NHS: Urgent and Emergency Care Review
Statement
2.01 pm
The Parliamentary Under-Secretary of State, Department of Health (Earl Howe) (Con): My Lords, with the leave of the House, I shall now repeat in the form of a
Statement the Answer to an Urgent Question tabled earlier today in another place on the subject of urgent and emergency care. The Statement is as follows:
“Mr Speaker, in January this year the board of NHS England launched a review of urgent and emergency care in England. Urgent and emergency care covers a range of areas, including A&E departments, NHS 111 centres and other emergency telephone services, ambulances, minor injury units and urgent care centres. The review is being led by Professor Sir Bruce Keogh, NHS England’s medical director. A report on phase 1 of the review is being published tomorrow and it is embargoed until then.
This is an NHS England report. NHS England is an independent body accountable to me through the mandate. The report being published tomorrow is a preliminary one setting out initial thinking. The final version will be published in the new year. Sir Bruce has said that he will outline initial proposals and recommendations for the future of urgent and emergency care services in England. These have been formed by an engagement exercise that took place between June and August this year. These proposals will be further consulted upon through a number of channels, including commissioning guidance and demonstrator sites. Spring 2014 will see another progress report.
Decisions on changing services are taken at a local level by commissioners and providers in consultation with all interested parties. That is exactly as it should be, as only then can the system be responsive to local needs. It is vital to ensure that both urgent and emergency care and the wider healthcare system remain sustainable and readily understandable for patients.
A&E performance levels largely have been maintained thanks to the expertise and dedication of NHS staff. A&E departments see 95% of patients within four hours and this figure has not dropped below the 95% target since the end of April. However, urgent and emergency care is falling behind the public’s needs and expectations. The number of people going to A&E departments has risen historically, not least because of an ageing population; 1 million more people are coming through the doors than in 2010. Winter inevitably further challenges the system, which is why we are supporting the A&Es that are under most pressure with £250 million. Planning has started earlier than ever before this year, and the NHS has been extremely focused on preparing for additional pressure.
We will look at Sir Bruce’s report extremely carefully. Reform of the urgent and emergency care system may take years to complete but that does not mean that it is not achievable. We are exceptionally fortunate in this country to have in the NHS one of the world’s great institutions. NHS staff are working tirelessly to ensure that the care that people need will continue to be available for them wherever and whenever they need it”.
My Lords, that concludes the Statement.
2.05 pm
Lord Hunt of Kings Heath (Lab): My Lords, I am grateful to the noble Lord, Earl Howe, for repeating the Answer. I declare my interests as chair of an NHS foundation trust, president of GS1 and a consultant trainer with Cumberlege Connections.
There is no question that A&E services are under pressure—in crisis, according to the College of Emergency Medicine. Earlier this year, the Health Secretary announced that Professor Sir Bruce Keogh would lead a major review of emergency care in the NHS. It is clearly a significant piece of work, which is why I would have expected the Government to come before your Lordships’ House and the other place to make a Statement. I object very strongly to this being briefed to journalists this morning, yet Ministers were not prepared to come to the House until the Speaker granted an Urgent Question in the other place.
The noble Lord has said, quite remarkably, that because this is to be published by NHS England, it is not appropriate for Ministers to come to Parliament. He says that the NHS is independent. He must be the only person who believes that the NHS is independent. It is a wholly owned subsidiary and quango of the department. Why does a Secretary of State insist on seeing the leader of NHS England on a weekly basis if it is an independent body? I hope that the noble Lord will reflect on that. The Government should have brought this to your Lordships’ House with a proper Statement.
When the Bruce Keogh report was commissioned, the Secretary of State said that it was intended that we would learn lessons for this winter. What are those lessons? What immediate actions are now being taken ahead of winter? Weekend briefings and leaks suggest that Sir Bruce emphasises alternatives to A&E, such as walk-in centres and the 111 service, yet we have had a report from Monitor saying that NHS England has overseen the closure of walk-in centres. He cannot pass that on to clinical commissioning groups as it is well known that NHS England put pressure on clinical commissioning groups to close those walk-in centres. Will that closure programme stop now? Will he put nurses back on the 111 helpline in order to make amends for the debacle of the launch of that inadequate service months ago? What will he do about the recruitment crisis in A&E?
Bearing in mind the Birmingham health system, can he assure me that the £250 million allocated to A&E hospitals under the most pressure will be spent to alleviate the pressure on those hospitals and not be filleted away for other purposes?
2.08 pm
Earl Howe: My Lords, I am grateful to the noble Lord for his questions. To start where he did, NHS England, as he knows full well, is legally and constitutionally an independent body. It is, however, accountable to the Secretary of State through the mandate, as it is accountable in a number of other ways, including regular meetings. I do not think that there is anything wrong about those meetings; indeed, noble Lords would be surprised if the Secretary of State took a detached view of what NHS England did. There is a balance to be struck. We believe that the direction of travel of NHS England is one for Ministers to set through the mandate and through the outcomes frameworks, in particular, but it is then for NHS England to adopt a clinically led approach to how it
configures itself and how it oversees commissioning in the system. That is the balance that we have struck through the legislation that the House is familiar with.
It is not unusual to have an embargoed press conference the day before a major announcement. I see nothing wrong with NHS England having done that. It would not be appropriate for Ministers to come to the House the day before such an announcement when this piece of work has not been led by Ministers or the department.
The noble Lord asked what actions the Government had taken. Because this is not a normal Statement—we have 10 minutes in all—I shall be very brief. The work that is now in train is not just about A&E. We have recognised, as has NHS England, that joining up health and care services is a big factor. We have the 10 pioneer pilot schemes. We have launched the biggest ever commitment to making co-ordinated care a reality by 2018. We are looking at how we improve services for frail older people. We are developing a vulnerable older people’s plan. There is £250 million going into the system over the winter to ease the pressures on the hospitals that are struggling the most. In the longer term, we will have the solutions laid out by Sir Bruce in his report, which is published tomorrow.
Anyone who knows the history of walk-in centres will be aware that this was an initiative begun by the previous Government with the very best of intentions but as a top-down exercise, which in many cases resulted in the duplication of services and not the best use of NHS funds. Even under the previous Government we saw the closure of some of these services. We expect clinical commissioning groups to take a holistic view of the needs of patients in their area and to configure services cost-effectively. Sometimes that does mean closing walk-in centres that do not provide value for money.
NHS 111 is now available in more than 90% of England. Despite the problems that the noble Lord is familiar with in some sites that launched around Easter, performance has stabilised significantly. NHS 111 is now the principal entry route for access to the urgent care system.
On recruitment to emergency medicine, the point that the noble Lord rightly raised was the reason we set up the Emergency Medicine Taskforce in December 2011 to address workforce issues in emergency medicine. That group published an initial report last year, making a number of recommendations. Those recommendations are being pursued. The £250 million that I referred to is being distributed to 53 trusts, as the noble Lord will be aware. I have a breakdown here of how the money is to be deployed but, in the interests of other noble Lords who may wish to intervene, I shall not read it out.
2.13 pm
Baroness Finlay of Llandaff (CB): My Lords, given the urgency of this crisis, what are the Government doing to meet the request from the College of Emergency Medicine that the exit block be urgently addressed, so that other disciplines support emergency medicine consultants in moving patients on from A&E departments out into the community or into in-patient beds if they are not fit enough to be discharged?
Earl Howe: We have been clear with Health Education England that this is not just about A&E consultants; it is about the entire workforce in A&E, including all relevant disciplines—nursing and others. We have tasked Health Education England with putting even greater emphasis on the need to recruit A&E consultants from medical students over the coming years.
Baroness Brinton (LD): I know that my noble friend the Minister cannot comment on Sir Bruce Keogh’s review but I wondered, separately, if there was evidence in areas that have already reorganised their urgent and emergency care—such as the West Hertfordshire Hospitals NHS Trust, which reorganised in 2009—that services are performing well or indeed better than under the old arrangements.
Earl Howe: My Lords, I do not have that evidence in front of me but, where there is a case for change, the local NHS has to agree a number of measures to be effective before any changes to services take place. That will include ensuring additional capacity at neighbouring hospitals, where that is appropriate, or in the community, where that is appropriate. If CCGs can properly satisfy themselves that a case for change can provide safe, effective and sustainable services, that is a legitimate justification for moving forward with local proposals.
Lord Warner (Lab): My Lords, what light can the Minister throw on the recent report in the Financial Times that the Prime Minister has put the private hospital sector on standby for capacity over this winter? Is that true and is that part of the Government’s preparation for winter pressures? What impact do the Government assess has been made on the capacity of A&E departments by the 12% cut in the tariff paid by NHS England?
Earl Howe: I am aware that the tariff has been the subject of active discussion on the part of NHS England and Monitor; in particular, the 70% of the emergency care tariff that has been withheld under the arrangements put in place a number of years ago, and how that money should be used.
As regards the independent sector, the noble Lord is correct: discussions have been taking place with representatives of the independent sector to see whether and to what extent there is capacity to absorb elective care patients over the winter when needed. I see everything to be gained by that. It was something that the previous Government did and we think it is right that the independent sector, where appropriate, should play its part in relieving the burden from the NHS.
Schools: Non-attending Pupils
Question for Short Debate
2.16 pm
To ask Her Majesty’s Government what the relevant bodies are doing to ensure that pupils who have not been formally excluded but are not attending school are provided with a full-time education.
Baroness Brinton (LD): My Lords, the subject of this debate may affect only a small number of pupils in terms of the total school population—some thousands of children a year—but their education is put at risk either by a lack of co-ordination by their school when they are out of school and getting help elsewhere or, I am afraid, the complete absence of any support.
The statutory guidance, Ensuring a Good Education for Children Who Cannot Attend School Because of Health Needs, which was reissued this May, is helpful but sadly not followed by all schools. The main categories of children that I have met or heard from recently are those with medical conditions, children who are so severely bullied that they cannot face going to school, or those who have been excluded informally by the school and pressured by the parent.
Perhaps we can tackle that last one first. Over recent years there have been anecdotes about children with emotional and behavioural difficulties not being quite difficult enough to be excluded, and this is worsened when the school does not want them on the premises during an Ofsted inspection. I had hoped that this habit had died down, but recently I heard from the National Deaf Children’s Society about two very different cases from different parts of the country.
In the first, a parent was repeatedly called to her deaf child’s school from work during lunchtime and told to take her son home because of “social disruptions” caused by his learning difficulty. The repeated phone calls acted informally to exclude the student from school and to burden the parent, and very few formal steps were taken by the school to remedy the problem. In the second case, the support assistant of a deaf student was called to jury duty for 12 weeks and the school failed to provide any supplementary support for the student. An Ofsted inspection was taking place and the mother was pressured into not sending her child into school so that the inspector would not see the problem.
Schools are also very anxious about recording authorised and unauthorised absences. One student received multiple “unauthorised absences” from school because he had to attend his medical appointments. His parents had informed the school of the medical needs but the school still held him accountable and required the parents to meet officials to discuss the absences. The parents said that they felt under pressure to avoid their child going to necessary medical appointments so as to improve the school’s attendance figures.
I ask the Minister whether there are robust systems in place to ensure that schools are being held to account for these informal exclusions. How will Ofsted be made aware that they are happening? Who can parents report things to if they are worried that the school is not listening or behaving properly? This is true especially for academies and free schools, where there is no recourse to a local authority for help.
