Serious Crime Bill [Lords]
The Committee consisted of the following Members:
Fergus Reid, Oliver Coddington, Committee Clerk s
† attended the Committee
‘The Female Genital Mutilation Act 2003 is amended as follows—
In section 1 (Offence of female genital mutilation), in subsection (1), after “infibulates”, insert “, reinfibulates”’
Seema Malhotra (Feltham and Heston) (Lab/Co-op): It is a pleasure to open proceedings and to serve under your chairwomanship this morning, Ms Clark. I am delighted to be able to say a few words on clause 67 and to speak to new clause 25 on the definition of reinfibulation. I welcome clause 67, which covers extraterritorial acts and recognises that, as noted in the Select Committee on Home Affairs report, at the moment there is a significant gap that needs to be addressed. The clause amends section 4 of the Female Genital Mutilation Act 2003 to ensure that it protects girls who are habitual UK residents and applies to those perpetrating female genital mutilation who are habitual UK residents.
The changes mean that the 2003 Act will capture offences of female genital mutilation committed by or against those who are habitually resident in the UK. Campaigning organisations such as Forward fully support the clause. The Metropolitan police told the Select Committee that that significant loophole may have hampered their ability to proceed to prosecution in a number of cases.
However, there are a few issues about the practicalities of the offence that I would like to ask the Minister about so that we can ensure that the measure can be implemented effectively. First, how will the extraterritorial nature of the offence work in practice, particularly regarding the gathering of evidence? One of the main reasons that there have been no convictions so far for FGM in the UK is the difficulty of gaining evidence for a prosecution. For offences that take place abroad, that could become even more difficult. How will the evidence of FGM abroad be gathered? How does the Minister anticipate the police working with authorities overseas if need be? This is a challenging task that the police will need proper training and preparation for.
Secondly, there has been little discussion about the practicalities of prosecuting perpetrators who are habitual UK residents and have carried out FGM abroad. Will the perpetrators be prosecuted on their return to the UK? How would police deal with situations where the perpetrators remain overseas—believing they may be out of reach of the authorities—and return after several months or years? Would the police be notified of the perpetrator’s return and if so, by whom?
I want to flag up what appears to be an inconsistency in the Government’s approach to ensuring the prosecution of perpetrators for acts committed abroad. FGM committed abroad is to be a criminal offence, but being in possession of a paedophile manual abroad, which we debated when we considered clause 66, is currently not a criminal offence. I am grateful to the hon. Member for Mole Valley for raising that issue in Committee last week. I know that we will be looking at the matter further before and on Report. Several questions about the practicality of the clause need to be addressed to ensure that it will make the difference that we hope and intend. Closing that obvious loophole is clearly a step in the right direction. I look forward to the Minister’s response.
The Opposition have tabled a new clause to clarify that reinfibulation is included in the definition of FGM in section 1 of the 2003 Act. The issue has been on the political agenda for months and we know that it is topical. We do not want to talk about the ongoing case, but it raises an issue and relates to a matter that was debated previously. It is also of concern to the medical profession. The Select Committee’s report on FGM recommended amending the 2003 Act so that reinfibulation is explicitly included. To all intents and purposes, I understand that the intention has been that the law be interpreted in that way. I would be grateful if the Minister clarified that today. I would like to advance my arguments as to why that should be made explicit in the Bill.
In November, Baroness Smith of Basildon introduced an amendment to the Bill on Third Reading in the other place calling for reinfibulaton to be included explicitly in the definition. I do not need to lay out her robust and cogent reasons for ensuring that the criminalisation of reinfibulation is explicit. I am also grateful to Baroness Meacher, who spoke about the issue in some detail.
To clarify, reinfibulation involves recreating a seal over an infibulated woman’s vulva after it has been opened, usually to allow for childbirth. That can be repeated every time the woman has a child. It can cause women serious harm. The World Health Organisation says that it is equivalent to performing the initial act of female genital mutilation. I have spoken to the Royal College of Nursing, to midwives and to campaigners, who wholeheartedly support making the measure explicit to cover situations where professionals or others may not be clear that reinfibulation is a criminal offence.
In 2010, an RCN study of the views of over 1,700 midwives found that only 21% knew that reinfibulation after childbirth was considered illegal. The intercollegiate group of organisations said that there are cases where women were deinfibulated during delivery and returned in subsequent pregnancies having undergone reinfibulation.
I have sought expert legal opinion on the matter from the Bar Human Rights Committee and I thank Dexter Dias QC, Charlotte Proudman and others for their work. Making the position explicitly clear in the Bill will mean that we are even tighter in our international duty to protect young women and girls from discrimination, gender violence and genital mutilation. I look forward to the Minister’s response.
The Parliamentary Under-Secretary of State for the Home Department (Karen Bradley): It is a pleasure to have you in the Chair, Ms Clark. Clause 67 extends the reach of the extraterritorial offences in the Female Genital Mutilation Act 2003 and its Scottish equivalent, the Prohibition of Female Genital Mutilation (Scotland) Act 2005. It is part of a major package of measures in the Bill designed to ensure that our legislative response to the terrible crime of FGM is as strong as possible. Those legislative initiatives are part of the Government’s wider programme to combat that appalling practice at home and abroad, as announced by the Prime Minister at the girl summit last July.
The provisions in the Bill are not a panacea for the ongoing problem of FGM in this country. Legislation alone cannot eradicate a practice that has been deeply engrained in the culture and tradition of the practising communities for centuries. More needs to be done to stop such violence against women and girls. However, the law is an important part of our response to this abhorrent practice and it is right that we change it where necessary.
I am not going to share with the Committee the very graphic details of what is done to young girls and, as the shadow Minister mentioned, women after childbirth. It is utterly horrendous. On Friday, I was at a high school in my constituency, where I talked about FGM. I watched 16, 17 and 18-year-old girls squirming in their seats thinking that it was probably slightly too soon after breakfast to be sharing such information, but it is important that they know that the practice exists and recognise, as we do, that it is plain and simple child abuse. There are no ifs or buts; there can be no excuse for it. The sooner that our whole society says that out loud and makes that clear, the sooner we will be able to deal with the cultural and political difficulties that have stopped us from tackling this horrendous and awful practice, which happens in the UK and abroad.
I pay tribute to my right hon. Friend the Secretary of State for International Development for the enormous amount of work that she has done on the issue internationally, and to my right hon. Friend the Member for Hornsey and Wood Green (Lynne Featherstone), now Minister for Crime Prevention, for the work that she did when she was in the Department for International Development. I also pay tribute to my right hon. Friend the Member for Lewes, who, as Minister for Crime Prevention, did an enormous amount to tackle the problem.
Seema Malhotra: I support the Minister’s comments. FGM has been an important issue, which Members on both sides of the House have been dealing with. I pay tribute to my hon. Friend the Member for Slough (Fiona Mactaggart), who has played an important role in bringing us to where we are today.
Karen Bradley: I thank the shadow Minister for that point. She and other Members of the House deserve credit. This is not a party political matter, but something on which we are united in tackling and on which we have a shared objective.
We should be focusing on the victim and the outcome for the victim. That outcome may be prosecution but we may be able to do many other things. As the Government—as legislators—we can look at the offences and make the provisions as strong as possible. We can legislate for certain elements of victim support, but we need to ensure that we all join together, work and act to recognise the crime—including the signs and indications to prevent the crime from happening—and to ensure that victims get the support that they need.
At the girl summit, the Prime Minister and the Home Secretary announced an unprecedented package of measures to tackle FGM, including a number of commitments to strengthen the law. Extending extraterritorial jurisdiction is part of the overall package. Clauses 68 to 70 provide for lifelong anonymity for victims of FGM; create a new offence of failure to protect a girl from the risk of FGM; and introduce a new civil order to help to protect those at risk of mutilation.
Before I address clause 67 in detail, I will remind the Committee of the background to the current legislative position. FGM became a specific offence in 1985 when the UK-wide Prohibition of Female Circumcision Act 1985 was passed. The purpose of the Act was to remove any ambiguity there may have been about the legality of the practice.
The Female Genital Mutilation Act 2003 replaced the 1985 Act in England, Wales and Northern Ireland, and the Prohibition of Female Genital Mutilation (Scotland) Act 2005 replaced it in Scotland. The changes in the short title of the legislation enabled those Acts to describe more clearly the nature of the prohibited behaviour and removed any suggestion of acceptability that the term “circumcision” might have implied. Both Acts extended significantly the protection the law affords these vulnerable young girls and, indeed, women, who may also be victims of this crime. The Acts created extraterritorial offences to deter people from taking girls abroad for mutilation. To reflect the serious harm caused by this dreadful practice they also increased the maximum penalty for FGM, on conviction on indictment, from five to 14 years’ imprisonment.
I turn now to the detail of the extraterritorial provisions that clause 67 amends. Section 4 of the 2003 Act extends the offences in sections 1 to 3 to extraterritorial acts committed by a UK national or permanent UK resident. In addition, section 3 makes it an offence to aid, abet, counsel or procure a person who is not a UK national or permanent UK resident to carry out an act of FGM outside the UK on a victim who is a UK national or permanent UK resident.
