in April 2021. When Northern Ireland implemented its relevant measures from the Act in February 2022, the way was clear to ratify. I appreciate that it a long time, but I think that there is a good reason there. Perhaps we could have moved quicker, but that explains why we are where we are.

We should not see ratification in isolation: it forms part of the huge range of work that we are taking forward to tackle violence against women and girls. These crimes are utterly appalling; they cause enormous suffering. Our message is clear: enough is enough. The Government’s landmark tackling violence against women and girls strategy, combined with the complementary Tackling Domestic Abuse Plan, embodies our commitment to this effort. From the appointment of DCC Maggie Blyth as the first national police lead on violence against women and girls, to the launch of our hard-hitting communications campaign under the banner “Enough”, referred to by my noble friend Lord Udny-Lister, to the ban on the terrible practices of virginity testing and hymenoplasty, which will come into effect on Friday, we are leaving no stone unturned in our mission to ensure that women and girls both are, and feel, safe.

I shall come on to addressing the reservations in a moment, but in specific answer to the noble Lord, Lord Paddick, the UK is not a special case. The ability to make reservations is in the treaty on which the UK negotiated, so that removes the need to propose amendments. Twenty-four other countries have also made reservations of various sorts.

To come on to the migrant victims reservation, to which everybody referred, it is the one on Article 59 of the convention. Passionately held beliefs have been expressed in today’s debate, and I respect them enormously. It is fair to say that the opposition to this reservation is not a surprise to the Government, but we still think that it is the right way to proceed. In specific answer to the noble Baroness, Lady Gale, the Domestic Abuse Commissioner has not written to either the Home Office or the MoJ on this subject.

As a first reflection, I stress that we are far from alone in making a reservation on the convention, as I have just said; 24 countries applied a reservation when they ratified it, or confirmed their intention to do so when they signed it. This represents a majority of those countries that have signed the convention. Nine countries ratified or signed the convention with a reservation on Article 59. We need to see the convention as a whole, including the provision within it that enables states to make reservations on some articles, a provision which the drafters included in the knowledge that some countries would consider it important to be able to take such measures.

The question has been asked about the link between the support for the migrant victims scheme pilot and Article 59, notably by my noble friend Lady Sugg. While the former concerns financial support, the latter relates to residence status. In fact, this link is far from a new one: we made it clear in the two most recent annual reports on our progress towards ratification, which were laid before Parliament, that our compliance position on Article 59 was under review pending the findings of the pilot. The then Safeguarding Minister, Victoria Atkins, made the same connection when giving evidence to the noble Baroness’s committee last year. We have made the link in many other contexts, both inside and outside Parliament, so this has not come out of the blue.

We also accept that the specific subjects of the pilot and of Article 59 are different, but they are linked. It is our intention to consider both subjects together in the light of the pilot scheme, alongside wider policy considerations, rather than to determine policy surrounding migrant victims in a piecemeal fashion. It is right that we consider all these matters in the round to ensure that the support and policies that emerge from the pilot have the most beneficial impact for the migrant victims and survivors.

Given the commitment that we had made, and the fact that we cannot confirm our compliance position with Article 59 at this juncture, we had a choice: either to wait until the pilot’s evaluation had been produced and we had fully considered its findings before ratifying, or to ratify now with the reservation on Article 59, which we will consider again later. Taking the former course would have meant a delay of many more months before ratifying. As we have just discussed, the noble Baroness’s committee queried the reference we had made to speed, given that a decade had passed, but these months matter. It was the passage and implementation of legislation that stopped us from ratifying, and now that the last legislative obstacle has been removed, we did not think that it would be right to delay any further.

Every speaker, I believe, asked when the evaluation of the support for migrant victims scheme pilot will conclude. It ran for 12 months from April 2021 until March 2022. The independent evaluation by the Behavioural Insights Team aims to ensure that we have a robust evidence base to inform any future policy decisions. We will receive the final report in the summer of 2022, and we will share the findings as soon as is practicable. I am afraid that I cannot give any more details on that because I simply do not have, or know, them.