Last month I had the privilege of meeting, here in the Palace of Westminster, a number of pupils and students from the Alliance of Healthcare Conditions. Some of their stories are also worrying. I met an 18-year-old girl who, at 14, had been diagnosed with osteosarcoma and had a tumour removed. This meant
she was out of school, either in hospital or at home, for the best part of a year just as she was starting her GCSE courses options. Her maths teacher, who was also the deputy head of the school, called every other week to check in and offer her support for maths, which the girl then passed very well at age 16, having returned to school. But there was absolutely no co-ordination between the school, other staff, and the hospital school or her home tutor provided by the local authority when she was at home.
I talked last week to Dr Clarissa Pilkington, a pediatric rheumatology consultant at Great Ormond Street Hospital, who confirmed that this problem is widespread among hospital schools. She said that hospital schools would welcome more contact with children’s schools, not least because they can target support at the right level of learning, especially for students working towards exams or qualifications. The statutory guidance I mentioned earlier talks about liaising with a school when the child is going back to school, but it does not talk much, if at all, about the school liasing as the child goes out of school and into alternative support.
Dr. Pilkington also commented that appropriate learning and short bursts of concentration can help her patients manage their pain and other symptoms, so learning is useful to the medical process too. Will the Minister please say whether there is a requirement for such co-ordination in cases where it is obvious that children will be out of school for an extended period? Who checks the level of support that a pupil or student gets at home if they are out of school for a period, and are the local authority and the relevant home tutor given access to staff at the local school so that they can set the appropriate level of work?
I know that my next example is an independent school, but the Telegraph recently reported that the parents of a student attending an independent boys’ school were pressured, by threats of exclusion, into removing him. The student, who was eventually diagnosed with severe ADHD, had passed his entrance exams with high marks, tested well, participated in athletics, but struggled with homework and long tasks due to difficulty concentrating. That is not uncommon with ADHD. He also struggled with sleeping. Eventually a meeting was called at the school. The deputy head promised to provide details of an educational psychologist but failed to do so and recommended a school counsellor instead. His parents were eventually told he would be excluded if he continued to behave in that way. They felt compelled to remove him before he was excluded. Following his formal diagnosis by a pediatric neurologist, he now attends a new school with smaller classes and full-time SEN staff. The pupil was very distressed by the behaviour of his former school. I raise this example to say the problem is not confined to the maintained sector.
I now move to children so severely bullied that they cannot go to school. The Minister and I have talked about alternative provision for these children, but that is not the focus of this debate, even though much more of it is needed across England and Wales. I want to know what happens to the pupils defined as school refusers but still on the school roll, often because the
school will not accept that bullying is happening in the school. Last week I heard of a young man who was the victim of homophobic bullying, who was last in his school two years ago. He cannot get to alternative provision elsewhere because the school insists that he must return to the specialist support unit inside the school, as the school believes it can handle the problem. It has failed, however, to take into account that he is still taunted and bullied on his walk to and from the school and inside the school on his way to the unit. He is now 17. He is approaching the end of his school career with no qualifications, clinical depression, and despair about the whole education system. Can the Minister say what a student and their parents should do when a school behaves in this way?
Admissions is another issue for children with medical conditions. An 11-year-old girl I met has very serious allergies, causing life-threatening anaphylactic shock. Because of her allergies, the hospital consultant has said she should not travel on public transport. Her mother applied for her to go to the local school. Her appeal to go there was refused because the school said it was not a medical condition despite the intervention from her consultant. Worse, the staff at the school said they would refuse to use the EpiPen if she went into shock, so she could not attend the new school from the beginning of term. When I last talked to her mother 10 days ago, she was still out of school. Are schools allowed to decide what is and is not a medical condition? Medical need for admission has always been prioritised. It is shameful that some schools are running away from their responsibilities. I know that the Government are being very helpful in the Children and Families Bill on the issue of staff giving emergency medication, but refusing a child a place in school is patently ridiculous.
To conclude, there are too many pupils out of school for extended periods who are invisible to the system. I ask the Minister whether there is any record of the level of educational attainment for these young people out of school for a long time. Is there an opportunity to disaggregate the data from the whole-school figures to show those on the roll but not currently attending, and, perhaps more importantly, is this something Ofsted should be asking schools to account for? Most importantly, what are the Government going to do to ensure that this very vulnerable group of pupils gets access to the education that it deserves and is entitled to?
2.26 pm
Baroness Morgan of Ely (Lab): My Lords, I should like to pay tribute to the noble Baroness, Lady Brinton, for ensuring that this important issue is debated today. I should also like to pay tribute to the tremendous efforts made by schools and teachers up and down the country, who work tirelessly to educate our children, often despite the efforts of many ill disciplined and disruptive students to put them off.
Every child matters, yet there are times when exclusions become necessary. The child, however, must not then be deprived of education. We on this side of the House understand the critical importance of discipline. It provides a bedrock for sound learning. We also
understand that there are times when there is a need, for the sake of discipline, to exclude pupils from school. The vast majority of teachers do everything they can to ensure that pupils get the best start possible. I particularly applaud the efforts of teachers and head teachers on the reduction in the number of children who have been officially excluded from school over the past few years.
We are, however, concerned by the increasing number of children who have been informally excluded—or, to put it another way, illegally excluded—from school. I say “illegally” because the rules on informal exclusions are absolutely clear. The rules state that if a child is excluded from school in any way at any time, this should be formally recorded. A due process has to be followed, which includes a referral to the board of governors. A child can be legally excluded only for disciplinary reasons. Head teachers must tell parents and carers formally, in writing, why their child has been excluded and for how long.
Guidelines have also been set for what kind of activity would lead to exclusion. It states clearly that a school cannot exclude children because it feels it does not have the resources to deal with them or because it believes a child needs time to cool off. The guidelines specify that any exclusion of a pupil, even for a short period, must be made and recorded formally. Are the rules being followed? The answer to this, according to the Children’s Commissioner for England, which published a report on this issue in April, and according to the charity Contact a Family, which published a separate report in February, is a resounding no. The Children’s Commissioner for England has found evidence to suggest that one in 10 secondary schools is forcing pupils to stay away from lessons but failing to record the punishment formally in the register.
The problem seems to be that many head teachers simply do not realise that asking parents to collect a child at lunchtime to cool off, or to keep them at home for a few days, counts as exclusion. There is increasing evidence to suggest that head teachers use this as a method to exclude children for minor misdemeanours, such as larking around in the classroom, breaking uniform policy or a bad haircut. Some academies are attempting to avoid scrutiny of their exclusions by external independent appeals panels and are refusing to hear appeals from parents. That right has been removed. Part of the problem is that we cannot be sure of the scale of the problem. Is the Department for Education collecting figures or monitoring local authorities’ and academies’ performance on this issue?
According to the Children’s Commissioner, the scale of illegal exclusions is enormous. Who is affected by this? As the noble Baroness, Lady Brinton, mentioned, children with special educational needs, disabled and bullied children and poor children feel the brunt of these exclusions. According to the charity Contact a Family, 22% of disabled children are illegally excluded at least once a week and 15% are illegally excluded every day for part of the day. Pupils with special educational needs are eight times more likely to be permanently excluded than their peers. Pupils with SEN statements are seven times more likely to be excluded while those without statements are nine times
more likely to be excluded. More than two-thirds of all permanently excluded children have some form of identified SEN. It is clear that informal exclusions now follow the same pattern.
Of course, it is not just the children who are affected. Parents also suffer as they often feel constantly on call. Many have to drop everything to pick up their children. That means it is impossible for them to hold down a job, forcing them into further poverty, according to the Children’s Society. Parents are often afraid to take on the school and challenge illegal exclusions because of the impact that might have on their child’s school record.
If we know this is happening, why is nothing being done about it? Who is responsible for enforcing these rules? Ofsted is the lead body responsible for policing these policies but its sanctions on the issue are mixed in with an assessment of the school as a whole. It would seem highly unlikely under the present system that this one issue would have a dramatic impact on the overall assessment of the school. It is very difficult for Ofsted even to know that these temporary exclusions are happening as they are not recorded. Local authorities have a duty to provide full-time education to children, but in the face of tremendous budget cuts imposed by the coalition Government, the resources that local authorities have to police this problem and to track these cases are being put under increasing pressure. There is a responsibility to educate but the follow-up of excluded children is sporadic at best. If the issue is as large as the Children’s Commissioner suggests, and if we know that these actions are illegal, how does the Minister intend to tackle this issue? Currently, it seems as if there are very few sanctions for illegal exclusions.
It is right to dwell on the consequences of illegal exclusions on children. Informal exclusion means that children are more likely to fall through the education net. If local authorities are not informed, children are unlikely to be given the statutory schooling that they have a right to receive. Once children fall behind, it is very hard for them to catch up and they are likely to become even more disruptive. Their chances of finding a job are diminished and they are forced on to the state and the taxpayer for support. Fixing this problem early is therefore an economic imperative for the country.
Could the Minister answer the following questions? Does he agree that head teachers and teachers should be given training and guidance on the rules, so that they are aware that informal exclusions are in fact illegal? Part of the reason for unofficial exclusions from school is the lack of the teachers’ ability to instil discipline and manage behaviour. These skills are taught to teachers with teaching qualifications but we are deeply worried that the Government are allowing unqualified teachers into schools on a permanent basis who have not had this training. Does the Minister believe that we should look to best practice and encourage schools to ensure the professional development of school leaders, teachers and trainees, including formal teaching qualifications that teach strategies to create a good learning environment and prevent exclusions?
Will the Government reinstate the independent appeals panel for illegal exclusions? The Education Act 2011 removed the right of parents to appeal to an independent
appeals panel against permanent exclusion. That has been replaced by an independent review panel with reduced powers that cannot require a school to reinstate a pupil it judges to have been unfairly excluded. Will the Government issue further, more specific guidance on the principles of exclusion thresholds? For example: “Exclusions should happen only to protect the health and safety of pupils and prevent disruption of learning”. This would stop schools excluding children for having a bad haircut or for other trivial reasons. That is happening today in our society.
As I mentioned at the start, schools should be congratulated on the reduction in the number of formal exclusions over recent years but there is a danger that the problem is simply being displaced to children being informally excluded from schools. The Government need to nip this issue in the bud and save these children from a life of disruption and exclusion. That will not happen unless there is a sanction against those who transgress the rules.
2.36 pm
The Parliamentary Under-Secretary of State for Schools (Lord Nash) (Con): I thank my noble friend Lady Brinton for securing this important debate and for her eloquent speech. I also thank the noble Baroness, Lady Morgan, for her excellent contribution. I pay tribute to the work of my noble friend Lady Brinton in championing the cause of children who are excluded, particularly those who have been subject to bullying. I am also aware that Ofsted intends to publish next week a report on children who are not receiving full-time education, which will highlight weaknesses in the system and make recommendations for improvement, with examples of good practice. I hope noble Lords will find that helpful. I welcome this opportunity to set out the other actions the Government are taking to help ensure that pupils outside mainstream schools receive the good quality education they deserve.
I hope that the instances to which my noble friend referred will be helped by the managing medicines amendments we have tabled to the Children and Families Bill. She raised a question about ensuring co-operation between hospitals and mainstream schools. Where a pupil attends hospital while at school, the local authority retains its duty to ensure that they receive suitable education. We enforced in statutory guidance the role of the local authority in promoting co-operation between schools and children who cannot attend because of health needs.
On omissions, while there is a clear omissions appeal procedure, I will look at the particular point that my noble friend made about who can decide what a medical condition is and will write to her about that. On the point about who records the educational attainment of these pupils, if they are permanently excluded the AP provider would retain that and Ofsted would report on it. The results would show that. If they are not permanently excluded, the school would continue to hold those results.