The shadow Minister asked about the operational response. It is important to say that it would be for the police to investigate offences committed abroad, in co-operation with the relevant foreign authorities or international organisations. The 2003 Act already criminalises offences committed abroad, and gives the UK extraterritorial jurisdiction. We are not introducing but extending that jurisdiction. It would be open to police and prosecutors to seek extradition of offenders
“A permanent United Kingdom resident is an individual who is settled in the United Kingdom (within the meaning of the Immigration Act 1971”.
That is to say, that applies to a person who ordinarily lives in this country without being subject under the immigration laws to any restriction on the period for which he or she may remain. The intention when the 2003 Act was passed was to catch offences involving those with a substantial connection to the UK but not those who are here temporarily. That is because the stronger the connection to the UK, the greater the justification for taking extraterritorial jurisdiction.
Sir Andrew Stunell (Hazel Grove) (LD): I listened to the definition the Minister gave with real interest. Perhaps at a later stage in the debate she could let us know whether that covers those who are illegally in Britain and who are found to have caused an offence. On the face of the wording she gave us, they might not be covered.
Karen Bradley: I thank my right hon. Friend for that. If he will allow me to continue with my comments, I will endeavour to address his concerns. In 2003, taking extraterritorial jurisdiction over UK residents—permanent or otherwise—as opposed to UK nationals was unusual. The extent to which the 2003 Act did so was considered then to be groundbreaking. A decade on, it is less unusual to take extraterritorial jurisdiction over UK residents, and evidence suggests that the law needs to go further. My right hon. Friend asked whether the new provisions catch offences committed by asylum seekers or people who are here unlawfully, and as it happens I am now getting to that point in my comments. The answer is potentially yes. Someone could be habitually resident in the UK while their asylum application was being considered. To be habitually resident in the UK it is not necessary for all or any of the period of residence here to be lawful. In all cases, whether a person is habitually resident in the UK will be determined on the facts of a given case.
Andy McDonald (Middlesbrough) (Lab): While the Minister is on the issue of status, I wonder whether she would comment on the many cases that she and I receive in our surgeries, as do other Members here, which involve women who have successfully fled their home country. They have been subjected to FGM, and they bring with them their daughters who are seeking the protection and sanctuary of this country. I would be grateful if the Minister would comment on how that would play in terms of justification for us granting a refuge in this country to those who are seeking such security.
Karen Bradley: I thank the hon. Gentleman for his question. As we go through the debate, and particularly when we talk about risk orders, we will discuss the level of protection that is and will be available to victims and potential victims following the enactment of the Bill.
Against that background, clause 67(1) amends section 4 of the 2003 Act so that the extraterritorial jurisdiction extends to prohibited acts done outside the UK by a UK national or a person who is resident in the UK. Consistent with that change, clause 67(1) also amends section 3 of the 2003 Act so that it extends to acts of FGM done to a UK national or a person resident in the UK. A UK resident is defined as an individual who is habitually resident in the UK. The term “habitually resident” covers a person’s ordinary residence, as opposed to a short, temporary stay in a country.
Those changes mean that the 2003 Act will be able to capture offences of FGM committed abroad by or—in the case of a section 3 offence—against those who are habitually resident in the UK, irrespective of whether they are the subject of immigration restrictions. That covers the point that my right hon. Friend the Member for Hazel Grove made.
Provided that the offence is committed when the accused person and/or the victim is resident in this country, it should not matter whether they intend to live here indefinitely or whether they also live elsewhere. It will be for the courts to determine on the facts of individual cases whether those involved are habitually resident in the UK and thus covered by the 2003 Act. Subsection (2) makes equivalent amendments to the Prohibition of Female Genital Mutilation (Scotland) Act 2005.
New clause 25 is one of a number of amendments and new clauses that suggest that the Government have not gone far enough and that further legislative change is needed to deal with FGM as best we can. The new clause would simply insert the word “reinfibulates” into section 1(1) of the Female Genital Mutilation Act 2003 so that it read:
As the hon. Member for Feltham and Heston explained, the purpose is to make explicit that reinfibulation is an offence under the 2003 Act to bring clarity, because the argument is that that point is unclear.
The Government’s firm view, which we set out on Report and on Third Reading in the House of Lords, and again in response to the Home Affairs Committee last month, is that reinfibulation is already covered by section 1(1) of the 2003 Act. Because infibulation is an offence under that subsection, so is reinfibulation—if it is an offence to break someone’s arm, it is also an offence to break it again once it has healed. That reinfibulation or resuturing is an offence is clearly stated in the multi-agency practice guidelines on FGM and in the relevant guidance of almost all the royal colleges. That some of the guidance might be less clear on that point indicates a need to communicate the law more
Last, but definitely not least, we should all welcome the first trial under the 2003 Act, which started yesterday. That case involves reinfibulation, so, by the end of that trial, we should have confirmation from the courts that reinfibulation is definitely covered by the 2003 Act. For all those reasons, I invite the hon. Lady not to press the new clause.
Seema Malhotra: I thank the Minister for her comments and reassurance on the work that will be undertaken. She is correct that the extraterritorial nature of the offence extends previous provisions, but the extra complexity that will come from that may require extra training and closer working. In the light of her comments on the definition of reinfibulation and the ongoing case, I will not press my new clause, but we reserve the right to return to this matter at a later stage.
Seema Malhotra: I am pleased to be able to speak about this important clause and to acknowledge the campaigning work of so many individuals and organisations, including Leyla Hussein, Nimco Ali, Daughters of Eve and Celestine Celeste. I pay tribute to the work many local councils have undertaken in raising awareness of female genital mutilation in their local communities as part of the campaign to end FGM within a generation. I also pay tribute to the work on making that a reality in our local communities.
In that context, I will make a few comments on the clause. We know that thousands of girls are at risk and that the daughters of mothers who have undergone FGM may be at greater risk than others. It is still difficult for the individuals and communities affected by FGM to talk about it. However, we have seen a step change as the issue has risen up the international and domestic political agendas. In conversations I have had and events I have been to, women have stood up and talked about something that throughout their lives—they are now grandmothers—they have not been able to talk about, even within their communities.
In that context, we can truly understand why the fear of being identified as a victim or a survivor stops people coming forward. It is one reason why there is under-reporting and why people do not come forward for medical help when they need it. It is also one of the reasons why many women do not associate the health conditions they have—whether they are to do with
In different areas, we are seeing FGM performed on girls who are very young—sometimes they are babies or toddlers—because parents think that if their daughters are a bit older, they might be able to say more about what is happening to them. The rise of the conversation on FGM has to recognise the cultural context more, as well as the importance of giving confidence to communities to come forward and talk about these issues. We can understand the vulnerability of the girls who are at risk, as well as those who are affected and fearful about what will happen to them if they come forward or are identified in public and those in other communities know what has happened to them.
Although we support the clause, it is not clear how the Government intend to raise awareness of the change in law among practising communities. Will the Government look at education, which is an important factor in providing girls with information on their legal rights in relation to a number of these changes and on the protections available to them or their families under the law, if they come forward? While the clause makes a good and important amendment—it is an important part of the package of reforms—I would be grateful if the Minister outlined how it is being promulgated so that people are aware that there is anonymity, not only at the time of disclosure, but for life.
Karen Bradley: As hon. Members may know, the clause was added to the Bill in the other place as part of a package of measures announced by the Prime Minister and the Home Secretary at the girl summit in July. The clause delivers on the commitment to give victims of female genital mutilation the right to anonymity for the rest of their lives. FGM is an offence of a particularly personal and sensitive nature. Without the prospect of anonymity victims may be discouraged from reporting such an intimate offence to the police. Granting lifelong anonymity, therefore, will reassure victims that their identity will be protected and so encourage them to report the offence. The provisions of the clause are tried and tested, as lifelong anonymity already applies to the alleged victims of many sexual offences under the provisions of the Sexual Offences (Amendment) Act 1992.
Any publication of material that could lead members of the public to identify a person as the alleged victim of an offence will be prohibited. That includes online content, so as to cover social media as well as traditional print and broadcasting.
The shadow Minister rightly asked about awareness raising. Much of what we talk about here, including this clause, will be effective only if those at risk of FGM and those communities in which it has previously been seen as acceptable are aware of what we are doing and saying, what the offences are, and what protection is available to victims.
I am proud that the Government have taken a cross-Government approach to the offence. I have already mentioned the Department for International Development, which is working in source countries to ensure that awareness is raised there of the law in Britain, and the implications for those communities in international acceptance and recognition.
In addition, there is multi-agency practice and work. The Department of Health is leading the Government’s work in high-risk areas, identified by data showing a prevalence of high-risk individuals, to ensure that all health care professionals—midwives, health visitors and others—are aware and understand the law, so that they can communicate that.
Teachers need to know. We need to ensure that everybody knows what happens, what the law is and what their rights are. If a victim comes forward and shows any indications, the professionals should know what protections are available. It is a challenge but we are working on it.
