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Ann Clwyd (Cynon Valley): I am grateful for the spirit in which the hon. Member for Spelthorne (Mr. Wilshire) is approaching the Bill. I hope that I can assure him that the concern that prompted his new clause is unnecessary, because the criminal law on incitement is sufficient to meet it. To incite any of the prohibited acts in clause 1 would be an offence in common law, even if that incitement had no effect. For the purpose of determining whether a person is guilty of inciting a criminal offence, it does not matter what form the incitement takes, so subsection (2) of the new clause is superfluous. It is not necessary to go beyond what the law of incitement already provides, nor, given the need to protect the fundamental right to freedom of
expression guaranteed by article 10 of the European convention on human rights, would it be appropriate to do so. I hope that in view of that, the hon. Gentleman will withdraw his new clause.
The Parliamentary Under-Secretary of State for the Home Department (Paul Goggins): It is not my intention to detain the House, but I wish to confirm what my hon. Friend the Member for Cynon Valley (Ann Clwyd) says about the sufficiency of the criminal law in this area. It does not matter what form the incitement takes, nor even matter whether it has an effect. Inciting any of the prohibited acts in clause 1 would be an offence in common law, as she suggests. Although I appreciate that the motivation of the hon. Member for Spelthorne (Mr. Wilshire) is to try to improve the Bill, new clause 1 is unnecessary.
Dr. Jenny Tonge (Richmond Park): I, too, appreciate the spirit in which the hon. Member for Spelthorne (Mr. Wilshire) is approaching the Bill. Perhaps I can put his mind at rest even further by saying that my experience in reproductive health and in international development—I share the latter with the hon. Member for Cynon Valley (Ann Clwyd)—tells me that the practice is not advocated by religious groups, nor even by particular ethnic groups: that is what makes it so difficult to deal with. It is a practice that has grown up within family groups and village groups; nobody quite knows its origin. If we were to prosecute everyone who encouraged it, we would probably end up with prisons full of grandmothers. That is how the practice is perpetuated. It is important to say at an early stage of our deliberations that it is not a religious or a cultural practice in the sense of being confined to a particular group, but a tradition that has grown up in various parts of the world. It must be regarded as such and dealt with very sensitively; it is certainly not a practice that is publicly advocated.
Mr. Wilshire: I am grateful for the contributions that have been made. If I had suggested that a specific religion advocated the practice, I would be wrong. I hasten to tell the hon. Member for Richmond Park (Dr. Tonge) that I did not intend to give that impression. I have been involved in such issues generally, although not in the specific matter that we are discussing. When considering matters of tradition, where does tradition end and ritual begin? Where does tradition end and cultural activity start? Where do tradition and religion merge? I would not care to reach a conclusion on those questions. I simply say that, in new clause 1, I would be willing to bracket religion with culture, tradition or whatever word the hon. Lady would like to use. As sure as day follows night, somebody will advance a religious argument one day. However, I do not suggest that any religion in the world is currently involved in the practice. I put the record straight on that.
The experts tell me that the common law of incitement is adequate. Who am I to dispute that? I am not lawyer and if lawyers say that it is adequate, it is all right by me. However, I believe that it was also said that it would be better to use common law than to get involved in article 10 of the European convention on human rights.
Perhaps Hansard will bear me out on that. That prompts the question of whether article 10 is justifiable if it allows someone to advocate female genital mutilation. I am not comfortable with that. If it was claimed that it would be better not to pursue the debate on freedom of speech, perhaps we should consider discussing article 10. However, that matter is not before us.I am glad that I raised the matter and that I was reassured that it can be tackled in a different way. If that is so, I beg to ask leave to withdraw the motion.
Motion and clause, by leave, withdrawn.
Mr. Wilshire: I beg to move amendment No. 8, in page 1, line 5, leave out "or mental".
Mr. Deputy Speaker (Sir Alan Haselhurst): With this, we may take amendment No. 9, in page 1, line 21, leave out subsection (5).