She raised briefly the subject of bullying. In this Government’s view, bullying is completely unacceptable. Every school must have a behaviour policy which includes specifically what it does about bullying, including
homophobic bullying. Ofsted will inspect against that. We have provided considerable support to a number of organisations to help schools in that regard. Where a child has been permanently excluded, it is the responsibility of the local authority to organise full-time education through an alternative provision provider. Where the child is temporarily excluded under a fixed-term exclusion, it is the school’s responsibility to make other arrangements.
On unlawful exclusion, there is no excuse for a school to exclude unlawfully any pupil. As I have said, the Government have given schools greater powers to manage behaviour. We are also addressing the underlying causes of disengagement, for example by reforming SEN and identification, particularly in relation to early identification. Ofsted is fully aware of this issue and we have toughened up the Ofsted inspection regime. Should evidence that exclusion has been used unlawfully come to light during an inspection, this will be taken very seriously. Unlawful exclusion would raise serious questions that may be linked to leadership, management, school safeguarding procedures, governance, behaviour and safety.
If a parent thought that their child had been unlawfully excluded, their first right of redress would be to the school governing body. If it is a maintained school, it would be to the local authority, or, if it is an academy or a maintained school, they could complain directly to the Department for Education. We would take a dim view of any school that we thought was gaming the system in this way. Certainly, the academy sponsors that we are supporting to turn around schools that have been left to languish in failure for years up and down the county are passionately committed to inclusion and are completely against the concept of exclusion, as I am. In five years at my school, we have permanently excluded only two children, in those cases reluctantly.
As the noble Baroness states, statutory guidance on exclusions is clear: exclusions must follow the legal process. The Children’s Commissioner report made clear that the majority of schools follow that process. In the past, some schools might have taken an “out of sight, out of mind” approach to alternative provision. That is why, since last September, school inspection has included a specific focus on the education, health and safety of pupils in off-site alternative provision. It is important to note that an increasing number of schools are making excellent use of such provision. The Government are also currently trialling, in 11 local authorities, the benefits of schools taking greater responsibility for permanently excluded children. The lessons learnt from that trial will be available to be rolled out across the country.
There are examples of excellent provision. Sawston Village College in Cambridgeshire, of which my noble friend may be aware, uses funding devolved from the department to provide an excellent on-site centre for children in need of short-term respite, including any pupils who have experienced bullying. The centre provides one-to-one support, maintaining a rigorous focus on education and successful reintegration. It also works with a local charity, Centre 33, to provide counselling for those children, including pupils guilty of bullying. A similar approach is used by St Benedict Catholic voluntary academy in Derby. It has a sanctuary to
nurture the emotional needs of pupils who may have been bullied. The school has also had a number of pupils trained as anti-bullying ambassadors by the Diana Award, funded by the department.
Revised guidance sets out a clear expectation that pupils in alternative provision should receive an education on a par with that provided in mainstream schools. That is something that the Government are determined to see happen. This came into force only in January and it will take time to have an impact, but it has been widely welcomed and I am grateful for comments from noble Lords during the passage of the Children and Families Bill in support of this. Local authorities are provided with funding for alternative provision, at £8,000 per pupil, and they are free to top this up.
Our focus on alternative provision was highlighted in Charlie Taylor’s report and we have followed all his recommendations. Ofsted is conducting a detailed three-year thematic survey of schools’ use of alternative provision. It is in its second year and early indications are that overall schools’ use of this provision has improved. The final report will make recommendations to supplement better practice. Ofsted has also increased its focus on local authorities’ use of alternative provision. Under the revised framework for integrating looked-after children and safeguarding inspections, published in September of this year, inspectors will now ask local authorities to report on school-age children for whom they are responsible, but who are not in receipt of full-time education. The first inspections under this new framework are expected later this month. Increasingly, local authorities and school partnerships are developing robust quality-assurance frameworks for alternative provision. A framework developed by Waltham Forest, for example, has formed the basis for a more co-ordinated approach to commissioning across 10 other local authorities.
Alternative provision is not solely for pupils with behavioural needs. While it is not possible to identify precise numbers, our best estimate is that around half of pupils in alternative provision are there for reasons other than behaviour. Many so-called pupil referral units, for example, are expressly set up for the purpose of educating pupils with health needs. Among this excellent provision is Hawkswood therapeutic school in Waltham Forest, which caters specifically for pupils unable to attend a mainstream school because of complex emotional reasons. Ofsted noted favourably the success rate in this school.
Despite the examples of good alternative provision, we recognise that the overall quality and range of providers have not always been sufficient. We have already taken steps to raise standards by increasing the role of maintained schools in PRU management committees, for example, and allowing trainee teachers to undertake placements specifically in alternative provision providers. Eight PRUs took up this opportunity in the first year and their experience has formed the basis of a toolkit to support others to do the same. We are also allowing PRUs to benefit from the freedom of academy status. Eighteen have converted already, such as the outstanding Bridge AP Academy in Hammersmith and Fulham. We are also supporting new, high-quality
providers to enter the market and 18 AP free schools have opened already, with a further 16 scheduled to open in September 2014.
Noble Lords have spoken with great passion and insight on this issue. The Government are committed to the plight of all children and will not tolerate schools gaming the system in the ways that have been suggested, and we will do everything that we can to ensure that this does not take place. I hope that I have provided some reassurance that we are taking effective steps to ensure that children who are not attending school are provided with the high-quality, full-time education that they deserve. I appreciate the noble Baroness’s commitment to this cause and I am always happy to meet her to discuss any further concerns.
2.46 pm
Anti-social Behaviour, Crime and Policing Bill
Committee (1st Day) (Continued)
3.01 pm
6: Clause 108, page 78, line 43, leave out “violence, threats or any other form of coercion” and insert “coercion by means including violence and threats or other psychological means”
Baroness Hamwee (LD): My Lords, I will also speak to Amendment 9. I thought that after the previous debate on the Bill I would be faced with saying, “Follow that”, but lunch overtook us. However, it is in fact a question of “Follow that”.
Amendment 6 would alter the definition of “force” in the new provision. Noble Lords might wonder why I am worrying about that. In fact, I propose that the definition be the same as the definition in Section 63A(6) of the Family Law Act 1996—in other words, the definition for the forced marriage protection order. I had wondered why different definitions were used in the Bill and existing legislation.
I wonder that even more after the previous debate on the Bill. The noble and learned Baroness, Lady Scotland, referred to psychological means of coercion which are not referred to in the Bill but are referred to in the 1996 statute. She talked about emotional blackmail which might be exerted by members of the very observant part of the Jewish community.
My noble friend Lord Ahmad certainly used the term “psychology”. If there are intentional differences between the grounds for the two different offences—as we are calling both of them—then the Committee ought to be clear that that is intended. If it is not intended that there are differences, then, again, the Committee should be clear that that is the case.
The noble and learned Baroness, Lady Scotland, talked about “emotional blackmail”; I would include that with the term “psychological coercion”. There may be quite porous demarcation lines in attitudes
and the way in which one deals with one’s children. However, trying to stand back and look at it objectively, given the emotional blackmail which she described, from what we have heard from other noble Lords and what we know from our own experience, psychological means should not simply be left aside without noble Lords addressing their minds to them.
My Amendment 9 is much more straightforward. Its purpose is merely to obtain confirmation that a habitual residence—“habitually” is the term used in the Bill—is as it is understood under the Hague convention and the case law which has developed from that. It is obviously not defined within the Bill. I believe that it is used elsewhere in legislation, although I have not been able to find it myself—although I found myself going down different byways of reading, looking at reports of cases on the internet. However, if my noble friend could confirm that, I would be grateful. I beg to move.
Lord Ahmad of Wimbledon (Con): My Lords, I am grateful to my noble friend Lady Hamwee for explaining her Amendments 6 and 9 to Clause 108. It is important that we get the definitions of the new offences right and I welcome this opportunity to explore them in more detail.
Amendment 6 would amend the definition of a forced marriage. Clause 108 defines it as including the use of,
“violence, threats or any other form of coercion for the purpose of causing another person to enter into a marriage”.
My noble friend Lady Hamwee proposes that this should be replaced with alternative wording that, as she explains, would mirror the language used in the Family Law Act 1996 in relation to forced marriage protection orders.
The main difference between the two formulations is that the amendment refers to “psychological means”, while Clause 108 refers to,
“any other form of coercion”.
This is intended to make it very clear that the offence recognises the different types of pressure that can be put on victims. Victims are continually faced with different types of pressure in the course of being forced into marriage, including physical, emotional, financial and sexual pressures. It is therefore right that the definition of the offence should fully cover all of the behaviours that could be employed by the perpetrators of this absolutely horrendous practice. That is what Clause 108 does. On that basis, therefore, I do not believe my noble friend’s Amendment 6 to be necessary.
My noble friend’s Amendment 9, as she has explained, is designed to probe the meaning of the word “habitually” as used in Clause 108(5)(b). The clause provides that an offence is committed outside the United Kingdom if either the victim or perpetrator is a UK national or “habitually resident” in England or Wales. This means that the new law will apply, for example, in a situation where someone who lives in England or Wales is taken abroad in order to be forced into a marriage.
The term “habitual residence” simply means the ordinary residence of a person. As my noble friend alluded to, in fact, the term was introduced into English law from the conventions under the Hague Conference
on Private International Law, where it was developed due to the perceived problems with establishing the domicile of some persons, in particular children. The term is commonly used in legislation without further definition and I am satisfied that that is the correct approach to adopt here. Based on those clarifications and explanations, I hope that my noble friend will be minded to withdraw her amendment.
Baroness Hamwee: My Lords, I will probe the first one a little further. Of course I agree with my noble friend that we have to cover every situation, or as he said, “every type of pressure”. However, as regards the definition, is there a distinction between the provision in the Bill and the provision in the 1996 Act? If there are differences, can we know them? He has not addressed that point. If they are the same, can we know that?
Lord Ahmad of Wimbledon: My Lords, as I said about the language to which my noble friend alluded, Clause 108 has been drafted to ensure that it clearly covers the wider range of factual scenarios that exist in forced marriage cases. That addresses why there is a difference between Clause 108 and Section 63A. Clause 108 is intended to be all-encompassing.
Baroness Hamwee: My Lords, that begs the question of whether the 1996 Act is not all encompassing. I do not want to make life more uncomfortable this afternoon—I stress this afternoon—for my noble friend, but would he be able to write to me about that, following today’s Committee proceedings? This looks like a lawyer’s point, but it is a very real one. We have already talked today and will continue to talk about the choice between the two routes. Of course, one of the factors in the choice will be if the definitions are different, and therefore if the criteria for choosing one route are not the same as the criteria for choosing the other. I gave notice to my noble friend—although probably not directly to him—of the points that I wanted to raise on these two amendments. I will not tease him about the fact that he has not told us which other legislation the term “habitually resident” is in. However, that is probably enough from me for now, and I beg leave to withdraw Amendment 6.
7: Clause 108, page 79, line 2, at end insert—
“( ) A person also commits an offence under the law of England and Wales if he or she causes another person to enter into a marriage and that other person lacks the capacity to consent to that marriage.”
Baroness Thornton: My Lords, this amendment, in my name and those of my noble friend Lady Smith and the noble Baroness, Lady Hussein-Ece, seeks to test whether the Bill adequately covers the issue of capacity; in other words, the capacity of a vulnerable adult who may be forced into a marriage. Almost by
definition, they are very often not in a position to give free or full consent to a marriage, or otherwise. We are looking at Clause 108(1)(a) and (b). Paragraph (a) says,
“A person commits an offence … if he or she … uses violence, threats or any other form of coercion for the purpose of causing another person to enter into a marriage, and”,
“believes, or ought reasonably to believe, that the conduct may cause the other person to enter into the marriage without free and full consent”.