Karen Bradley: The shadow Minister is right. The Department for Education is leading work to ensure that personal, social, health and economic education includes FGM. I have also seen, through my work on the Modern Slavery Bill, currently in the other place, that many of the victims of slavery, particularly from west Africa, are also victims of FGM. It is important to raise awareness with those professionals who come across the trafficked victims to note the signs. I met a victim some time ago and it was only when she gave birth that professionals were able to identify that she had also been a victim of FGM, in addition to all the other horrendous things she had gone through as a victim of trafficking and then slavery in the UK.
Seema Malhotra: The Minister makes an important point about how these issues are not isolated but are joined up and need a more holistic approach to communication and education. I might touch on the point a bit later, but I think it is also important to look at the links between FGM-practising communities and forced marriage and modern slavery.
Karen Bradley: The shadow Minister hits the nail on the head. We cannot look at any of these things in isolation. We have to look at all indicators of FGM, which will be linked to many other practices, so that those in the public sector and other agencies who may come into contact with victims do not look at just one possible crime, for example forced marriage, but consider the possibility of FGM, trafficking and all the areas that the Government are committed and determined to deal with. We need to give law enforcement the tools and weapons they need to be able to bring prosecutions of the heinous criminals who are committing these acts and help to change the attitudes of those communities and cultures to what is acceptable and what is not.
The Government are spending £100,000 on the FGM community engagement initiative. That follows a successful bid to the European Union progress funding stream, and the Home Office was awarded approximately €300,000 in November 2013 for work to raise awareness of FGM in the UK. As part of this work we launched a communications campaign to raise awareness of FGM
The Home Office has also launched an e-learning tool so that all practitioners, social workers, teachers, health care professionals, the Border Force and police are able to have an introduction to FGM. We will raise awareness of the new e-learning through a national outreach programme with local safeguarding children boards.
We also have a new FGM unit in the Home Office, which will work with community groups to ensure that all the changes in the Bill and the existing law are properly understood, so that there is complete understanding of the indicators and of the penalties that are available.
Seema Malhotra: I thank the Minister for talking more about the grants and funds that the Government have put in place for ensuring awareness and understanding of FGM and of the legislation that is being rolled out. May I clarify two points? First, is the Minister also working with the Department for Communities and Local Government on these issues? She rightly raises child safeguarding and the importance of having these issues understood and embedded in local safeguarding procedures. Secondly, are communications, particularly to schools, going to all schools or does the Minister see that as being decided by others at a different level?
Karen Bradley: I thank the shadow Minister for her comments. On working with the Department for Communities and Local Government, the answer is yes. Local authorities will deliver much of this, and clearly the Department for Communities and Local Government has a big role to play. I met the Secretary of State for Communities and Local Government to discuss this very issue, so I can assure the shadow Minister that the Department is absolutely involved.
I will come back to the hon. Lady about the Department for Education’s approach to the way that this is being rolled out. I am not sure whether the Department is taking a risk-based approach initially—oh, I am sure, in fact. When “Keeping children safe in education” was issued in April, the Secretary of State wrote to all schools drawing their attention to the guidance, which included specific coverage of FGM. The Department for Education’s “Need to know” e-mail to all schools in September 2014 highlighted the fact that keeping children safe in education now has a link to the updated multi-agency guidelines on FGM. I hope that that clarifies the point.
As with the Sexual Offences (Amendment) Act 1992, breach of the prohibition on publication of material that would identify an FGM victim will be a criminal offence subject, in England and Wales, to an unlimited fine. As with alleged victims of sexual offences, this protection needs to be automatic rather than discretionary. It must apply from the outset, when an allegation is first made, rather than from the point of charge, and it must last for the duration of that person’s life, rather than for the duration of any criminal proceedings. The clause delivers each of those requirements.
Seema Malhotra: I thank the Chair for the opportunity to speak to this important clause. As the Minister has already stated, we have a consensus in our understanding that female genital mutilation is child abuse. The clause makes it clear that parents have a responsibility under the law to protect their children. Indeed, I was talking to campaigners yesterday who said that it is incredibly important for it to be made clear that parents are responsible for their children.
While there is a concern, as with forced marriage, that girls may not want to see their parents criminalised and may not therefore be prepared to give evidence against them, we know from charities and survivors that parents are often deeply implicated. Indeed, this law will give parents who are being pressurised a defence in their communities and a tool to say no. They will be able to say, “You’re not going to force me to do this to my daughter and do something that I don’t want to do. I would be breaking the law and I do not wish to take that risk.”
Parents often know that their child may be at risk of FGM if they take her abroad and leave her with relatives. The new offence addresses an important point made by the intercollegiate group when giving evidence to the Home Affairs Committee, which is that if the law does not see FGM as a
parents who support FGM can avoid responsibility. The new offence would shift responsibility on to parents and make them accountable. There is a similar law in Spain, and the first prosecutions have now been brought against parents.
I want to raise two points of concern. The first is one that the Minister has outlined somewhat, but it is important to understand how this will be embedded in terms of parents and guardians. Will it be within the same channels or does she see other routes through which parents will be made aware of this change? They must fully understand the legal framework and the risks to them of being prosecuted.
The second issue is the two defences. It is a defence under the proposed offence for the defendant to show that they did not think that there was a “significant risk” of FGM being committed against the girl at the time and could not “reasonably have been expected” to be aware. Another defence is that the defendant took steps that they could reasonably have been expected to take to “protect the girl” from FGM. My concern is that the defences are extremely broad in scope and cover a range of eventualities that could serve as loopholes.
I have been told of cases where parents have left their children with elderly relatives in their home country for a holiday, only to find when they return that their daughter has been cut. In that scenario, parents could claim that they took reasonable steps to protect their daughter from FGM, such as informing relatives not to cut their daughter. Relatives abroad might, indeed,
Lawyers who have worked on FGM cases, particularly abroad, have told me that when faced with prosecution and a criminal record, some defendants can feel the pressure of the criminal justice system and lie. These defences could give parents whose intent was committing FGM the space to do so.
It would be helpful to know whether the Government have asked for input on the technicalities of the offence from, for example, lawyers abroad who have prosecuted parents for similar offences. For the offence to work and to go further in ensuring prevention, as well as having a way to prosecute parents—not just take them to court, but ensure that they are convicted when guilty—we do need to consult experts and have a grasp of the practicalities of the new legislation. Although we welcome the new offence in theory—time will tell how effective it is—it is important to build in from the start measures to ensure effectiveness, so that parents know that there is a strong likelihood of conviction should they be prosecuted. I look forward to the Minister’s response.
Karen Bradley: Clause 69, as the shadow Minister has said, introduces a new offence of failing to protect a girl from risk of genital mutilation. It is the third of the new FGM measures in the Bill. At the request of the Northern Ireland Justice Minister David Ford, it will extend, along with clauses 67(1), 68 and 70, to Northern Ireland as well as England and Wales.
As with the extension of extra-territorial jurisdiction, the new offence gives effect to a recommendation made by the Director of Public Prosecutions for the law to place a positive duty on parents or carers to prevent their children being mutilated. We recognise that this is a novel approach that may run contrary to how some feel the criminal law should operate, but it is intended to tackle what we know is a prevalent practice of unnecessary permanent mutilation of children. Parents and others trusted with the care of children have a duty of care. If it can be shown that a girl has suffered FGM, we do not think it is unreasonable for those responsible for the girl to be answerable in law for how it happened.
Clause 69(2) inserts a new section 3A in the 2003 Act. Subsection (1) of 3A provides that if an FGM offence—that is, one of the offences in sections 1 to 3 of the 2003 Act—is committed against a girl under the age of 16,
It might assist the Committee if I explain the ingredients of the offence in more detail. We recognise that parental responsibility can be exercised in relation to a child under the age of 18. We have discussed previously in this Committee whether 16 and 17-year-olds should be treated as children in the eyes of the law.
Criminal offences that specifically protect children focus on children and young persons under the age of 16, particularly in the context of FGM where victims are typically aged five to eight. With the diminishing control that a parent would have over a 16 or 17-year-old,
That is aimed primarily at people to whom parents might send their child for a period, for example to stay with family members living abroad during the summer holidays—an example raised by the shadow Minister.
The offence has been carefully drawn to avoid criminalising people unnecessarily or unjustifiably. The requirement in new section 3A(3)(b) for “frequent contact” is intended to ensure that a person who in law has parental responsibility for a girl, but who in practice has little or no contact with her, would not be caught. Similarly, the requirement in new section 3A(4)(b) that the person should be
The offence refers to the “relevant time”. The relevant time for a person responsible for the girl to be liable is defined as the time when the mutilation takes place. That does not mean that the prosecution has to prove the precise day on which the mutilation took place. Such a requirement would render the offence unworkable, because once a wound has healed it can be very difficult to establish precisely when it occurred.
