1 Introduction
Our inquiry
1. We undertook this inquiry to examine the United
Kingdom's progress towards ratification of the Council of Europe
Convention on preventing and combating violence against women
and domestic violence (the "Istanbul Convention"). The
Government signed the Istanbul Convention on 8 June 2012 yet has
not to date ratified the Convention. The Istanbul Convention came
into force on 1 August 2014.
2. We took oral evidence throughout 2014 from the
Government, individuals and non-governmental organisations on
prevention of violence against women and girls, support services
for victims, prosecuting violence against women and girls, the
immigration and asylum system as well as the role of the media.
We took evidence from 30 witnesses listed in Appendix 1, as well
as receiving 59 written submissions and correspondence. We are
grateful to all those who gave evidence, and also acknowledge
the assistance of our specialist advisers, Shazia Choudhry, Reader
in Law at Queen Mary, University of London and Dr Nicole Westmarland,
Professor at Durham University.
What is violence against women
and girls?
3. There is no legal definition of violence against
women and girls or domestic violence in the UK. In this Report
we use the same broad definition of domestic violence and abuse
as the Government:
The cross-government definition of domestic violence
and abuse is: any incident or pattern of incidents of controlling,
coercive, threatening behaviour, violence or abuse between those
aged 16 or over who are, or have been, intimate partners or family
members regardless of gender or sexuality. The abuse can encompass,
but is not limited to: psychological; physical; sexual; financial;
and emotional.[3]
4. The Istanbul Convention, however, covers all forms
of violence against women and girls, not just that which occurs
in the domestic sphere. This includes offences such as rape and
stalking.
5. The Istanbul Convention and the definition of
domestic violence and abuse are broad and we were unable to explore
every area. We did not look in detail at the Government's policy
on female genital mutilation (FGM) as the Commons Home Affairs
Committee recently did.[4]
We also received evidence regarding the law on prostitution, and
while we acknowledge the debate for a review of the law on prostitution
we did not look into this as part of our inquiry, believing it
is a topic that would require more time than our inquiry could
give.
The Istanbul Convention
6. Our Report does not seek to explore the merit
of the contents of the Istanbul Convention because the UK Government
has signed the Convention. The Government, in signing the Convention,
has expressed its intent of abiding by it. Our Report addresses
the question: how well is UK law complying with the Istanbul Convention
and how well is the Government able to fulfil the positive obligations
of the Convention before the Government starts the formal ratification
process?
7. The Istanbul Convention is an international treaty.
The Constitutional Reform and Governance Act 2010 provides statutory
footing for the formal process of treaty ratification, formerly
the Ponsonby Rule. Once the Government has signed a treaty, the
Government must then set about making sure that the UK complies
with the treaty before ratifying it, making any necessary changes
to law or practice. Once done, the Government lays the treaty
before Parliament in the form of a Command Paper[5]).[6]
If neither House resolves that the treaty should not be ratified,
the treaty is ratified by the Government and, at that point, the
treaty obligations become binding on the UK. A violation of a
treaty obligation is an internationally wrongful act which has
serious consequences for the State in international law. If the
Istanbul Convention were ratified, the UK's law, policy and practice
would become subject to the law of treaties and the principle
of pacta sunt servanda: that is the principle, codified
in the Vienna Convention on the Law of Treaties, that States enter
into international agreements and implement those obligations
in good faith.
8. If the UK were to ratify the Istanbul Convention,
the Convention would have a strong indirect effect on the UK legal
system in two ways.[7]
First, as a ratified treaty it could be cited by the UK Courts
as persuasive authority with regard to legal decision-making and
the establishment of legal principles and, furthermore, where
there is some ambiguity as to what the law requires, the courts
will assume that the law should be interpreted in a way that complies
with the United Kingdom's international obligations;
second, via the European Court of Human Rights which now regularly
refers to International and European Conventions as part of the
process of legal reasoning and the establishment of principles
in its case law.[8] As
the UK Courts are required by the Human Rights Act 1998 to take
account of ECtHR jurisprudence and the Government is bound by
its judgments in cases against the UK, the terms of the Convention
could have a strong indirect effect on the UK legal system
9. By ratifying the Istanbul Convention, there would
be a strong inference that UK law is compliant with the treaty.
The Government can enter reservations with regard to any terms
of the treaty which it feels are incompatible with domestic law.
Upon ratification of the Istanbul Convention, the UK Government
would be undertaking to fulfil the positive obligations in the
Convention. The positive obligations of the Convention on states
are to exercise due diligence to prevent and protect against violence
against women, to prosecute and punish perpetrators and to provide
reparations for victims. As the Istanbul Convention is already
in force, these obligations would commence immediately. We discuss
the ratification of the Convention in Chapter 8. Throughout this
Report we point out in recommendations where the Government would
need to make changes to policy and practice in order to fulfil
the Convention's positive obligations.
