|Forced Marriage (Civil Protection) Bill [HL] - continued||House of Commons|
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Clause 4 - Short title, commencement and extent
85. Subsection (1) sets out the short title of the Bill.
86. Subsection (2) provides that the Lord Chancellor can, by order, appoint the commencement dates of those provisions under the Bill which relate to England and Wales.
87. Subsection (3) provides that an order made under the above provision must be made by statutory instrument and may contain whatever transitional, transitory or saving provisions the Lord Chancellor thinks appropriate.
88. Subsection (4) provides that the Department of Finance and Personnel can, by order, appoint the commencement dates of those provisions under the Bill which relate to Northern Ireland.
89. Subsection (5) provides that an order made under the above provision must be made by statutory rule and may contain whatever transitional, transitory or saving provisions the Department of Finance and Personnel thinks appropriate.
Schedule 1 - Protection against forced marriage: Northern Ireland
Part 1 - Forced marriage protection orders
90. Paragraph 1 replicates section 63A in clause 1 as it sets out the purpose of making an order under the Schedule and the factors that the court must take into account when making an order.
Contents of orders
91. Paragraph 2 replicates section 63B in clause 1 in that it provides for a forced marriage order to contain measures considered appropriate by the court, including prohibitions, restrictions and requirements.
92. Sub-paragraph (2)(a) provides that the conduct being regulated or controlled may be within or outside Northern Ireland.
Applications and other occasions for making orders
93. Paragraph 3 replicates section 63C in clause 1 in that it sets out who may apply for a forced marriage protection order, with or without leave; and in considering leave, the factors which are to be taken into account.
94. Paragraph 3 varies from section 63C in some limited respects. The definition of "family proceedings" in sub-paragraph (7) is related to the Family Homes and Domestic Violence (Northern Ireland) Order 1998 rather than Part 4 of the FLA which does not apply to Northern Ireland. In sub-paragraph (8) the Department of Finance and Personnel is given the power to specify the relevant third parties, who may take applications on behalf of a person to be protected.
Ex parte orders
95. Paragraph 4 makes provision for Northern Ireland in relation to ex parte orders. These are orders made in the absence of the respondent. Sub-paragraph (1) provides that the court can make an ex parte order if it is just and convenient to do so. In deciding whether it is just and convenient sub-paragraph (2) provides that the court should have regard to all the circumstances of the case, including those circumstances set out in the sub-paragraph.
96. Sub-paragraphs (3) and (4) provide that where an order is made ex parte a date must then be set for a hearing where both parties will be given the appropriate notice as provided by court rules.
Duration of orders
97. Paragraph 5 provides that the court can make an order for a set period or an order can be made until it is varied or discharged. It replicates section 63F in clause 1.
Variation of orders and their discharge
98. Paragraph 6 replicates section 63G in clause 1.
Part 2 - Enforcement
Offence of contravening an order
99. Part 2 provides that a breach of a forced marriage protection order is an offence and a person who commits such an offence will be liable on summary conviction to either a fine not exceeding level 5 on the standard scale, or imprisonment for a term not exceeding 6 months, or to both. Paragraph 7 follows the model of the penalty contained in the Family Homes and Domestic Violence (Northern Ireland) Order 1998 for breaching a non-molestation order or a combined non-molestation order or occupation order.
Part 3 - Jurisdiction and procedure
Jurisdiction of courts
100. Paragraph 8 makes comparable provision to section 63M in clause 1. It provides that the High Court and county courts may issue forced marriage protection orders. Sub-paragraph (3) also modifies Article 34(3) to (10) of the Family Homes and Domestic Violence (Northern Ireland) Order 1998 to apply the allocation of proceedings provisions.
Power to extend jurisdiction to courts of summary jurisdiction
101. Paragraph 9 deals with extension of jurisdiction to courts of summary jurisdiction. Sub-paragraph (1) provides a power for the Lord Chancellor to extend jurisdiction for dealing with cases of forced marriage to courts of summary jurisdiction, following consultation with the Lord Chief Justice.
102. Sub-paragraph (2) provides that an order made under sub-paragraph (1) may in particular make provision which corresponds to existing legislation in Northern Ireland relating to courts of summary jurisdiction for dealing with domestic violence. This provision would help to ensure that domestic violence cases and forced marriage cases are dealt with consistently in the courts of summary jurisdiction, if the forced marriage jurisdiction is extended to those courts.