Rather, the prosecution will be required to establish a period of time within which the mutilation occurred and the person or persons responsible for the girl during that period. The period in question might range from years down to weeks or days, depending on the evidence available. If the period is years, the prosecution would have to establish that a defendant was responsible for the girl throughout that long time. If the period can be narrowed to weeks or days, however, evidence that a person was responsible for the girl only during that time would be enough to bring a prosecution.
Liability for the offence is subject to certain defences. Under subsection (5) of new section 3A, it is a defence for the defendant to show that, at the relevant time, the defendant did not think that there was significant risk of FGM being committed against the girl and could
It is worth saying that the defences are only that—defences. A defendant would have to produce evidence to support the defence, but it would be open to the prosecution to disprove the evidence. The offence follows a proposal by the Director of Public of Prosecutions, and the Government considered carefully and were aware of the risk of casting the net of liability too widely. In our view, the defences are the correct balance, providing appropriately for, for example, parents who might be abused by a partner and are not reasonably able in such circumstances to speak out and protect their daughter from FGM. A strict liability offence did not seem appropriate given the various factual situations that might occur.
Looking at the components of defence and reasonable steps in particular, it would be for a jury to decide in the case before it whether any steps taken to prevent FGM were reasonable. What constitutes reasonable steps will vary according to the circumstances of each case. Thus, steps that could be reasonably taken by a woman whose overbearing and violent husband arranged for FGM to be carried out on their daughter might be different from those taken by a woman not subject to such pressures.
Seema Malhotra: Perhaps the Minister will help by expanding slightly on the Government’s thinking. I heard of a case yesterday, when a woman told me her story. She was cut when she was very young, indeed when she went home. Her mother had tried to protect her, to hold back the grandparents and to stop FGM happening. The father had been more complicit. In that situation, how could a case be brought or what would happen to either or both parents?
Karen Bradley: It is clearly difficult for me to interpret how the CPS and the courts may deal with such a situation. On the face of what the hon. Lady said, the mother seems to have taken steps to prevent the FGM from happening. As I said, the defence is a defence and if the CPS had decided on the need for a prosecution in the case, were the mother able to bring forward facts to establish that she had taken the reasonable steps, that would be her defence against any charges. From what the hon. Lady said, it sounds as though the father had a slightly different approach, so he would not be able to use the defence because he had been active in encouraging the FGM. I hope that that makes things clear, but without all the details and because I am not a prosecutor, it is impossible to know exactly what the CPS would do.
Sarah Champion (Rotherham) (Lab): The Minister has introduced the word “reasonable”, which always provides wriggle room. Will she give some clarity? Obviously, we want to prevent the crime of FGM happening in the first place, rather than prosecuting once it has happened. The crime is very much seen as a woman’s crime—groups of women doing this to their daughters and granddaughters—but two male doctors who allegedly carried out the crime were male, the majority of preachers are male and, indeed, 50% of parents are male. We ought to be very clear that the whole of society needs to take ownership of the issue.
I am also anxious about a possible defence for a father being that he was not aware of the crime or that it was an offence. The Minister outlined Government work to make children and communities aware of FGM, but she also gave two examples, one of which was putting up posters in shopping malls and on lockers. That made me think that she was focusing more on women than on the whole community. Will the Minister reassure us that the Government are targeting the whole community, so that everybody knows that this is a crime and the element of a reasonable defence of ignorance is taken out?
Karen Bradley: The hon. Lady is right that the whole of society needs to be aware of this and take responsibility for it. The person who commits the offence of FGM is clearly guilty under the 2003 Act. This clause targets those people who should have been able to stop the offence from happening. It targets those people who allow their daughter, or another child for whom they have parental responsibility, to be cut. The defence is to try to give some comfort to parents or others in parental responsibility who take all steps that they could reasonably take to stop that happening.
For example, it will be a defence for the defendant to show that at the relevant time they did not think there was a significant risk of FGM being committed and that they could not reasonably have been expected to be aware of such a risk. The hon. Lady is right that raising awareness helps to deal with that, because then ignorance cannot be part of the defence. It will also be a defence to show that they took steps that they could reasonably be expected to take to protect the girl from being a victim of FGM. Obviously, it is for the jury in each individual case to decide what is reasonable in the circumstances.
In the shadow Minister’s example of a girl going overseas, it would depend on the facts of the case. If it was known that the family was liable to cut the girl and the parents allowed the girl to travel knowing that was a risk, potentially they could not use the defence. However, if they took reasonable steps—again, this is for the jury to decide and the prosecution to disprove—they may be able to use the defence in that case. The defendant will only need to produce evidence to support either defence. The onus would then be on the prosecution to prove that the normal criminal standard of defence does not apply.
The term “reasonable steps” has been used and interpreted by the courts in the context of the offence under section 5 of the Domestic Violence, Crime and Victims Act 2004, namely causing or allowing a child or vulnerable adult to die or suffer serious physical harm. In that context, the courts have held that it may in certain circumstances be reasonable for a defendant not to have taken steps to protect the victim where the defendant was also the subject of abuse from the victim’s assailant. We would expect the courts to take a similar approach here.
The evidential burden will be on the defence to show that either the defendant did not think that there was a significant risk of FGM being committed against the girl and could not reasonably have been expected to be aware that there was any such risk, or the defendant took such steps as he or she could reasonably have been expected to take to protect the girl from being the
Subsection (3) amends section 4 of the 2003 Act to ensure that the new offence attracts the extra-territorial jurisdiction contained there. Subsection (4) amends section 5 of the 2003 Act to provide that the maximum penalty for the new offence will be seven years imprisonment or a fine or both. We believe that this is proportionate when considered against the maximum penalties for offences of violence, and bearing in mind that this is an offence of failing to prevent, rather than of directly perpetrating violence.
As with existing offences under the 2003 Act, non-custodial sentences will also be available. It does not necessarily follow that a girl who has suffered FGM and whose parents have been convicted of failing to prevent it would suffer the further upheaval and possible upset of changed arrangements for her care.
In conclusion, we recognise that this new offence is not of itself a panacea to the long-standing difficulties in prosecuting FGM, but we hope that it will help to overcome some of the barriers to prosecution and enable the Crown Prosecution Service to bring prosecutions in cases where one could not have been brought before. I beg to move.
Question put and agreed to.
Clause 69 accordingly ordered to stand part of the Bill.
‘In the Female Genital Mutilation Act 2003, after section 2A (offence of Encouragement of Female Genital Mutilation) insert—
“2B Power to issue an Encouragement of Female Genital Mutilation warning notice
(1) A member of a police force not below the rank of superintendent (“the authorising officer”) may issue an Encouragement of Female Genital Mutilation Warning Notice (an “EWN”) under this section.
(2) An EWN may be issued to a person (“A”) who is aged 18 or over if the authorising officer has reasonable grounds for believing that A has been encouraging the genital mutilation of women and girls as defined in section 1.
(3) Before issuing an EWN, the authorising officer must, in particular, consider any representations made by A as to the issuing of the EWN.
(4) The authorising officer must take reasonable steps to obtain the representations mentioned in subsection (3).
(5) An EWN must prohibit A from encouraging the genital mutilation of women and girls.
2C Contents and service of an Encouragement of Female Genital Mutilation warning notice
‘(1) An EWN must state—
(a) the grounds on which is has been issued;
(b) that a constable may arrest A without warrant if the constable has reasonable grounds for believing that A is in breach of the EWN;
(c) that an application for an Encouragement of Female Genital Mutilation Warning Order (“an EWO”) under (application for an EWO) shall be heard within 48 hours of the time of service of the EWN and notice time and place of the hearing will be given to A, and shall state that the EWN continues in effect until that application has been determined.
(2) An EWN must be in writing and must be served on A personally by a constable.
(3) On serving A with an EWN, the constable must ask A for an address for the purposes of being given notice of the hearing of the application for the Encouragement of Female Genital Mutilation Warning Order.
2D Breach of an Encouragement of Female Genital Mutilation warning notice
‘(1) A person arrested by virtue of section (contents and service of an EWN) for a breach of a EWN shall be held in custody and brought before the magistrates’ court which will hear the application for the EWO under (application for an EWO)—
(a) before the end of the period of 24 hours beginning with the time of the arrest; or
(b) if earlier, at the hearing of that application.
(2) If the person is brought before the court by virtue of subsection (1)(a), the court may remand the person.
(3) If the court adjourns the hearing of the application by virtue of subsection 6(8), the court may remand the person.
(4) In calculating when the period of 24 hours mentioned in subsection (1)(a) ends, Christmas Day, Good Friday, any Sunday and any day which is a bank holiday in England and Wales under the Banking and Financial Dealings Act 1971 are to be disregarded.
2E Application for an Encouragement of Female Genital Mutilation Warning Order
‘(1) If an EWN has been issued, a constable must apply for an Encouragement of Female Genital Mutilation warning order (an “EWO”).
(2) The application must be made by complaint to a magistrates’ court.
(3) The application must be heard by the magistrates’ court no later than 48 hours after the EWN was served pursuant to (contents and service of an EWN).