Both those points assume that the person has capacity either to resist or to consent to a marriage. Of course, we know that a proportion of the cases dealt with by the Forced Marriage Unit concern people who have not given consent to a marriage. An article published in the Guardian in August which quoted the Forced Marriage Unit said that,
“The government dealt with 114 cases of forced marriage last year that involved mentally disabled people”.
However, the Forced Marriage Unit recognises and admits that that is probably only the tip of an iceberg and does not reflect the full scale of the abuse. I think that everybody would agree that we should be concerned that disabled or mentally disabled people are protected in this legislation and do not suffer forced marriage.
My second question, which is linked to but is not only about capacity, is: how can marriages be voided in these circumstances? When is a forced marriage voidable? How does it go forward and, in particular, if there is no capacity to agree to the marriage, how can it be ended? In recent times there was a judgment in which the courts decided not to end the forced marriage of somebody who they admitted lacked capacity. That has troubled many people who are concerned about this area. That is the issue we would like to probe, and I would like to know whether the Government have taken that into consideration. I beg to move.
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Baroness Hussein-Ece (LD): My Lords, I also put my name to this amendment because this is a matter that needs clarification and warrants a bit of debate. As the noble Baroness, Lady Thornton, said, there have been a number of these cases. I read the same article that she quoted, on the 114 cases that the Government had dealt with, with some concern. In August there was the case of a woman from a Sikh background who was married to a man who had mental disabilities. He did not annul the marriage because she pleaded that that would cause her stigma. It seems that the interests of the man—who was the victim in that case—were not taken into full consideration, and that needs to be looked at. If this amendment were agreed, would that mean that these sorts of cases could be declared void because people did not have the capacity to enter into marriage?
There was an article in the Times last week about another case concerning a girl of 14. Could we argue that that girl, who was forced into a marriage at gunpoint in Pakistan, had the capacity to enter into that marriage, given that it was forced? The local authority, which has now taken her and her child into her care,
“applied to the family court to have the marriage declared void”.
However, Mr Justice Holman said that he could not do that. He accepted that the marriage was,
“‘on the balance of probability void’ under English law. However, he said that he was prevented from making a solemn declaration to that effect by a section of the Family Law Act 1986”.
I am not a lawyer but, as I read it, it does not make sense that in these types of forced marriages where people either do not have capacity because they have a mental disability or they are under age, or whatever the reason may be, they find themselves at a disadvantage when they try to get the marriage annulled and voided. We have to consider that loophole, and it must be taken into consideration.
Lord Harris of Haringey (Lab): My Lords, I declare an interest as chair of the Freedom charity. I apologise to the Committee for not being present for the earlier part of our discussions on these topics due to a commitment at the Department of Health.
This is an important principle. If the Minister is planning to respond by saying that the issue is adequately covered either in the clauses we have before us or elsewhere in legislation, I urge him to think again before giving the Committee that response. It needs to be made absolutely explicit that a forced marriage is not valid where there is any question at all that the person being coerced into marriage and who has entered into it does not have capacity. That capacity may be related to age—elsewhere in our legislation there has been all sorts of discussion about capacity and age, and some of the girls concerned are of a very young age—or it may be related to learning difficulties of various sorts. We therefore need to make it absolutely explicit in the legislation that this is intended to cover those circumstances where the individual concerned does not have capacity.
Lord Ahmad of Wimbledon: My Lords, I thank the noble Baroness, Lady Thornton, for her amendment. I also thank my noble friend Lady Hussein-Ece and the noble Lord for their contributions. The noble Lord alluded to the Freedom charity, which carries out notable work in this field, and I acknowledge his work and engagement in that arena.
Marriage without consent or the capacity to consent is totally unacceptable. Clause 108 specifies that an offence is committed if the perpetrator uses coercion and believes, or ought reasonably to believe, that their conduct may cause another person to enter the marriage without free and full consent. A person who lacks capacity to enter into marriage is incapable of providing free and full consent to marriage. In the cases that have come to the attention of the Forced Marriage Unit, some form of coercion has invariably been involved in forcing a person who lacks capacity to consent to a marriage. The new offences would therefore cover this behaviour.
Although I totally understand the noble Baroness’s concerns and those of other noble Lords, the definition of the new offences in Clause 108 already captures in practice the types of cases intended to be covered by this amendment. I take on board the point that the
noble Lord made about looking specifically at this issue. Certainly, between Committee and Report we will look at the issue once again in the context of Clause 108. However, I assure noble Lords that Clause 108 is intended to capture that particular element. Marriage is voidable under Section 12(c) of the Matrimonial Causes Act 1973 on the grounds that,
“either party to the marriage did not validly consent to it, whether in consequence of duress, mistake, unsoundness of mind or otherwise”.
The issue was also raised of a vulnerable person getting a decree of nullity. The procedure to do so is available and a person can apply for a decree of nullity by filing a petition at any time after the marriage ceremony. If the application is not opposed, there is unlikely to be a court hearing and the person will not have to attend court. Following the petition, the court will issue a decree nisi and, following this, the applicant can apply for a decree absolute. The Family Procedure Rules make provision to ensure that these matters are straightforward for unrepresented applicants. However, having said all that, I fully acknowledge the points made by noble Lords about the special circumstances that they have mentioned. Having explained the scope of Clause 108, I hope that the noble Baroness is minded to withdraw her amendment.
Baroness Thornton: I thank the noble Lord for that explanation, which was a good attempt to describe the position. However, I am not convinced that capacity is covered in the Bill. Therefore, I will ask a lawyer what they think. Depending on what they think, and perhaps after further discussions with the Bill team, we shall see whether we need to return to this at a later stage. I beg leave to withdraw the amendment.
8: Clause 108, page 79, line 9, at end insert—
“( ) A person commits an offence under the law of England and Wales if he or she—
(a) is the parent or guardian of a child, and
(b) gives consent for that child to marry before the age of 18.”
Lord Rea (Lab): My Lords, I am moving this amendment because the noble Baroness, Lady Tonge, is in Addis Ababa attending a conference on women’s health in Africa. I wish to speak also to Amendment 12, which would apply the relevant law to Scotland. Amendments 8 and 12 in this group are small and in some ways run parallel to the amendments on forced marriage we have discussed. However, if accepted, they could transform the lives of many vulnerable 16 and 17 year-old girls.
These amendments arise from the findings of a report published last year entitled A Childhood Lost by the All-Party Parliamentary Group on Population, Development and Reproductive Health, of which the noble Baroness, Lady Tonge, is chair and I am a
committee member. The report looks into the effects of child marriage in the UK and overseas and is based on a parliamentary hearing held to gather evidence on child marriage—its causes, consequences and ways to reduce or combat it.
Evidence came from a range of experts, including survivors of child marriage, representatives from UN and government agencies, academics, doctors and NGOs. Our witnesses testified that child marriage had many undesirable consequences. I will not run through the whole gamut but will give a few examples of those. It is associated with violence, rape and sexual abuse, resulting in emotional and psychological problems, desertion and divorce. It takes away opportunities for education—that is perhaps the most important consequence—undermines self-confidence and reaffirms gender stereotypes. It is associated with, and helps perpetuate, harmful traditional practices, including female genital mutilation and contributes to infant mortality and poor child development. There are more consequences. UNICEF says in its report The State of the World’s Childrenthat an infant born to a mother under the age of 18 is 60% more likely to die in its first year of life than one born to a mother over the age of 19. Research from the International Centre for Research on Women found that girls who marry before the age of 18 are more likely to experience domestic violence and depression than those who marry later.
As many noble Lords have said, child marriage is a major problem in the developing world and we are increasingly seeing it here. In England and Wales, marriage under 16 is illegal, but between 16 and 18 it is permitted, providing there is parental consent, which is not required in Scotland. In some cultures, child marriage is virtually the norm and parents are likely not only to give consent, but to force marriage on girls who may not wish to marry yet go along with it. We heard earlier, from the noble and learned Baroness, Lady Scotland, and the noble Baroness, Lady Hamwee, about emotional blackmail. A major problem which has not been mentioned is that, as with female genital mutilation, girls are taken outside the UK to get married. This amendment does not cover extraterritorial marriage but, as with FGM, we hope that a way can be found to make this illegal.
I would be grateful if the noble Lord could put his mind to this. We would be grateful if the amendment could be adapted, before Report, to include extraterritorial child marriage or if the Government brought something forward. I will not press the amendment at this stage, but would welcome discussions with the Minister about this issue between now and Report. Meanwhile, I beg to move.
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Lord Beecham (Lab): My Lords, I have every respect for my noble friend and appreciate the genuineness of his concerns, but I am not persuaded—and neither is the Opposition—that it is appropriate to change the age at which people can be married from the current age of 16, with the condition, to which my noble friend has already referred, of parental consent. We have to recognise that 16 year-olds and above are increasingly sexually active. They can serve in the
Armed Forces. Many people, including me, feel that they should have the vote at 16; indeed, they will do so in the Scottish referendum next year.
I accept the legitimacy of the concerns cited by my noble friend. However, the number who might be involved in marriage from 16 to 18 is not clear—or, at least, the evidence is not before us—let alone the number who are adversely affected in the way that my noble friend described. It is a large step to alter, on the basis of what we have heard, what has been the law for some considerable time. This is quite different from matters such as female genital mutilation and the forced marriage issues which we have discussed fully today. The Opposition will not, therefore, support this amendment if it is brought forward again on Report.
Lord Ahmad of Wimbledon: My Lords, I am grateful to the noble Lord for introducing this amendment on behalf of my noble friend Lady Tonge and for explaining that the rationale for it is, in effect, to raise the age of marriage to 18 years. I also thank the noble Lord, Lord Beecham, for his comments. This is one of those occasions when the two Front Benches are at one which people sometimes smile about.
Lord Beecham: Only when the Opposition are moving the matter in question.
Lord Ahmad of Wimbledon: I shall merely rise to reply, not rise to the challenge.
As noble Lords know, in England and Wales it is possible to marry from the age of 16, with parental consent, and from 18 without consent. The consequence of Amendment 8 would therefore be to make it impossible for a 16 or 17-year old to marry. While I understand my noble friend’s concerns, I do not believe this amendment is necessary because the law already provides adequate safeguards for children entering into marriages.
In England and Wales the provisions for the age at which a child can marry are contained in the Marriage Act 1949 and the Matrimonial Causes Act 1973. Section 2 of the Marriage Act 1949 and Section 11 of the Matrimonial Causes Act 1973 provide that any marriage, whether civil or religious, conducted in England and Wales, where either party is under the age of 16, would not be a valid marriage. If a marriage is solemnized and either or both of the parties is under the age of 16 that marriage will be void. For a child aged 16 or 17 to marry, the law requires the consent of the child’s parents or guardians, unless the child is a widow or a widower. These provisions recognise that, while children of this age may have the maturity to enter into marriages, it is still necessary to ensure that they are afforded some level of protection in doing so.
The Government believe that the current provisions provide appropriate safeguards for children entering into marriages. We therefore do not consider it necessary to amend the age at which people can enter into a marriage. The noble Lord has referred to the UN Convention on the Rights of the Child but the convention does not address the issue of marriage. Accordingly the law relating to marriage, including the age at which a person can consent to marriage and can marry, is a
matter for determination by the national law of those states, including the United Kingdom, that are a party to the convention.