Mr. Wilshire: Amendment No. 9 would remove a subsection, thereby ruling out a specific defence. I want to make it clear that that is consequential on amendment No. 8. I do not want amendment No. 9 to be considered as a free-standing amendment. It flows from amendment No. 8 and I hope that no one would read anything more into it.
I am not a doctor or an expert in such matters. I am not involved with psychology or psychiatry. However, over the years, one gets a sense of some of the relevant arguments and issues. Again, to draw out some of the reasoning, amendment No. 8 would remove the justification of carrying out female genital mutilation on the ground of mental health needs.
I have no difficulty with the argument about physical health needs. The reasons that the Bill sets out are straightforward and sensible. Sadly, there are occasions when the procedure has to be carried out. A doctor is sitting near me and perhaps the hon. Member for Richmond Park (Dr. Tonge) will correct me. However, I accept that there will be occasions, when, with all the good will in the world and the different methods of tackling problems, there is no other alternative for the health and life of the relevant person. That must be a difficult decision for medical practitioners, the relevant person and perhaps the families, but I have no quarrel with that.
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There have, however, been occasions on which practices with which we do not agree have been justified on the ground that they were carried out in the interest of the mental health of the person concerned. I sense a loophole there. As I suggested in relation to new clause 1, a girl or woman, or her family, might have considerable pressure brought to bear on them in this regard, on the grounds of ritual, custom, tradition or religion; it does not matter which. They could be told that if they did not do this, they would be letting the family down, letting themselves down or letting their guru down. Whatever the argument might be, I, as a lay person, suspect that there would be a real risk of mental
ill health resulting from the repeated pressure and the repeated argument that a person would be a failure because they had not done certain things that we are seeking to make illegal.Can the hon. Member for Cynon Valley (Ann Clwyd) reassure me and anyone else who shares my concern that it is possible to have a reason that I can understand as to why mental health could be relevant. I find it difficult to see how, for mental health reasons, a woman could be helped by having part of her genitalia removed. It puzzles me, as a layman, that that should be a justification. If there is a reason why that sort of thing has to be done for mental health purposes, I would bow to that superior judgment and would be happy to withdraw my amendments. For the moment, however, I put this issue in front of the House in order to ask what the mental health justifications are. How can I be certain that this is not a loophole? Would it harm the Bill if this provision were taken out?
Ann Clwyd: I should like to reassure the hon. Gentleman. The effect of amendment No. 8 would be that any surgeon carrying out an operation of this kind for which there was a genuine psychological need would be committing a criminal offence. As the hon. Gentleman said, amendment No. 9 is consequential on amendment No. 8.
Operations that are genuinely necessary for mental health reasons might well be rare, but it would be wrong to criminalise them. That was certainly not Parliament's intention when the Prohibition of Female Circumcision Act 1985 was passed, and there is no reason to suggest that the intention of this Bill is any different. In particular, we need to allow for the fact that gender reassignment surgery is less rare than it once was. That is a good example of an operation that may be necessary for mental health. The British Medical Association supported that view in guidance issued in 2001. I hope that, in the circumstances, the hon. Gentleman will withdraw amendments Nos. 8 and 9.
Paul Goggins: I rise briefly to confirm what my hon. Friend the Member for Cynon Valley (Ann Clwyd) said. Surgical operations of this kind carried out for mental health reasons are extremely rare, but there may occasionally be strong grounds for allowing them to be carried out. For that reason, the Government believe that these grounds should be included.
Dr. Tonge: If the hon. Member for Spelthorne (Mr. Wilshire) would like to see me afterwards, I could give him a whole catalogue of reasons why there might be mental health grounds for carrying out operations on the female genitalia. I understand his reservations, however. We have all heard stories about people having breast operations, for example, with mental health being given as the reason, when it probably should not have been. There are, however, genuine mental health reasons for carrying out operations. I assure him that there is a huge range of female genitalia out there, and sometimes they cause enormous problems, both mentally and physically, but primarily mentally. I want to reassure him that this provision is necessary.
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