More specifically, the eighth of this month was the 10-year anniversary of our signing the convention. We considered it important to declare our readiness to ratify, and to start the process for doing so, before then. Had we not done so, 8 June would have brought significant criticism not only at home but, just as importantly, abroad, for our still not having been able to give firm information on a ratification timetable 10 years on. When Victoria Atkins appeared before the noble Baroness’s committee last year, the thrust of the questioning in relation to Article 59 was not about the validity of the link between that article and the pilot but rather how that link would surely result in our ratifying either late in 2022 or in 2023. It has not, and we are very pleased that we are now ratifying.

The pilot’s evaluators will produce their findings later this summer. We will then review the position on Article 59 in the light of those findings, alongside wider policy considerations on migrant victims. It is not meaningful to give a precise methodology for how that will happen, but I can confirm that we will pay attention to all relevant factors. We will then take any decisions as soon as is practicable. I stress that we are fully committed to ensuring that migrant victims are supported effectively. Again, it is worth digressing briefly into the existing support for migrant victims of domestic abuse, which is considerable.

The destitute domestic violence concession was introduced specifically to support migrant victims of domestic abuse who had entered the UK on certain spousal or partner visas. Migrant victims of domestic abuse on spousal partner visas can apply for leave to remain without the “no recourse to public funds restriction” when their relationship has broken down because of domestic violence, they are destitute, and they intend to subsequently make an application for indefinite leave to remain as a victim of domestic abuse. These victims can then apply to claim public funds for up to three months while their application to settle in the UK is considered.

We grant the indefinite leave to remain in cases where we accept that a relationship has broken down as a result of domestic abuse, and the intention is to safeguard eligible victims by offering them an immigration status independent of the abusive partner so that they do not remain in an abusive relationship out of fear for their immigration status. I could continue on that, but that gives a flavour of what the Government already have in place. To answer the very specific point, there is certainly no intention on the Government’s part that anyone should need to sleep with the enemy, as it was put earlier.

The noble Baroness, Lady Gale, asked whether we would continue to produce reports on what we do on the reservation. The answer is no; the annual progress reports are required by the 2017 Act, but it does not require post-ratification reports. However, obviously, we will ensure that we inform the House about our forthcoming endeavours on Article 59. I imagine that answer will not satisfy all noble Lords, but that is the best that I can do at the moment. I will now come on to the next reservation: the dual criminality reservation.

As noble Lords have rightly said, the effect of this reservation is essentially that a UK resident—whether or not they are a UK national—can be prosecuted for carrying out forced abortion or forced sterilisation overseas only if what they did was a crime in the country where they did it, and that a UK resident who is not a UK national can be prosecuted for carrying out sexual violence overseas; again, only if what they did was illegal in the country where it was done. This is already the position in legislation. The reservation itself does not change anything; rather, it is a necessary consequence of existing laws, some of which have been in place for several years. If we were not to make this reservation, we simply could not ratify the convention now. Instead, we would have to change primary legislation across the UK, leading to a delay in ratification of around two years, which I am sure nobody would wish to see.

I am not sure, though, why we would wish to change course even if we could. Most of the relevant legislation sits within the Domestic Abuse Act 2021 and attracted cross-party support when the Bill was being debated; indeed, when my noble friend Lord Wolfson had cause during those debates to explain the dual criminality policy, it was warmly welcomed by both the Labour and Liberal Democrat Benches. I can quote my noble friend Lord Wolfson here because I think it would be helpful. He said in regard to an amendment tabled by the noble Baroness, Lady Bertin, that

“a dual criminality requirement will continue to apply for UK residents. This means that we could prosecute UK residents who commit marital rape abroad only if the behaviour is also criminal in the country where it is committed. We should not prosecute, for example, a Ruritanian national who is habitually resident in England for doing something in Ruritania that is not criminal under Ruritanian law. I remind the House that existing law already makes the same distinction between UK nationals and UK residents in relation to extraterritorial sexual offences where the victim is aged under 18.”—[Official Report, 10/3/21; col. 1781.]