UNITED KINGDOM'S OBLIGATIONS
10. The United Kingdom is a signatory to the Istanbul
Convention as a whole. The UK Government is responsible for ratifying
and implementing the Istanbul Convention yet devolved administrations,
local authorities and others are responsible for some areas of
law and policy covered by the Istanbul Convention.[9]
For example, in Scotland, the Cabinet Secretary for Social Justice,
Communities and Pensioners' Rights, Alex Neil MSP, is responsible
for equality[10] and
the Scottish government has its own Strategy to Address Violence
Against Women and Girls.[11]
The Scottish Parliament has an Equal Opportunities Committee that
looked at FGM in 2014.[12]
In Wales, Lesley Griffiths AM is the Minister responsible for
"Equality covering the protected characteristics under the
Equality Act 2010 and human rights in relation to UN and EU Conventions"
in the Welsh Executive.[13]
In 2014, the Welsh Government introduced the Gender-based Violence,
Domestic Abuse and Sexual Violence (Wales) Bill.[14]
The First Minister of the Northern Ireland Executive, Peter Robinson
MLA, oversees the Equality and Human Rights Unit. We are also
aware that the London Assembly has a Pan-London Strategy on Violence
against Women and Girls.[15]
It is clear that, whilst the UK Government is responsible for
the UK's compliance with the Istanbul Convention, it is not able
to control all aspects of policy in this area. In this Report
we look at the tensions between fulfilling our international obligations
and devolution, focusing specifically on the provision of specialist
services in Chapter 4.
LAW, POLICY AND PRACTICE
11. There are three different areas which require
action under the Istanbul Convention:
a) law;
b) policy; and
c) practice.
12. We recognise the size of the task faced by the
Government in tackling violence against women and girls. The Government
has made some necessary legislative changes in order for the UK
to comply with the Istanbul Convention (for example the criminalisation
of forced marriage) but changes in practice and culture can be
more difficult to achieve.[16]
Culture
13. Throughout our inquiry we have heard about the
experiences of a wide range of different groups of women including
those with particular needs, for example women seeking asylum
or refugees, women with learning difficulties, women from black
and minority ethnic communities and women from communities of
belief or religion. We agree however with the Bar Human Rights
Committee of England and Wales: "In focusing on specific
cultural practices which lead to violence against women there
is a risk of forgetting that violence against women is a problem
shared across cultures in the UK".[17]
We share the concern of the UN Special Rapporteur on violence
against women, its causes and consequences, Rashida Manjoo:
It is crucial to acknowledge that violence, inequality
and discrimination does not occur solely on the basis of gender,
and that women and girls face multiple forms of discrimination
on the basis of their race, ethnicity, class, sexuality, and other
factors, including their immigration status. Multiple forms of
discrimination have an impact on women's experiences of violence,
their perceptions of those experiences, and their ability to seek
and receive support.[18]
3 Domestic violence and abuse: https://www.gov.uk/domestic-violence-and-abuse#domestic-violence-and-abuse-new-definition
[accessed 4 January 2015] Back
4
Home Affairs Committee: Female genital mutilation: the case
for a national action plan (Second Report, Session 2014-15,
HC 201) Back
5
Command Papers are the collective name given to different types
of papers prepared by the Government and presented to Parliament
with the words "presented to Parliament by Command of His/Her
Majesty". Back
6
Both Houses have 21 days to resolve that the treaty should not
be ratified. Back
7
Only incorporation of the Treaty into UK law would achieve the
direct effect of its provisions in the UK's legal system. Back
8
See, for example, the recent case of National Union of Rail,
Maritime and Transport Workers v UK (Application no. 31045/10,
8 September 2014), in which the European Court of Human Rights
referred to provisions of the European Social Charter and International
Labour Organisation Convention No. 87 when deciding whether secondary
strike action comes within the scope of freedom of association
in Article 11 of the ECHR. Back
9
The Scotland Act 1998, Government of Wales Act 1998 and Government
of Wales Act 2006 and the Northern Ireland Act 1998 set out the
powers that are devolved from the UK Government to the Scottish
Parliament and Welsh and Northern Irish Assemblies and their associated
executive bodies. Back
10
Violence against Women and Girls - Strategy Documents: http://www.scotland.gov.uk/Topics/People/Equality/violence-women/strategydocuments
[accessed 4 January 2015] Back
11
Ministers of Law Officers: http://www.scottish.parliament.uk/msps/ministers-and-law-officers.aspx
[accessed 4 January 2015] Back
12
Female Genital Mutilation: http://www.scottish.parliament.uk/parliamentarybusiness/CurrentCommittees/72423.aspx
[accessed 4 January 2015] Back
13
Lesley Griffiths AM: http://wales.gov.uk/about/cabinet/cabinetm/lesleygriffiths?lang=en
[accessed 4 January 2015] Back
14
Violence against women and domestic abuse: http://wales.gov.uk/topics/people-and-communities/communities/safety/domesticabuse/?lang=en
[accessed 9 January 2015] Back
15
Violence against women and girls: https://www.london.gov.uk/priorities/policing-crime/our-work/violence-against-women-girls
[accessed 4 January 2015] Back
16
Sections 120 and 121 of the Anti-social Behaviour, Crime and Policing
Act 2014 criminalised the breaching of a forced marriage protection
order and of using conduct which causes someone to enter into
a forced marriage. Article 5 of The Anti-social Behaviour, Crime
and Policing Act 2014 (Commencement No.2, Transitional and Transitory
Provisions) Order 2014 brought these two sections into force on
16 June 2014. Back
17
Written evidence from the Bar Human Rights Committee of England
and Wales (VAW0035) Back
18
Special Rapporteur on violence against women finalizes country
mission to the United Kingdom and calls for urgent action to address
the accountability deficit and also the adverse impacts of changes
in funding and services. http://www.ohchr.org/EN/NewsEvents/Pages/DisplayNews.aspx?NewsID=14514&
[accessed 14 January 2015] Back
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