(4) In calculating when the period of 48 hours mentioned in subsection (3) ends, Christmas Day, Good Friday, any Sunday and any day which is a bank holiday in England and Wales under the Banking and Financial Dealings Act 1971 are to be disregarded.
(5) Notice of the time and place of the hearing of the application must be given to A.
(6) The notice is deemed given if it has been left at the address given by A under section 4(3).
(7) If the notice has not been given because no address was given by A under section 4(3), the court may hear the application for the EWO if the court is satisfied that the constable applying for the EWO has made reasonable efforts to give A the notice.
(8) The magistrates’ court may adjourn the hearing of the application.
(9) If the court adjourns the hearing, the EWN continues in effect until the application has been determined.
(10) On the hearing of an application for an EWO, section 97 of the Magistrates’ Court Act 1980 (summons to witness and warrant for his arrest) does not apply in relation to a person for whose protection the EWO would be made, except where the person has given oral or written evidence at the hearing.
2F Conditions for and contents of an Encouragement of Female Genital Mutilation Warning Order
‘(1) The court may make an EWO if two conditions are met.
(2) The first condition is that the court is satisfied on the balance of probabilities that the conditions set out in section 3(2) are met.
(3) The second condition is that the court is satisfied that making the EWO is necessary to protect women and girls from harm as a result of the encouragement of FGM by A.
(4) An EWO must state that a constable may arrest A without warrant if the constable has reasonable grounds for believing that A is in breach of the EWO.
(5) An EWO may be in force for—
(a) no fewer than 14 days beginning with the day on which it is made; and
(b) up to a maximum of seven years from that date.
(6) An EWO must state the period for which it is to be in force.
2G Breach of an Encouragement of Female Genital Mutilation warning order
‘(1) A person arrested by virtue of (conditions for an contents of an EWO) for a breach of an EWO must be held in custody and brought before a magistrates’ court within the period of 24 hours beginning with the time of the arrest.
(2) If the matter is not disposed of when the person is brought before the court, the court may remand the person.
(3) In calculating when the period of 24 hours mentioned in subsection (1) ends, Christmas Day, Good Friday, any Sunday and any day which is a bank holiday in England and Wales under the Banking and Financial Dealings Act 1971 are to be disregarded.
2H Further provision about remand
‘(1) This section applies for the purposes of the remand of a person by a magistrates’ court under section (Breach of an EWN) or (Breach of an EWO)
(2) In the application of section 128(6) of the Magistrates’ Court Act 1980 for those purposes, the reference to the “other party” is to be read—
(a) in the case of a remand prior to the hearing of an application for an EWO, as a reference to the authorising officer; and
(b) in any other case, as a reference to the constable who applied for the EWO
(3) If the court has reason to suspect that a medical report will be required, the power to remand a person may be exercised for the purpose of enabling a medical examination to take place and a report to be made.
(4) If the person is remanded in custody for that purpose, the adjournment may not be for more than three weeks at a time.
(5) If the person is remanded on bail for that purpose, the adjournment may not be for more than four weeks at a time.
(6) If the court has reason to suspect that the person is suffering from a mental disorder within the meaning of the Mental Health Act 1983, the court has the same power to make an order under section 35 of that Act (remand to hospital for medical report) as it has under that section in the case of an accused person (within the meaning of that section).
(7) The court may, when remanding the person on bail, require the person to comply before release on bail or later, with such requirements as appear to the court to be necessary to secure that the person does not interfere with witnesses or otherwise obstruct the course of justice.
‘(1) The Secretary of State may issue guidance relating to the exercise by a constable of functions under section (Power to issue an EWN).
(2) A constable must have regard to any guidance issued under subsection (1) when exercising a function to which the guidance relates.
(3) Before issuing guidance under this section, the Secretary of State must consult—
(a) the Association of Chief Police Officers,
(b) the National Crime Agency, and
(c) such other persons as the Secretary of State thinks fit.”’
‘(1) The Female Genital Mutilation Act 2003 is amended as follows:
(2) After section 2 (offence of assisting a girl to mutilate her own genitalia) insert—
“(2A) Offence of encouragement of female genital mutilation—
(a) a person is guilty of an offence of encouragement of female genital mutilation if he makes a statement that is likely to be understood by some or all of the members of the public to whom it is published as a direct or indirect encouragement or other inducement to them to mutilate the genitalia of a girl;
(b) a person commits an offence if—
(i) he publishes a statement to which this section applies or causes another to publish such a statement; and
(ii) at the time he publishes it or causes it to be published, he—
(a) intends members of the public to be directly or indirectly encouraged or otherwise induced by the statement to mutilate the genitalia of a girl; or
(b) is reckless as to whether members of the public will be directly or indirectly encouraged or otherwise induced by the statement to mutilate the genitalia of a girl.”’
Pauline Latham: It is a pleasure to serve under your chairmanship, Ms Clark. This is the first time that I have spoken in a Bill Committee so I may get one or two things wrong; I am sure that you will guide me if I do.
Amendments 42 and 43 are small amendments, which I hope the Minister will accept. We are all concerned about the current level of protection afforded to girls and women who have undergone or who are at risk of FGM in the UK. Just a decade ago, the number of girls and women having undergone FGM in England and Wales was approximately 66,000. Shockingly, that figure is estimated to have risen to 137,000. That is an alarming and unacceptable increase, and more must be done as a matter of urgency to prevent the number growing further.
However—this is of paramount importance—the wording of paragraph 1(1) does not state explicitly, despite being implicitly intended, that the order may in fact be applied for and/or granted in the event of a risk that a genital mutilation offence may be committed.
Amending clause 70(2) would provide greater clarity from a judicial point of view. Given that the courts have factored the issue of the risk of the commission of an offence into the granting of similar orders such as forced marriage protection orders, it would be sensible to make the reference to risk express in the Bill rather than implied. That would remove ambiguity and provide clarification on the scope of the protection that the clause is designed to offer against the risk of FGM. If we leave subsection (2) in its present state, we risk creating a gap in protection, leaving many more girls at risk.
FGM is practised in secret, making it extremely difficult for law enforcement agencies, care professionals and other bodies to ascertain whether a girl or young woman is at risk of undergoing the abusive procedure. As the Minister said, the practice is nothing short of child abuse and it has to be recognised. The difficulty in ascertaining risk, coupled with a fear of offending culture and tradition, and confusion about which protective measures are deemed appropriate have resulted, more often than not, in a failure to put in place the appropriate safeguarding mechanisms.
It is therefore particularly important that there is no ambiguity as to when an FGM protection order may be used to protect a girl or young woman from undergoing FGM. Failure to ensure that may cause professionals to become over-cautious in deciding whether to apply for one, which would almost certainly mean that yet more young girls slip through the net and become victims of a genital mutilation offence—a situation that we would all agree would be unacceptable.
As part of its research, Justice for FGM Victims UK interviewed a number of professionals from the health and child protection sectors, who said that they would welcome the specific guidance provided by amendment 42. They believe that the explicit mention of the requirements to successfully apply for a protection order would support front-line staff and empower them to take action where they thought there was a real risk of FGM being commissioned against a girl or young woman. In fact, I have been working closely with my hon. Friend the Member for Stone (Sir William Cash), who has sought legal advice from Matrix Chambers. That advice has been given and what I am saying this morning is cleared as being exactly what has to happen to make the reference explicit.
In bringing forward the amendment, I am not widening the net for convictions. Amendment 43 would change paragraph 1(2) of proposed schedule 2 to the Female Genital Mutilation Act 2003 to ensure that courts continue to factor into their decisions the level of risk of the commission of a genital mutilation offence faced by a girl before they grant an order. It simply provides much
Seema Malhotra: It is a pleasure to speak to clause 70 and to new clauses 26 and 28. I am grateful to the hon. Member for Mid Derbyshire for her comments and for raising issues about the need to clarify how the proposed female genital mutilation protection orders may apply.
We welcome the Government’s support for female genital mutilation protection orders, which we called for in the other place. We are grateful to the Government for bringing forward their clauses. The introduction of these protection orders is welcomed by many survivors and stakeholders, including the Muslim Women’s Network, the Association of Chief Police Officers and others who have already been mentioned today, including Rosa, Forward, Daughters of Eve and the British Arab Federation, as well as the activist Alimatu Dimonekene, who has done some incredible work to ensure that we have legal protection for those at risk. Our concern, however, is that the Bill does not go far enough to ensure that we have a prevention strategy in place, are able to respond where a girl is cut and have measures where we can bring others to account under the law.
Protection orders have the advantage over criminal remedies in not requiring the removal of children from their parents—which, of course, could remain the option of last resort—and of protecting girls and young women identified as being at risk of being cut before FGM has taken place. That is in line with what I am sure is a cross-party belief that a strong prevention strategy is absolutely fundamental. It is also entirely sensible for the Government to introduce a proposal modelled on forced marriage protection orders, an existing provision which we know works,. More than 600 orders have been made since the Forced Marriage (Civil Protection) Act 2007 came into force in 2008. The provision of legal aid for such orders is one reason that we are able to protect many from the scourge of forced marriage and I am pleased that the Government have agreed to provide legal aid for FGM protection orders, which we will debate further later in Committee.