My noble friend Lady Tonge is also understandably concerned, as we all are, about forced marriages. While I share her desire to do more to stamp out this abuse, the amendments as tabled are not the best way of doing this. We have just debated provisions to strengthen the law in respect of forced marriage, thereby making it a criminal offence to breach a forced marriage protection order and making it an offence to seek to force someone to marry. This is combined with a significant nationwide engagement programme and the work done by the Government’s Forced Marriage Unit to give direct support to victims and potential victims.
Amendment 12 to Clause 109 seeks to make identical provision in the case of Scotland. Marriage law is a devolved issue and Scotland has its own marriage laws. I therefore cannot comment on behalf of the Scottish Government. The noble Lord will be aware of the convention that the United Kingdom Parliament does not legislate on devolved matters in Scotland without the consent of the Scottish Parliament.
I take on board the noble Lord’s point about further discussions between stages of the Bill. I am always open to discussions on all these matters. As I said earlier, this is an important matter and this is about getting it right. If the noble Lord or my noble friend wishes to meet me I shall be delighted to do so. Based on that explanation, I hope that the noble Lord will be prepared to withdraw his amendment.
Lord Rea: I thank the noble Lord for that full reply, especially as it is perfectly clear that he does not agree with the amendment. He gave it a lot of time and consideration and I had always intended to withdraw. I therefore beg leave to withdraw the amendment.
Amendments 8A to 10 not moved.
11: Clause 108, page 79, line 35, at end insert—
“( ) If an offence has been committed under subsection (1) or (2) in relation to any marriage (as defined in subsection (3) and whether conducted in England and Wales or elsewhere), then that marriage shall be treated for the purposes of the Matrimonial Causes Act 1973 as if the marriage was valid but annulled on the date that the offender was first charged with the offence.”
Baroness Berridge (Con): My Lords, this amendment relates to Clause 108. For the purposes of the new criminal offence of forced marriage, the Bill has adopted the definition of marriage found in the Forced Marriage (Civil Protection) Act, which states that.
“‘marriage’” means any religious or civil ceremony of marriage (whether or not legally binding)”.
At first glance this seems to be a sensible definition as it is clear that some marriages, although not valid in
our law, have such community, cultural or religious significance that the couple behave as if they are legally married. Forcing someone into such a de facto marriage should also be a criminal offence. Consenting to such a marriage is fine; forcing someone is not.
No one underestimates the variety and complexity of situations that lead people to find themselves in forced marriages. A cursory glance at the case law reveals that children are sometimes subjected to such marriages by their parents, and the law needs to be flexible in its remedies. Under Clause 108(3), let us imagine that a woman takes a brave step to come forward to complain about a forced marriage in a religious ceremony which is not, as the Bill envisages, valid in UK law. She may take that step after many years of marriage and it will take enormous courage. She will almost certainly have to testify in court against her so-called husband and perhaps other community or religious leaders. This may affect her acceptance within her community. Her husband and others may be convicted and sent to prison.
Of course, this woman may need supporting financially and there may be family assets such as a car, a pension, a business, inherited wealth and most probably a home. However, they could all be in the legal name of the husband, who is in prison. Ordinarily the woman seeks a divorce or an annulment, and in both types of proceedings the courts have wide-ranging powers to transfer or split the family assets—but herein lies the problem: this forced religious marriage cannot be annulled and cannot be the subject of divorce proceedings. It is not viewed in law by the family courts as a marriage; it has been inelegantly described as a “non-marriage”. Without the legal means to get an annulment or divorce, the woman cannot put in a proper claim for the family assets. In those circumstances she will most likely be making a claim for benefits, supported by the UK taxpayer instead of by any family assets. I also shudder to think of what she may feel like if after a few years in prison her so-called husband comes back to the community and waltzes back into the family home with all the assets. I very much doubt whether any other women will come forward and take such risks if, on top of everything else, by doing so they make themselves financially destitute, with recourse only to the benefits system. Without giving her the remedy of an annulment, which is what the amendment gives her, there may be a grave injustice.
Conversely, if a person is forced into a marriage that is valid under UK law the marriage is void and can be annulled, and the family assets divided up. The Bill therefore currently gives rise to the different treatment of women forced into a marriage that is not recognised in our law, as opposed to women forced into what would otherwise be a valid marriage. There is extensive human rights case law on such differential treatment. I should therefore be grateful if the Minister can outline, if he does not accept the amendment, what reasonable and objective justification the Government have for such differential treatment of women in analogous situations. In the absence of any such justification, the law should be amended to give women the option of petitioning for an annulment. A woman will not be required to do so, and there may be cases where it is not appropriate, but the law should give her the option.
This legal definition of marriage has not previously been an issue under the civil protection order regime, as that was aimed at preventing such a marriage, as the name indicates. As the law is now dealing with criminalising a forced marriage that has occurred, obviously the remedies when that marriage ends—namely, divorce or annulment—have now become relevant. If religious marriage is recognised for the purpose of a civil protection order regime and now criminal law, should it not be recognised for the purpose of family law?
This amendment has been drafted narrowly, but we will need to ensure that it does not inadvertently give financial remedies to cohabitees. I was made aware of the general issue of religious marriages during the presentation of evidence from excellent women’s rights groups to the Joint Committee on Human Rights, which said that many women, even when they consent to the marriage, are not aware that the ceremony is not valid in UK law. In some cases they discover this only when, after many years of marriage, the husband says three times that he divorces them and walks out. Literally, the first person to explain the situation to her is a divorce solicitor, who says that he cannot help her as she is in a non-marriage. Coincidentally, I was visited this morning by Dr Siddiqui, from the British Muslims for Secular Democracy organisation, who said that the situation that there may be family assets after many years of marriage can, indeed, occur.
I would be grateful to know the Government’s view on this amendment, which I believe solves an obvious injustice, and whether the Government are going to grasp the issue of non-legally binding marriages, which is causing so much harm, and look at the matter comprehensively. The Government need to take a step back. Once a different definition of marriage has crept into our law, there can be many inadvertent consequences. They need to consider different solutions, such as making the provision of a civil marriage certificate a requirement before any person conducts a religious ceremony. Such an inquiry could also look at whether the basic legal requirements of how to be married under UK law need to be part of citizenship teaching, especially given the popular trend of travelling to sunnier climes for wedding ceremonies. I fear this is not common enough knowledge; your Lordships may remember that Mick Jagger and Jerry Hall had to get an annulment as they were not married under UK law. I beg to move.
Baroness Cox (CB): My Lords, before I speak to Amendment 13, grouped with this amendment, I apologise for missing Second Reading as I was in South Sudan, where it was rather difficult to engage with parliamentary business here. I understand that a primary goal of the forced marriage provisions of the Bill is to increase the protection of victims of honour-based abuse while bringing perpetrators to justice. As noble Lords may be aware, this is also the primary concern of my Private Member’s Bill, the Arbitration and Mediation Services (Equality) Bill, which seeks to ensure that all citizens resident under the jurisdiction of England and Wales have equal access to the law, and to increase protection for those who suffer abuse and gender discrimination. One of the concerns underlying the
reason for that Bill could be addressed by this amendment, which would make it an offence to solemnise a marriage in England and Wales according to the rites of any religion or belief in circumstances where the marriage is not also solemnised as a legal marriage under the terms of the Marriage Act 1949 if either or both parties to the marriage wrongly believe that they are married according to the law simply because they have been through a religious ceremony.
The amendment would tackle the problem that arises in some communities where those getting married, particularly women who are not familiar with English law or the customs of this country, undergo a religious marriage without understanding that they are not married according to English law. They are therefore unaware that they are without any legal protection. I think there are parallels here with the amendment just moved by the noble Baroness, Lady Berridge.
In most cases, religious celebrants would not need to be concerned about committing the offence created by the amendment. They would not need to act any differently. Most marriages solemnised by religious celebrants are in registered buildings under the terms of the Marriage Act 1949. They are legal marriages. Under the Marriage Act 1949, a couple who have already entered into a civil marriage may go through a religious marriage ceremony after giving notice to a minister of religion, and on the production of a certificate of their marriage before the superintendent registrar.
Therefore, in circumstances when no certificate is provided, ministers of religion should already be on notice that a couple may not be married legally. In those situations when they are not sure that the parties properly understand the status of a religious ceremony, they may choose to say something about this publicly during the religious ceremony to ensure that there is no doubt, or they could choose to obtain a written declaration of understanding from the couple before proceeding with a marriage service. How they go about that procedure is a matter for them and the amendment does not seek to prescribe any particular means. What matters is that when there is some doubt as to the understanding of the parties, my amendment would effectively require celebrants to ensure that the couple they are marrying only according to religious rites are fully aware of the status of the ceremony and its implications.
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Honour-based abuse is a form of domestic violence where the perceived honour of the family or wider community is used as a justification for abuse. In an attempt to control the victim, abusers may use a particular interpretation—or misinterpretation—of religion and culture to coerce the victim. This practice is not confined to any one religious or cultural group. Over recent years, I and my colleagues have met victims of honour-based abuse. We have heard harrowing real-life stories of suffering which should not be allowed in this country today. On Second Reading of my Bill in October 2012, the noble Baroness, Lady Donaghy, pointed out that in terms of our attempts to eradicate this form of abuse we are 20 years behind our progress on general domestic violence.
Much is being done now to tackle the problem and I warmly welcome the Government’s initiatives to criminalise forced marriage. Yet I, other colleagues within this House, members of the legal profession, and several non-governmental organisations—particularly women’s organisations—believe that more can and should be done. Many vulnerable women have described how they have celebrated a religious marriage without an accompanying civil marriage, without realising the implications. If there is a subsequent breakdown of the marriage, because their marriage is not legally recognised, these women are unable to access any legal redress. Many have told me that had they known this before entering into the religious marriage, they would have ensured that a civil marriage ceremony as well as the religious ceremony was conducted. Others have described how they have faced intense pressure from those directly involved with the marriage not to accept the provisions of a legally recognised marriage but to be content with a religious marriage only.
Although many women who find themselves in such circumstances are not victims of abuse, those who do suffer abuse face particular hardship as they are likely to find that they have no choice but to remain in an abusive relationship to avoid potential destitution. Others find that the lack of an available civil remedy forces them to have the dispute resolved by members of the community who may have sympathy for the abuser or who have no understanding of how to deal with cases of domestic violence in this country.
Leaving an abusive relationship is immensely difficult for victims and the emotional strain as well the practicalities associated with the lack of any effective legal redress, including financial provision, may prevent them from so doing. Therefore, they remain in abusive relationships.
Another problem relates to the pressure often imposed by close-knit communities on individuals if they are deemed to be bringing shame on the community. Many women have explained to me how they have been intimidated about seeking help from professional personnel or other citizens outside their own community as they are told that it would defile the honour of their family or community. This pressure may involve the threat, or indeed the practice, of violence.
I must emphasise that the provisions do not interfere with the fundamental freedom of religious communities to solemnise religious marriages which are not recognised in law, provided that both parties to the marriage are aware that the religious ceremony itself does not confer any legal status. This is a probing amendment to address some of the really serious problems and suffering encountered by many women in our country today, and I look forward to some reassurance from the Minister.
Lord Hope of Craighead (CB): My Lords, I had not intended to say anything about this amendment, but two points occurred to me in listening to the noble Baroness, Lady Berridge, which I mention in case they might be of any assistance to the Minister in looking into the matter. First, I should have thought that it would be plain that if the individual is not capable of entering into a marriage at all, because he or she was
underage or simply did not have the mental capacity to agree, one could not treat that as a valid marriage for the time being until it was annulled. There may be something to be said for some categories which are not in that very stark situation; where there was initially the capacity to marry, but there has been enforcement or something like that which has persuaded the individual to enter into it. It is rather as in the law of contract: there are some contracts which are void ab initio and some which are voidable. There may be room for that distinction: no doubt the Minister will wish to research that further.