103. Sub-paragraph (3) provides that any order to extend jurisdiction may amend, repeal, revoke or modify a provision made by or under the Bill or any other legislation.
104. Sub-paragraph (5) provides that the Lord Chief Justice may nominate a judicial office holder or a Lord Justice of Appeal to exercise his powers under this paragraph.
105. Paragraph 10 replicates section 63O in clause 1.
Appeals from county courts
106. Paragraph 11 makes provision for appeals from county courts. Sub-paragraph (1) provides that where the county court has made or refused to make an order an appeal may be made to the High Court.
107. However sub-paragraph (2) provides that an appeal does not lie to the High Court where the county court was a divorce county court making an order under the Northern Ireland divorce legislation in the same proceedings as a forced marriage protection order hearing. Sub-paragraph (3) provides that rules of court must be made to provide for appeals to the Court of Appeal against a decision made by the divorce county court.
108. Sub-paragraphs (5) and (6) provide that when the High Court is hearing an appeal it may make any orders necessary to give effect to the determination of that appeal. The court may also make such incidental or consequential orders as are just.
109. Sub-paragraph (7) provides that any order made by the High Court on appeal should be treated for the purposes of enforcement, variation, revival or discharge, as an order made by the county court from which the appeal was brought.
Appeals: transfers and proposed transfers
110. Paragraph 12 provides that the Lord Chancellor, following consultation with the Lord Chief Justice, may make provision setting out the circumstances in which an appeal can be made about the transfer of a case.
111. Sub-paragraph (3) provides that the Lord Chief Justice can nominate certain other persons to exercise his functions in this regard.
Part 4 - Supplementary
112. Paragraph 13 corresponds to section 63Q in clause 1 in that it makes provision for the Department of Finance and Personnel to issue guidance on the forced marriage legislation and more generally about the issue of forced marriage.
113. Paragraph 14 makes provision about the purpose and content and method by which any order can be made under the Schedule.
Other protection or assistance against forced marriage
114. Paragraph 15 makes clear that the Schedule does not affect any other protections that are available to a person who has been, or is in danger of being, forced into marriage.
115. Paragraph 16 clarifies some of the terminology used in Schedule 1.
Schedule 2 - Consequential amendments
Part 1 - England and Wales
116. This Part contains consequential amendments to England and Wales legislation necessary for the implementation of the Bill.
117. Paragraph 1 amends the Supreme Court Act 1981 to assign forced marriage proceedings to the Family Division.
118. Paragraph 2 amends the Courts and Legal Services Act 1990 to provide that forced marriage proceedings are family proceedings, and therefore cannot be the subject of an enforceable conditional fee agreement.
119. Paragraph 3 amends the FLA so that non-molestation and occupation orders may be made in proceedings for a forced marriage protection order. Amendments also ensure an affirmative parliamentary procedure for an order made under the new section 63N.
Part 2 - Northern Ireland
120. This Part contains consequential amendments to Northern Ireland legislation necessary for the implementation of the Bill.
121. Paragraph 4 amends the Family Homes and Domestic Violence (Northern Ireland) Order 1998 to designate that proceedings under Schedule 1 of the Bill are family proceedings.
122. Paragraph 5 amends the Access to Justice (Northern Ireland) Order 2003 to provide that proceedings under Schedule 1 of the Bill are family proceedings and therefore cannot be the subject of an enforceable conditional fee agreement.
FINANCIAL EFFECTS OF THE BILL
123. The financial effects of the Bill are considered to be limited and are considered below in the section summarising the Regulatory Impact Assessment.
EFFECTS OF THE BILL ON PUBLIC SERVICE MANPOWER
124. It is expected that there will be no effect on public service manpower as it is anticipated that cases relating to forced marriage which are at present dealt with by the High Court under its inherent jurisdiction will be dealt with under the Bill.
125. It is not anticipated that the work of the courts will materially increase.
SUMMARY OF THE REGULATORY IMPACT ASSESSMENT
126. Copies of the Regulatory Impact Assessment are available from the Vote Office. New legislation is likely to impact on: -
127. The potential benefits of strengthening civil law are that:
128. The estimated cost of creating the new civil remedy will be between £20,500 and £180,000 a year (based on a range of between 5 and 50 applications a year being made to the courts). The cost per case is based on the average cost of a domestic violence case hearing in the county courts and covers the administrative cost to the courts of hearing the cases and the legal aid cost. Many of the provisions in the Bill are modelled on existing domestic violence legislation, so the cost of domestic violence hearings gives the best indication of the likely cost of a hearing under the new legislation.