There is no disagreement about implementing female genital mutilation protection orders, but I want to raise a few issues for the record and for clarification by the Government. The first is about practicality. The Government are placing female genital mutilation protection orders within criminal law through the Female Genital Mutilation Act 2003. In the other place, we called for the orders to be introduced by amending the Family Law Act 1996. Baroness Smith of Basildon introduced an amendment to that effect in the other place on 5 November. There are a number of reasons for that and I have received some guidance from barristers. Part of the reason is that there is a confusing situation with different definitions of FGM used in different parts of the law.
FGM is covered in criminal law by the definition in the 2003 Act. However, family law applies the World Health Organisation’s definition of FGM, not the definition in the 2003 Act. The World Health Organisation definition, which led to a slightly extended debate in the other
However, FGM comes under criminal law only when it involves mutilation. The key issue is that it is not clear whether type IV FGM as defined by the World Health Organisation, which includes “pricking, piercing, incising, scraping” the genital organs, constitutes mutilation for the purposes of criminal law.
Let us consider the following situation. A six-year-old child is about to have her genitals pierced as a form of cultural marking. Are we saying that that child cannot be protected by an FGM protection order from the UK courts? Is that a scenario where the perpetrator may not be prosecuted under criminal legislation on FGM? We know that every form of FGM is internationally recognised as a form of child abuse and a violation of women’s and girl’s rights. That was highlighted in a family law judgment involving type IV FGM handed down on 14 January this year in the case of B and G. In his judgment, Sir Justice Munby stated that any form of FGM constitutes significant harm, including type IV.
Therein lies a confusing legal situation. Family law applies the World Health Organisation’s definition of FGM, but criminal law appears to refer only to mutilation, which could be seen as excluding type IV FGM. That could have consequences in practice, resulting in a confusing situation for FGM protection orders, as it is not clear whether the criminal or family law definition of FGM will apply. FGM protection orders will be situated in criminal law but it will be mainly family courts that make the orders. I look forward to the Minister’s response on that point. She may also wish to write to me if she needs to take further advice.
The second issue that has not been addressed sufficiently by the Government is how the number of FGM protection orders will be recorded and who will monitor them. I recently held a round table meeting with organisations that work with survivors or victims of forced marriages. Representatives from those organisations were concerned that the number of forced marriage protection orders that, as they understood it from their community contacts, were being issued on the ground seemed to be higher than the figures in the statistics issued by the Ministry of Justice. Whether that is because courts are not sharing all their data with the Ministry of Justice and reporting as they need to, or whether the figures are not being fully collated, I want to raise the issue with the Minister. Will she clarify how the statistics on FGM protection orders will be collated and reported?
My third point relates to the FGM unit announced by the Government. The Home Secretary announced at the girl summit in July that the Government would open a Government-run FGM unit that for all intents and purposes may be similar to the forced marriage unit opened in 2005 in the Home Office and the Foreign and Commonwealth Office. That unit is absolutely to be welcomed, but I do not believe—I hope the Minister will correct me if I am wrong—that there have been any further announcements about when it will be opened, the services it will provide or where it will be situated.
In my discussions with NGOs and charities, a number of issues have been raised. Will the unit have an operational element, such as a telephone line, or will services continue
Will the unit’s role be to provide professional training on FGM? The agencies involved in child safeguarding, which include schools, the police, local authorities, charities, third parties and families’ and girls’ services, will have a host of questions on the risks of FGM and its consequences, should a girl have been cut. It is important to raise awareness, so the question is: who will be responsible for training and who will monitor it for effectiveness?
We want to be sure that the unit will be able to work with embassies in other countries that may have a higher prevalence of FGM to ensure that parents, families and others who need support know that they can turn to the British embassy for advice. In cases where forced marriage is raised by citizens aboard, the forced marriage unit can work with British embassies to locate those UK nationals and residents at risk and help repatriate them to the UK. How will the FGM unit work with the Foreign and Commonwealth Office? That is important, because this crime has an international element. To make the measures effective we need to understand how our structures and processes work across borders.
The FGM unit will take resources and in times of austerity we are all looking to efficiency. However, an important consideration is how the forced marriage and FGM units may work closely together and gain from the synergy of sharing knowledge and understanding of communities as well as networks and resources.
I have a final point, which the Minister has raised, on the Department for Education’s communication on female genital mutilation and awareness of the law relating to that. In the proposed legislation, an application could be made by a girl who is to be protected by the order. We know that the girls at risk can be very young—they can even be at infants school. As the Minister will be aware, Labour has called for effective and age-appropriate sex and relationship education to be brought in from key stage 1, which could build confidence and self-esteem as well as an understanding of relationships and the importance of respecting values. Those are important formative development points for young people, because we know the risks and threats to development that they face. A culture that normalises violence in relationships is becoming more of a reality for many young people.
To ensure that an age-appropriate awareness of female genital mutilation is there for families, parents and young girls is incredibly important. I would be grateful if the Minister would extend her comments to this matter, or write to me about how, while girls may have this option available to them under the law, the Department for Education will make sure that girls are actually reached. It must be a matter not of us having policies on a website, but of ensuring that girls who need to know that this provision is available to them are being reached.
I raise this point because I met a young girl who was at risk of female genital mutilation. She realised this in school, when a charity came in to do some work. She was able to turn to those who could help her and make
New clauses 26 would provide for a stronger encouragement offence than exists in legislation at the moment. We tabled the new clauses to give a stronger weight to measures in UK law to help to end the practice of female genital mutilation, and to do so within a generation. As Leyla Hussein—the inspiring FGM campaigner and herself a survivor—put it,
In order to see an end to female genital mutilation within a generation we need to take really strong action, and we need to take action now. We need to take it in order to stem the tide for girls who are at risk, not just react when a girl is identified as being at risk.
While we welcome the measures in the Bill and give them our full support, and while they address important ways to respond when a girl is at risk or has been cut, in our opinion they do not go far enough to prevent the crime of FGM in the first place. What is actually needed for the prevention of FGM is a much stronger upstream measure that addresses the pressure to commit FGM, which is much more upstream than the actual cutting. We need to get to the source of some of the pressures that are applied in communities. Under its international law obligations, the UK must actively combat FGM, not merely react to the ongoing practice. The offence of encouraging FGM would be not just a message but a very strong preventative measure. I hope that as we explore this further this measure will get support from the Government, and indeed we may also want to press the new clause to a Division.
The UK’s international law obligations are clear in their requirement for the UK to take active steps to end the practice of FGM. Treaties include the convention on the elimination of all forms of discrimination against women, the convention on the rights of the child, the European convention on human rights and the convention on preventing and combating violence against women and domestic violence, which was signed in 2011. It is also the opinion of leading lawyers that the Serious Crime Bill as currently drafted falls short of meeting our international obligations. I am particularly grateful to the Bar human rights committee for their work with me on this new clause, particularly to Dexter Dias QC, Kirsty Brimelow QC, Charlotte Proudman and Zimran Samuel. A first draft of this encouragement offence was introduced in an amendment by Baroness Meacher of Spitalfields in the House of Lords in July 2014, but the new clause I am speaking to today is a tighter offence. For the first time, it would give parents and girls the opportunity in law to challenge the public encouragement of FGM.
The offence of encouraging FGM is incredibly important when considering the cultural context within which it takes place in practising communities. Many activists tell us that pressures from others in the community on parents can become too difficult to resist, even when
We need to support those who are seeking to change the culture in affected communities and send the message that the practice is breaking the law. We know from research by the Bar human rights committee and others that there is still significant support among affected communities in Britain for sunna: that is, type 1 and type 2 FGM. The process by which FGM occurs is complex, and sometimes encouragement takes place in small gatherings and in informal settings behind the scenes, where it is difficult to intervene. Many campaigners and activists unanimously support a distinct offence of making the public encouragement of female genital mutilation unlawful.
“The young uncircumcised girl is still considered today as a second-class citizen, impure…Such a young girl can neither marry nor even be allowed to prepare the family meal until she agrees to be circumcised.”
“The community leaders play an important role in the life of ordinary people from birth, throughout childhood and adulthood to death. No one wants to grow up outside that circle—you join or become ostracised. It is not just religious leaders who influence people to do FGM, but community leaders.”
If we are to end FGM, we need a proper prevention strategy. Campaigners are telling us that measures to tackle public encouragement of FGM are missing. We need this new measure to change the culture and help break the cycle. The measures on the statute book are not working to stem the tide. Even with the prosecution currently underway, there have only been two prosecutions since the introduction of the Female Genital Mutilation Act 2003.