Secondly, when I was at the Bar in my junior days I used to do cases in Scotland which were described as “nullity of marriage cases”. The ground of nullity in those cases was lack of capacity to consummate the marriage. An individual who found that the husband or wife could not consummate the marriage was entitled to come to court and if that fact could be proved—it was very often not disputed, which was just as well—the marriage would be set aside. I do not know how the law is in England, but there must be a similar process where the marriage cannot be consummated. It may be that those cases are precisely in the category that Amendment 11 is talking about, where somebody has a choice. An individual who finds that the marriage cannot be consummated may feel that the marriage should go ahead for other reasons—simply because they enjoy living with each other. Nobody forces them to apply to the court to have the marriage set aside. It may be that there is an analogy there which can be drawn upon, to follow up the point that the noble Baroness is making.
Baroness Thornton: The noble Baronesses, Lady Berridge and Lady Cox, have raised very valid but different points. The issues to do with property and assets and differential treatment are very valid indeed, particularly with regard to Amendment 11. I look forward to hearing what the Minister has to say because these issues need to be addressed.
Lord Ahmad of Wimbledon: My Lords, I thank my noble friend Lady Berridge and the noble Baroness, Lady Cox, for raising these important issues, which I shall address in turn. As both noble Baronesses will know, I take this issue very seriously: it needs to be addressed and the issues that have been raised are perfectly valid, as the noble Baroness, Lady Thornton, has said. I also thank the noble and learned Lord, Lord Hope of Craighead, for his contribution. He has raised one or two matters which I shall certainly take back to officials to discuss further.
As my noble friend has explained, it is crucial for victims of forced marriage to be able to ensure that the marriage that they have been forced into is subsequently rendered void as a matter of law. While I agree that this is important, especially to the victims of this crime who rightly want clarity on where the marriage stands in the eyes of the law, there are reasons why the Government feel that this amendment is unnecessary. Under the current law, if a forced marriage takes place, victims can apply to the court to end the marriage by divorce or annulment. If a victim wishes to apply
for an annulment, it must be shown that the marriage was either void or voidable. The grounds on which a marriage is void or voidable are set out in the Matrimonial Causes Act 1973.
A forced marriage is voidable by virtue of Section 12(c) of the 1973 Act, which provides that a marriage will be voidable on the grounds,
“that either party to the marriage did not validly consent to it, whether in consequence of duress, mistake, unsoundness of mind or otherwise”.
If a victim wishes to apply to the court for an annulment on these grounds, and the court grants the decree of nullity, the annulment will take effect on the date on which the decree of nullity is issued. This amendment would mean that if a conviction for an offence of forced marriage occurred, the court would be required to issue a decree of nullity. The date on which that decree of nullity would take effect would be the date on which the perpetrator was first charged with the offence. I understand totally the sentiments behind the amendment tabled by my noble friend, but I do not agree that the process by which a victim can seek to end a forced marriage, and the date on which that marriage ends, should be determined by reference to whether a conviction for forced marriage has taken place. Such an approach provides no flexibility for victims whose perpetrators are convicted of an offence of forced marriage to choose how they wish to end their marriage. It would also be unfair to those victims whose perpetrators are not found guilty of the offence of forced marriage, and who would have to continue to rely on the current law to end their marriage.
Victims of forced marriage experience a range of specific extenuating factors, as a consequence of which they may wish to have a divorce rather than an annulment. For example, there may be children involved, as my noble friend pointed out, and property rights to consider. As a result, they may prefer a specific legal route to end their marriage. Preserving a victim’s choice is the intention behind the Government’s proposals. We are seeking to provide flexibility to victims who, on seeking legal advice, can end their marriage as and when they see fit. I hope that, having heard this explanation, my noble friend is reassured about where the Government currently stand on this issue.
Perhaps I may now turn to religious marriages, the issue focused on by the noble Baroness, Lady Cox. I pay tribute to her because I know that she represents women’s interests very widely and that this is an issue on which she does not seek to target any particular faith or community. However, she recognises fully that many, if not all faiths, protect such marriages. Unfortunately, it is the case that some of the practices do not live up to the theology. As the noble Baroness has explained, the purpose of her proposed new clause is to create a new criminal offence, under Section 75 of the Marriage Act 1949, of solemnising a marriage according to any religion so that the couple getting married believe they are validly married when in fact the marriage is not valid under that Act. This proposed new offence clearly arises from a desire to help couples who have a religious marriage ceremony that they think is perfectly valid, but which has no legal status because the requirements of the law in England and Wales have not been complied with.
The legal position in respect of religious marriages in England and Wales is that anyone who wishes to contract a religious marriage and acquire a legal marital status has two options. They can either have a religious marriage and a separate secular civil ceremony or they can choose to solemnise their religious marriage in a place of worship registered to conduct marriages, thus removing the need for a separate civil ceremony. Where a marriage is invalid for want of the appropriate formalities or other elements, this does not necessarily leave the parties without any remedies. If the marriage purports to be in accordance with the provisions of the Marriage Act but does not fully comply with those provisions, it may be void under Section 11(a) of Matrimonial Causes Act 1973. This section enables a party to the marriage to apply to the court for a decree of nullity and the court is able to make orders in respect of children and the division of property in the same way as on divorce. We believe that this will provide protection for some of the couples whom the noble Baroness seeks to protect with her amendment.
The Government accept that there will be some religious marriages to which Section 11(a) will not apply. In such cases, the courts may be able to view the marriage as being valid in principle and, as such, susceptible to a decree of nullity. The court will determine such issues on a case by case basis and will consider issues such as whether the ceremony or event set out or purported to be a lawful marriage, whether it bore all or enough of the hallmarks of a marriage, and whether the parties acted in good faith. If the court is not able to make such a finding, again, that does not mean that the spouse will be left without any form of redress. For example, it would still be possible for the court to make an order for financial relief in respect of any children under Schedule 1 to the Children Act 1989. While the Government are keen to ensure that any person who enters into a purported religious marriage in good faith has adequate protection before the law, we do not consider that making the solemnisation of purported religious marriages a criminal offence is the correct way forward. This would, in our view, involve unjustified interference in people’s private and religious lives.
However, the Government take these matters, as raised by the noble Baroness, Lady Cox, very seriously. Even though we may differ in how best to deal with it, the sentiments are certainly much the same. We want to ensure that couples seeking a religious marriage are aware of the need to have a civil marriage as well. If this is to be achieved, it must be with the support of religious leaders and must not be seen as an attempt to dictate to them or undermine them.
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However, options are available to the communities, which the Government have highlighted. For example, on religious marriage ceremonies, there are cases of invalid marriages in a number of religions, although statistics show that the largest numbers are currently likely to occur in the Muslim community, partly because it represents one of the largest minority groups in the UK. I can assure the noble Baroness that the Prime Minister has raised concerns about the vulnerability of Muslim women in marriages that are not valid
under the law in England and Wales, and the Government are currently undertaking work directly with the Muslim community to encourage mosques to register places of worship where marriages can be solemnised and to raise awareness of the requirements to be met for a marriage to be equally legally valid in England and Wales.
As I said earlier in response to a question raised by the noble and learned Baroness, Lady Butler-Sloss, on this matter, the other option is something that some Muslim communities already practise, which is to be encouraged. It is certainly something which, through work being done at the Home Office, the Ministry of Justice and the Department of Communities and Local Government, is being encouraged. Communities, imams or other religious priests who perform religious marriages are asked in advance of performing that marriage to ask the couple to produce a certificate of registration constituting a civil marriage. These are some of the initiatives and I merely outline them to underline the seriousness that the Government attach to the work in this area.
We are working with members of different communities, including the Muslim community, to encourage the registration of religious buildings and we encourage other religious groups to register their buildings as well.
I have listened with great care to the issues raised by my noble friend and the noble Baroness, Lady Cox. On the basis of my explanation, I hope they are both minded to withdraw their amendment.
Baroness Berridge: My Lords, I am grateful to my noble friend for his outline in relation to this matter, but I believe I should join the club opened by the noble Baroness, Lady Thornton, and take yet more legal advice, having consulted, of course, the noble and learned Baroness, Lady Butler-Sloss, and the noble Baroness, Lady Deech, before raising this matter. I will specifically check the section outlined in the Matrimonial Causes Act, which I think applies only to marriages already valid under UK law. With that in mind, we may be back on Report to look at this matter further. I beg leave to withdraw.
Clause 109: Offence of forced marriage: Scotland
Amendments 11A to 12B not moved.
14: After Clause 109, insert the following new Clause—
The Secretary of State shall report to Parliament annually on the effectiveness of the criminalisation of forced marriage under Part 9 of this Act.”
Baroness Manzoor (LD): My Lords, I should start by saying that I am very sorry that I was not able to speak at Second Reading. However, as I am keen to make a contribution, I hope that the Committee will excuse and indulge a new girl. My noble friend Lord Lester of Herne Hill, who has added his name to this amendment, has asked me to apologise for his being out of the country.
My noble friend Lord Lester was, of course, the author of the Forced Marriage (Civil Protection) Act 2007, which has been such a huge success in using the family courts in a sensitive way to address a serious and complicated problem that particularly affects young British Asian girls, women and boys. I pay tribute to him and other noble Lords who have worked so hard on this issue over the years.
Amendment 14 comes from the report of the Joint Committee on Human Rights on the Bill. It requires the Secretary of State to report annually on the effectiveness of the criminalisation of forced marriage. This is only right if we are to ensure that the law has been effective and to aid transparency.
Along with the JCHR, I understand the Government’s reasons for criminalising forced marriage but am concerned about whether criminalisation is a step too far and whether this is the most effective method for dealing with this issue. One needs only to look at the case of female genital mutilation to see that criminalisation is not always sufficient. As the JCHR report points out, there has not been a successful prosecution for female genital mutilation in 28 years—although I take my noble friend Lady Hamwee’s point and am not quite sure what that shows. Can the Minister explain why the Government believe that the criminalisation of forced marriage will be different?
It is very important that nothing is done to undermine the effectiveness of the 2007 Act in enabling the victim to apply to the family courts to obtain a forced marriage protection order. I am concerned that if a young child knows that her parents may be criminalised as a result of such protection, she will be alarmed by the involvement of the police and the criminal courts, as well as by the publicity and the dishonour to her family that the stigma of a criminal offence will bring. Invariably, it will affect, in negative ways, not only the victim but other siblings and family members not party to the forced marriage decision. I hope the Minister can assure the Committee that the civil protection route will remain the preferred way forward and that clear guidance will be given to the CPS and the police that everything should be done to use the family courts for civil protection first and that the criminal process will be used only as a last resort.
Even if the Minister can reassure me on both those points—he has already gone a long way in this discussion to show the Government’s commitment—I believe there remains a real need to monitor the effect of criminalisation to ensure that we can evaluate the progress being made. If the Minister is minded to accept my proposal, the annual report should include, for example, the number of cases going to the family court, to allow benchmarking, the age, sex and ethnic origin of the victims, the number of cases sent to the CPS, the number of people convicted, and what financial or other aid has been given to the victim, including
accommodation and legal aid to support individuals through the criminal court process. I also look forward to seeing the Government develop these ideas in their response to the JCHR. I hope that the Minister will be able to explain what steps the department will take, if it is unable to accept the proposals in my amendment for an annual report, to ensure that the effect of criminalisation is kept under review so that, if there are unintended consequences, they are identified quickly and can be dealt with.