That broadly explains the principle of dual criminality, but of course we are talking about very specific provisions, which I will come on to in a second. The Act contains equivalent provisions for Scotland and Northern Ireland, which we enacted with the approval of those Administrations.

Essentially, the policy revolves around the principle that it is not generally right to prosecute someone for doing something in a country which does not contravene that country’s laws. Sometimes we can make an exception when there is a strong case to do so; for example, with forced marriage and female genital mutilation, because there are a number of countries where a British child could be taken to undergo the practice, with no protection from local law enforcement. However, the point is that those are the exceptions. We say this not because we do not think it matters if someone commits crimes not covered by those exceptions; on the contrary, it matters hugely. Rather, this is about practicality. If the acts will in practice always be illegal overseas, the overseas countries are the best placed to prosecute them. Since we rely on general offences of physical violence to ensure our compliance with the requirement to criminalise forced abortion and forced sterilisation, that is why we are making the reservation in relation to those crimes, as Ireland and others have done. Therefore, it is not about approving of crimes, as perhaps the noble Baroness, Lady Northover, implied.

The other point is about the appropriate reach of the UK’s criminal law. If somebody who lives in the UK but is not one of our nationals returns temporarily to their country of origin and does something which is legal there, as the noble Lord, Lord Paddick, referred to, is it really proportionate for the UK to prosecute them on their return? As the noble Lord suggested, an example might be someone who, on return to their country of origin, has sex with a partner who is not below the age of consent in that country of origin but who is under 16. It is that sort of scenario that we had in mind above all when making the reservation in relation to sexual violence.

On a couple of specific points, my noble friend Lord Udny-Lister asked about overseas territories and Crown dependencies. We have contacted all the Crown dependencies and overseas territories to discuss this. If they so wish, we can extend ratification to them in the future, but it is for the Crown dependencies and overseas territories to assess whether they are compliant with all the measures and to become so if they are not. We have shared with some of them, on request, our analysis of what makes us compliant, to help them, and officials will be happy to continue to offer such help as they need.

The noble Lord, Lord Coaker, strayed into online safety and a wider-ranging debate. Speaking personally and as the father of a daughter, I completely agree with him and think we will have plenty of opportunities for that debate. He specifically referred to the subject of rape. The rape review published in June 2021 took a hard and honest look at how the entire criminal justice system deals with rape and, in too many instances, it simply was not good enough. We agree.

To help drive change within policing, the Home Office is funding Operation Soteria, which is driving changes in the police and Crown Prosecution Service’s approach to rape in five police force areas. In December, we announced a programme of expansion to a further 14 police force areas and their corresponding CPS areas. We are investing £5 million in the Transforming Forensics programme to increase the police’s capacity to process evidence from digital devices so that victims get their phones back faster, and we are working with industry to explore how technology can be leveraged to drive efficiencies in these sorts of investigations. We are ensuring transparency and accountability for the delivery of these actions through six-monthly progress reports and quarterly criminal justice system performance scorecards. I do not know whether we will look back in 10 years and decide this was a watermark. I hope we will, but we are doing the right things, certainly as a start.

My noble friend Lady Sugg asked about the Foreign, Commonwealth and Development Office’s strategy on violence against women and girls. I do not know when that is going to be published or how the specific figure of £745 million was arrived at, so I commit to writing on that. Finally, I hope noble Lords understand if I do not comment on the actions of certain other countries. I think that would be a mistake.

I conclude by once again thanking all noble Lords for their contributions today. We understand the vital importance of the issues at stake and look forward to the clear message that our ratification of this convention will send.