The measures in the new clause have been carefully considered and are based on what we have learned from encouragement of terrorism legislation. We know that girls and families do not want their loved ones to come under the criminal justice system. I will talk about new clause 28 shortly and why we proposed civil measures in the first instance. It is important to recognise that a free-speech argument has been used against this measure, but this is not a free-speech issue. We propose safeguards and effective measures in respect of the new offence and provisions relating to it. For example, a statement would have to be published with the intent of encouraging members of the public, directly or indirectly, to mutilate the genitalia of a girl, or be
encouraged. Our proposal would not criminalise every public statement or speech encouraging FGM in the first instance, but would allow the police to introduce encouragement warning notices and to follow up with encouragement warning orders. It is not a matter of free
New clause 26 would introduce encouragement warning notices and orders, creating a statutory scheme to provide tools to help to deter and disrupt the encouragement of FGM. They must be considered in combination with the proposed new offence of the encouragement of female genital mutilation. This approach is informed by the policy objective of creating a greater emphasis on the prevention of FGM. These legal powers would form part of a comprehensive scheme designed to strengthen the protective mechanism that the UK has and would enable the UK to better meet its obligations under international law.
The proposed process for encouragement warning notices and orders is similar to that already in place for domestic violence prevention notices and domestic violence prevention orders. The wording of the amendments draws heavily on sections 24 to 31 of the Crime and Security Act 2010, with the necessary adjustments. The scheme will provide for essential legal and judicial checks and balances in its two-tier structure. The initial notice that we are proposing can be served only by a constable, having been authorised by a senior officer of a rank not lower than superintendent. Following this and within a specified period, the police must get the notice ratified by a court.
The benefits of the proposed changes would include the creation of legal powers specifically aimed at one of the principal mechanisms of the perpetuation of FGM, disrupting and deterring harmful social norms—an objective advocated by the United Nations—and creating a statutory scheme of closely allied warning notices and orders that empower the police to intervene at the stage of encouragement of genital mutilation before the more serious offence of FGM is committed. In combination with the other amendments and new clauses being proposed, we would strengthen the Bill considerably and also provide a greater reassurance to at-risk young women and girls and concerned members of their families.
In short, the encouragement warning notices and orders, allied with the new encouragement offence, would give parents and campaigners greater confidence under the law to report where people are having pressure put on them by others in affected communities. Before a girl is identified as being at immediate risk, measures can be taken to stem the tide and help change a culture, which we know needs to happen in order for us to eradicate FGM within a generation.
Norman Baker (Lewes) (LD): I have listened to the contribution from the hon. Member for Feltham and Heston without any knowledge of what my hon. Friend the Minister is going to say. The Government has done much to deal with the discouragement of FGM and it continues to do so, which is absolutely right, and it has done so in a reasonably creative way. I believe it is having a beneficial impact in changing mindsets and perhaps, to use an overused metaphor, turning the oil tanker around, because we are dealing with hundreds of years of opinions about cultural norms in parts of the world.
I am genuinely concerned that the proposal may be counter-productive. I am keen, as is everyone else in the House, to see the end of FGM, which is child abuse. It
Seema Malhotra: The right hon. Gentleman makes an important point about the distinction between imposing a cultural view and supporting those in affected communities so that they are empowered to shift a dominant culture where these traditions have been in place for generations. My point is that the public encouragement of FGM is an issue that has been raised from within affected communities. I am sure that he, as a former Minister, has had discussions with affected communities. Indeed, he and I have sat on the same panel at events. He will understand, from those who were at the same event as us and who have talked to me about the importance of this, that this is a global issue. What happens in one country affects and empowers campaigners abroad.
I saw that at the launch of the “End FGM” initiative, where a woman stood up and said that this had given people in her country, where she was a Minister, greater power to stand up and say that these measures need to be looked at more effectively. I understand the right hon. Gentleman’s point, but we have to make the important statement that there is no cultural excuse for violence against women and girls. We need to do what we can in this country to empower those vital campaigners for change. This is not a cultural issue; it is a violence against women and girls issue.
Norman Baker: I certainly agree that it is a violence against women issue and that there are no cultural excuses, if the hon. Lady wants to use that particular phrase. I also agree that we must do everything we can to encourage the eradication of FGM in our country. The point I was making was whether her proposal will actually achieve that end or not. We have the same objective; it is simply a question of whether or not that proposal will be effective. Her new clause talks about police officers effectively intervening, authorised by a superintendent, to issue such a warning notice. I seriously question what the consequence will be of such a warning notice being issued to someone and what that will do in that community. That is the point I am making.
I am very happy to look at anything we can do to eradicate FGM. However, the combination of the measures in the Bill and the slightly softly, softly approach of discouraging FGM by involving community leaders and so on has been and will be effective. The hon. Lady wants to get from A to Z as fast as possible; so do I. However, I am not sure that her particular method will get to Z quicker than the Government’s proposals in the Bill. I am very conscious that we need to take communities with us, and it would be deeply unhelpful if there were some counter-reaction to what she proposes.
Seema Malhotra: The right hon. Gentleman, again, makes an important point. The police starting to intervene, as they already are in cases of FGM, is not a situation that should be taken lightly. However, there is a sensitivity—not a cultural sensitivity, but a sensitivity within communities that are working through change themselves when the state comes in and intervenes.
I make the point again that it would be interesting to know what alternative proposals the right hon. Gentleman has for a situation where someone is inciting others to commit FGM and where parents feel under pressure. Those parents and girls might go to the police and say, “Please help to protect us so that this doesn’t happen. I might protect my daughter but my neighbour may come under great pressure and I don’t know what will happen to her daughter.” There is a point about what we can do under UK law to protect the majority who are concerned about FGM from someone who stands up and says, “FGM is part of our culture and part of our tradition.” It would be helpful if I could read out a short paragraph by Asma, who is a survivor of FGM.
“to cut their daughters. It happens in small groups when we come together and when we worship here in Britain. They say you must cut. And people agree. You cannot marry amongst us if you don’t cut. You are not clean if you don’t cut. And people agree. The pressure is like water from a tap. Can you turn the tap off? I don’t know. But I hope you try. It will help girls in danger. Even knowing you are trying to turn off the tap helps girls in danger. Thank you.”
Norman Baker: That was a long intervention. It was longer than my speech, in fact, but I will do my best to respond to it. Of course we must try, and we are trying. A series of measures in the Bill allow state intervention to prosecute those who are guilty of offences. The fact that prosecution is possible—the statute book will be altered—will discourage the acts from being committed in the first place. That, I imagine, is the purpose of the measures.
Would the hon. Lady’s new clauses stop someone standing up and advocating that girls be cut in the sort of environment that she describes? I am not sure they would. They might simply drive it underground, so that we do not know about it, which would be more harmful. If it happens underground, it requires someone to make an official complaint to the police and give a statement that it has occurred, which implies even greater resistance to the cultural norm, if I can call it that, than adhering to the strictures that have been put forward in the Bill. I am making a practical point on what the new clauses might do, rather than objecting to the direction of travel she wishes to take. If I thought they would be effective, I would be more sympathetic.
The hon. Lady mentioned free speech. In my view, if someone is encouraging a particular act of violence against a specific girl or women by suggesting that that girl or women should undergo FGM, that is an incitement
Andy McDonald: The right hon. Gentleman talks about his concerns on free speech, but would we tolerate free speech that incites grievous bodily harm, which is what this activity is, or free speech that encourages torture, which is what this activity is? Why should we separate it and treat it any differently from the violent and barbaric act that it truly is?
Norman Baker: The answer is that there is a difference between the general and the particular. We allow discussions to occur. There are discussions, for example, about whether we should manufacture and export leg irons to different countries. We have discussions about whether torture should occur and what our role should be in that. We have discussions about whether hanging should be brought back. Many points of view are expressed by members of the public generally that I fundamentally disagree with and regard as barbaric, but I am loth to stop them doing that. That is the point I am making. Both for the reason of being careful not to unduly inhibit free speech, but more importantly because I think it might be counter-productive, I have doubts about the new clauses, although I entirely agree with the direction of travel that the hon. Member for Feltham and Heston wishes to take.
We can see from the debate that we all share the objective of seeking to eradicate the terrible practice of FGM. As I indicated, the Government have acknowledged that the law needs to be strengthened, and the measures we have discussed are intended to achieve that aim.
I thank all Members who have contributed. My right hon. Friend the Member for Lewes talked about turning round the oil tanker, and he has extensive experience of these issues, having been the Minister responsible for dealing with them for some time in the Home Office—
An enormous amount therefore needs to be done, and my right hon. Friend is right about mindset changes. However, these things cannot be imposed—people have to be led. My right hon. Friend the Secretary of State for International Development and the new Home Office Minister for Crime Prevention, who was previously a Minister in the Department for International Development, have both said that the only way things will change is if the communities affected lead from the front.
I have heard of some fantastic initiatives, particularly involving young people and girls in these communities. Last week, I heard about an initiative in Hammersmith called “Made Perfectly”. This is about girls saying, “We are perfect. We were born perfect. We do not need to be changed.” They are taking the lead and taking the initiative in educating fellow students. They go to Hammersmith shopping centre on Saturdays, and they stand there explaining to people, “This is what’s going on, and we need to change it.” That generation can make an amazing and incredible difference. Our job is to give them the power and the tools they need to go out there and make that difference. This really has to be led by them, with us giving them all the powers they need and making sure law enforcement and prosecution services have the weapons in their arsenal to make a difference.