129. The volume of cases will be the main factor in costs of the Bill. The range of 5 to 50 cases a year represents a best guess at the proportion of these that might result in proceedings under this legislation. Caseworkers in the Forced Marriage Unit indicated that of the 300 cases they deal with every year, two thirds would not include circumstances that would be covered by the Bill, while about 100 would. They considered that as few as 5 of these a year might necessitate an application to the courts. It is likely that cases might begin at the lower end of this range and gradually increase in numbers as the legislation becomes more familiar to those helping victims of forced marriage. The numbers of people choosing to use the new provisions may, however, remain very low, at least for the first few years following implementation. The senior members of the judiciary dealing with cases of forced marriage in the High Court have estimated that in the last 12 months about 30 applications involving forced marriage came to the High Court.
130. Given that there have been no identified cases of forced marriage in Northern Ireland to date, it is anticipated that there will be very few cases taken forward under the legislation in the short-term, though numbers may increase in time. In any event, it would be anticipated that numbers of applications under the legislation would be significantly lower in Northern Ireland than in England and Wales given the comparative size of the jurisdiction. It is not possible to estimate costs for Northern Ireland more precisely at this time given the information available.
EUROPEAN CONVENTION ON HUMAN RIGHTS
131. The Bill was introduced by Lord Lester as a Private Peer's Bill in the House of Lords. There was no obligation on the Government to provide a statement regarding the compatibility of the Bill with the European Convention on Human Rights when the Bill was introduced in the Lords because no Minister of the Crown was in charge of the Bill at that time.
132. The Bill is being taken forward in the House of Commons as a Government Bill. Section 19 of the Human Rights Act 1998 requires the Minister in charge of the Bill to make a statement about the compatibility of the provisions of the Bill with the Convention rights (as defined by section 1 of that Act). Vera Baird QC MP has made the following statement on the compatibility of the Bill with the European Convention on Human Rights: In my view the provisions of the Forced Marriage (Civil Protection) Bill [HL] are compatible with the Convention rights.
133. The purpose of the Bill is to enable courts to issue orders (forced marriage protection orders) protecting (1) a person from being forced into a marriage or from any attempt to be forced into marriage; or (2) a person who has been forced into a marriage.
134. The scope of the order making power in terms of who might be caught by an order is framed in broad terms. Section 63B(2) (and in relation to Northern Ireland, Schedule 1, paragraph 2) provides that orders may be addressed not only to named respondents but also to any other persons who are, or may become, involved in other respects. Examples of involvement in other respects are aiding, abetting, counselling, procuring, encouraging or assisting another person to force, or to attempt to force, a person to enter into a marriage.
135. Article 8(1) of the ECHR is engaged - the right to respect for private and family life. Article 8 is intended to protect individuals from arbitrary interference by the state in their family life, home and correspondence. Forced marriage protection orders interfere with the enjoyment of this right.
136. Article 8(2) of the ECHR allows a public authority to interfere with the rights enshrined in Article 8(1) if in accordance with the law and if necessary in a democratic society for, amongst other considerations, the protection of health or morals, or for the protection of the rights and freedoms of others.
137. It is the Government's view that the power to make a forced marriage protection order does not breach Article 8. Orders will only be made for the purposes of protecting those caught by section 63A(1) (and in relation to Northern Ireland, Schedule 1, paragraph 1) from conduct which is clearly set out on the face of the Bill - in section 63A(4) and (5) (and in relation to Northern Ireland, sub-paragraphs (4) and (5) of paragraph 1 of Schedule 1). Under section 63B(1) (and in relation to Northern Ireland, Schedule 1, paragraph 2) the content of a forced marriage protection order may only be what is "appropriate" to protect a victim.
138. The Government believes that it is necessary and proportionate to enable orders to be directed to any person as it may be difficult in practice to name all the possible respondents to an order as wider members of communities and families are often involved in forcing individuals into marriage.
139. The provisions are also modelled closely on Part 4 of the FLA, albeit with differences to take account of the context. This helps to anchor the provisions in existing practice especially as regards contempt and the use of the power of arrest.
140. Clause 4 provides for commencement and provides that the main provisions of the Bill are to come into force by commencement orders. These orders will be made by the Lord Chancellor in relation to those provisions which apply to England and Wales; and by the Department of Finance and Personnel for those provisions which apply to Northern Ireland.
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