Finally, I believe that it is important that we also look at other approaches, including working internationally, and do not just focus on criminalising the practice as the only way forward. As the Forced Marriage Unit knows well, victims can be taken to Pakistan, India or Bangladesh and coerced into so-called marriages. They may be victims of rape and bodily injury; if they do not comply, they may be victims of what are disgracefully called honour killings or of forced suicides. Tackling these issues through working with international partners is, in many ways, more important than criminalisation here in the UK, as we already have laws in place in relation to this heinous crime. I hope that the Minister can reassure me that criminalisation will form only part of our approach to tackling forced marriage, and that Ministers will continue to work internationally to put an end to the practice across the world and ensure a more joined-up approach to the criminal justice system in the UK on this issue. I beg to move.
Lord Harris of Haringey (Lab): My Lords, the noble Baroness, Lady Manzoor, has put forward an interesting amendment. The principle behind it, that Governments ought to report to Parliament regularly on the effectiveness of pieces of legislation, is one that I am sure that we would all wish to see more widely spread. However, I have a reservation about the terms in which the amendment has been put.
The noble Baroness said that she has reservations over whether criminalisation will have the desired effect. She implied, and I believe that all of your Lordships would agree, that criminalisation is not a panacea as far as this problem is concerned; it will not solve all the issues. Therefore, I would hope that if we were to receive a report to Parliament, it would look at not just the effectiveness of criminalisation but also at the effectiveness of the totality of policies on forced marriage.
My noble friend Lady Thornton moved an amendment earlier that would have broadened the scope of this and placed obligations on various public authorities in terms of the actions that they should take. I hope that the report requested by the noble Baroness would look not just at whether criminalisation makes a difference for good or ill, but also at whether all the other activities that the Government and public agencies undertake to try to eliminate forced marriage are effective. I think that that would be very valuable in terms of taking these matters forward.
Lord Faulks (Con): My Lords, I have little to add to what my noble friend Lady Manzoor said so expertly in moving this amendment. As a member of the JCHR, this was one of the recommendations that we made in our report.
I very much endorse what the noble Lord, Lord Harris, said. I hope that the reporting to Parliament would not just be a dry recitation of the effect of criminalisation in terms of statistics, but would go wider. I am sure that the Minister will reassure us on that. This should not be simply a formality. We are stepping into an acutely sensitive area and, although we said that we approved cautiously of the decision to criminalise forced marriage, it is a matter that must be looked at very carefully for fear that more harm may come than good.
Baroness Kennedy of The Shaws (Lab): My Lords, I, too, support the noble Baroness in her amendment. I saw her nodding at the suggestion that any reporting back should be more comprehensive than simply reporting on the criminal aspects. There should be many other opportunities taken up by Government to press for the changes that underpin what the Government are seeking in criminalising forced marriage.
One factor that I would press upon the Government is that there should be greater discussion in families, for example about marrying close relatives, such as cousins. I used to chair the Human Genetics Commission and there was considerable sensitivity about this kind of discussion and about the implications of marriage within certain boundaries and how it perhaps increased risks for future generations. I think that when people are well informed that often changes social practices.
I also think that imams should be well informed about the ways in which the women in their congregation are disadvantaged by not having the cover of civil marriage so that they have rights that can be enforced in the courts. My clients have sometimes invoked Sharia law as being generous towards women at the ending of marriages or after death. Although that might have been the case in the past, nowadays women are more advantaged by what is available to them through the civil courts in the United Kingdom. I think that such pieces of information should be much more widely disseminated to communities where these issues arise.
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Baroness Hamwee: My Lords, in the Government’s response to the JCHR, they reject the proposal for an annual report but say that they will be,
“happy to update Parliament on the progress of our work in this area in due course, including as part of the normal post-legislative scrutiny of the Act”.
That is a shame. To many parliamentarians, “in due course” means something rather longer than it does in normal language—but maybe I am too cynical.
Like other noble Lords, I think it is important that what is kept under review—that is another phrase I should avoid because it also has connotations—is far more than the narrow impact of the legislation. I have written down “prevention strategy”, “safeguarding”, “professional training”, “update on CPS strategy and outcomes”, “continuing work with stakeholders”—the list could continue. As I have said before today, I am concerned at the overreliance on girls coming forward for help. Another thing that I am sure stakeholders are very aware of is the impact on the whole family, with
other family members, siblings of the child in question, being at risk if they do not support the parents’ decision. There is a range of victims as well as perpetrators in this situation, and that is another thing that we need to keep an eye on.
I hope that, having had the advocacy of a number of very effective Members of this House, the Minister can be a little more encouraging than the Government were in their response to the committee.
Lord Hylton (CB): My Lords, earlier today we had an interesting and worthwhile debate on whether it was better to deal with forced marriages by criminal or civil sanctions. In the light of that, there is a need for reporting on the effect of this legislation. I support the intention of the amendment in the name of the noble Baroness, Lady Manzoor, although the precise wording may need to be widened.
Baroness Thornton: My Lords, I added my name to that of the noble Baroness, Lady Manzoor, on this amendment because we think that if we end up criminalising forced marriage, we need to look very carefully at how that works out. I very much agree with my noble friend Lord Harris that this should be about the totality of the work of the Forced Marriage Unit. How the Government decide to do it is not the point. It is important that these things are monitored regularly, so I think that “in due course” is probably not a satisfactory answer on this occasion.
Lord Ahmad of Wimbledon: My Lords, first, I thank my noble friend Lady Manzoor for her amendment. I welcome her to what I think is her first contribution to legislation in this Parliament. As has been demonstrated today and in her maiden speech, her contributions are always welcome and based on her great expertise and experience, of this issue in particular.
The proposed new clause would place a duty on the Secretary of State to report to Parliament annually on the effectiveness of the criminalisation of forced marriage under Part 10 of this Act. The Government are indeed happy to update Parliament on the progress of our work in this area. I hope that the various exchanges and discussions we have had, which I have certainly found very valuable, as I am sure all members of the Government and, I hope, the House have, underline the Government’s commitment to look at this issue very seriously.
Noble Lords are correct: this is not about coming back “in due course”. I say to my noble friend Lady Hamwee that I will not be saying that. What I will say is that the Government are concerned that this issue is addressed and dealt with appropriately and that the appropriate debates, discussions and questions take place as and when, but the issue remains one of Parliament. Parliament has open access here. Questions and debates can be tabled as appropriate. I do not, however, believe for a moment that an issue as important as this will be left, for us to return to at some future point. I am sure that the Government will be seeking to update Parliament regularly on work in this important area.
I will allude briefly to the issue of female genital mutilation. I accept that although a law has been enacted, prosecutions have not followed, but let me again reassure my noble friend, the Committee and the wider House that the Government take this seriously. My right honourable friend the Foreign Secretary has made this a personal priority. I will talk about it in a moment.
Once this piece of legislation receives Royal Assent, there is a period of three to five years for post-legislative scrutiny. As I have indicated, the Government accept that, on an important issue such as this, we will be returning to it earlier than that. In the case of the forced marriage provisions, the Government’s Forced Marriage Unit, through its direct work in assisting victims and those at risk of forced marriage, has the capacity and function to monitor the difference that legislation will make to victims of forced marriage. The unit, as many noble Lords will know, runs a helpline providing confidential advice and support to victims and to practitioners charged with the responsibility for safeguarding children and vulnerable adults, ensuring they are fully informed on how to handle such cases. The number of reports to the helpline has steadily increased since the unit was established in 2005. In 2012 the Forced Marriage Unit provided advice and support in almost 1,500 cases. It will regularly update Ministers on any issues identified with the new laws and make recommendations on any necessary policy changes.
My noble friend Lady Manzoor referred to the lack of prosecutions for FGM and asked whether forced marriage will be different. I would like to reassure my noble friend that we will also monitor the number of prosecutions brought, and we will want to understand the reasons why cases are either not referred to the CPS or not proceeded with by the CPS if that should prove to be the case. That said, it is important to remember that the Government’s priority in criminalising forced marriage is prevention, a sentiment I know is shared across the House. This legislation has been designed to send the clear message that forced marriage is unacceptable, it is a breach of human rights, and perpetrators will be punished.
My noble friend talked about options. We know that legislation alone is not enough to address issues, and we will endeavour to work with partners across government, with non-government organisations and other experts in the field to ensure that victims and potential victims of forced marriage are aware of the support and options available to them. As I said to my noble friend Lady Hamwee in an earlier debate, it is important that a civil remedy remains available to victims. This means that victims could choose to take a civil route or go to the police, as they can now. I reassure my noble friend that, in respect to FGM, the Government will do everything in their power to ensure that victims can come forward and their abusers face the full force of the law.
The Department of Health is working to improve the information collected by the NHS on FGM. The Home Office has recently announced it will help fund a new study into the prevalence of FGM in England and Wales. The Department for International Development has established a £35 million programme
to address FGM in Africa and beyond, with the ambition to end FGM in one generation. The level of international co-operation to which my noble friend alluded is certainly working well there.
The Government have also joined forces this year with the NSPCC and the Metropolitan Police to establish a dedicated FGM helpline. But as we know, there is much more that needs to be done, which is why the Home Office is working closely with the CPS to ensure that the Government are doing everything they can to help secure a prosecution. I am greatly encouraged by the assessment of the Director of Public Prosecutions that it is only a matter of time before a perpetrator is brought to justice.
I will just pick up on one or two other issues that were raised. The noble Lord, Lord Harris of Haringey, and my noble friend Lord Faulks mentioned the importance of coming back to Parliament on this. As I have already said, the Government take this issue seriously. I hope that has come across in today’s debates. I also acknowledge the very important point made by the noble Baroness, Lady Kennedy, that education must be a major component of how we start to address some of these issues of marriages, particularly those that take place in certain communities. As for marrying into families and that continuing, my noble friend Lord Hussain talked about how clans and tribes work. He used the word “brathries”—I am not sure Hansard needs a translation, but it generally means within a brotherhood. I hope that clarifies that for the Hansard writers.
This is the last amendment in the group on forced marriage. I share my noble friend’s desire—and that of all noble Lords—to ensure that new legislation is effective. I will be happy to update the House on the progress of our work in this area. The Government would of course expect to be held to account through the usual parliamentary oversight channels.
Before I ask my noble friend to withdraw her amendment, I just say this: forced marriage is a terrible act; it is a heinous crime. Coercion in marriage has no place in our or any society. The Government seek ultimately to strengthen a victim’s access to justice. I know that is a sentiment we all subscribe to. Our country is an incredible place, one that encompasses all people, all communities and all faiths, but we must hold those who commit these crimes to account and help those who suffer as victims to ensure that they have the opportunity to take to task those who commit these crimes. On that basis, and with the explanation I have given on this issue, I hope that my noble friend will be minded to withdraw her amendment.
Baroness Manzoor: I thank my noble friend the Minister for his considered response. I know his personal commitment to this issue. I also thank the many noble Lords who took part in this debate. They have been both passionate and certainly much more eloquent than I have. I entirely agree with the observations made by the noble Lord, Lord Harris, and my noble friend Lord Faulks—noble Lords will have to forgive me as I am just getting to terms with knowing everyone’s names. I am very pleased by the Minister’s response but when he says that he will come back and report to Parliament, how often is that likely to be?
Lord Ahmad of Wimbledon: All I will say to my noble friend is that, as I have already indicated, the Government will be held to account. That is something that will be discussed through the usual channels, but my noble friend has an opportunity, as a Member of your Lordships’ House, to raise a Parliamentary Question or debate. As I said, the Government take this issue seriously. Once this becomes legislation and passes into law, as I hope it will, it is certainly an issue that the Government will return to, not least because we believe it is important to update the House. It would not be appropriate for me at this time to give a specific target date: that would be presumptuous. Nevertheless, as I said, the option is even open to my noble friend to hold the Government to account.