Clause 70 provides for female genital mutilation protection orders. An order could be made to protect a girl against whom a genital mutilation offence has been committed or to protect a girl against the commission of such an offence.
Let me turn now to the amendments. My hon. Friend the Member for Mid Derbyshire has been a member of the International Development Committee throughout this Parliament, and she has taken a real interest in this issue. She has travelled extensively, and she knows a considerable amount about practices in the diaspora community and overseas. I pay tribute to my hon. Friend the Member for Stone for assisting her with the amendment. He made a contribution on Second Reading, and although it was only short because we were unfortunately short of time, he made some important and pertinent points.
I will set out my reservations about the amendments tabled by my hon. Friend the Member for Mid Derbyshire, but I would like to discuss them outside the Committee with her and my hon. Friend the Member for Stone because I want to make sure that we give law enforcement officers and others the weapons they need and that we get this right. I hope that she will take my comments in that spirit, because I would like to continue discussions with her.
Amendment 42 would amend the sub-paragraph that refers to the second of the orders’ two purposes so that it referred to “protecting a girl against a risk of the commission of a genital mutilation offence”. Amendment 43 would add to the statement of what the court must have regard to in deciding whether to make an order for this purpose a reference to
My hon. Friend the Member for Stone set out the case for the amendments on Second Reading, after which I wrote to him, and my hon. Friend the Member for Mid Derbyshire has eloquently set out the case for them this morning. Having now carefully studied the amendments, I am still unpersuaded; but I would like to discuss them.
All our legal advice, including from parliamentary counsel, is that the current provision would already allow the court to make an FGM protection order if it is judged that the girl to be protected was at risk of the commission of an FGM offence. That is not just the Government’s view. In their written evidence to the Committee, the Royal College of Nursing says that it supports this measure, which most importantly offers protection to at risk girls and young women.
My hon. Friend the Member for Mid Derbyshire referred to the advice from chambers. We are not persuaded that there is a gap in protection for those girls in respect of whom the risk of subjection to FGM is less than 50%, as suggested in that advice. The issue for the courts is whether there is a risk of FGM. The court will take into account all the circumstances and make an appropriate order to protect. My hon. Friend argues that these amendments would nevertheless make clearer to front-line practitioners that they can apply for these orders when they fear that a girl is at risk of FGM. Of course, professionals need to be clear about that, but the best way to get that message across is in guidance, which we will provide, and not by adding to the legislation.
I fear that these amendments could do more harm than good. The courts may puzzle unnecessarily over why we have included these additional words, especially as they are not found in the provision for forced marriage protection orders on which this clause is modelled. The courts may even conclude that we only intended these orders to be made when there is a particularly high risk of FGM being carried out, which is not what any of us want. I hope that my hon. Friend will consider those comments, and I would appreciate it if we met her very shortly, because I would like to discuss this further.
New clauses 26 and 28, to which the hon. Member for Feltham and Heston has spoken, seek to tackle the encouragement of FGM. New clause 28, which, as she said, is similar to an amendment tabled in the House of Lords by Baroness Meacher, would do that by making encouragement of FGM a specific criminal offence. New clause 26 takes a different approach, by providing for civil
Of course, FGM is a criminal offence, so encouraging its commission is already also a criminal offence. The Serious Crime Act 2007 includes the so-called inchoate liability offences of encouraging or assisting a crime. The approach taken in that Act, which we believe is the right one, is that there must be a connection between the encouragement or assistance and the principal offence. The person encouraging the offence must intend or believe that he or she will encourage or assist in commission of an offence. Depending on the circumstances, that may apply not only to the encouragement of a specific act of FGM, but to the general encouragement of FGM. As I say, that will depend on the facts of the case, and in particular what was in the mind of the encourager.
The hon. Lady talked about type IV FGM. The Government are satisfied that the current law—not just the FGM Act, but also criminal offences of assault—covers a wide range of activities, such as those raised by the shadow Minister. The president of the family division touched on this issue in a recent case, looking at whether the criminal law covers type IV FGM. As the shadow Minister says, the question under the FGM Act is whether the activity constitutes mutilation. In circumstances where the conduct on a girl takes place without her consent, the Government are clear that this would be covered by criminal law.
New clause 28 would go much further than this, by criminalising all speech that is likely to be understood as encouraging FGM in general. There is no consideration of what was in the mind of the encourager. While none of us would condone statements encouraging the practice of FGM, the proposed new offence would engage article 10 of the European Convention on Human Rights, which protects freedom of expression. Any restrictions on free speech must be shown to be necessary and proportionate. On the basis of the current evidence available to us, we have serious concerns about the necessity and proportionality of such an all-encompassing offence of encouraging FGM.
Moreover, new clause 28 is modelled on the offence of encouraging terrorism in section 1 of the Terrorism Act 2006. That offence was introduced following the 7 July attacks in 2005, which were powerful evidence of the terrorist threat to the UK; but we should be wary of applying terrorism-related offences more widely. We have seen no compelling evidence that would justify the introduction of such an offence for FGM.
On the hon. Lady’s point about civil protection orders and whether they would sit better in the Family Law Act 1996 than in the Female Genital Mutilation Act 2003. Under clause 70, proceedings for FGM protection orders would be heard in the family court or family division of the High Court. The relevant provisions do not need to be inserted into the 1996 Act to achieve that.
Inserting the FGM protection order provisions in the 2003 Act does not in any way reduce the court’s powers. The proceedings would be in the family court or the family division of the High Court—for example, if the FGM protection order were considered in proceedings within the High Court’s exclusive jurisdiction, such as wardship or child abduction proceedings, with the full range of powers of the court and expressly without prejudice to any other protective powers that the court might have.
The location of the provisions does not affect that. Indeed, we believe it would be helpful to practitioners to have all FGM-related provisions in one statute. We will work with the legal profession and others to ensure that the FGM provisions in the Bill are widely publicised when we bring them into force. That leads me on to the subject of training.
The Royal College of Nursing supplied written evidence, which I have referred to. The multi-agency practice guidelines on FGM will be updated to reflect changes to legislation. We are developing work to support professionals in areas with a high prevalence of FGM through the new FGM unit’s programme of outreach work. The unit will also offer bespoke targeted peer support to local areas that want to strengthen their ability to tackle FGM.
The hon. Lady asked about the FGM unit, which was launched on 5 December. In addition, the Home Office has recently launched an e-learning package for all professionals, which is free to use. We are funding the Foundation for Women’s Health Research and Development to carry out face-to-face training with local safeguarding children boards in high-prevalence areas. The Department of Health has commissioned Health Education England to produce five new e-learning FGM training sessions, the first of which was launched on 26 November 2014. They will be provided on the national e-Learning for Healthcare platform and will be available to all NHS trusts at no charge.
The hon. Lady asked about the reporting of FGM. For the first time ever, NHS staff must now record in patient health care records whenever it is identified through the delivery of NHS care that a patient has had FGM. There is a legal requirement on NHS organisations to comply with that. It applies to all clinicians and health care professionals across the NHS.
The specialist FGM unit launched on 5 December has been set up to drive a step change in national outreach on FGM with criminal justice partners, children’s services, health care professionals and affected communities. That work complements the ambitious programme of work by the Department for International Development. I should be happy to write to the hon. Lady about the unit’s further work.
The hon. Lady talked about our international obligations. The provisions are intended to tackle FGM in an effective and proportionate way. Contrary to her suggestion, nothing in international law requires the United Kingdom to create an offence of encouraging or promoting FGM or to include in the law provisions such as new clauses 26 and 28.
The provisions are modelled on those for domestic violence protection orders and notices in the Crime and Security Act 2010. Those notices allow police officers to
The general encouragement of FGM is a very different situation. There is, it seems clear, not the same urgency. Where a girl is at risk, an FGM protection order could be used to protect her, but the proposed FGM warning notices are not about protecting someone in immediate danger; they are simply about restricting someone from encouraging FGM. It is not clear what terms the orders might include to prevent the encouragement of FGM, or how a breach of them might be assessed. In short, it is not clear how they would work.
New clause 26 is intended to curb the general encouragement of FGM in much the same way as the general encouragement offence proposed by new clause 28, although through a different mechanism. Our view that restricting that sort of speech is not necessary applies to that provision as well.
As I am sure we would all agree, we have had an interesting and stimulating debate on important issues. I hope that both sides accept that the Government are committed to making the legislative changes that are necessary to provide better protection against FGM; but we are not persuaded that the amendments and new clauses are necessary. As I have indicated, I believe that the issue raised by my hon. Friend the Member for Mid Derbyshire about FGM protection orders is best dealt with in guidance. I can assure her that it will be appropriately addressed, but I would like to discuss that further with her. I hope that in the light of those assurances she will be content to withdraw her amendment. If she has continued concerns, we will continue to discuss the matter.