Baroness Manzoor: I thank my noble friend. I will, along with other noble Lords, do that. I beg leave to withdraw the amendment.
Clause 151: Compensation for miscarriages of justice
15: Clause 151, page 121, line 24, leave out “the person was innocent of the offence” and insert “no reasonable court properly directed as to the law, could convict on the evidence now to be considered”
Lord Beecham: My Lords, this amendment is in my name and those of my noble friend Lady Smith and the noble Baroness, Lady O’Loan. It relates to Clause 151, dealing with compensation for miscarriages of justice where new evidence comes to light some time after—indeed, sometimes very long after—a criminal trial procedure has been concluded and the defendant convicted and sentenced, and which demonstrates beyond reasonable doubt that the conviction was unsafe. In those cases, the Criminal Justice Act 1988 requires the Secretary of State to pay compensation where the conviction has been reversed or the claimant pardoned. It should be emphasised at the outset that such cases are few and far between, with only two cases a year succeeding out of around 50 claims.
At Second Reading we heard in a compelling and powerful speech from my noble friend Lady Kennedy of The Shaws of an inquiry that she chaired into sudden death cases of infants whose mothers’ convictions were ultimately overturned. We also heard of a case in which a woman whom she represented served 11 years in prison for an arson attack that killed two people but of which it eventually transpired she was innocent. The noble Baroness, Lady O’Loan, reminded us of what might be termed the Irish cases, in which after a very long time compensation was also paid for serious miscarriages of justice.
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As my noble friend Lady Kennedy of The Shaws emphasised:
“The point of compensation is to remind the state of its responsibility to hold those who act for it to the highest standards”.—[Official Report, 29/10/13; col. 1541.]
It is also to make some reparation for the damage inflicted upon those wrongly convicted.
It is instructive to look at the impact assessment on this aspect of the Bill, published as it was on 9 May. In terms of the financial implications, it claims,
“an estimated benefit of around £100k per year”—
a minuscule amount compared, for example, to the recently identified cost of the botched universal credit scheme of some £140 million. Interestingly, the assessment goes on to assert that compensation for the victims of miscarriages of justice is a “vexed subject”, and that:
I note in parenthesis that Members of your Lordships’ House are not cited—
“and pressure groups may be opposed to any limitations of the current scheme”.
In a particularly telling phrase it goes on to say that,
“there would be a reduction in the amount of taxpayers’ funds that are spent on litigation in a challenging economic environment”.
“The Government also has a strong record of success in relevant Judicial Review proceedings”—
somewhat at odds, one might think, with their current efforts to reduce the scope of judicial review.
The assessment goes on to claim that the purpose of the provision is,
“to ensure that there is a consistent and unambiguous definition of what a miscarriage of justice is for the purposes of identifying eligibility for compensation”—
a point to which I shall return shortly. It even claims that the alleged lack of clarity makes it difficult for potential applicants to assess the likelihood of receiving compensation, as if that were the true rationale of the proposal, and that a clear definition would ensure that those individuals who are entitled to receive compensation would do so,
“thereby increasing the welfare of this group of people”.
What the Government really want is not just a clear definition but one of which they approve. They clearly do not approve of that definition provided by the Supreme Court in the Adams case, which pronounced that the test should be whether:
“A new fact will show that a miscarriage of justice has occurred when it so undermines the evidence against the defendant that no conviction could possibly be based on it”.
Basing compensation on a test requiring innocence to be established, which is in effect what Clause 151 requires, would, in the words of the noble and learned Lord, Lord Phillips,
“deprive some defendants who are in fact innocent and who succeed in having their convictions quashed on the grounds of fresh evidence from obtaining compensation. It will exclude … those who no longer seem likely to be guilty, but whose innocence is not established beyond reasonable doubt. This is a heavy price to pay for ensuring that no guilty person is ever the recipient of compensation”.
In the case of Ali, the court suggested the following formulation:
“Has the claimant established, beyond reasonable doubt, that no reasonable jury (or magistrates) properly directed as to the law, could convict on the evidence now to be considered”.
It is that formulation which the amendment seeks to embody, and it does so because the Bill in its present form, wittingly or not, undermines the basic principle of our English law that guilt has to be proved beyond a reasonable doubt, not that innocence has to be proved. It is a semantic quibble for Ministers to say that that same principle should not, in effect, extend to claims for compensation for wrongful convictions. We should not import the Scottish “not proven” verdict—in effect, “not guilty but we know you did it”—into our system at any point, including this point of compensation.
The Government claim that the Bill does not require the applicant to demonstrate innocence but that,
“the Secretary of State has to be satisfied that the new fact on which the conviction was quashed shows clearly that the applicant did not commit the offence for which he or she had been convicted”—
a distinction, it might be thought, without a difference.
The clause allows compensation,
“only if the new or newly discovered fact shows beyond reasonable doubt that the person was innocent of the offence.
However, for the purposes of a claim, this of course effectively requires a negative to be proved—all too likely to be not merely a formidable but in some cases an almost insurmountable challenge and one which, in practice, would fall to the applicant to attempt to meet.
The noble and learned Lord, Lord Browne of Eaton-under-Heywood, at Second Reading indicated his support for Clause 151, but even he implicitly accepted that it requires the applicant to prove his innocence beyond a reasonable doubt. The noble and learned Lord offered what he called,
“a slight modification to it, a slight dilution”,
so that, instead of the person having to prove his innocence beyond reasonable doubt,
“he need establish innocence only on the balance of probabilities”.—[
Official Report
, 29/10/13; col. 1537.]
Even that, however, would often be very difficult and would still represent a significant dilution of the presumption of innocence.
The noble and learned Lord, Lord Browne, referred to a case in which two brothers were convicted of an offence but where the convictions were set aside after 12 years. One was retried, having made confessions of guilt in the interim, but no retrial could apparently be made of the other, who had remained silent. The noble and learned Lord thought that any compensation claim made by that brother would have succeeded on the Adams test. Even if that were correct, however—and it is debateable—it would not justify abandoning the principle enshrined in our traditions and in the amendment. Hard cases can all too often make bad law, as the noble and learned Lord effectively acknowledged when he accepted that some people who are truly innocent “will go uncompensated”.
The Joint Committee on Human Rights addresses the problem in its fourth report in six months for this Session—which is, perhaps, a telling indication of the propensity of this Government to arouse concerns on issues going to the heart of our system of justice. The Joint Committee cites Article 14(6) of the International Covenant on Civil and Political Rights, which prompted the introduction of compensation by the enactment of
Section 133 of the 1988 Act and Article 3 of Protocol 7 to the ECHR, which it describes as almost identical. The Joint Committee regards a condition of requiring proof of innocence beyond reasonable doubt as,
“incompatible with the presumption of innocence”.
It quotes the recent decision of the European Court of Human Rights in the case of Allen v the United Kingdom, which rejected the Government’s case that compensation cases in relation to miscarriages of justice were neither criminal proceedings nor sufficiently closely linked to criminal proceedings. The Government’s argument in this respect is little more than legalistic casuistry of the most blatant kind. It is matched, in the Government’s memorandum on the Bill purporting to address issues arising under the convention, by the insouciance of the claim that:
“The judiciary has not been able to agree on the right test”.
After Adams and Ali, that is a highly misleading assertion. The problem is that the Government regard it as the wrong test, but there is indeed an agreed test now.
The Joint Committee concludes that,
“requiring proof of innocence beyond reasonable doubt as a condition of obtaining compensation for wrongful conviction is incompatible with the presumption of innocence, which is protected by both the common law and Article 6(2) ECHR”.
It recommends that Clause 143—as it was in the draft Bill—“be deleted”, as is proposed by my noble friend Lady Kennedy. It is a matter of judgment whether that course of deleting the proposal altogether is preferable to amending the Bill in the way in which I propose. The House will wish, as I do, to listen carefully to the arguments before, at a later stage, determining a final course of action. At the moment, I lean towards embodying the clear definition in statute, which is what my amendment seeks to achieve. In either case, we could do no better than to hearken to the words of the noble and learned Baroness, Lady Hale, in Adams, quoted by the Joint Committee on Human Rights, when she said:
“Innocence as such is not a concept known to our criminal justice system. We distinguish between the guilty and the not guilty. A person is only guilty if the state can prove his guilt beyond reasonable doubt ... He does not have to prove his innocence at his trial and it seems wrong in principle that he should be required to prove his innocence now”.
I respectfully agree and I urge your Lordships to do likewise. I beg to move.
Lord Cullen of Whitekirk (CB): My Lords, the noble Lord, Lord Beecham, has correctly drawn attention to the ostensible reasons given by the Government for including Clause 151 in the Bill. I noted that at Second Reading the noble Lord, Lord Taylor of Holbeach, referred to the clause as the “new test”, which would be in aid of clarity and “much-needed certainty”. He added,
“we want to reduce the number of complex, expensive and generally unsuccessful legal challenges that currently arise”.—[
Official Report
, 29/10/13; col. 1486.]
I will make three brief comments.
First, it is perfectly clear that Clause 151 is concerned not merely with the interpretation of Section 133, as he seemed to suggest. It would exclude the type of
claim which was recognised and allowed in Adams, and what was said at Second Reading simply does not address that particular step. Secondly, it seemed to be suggested that there was a current state of uncertainty in regard to the law. However, it is important to bear in mind that in Adams the Supreme Court carried out an exhaustive study of the scope of Section 133 and made a fresh analysis. Part of that was to get a final resolution of conflicting statements that had been made by judges in previous years.
Thirdly, Section 133 was intended to give effect to Article 14.6 of the covenant, which has already been referred to and which was ratified by this country in 1976. The wording of Section 133 is virtually identical to Article 14.6; apparently that was done deliberately. The Supreme Court had to consider what meaning should be given to Section 133 in the light of that article. Therefore, is it appropriate for Parliament to be invited to use its legislative supremacy to overrule the decision of the Supreme Court as to the application of such a statutory provision, and in particular to cut down its application, including on the ground of expense?
Baroness Kennedy of The Shaws: My Lords, I express my gratitude to those who have already spoken on this very important topic. To some this may seem like rather arcane law, but it is something very simple and very clear that comes down to fundamental principle. When I spoke at Second Reading, I did so with some force, because the reality of cases reminds you why law matters. When you conduct cases where there has been a miscarriage of justice, you know why it is so important that the law acts fairly to those who have suffered the consequence of miscarriage of justice. I, too, feel shocked that the Government—and it might be supported by others—seek to say that this is about saving taxpayers’ money when the sums of money involved are very small and the number of cases are few, and when we are dealing with such an important issue of principle: that is, that we in this country believe, powerfully and rightly, that a person should be presumed to be innocent unless they have been proved guilty.
When the Court of Appeal receives new evidence—and it is rare—and they decide that that new evidence casts a different light on what went before, we make assumptions that the person is therefore is not guilty. To require, as the amended section would, that a person has to prove their innocence is an affront to fundamental principle. It is shocking that our Supreme Court reached a decision with great care and that we are now seeking to overrule that decision. To most of us, the current position is very clear. The notion that there is uncertainty is, I suggest, a confabulation to justify overturning important principle.
Therefore, I, too, wish to invoke the fact that this is about not just an article of the European court or European convention; it is also an affront to the common law built up over the experience of our nation which says that persons should be deemed to be not guilty unless the state has managed to prove their guilt. I have been involved in cases where it would be very difficult to prove that you were innocent—indeed, the cases which have been mentioned, to which I referred at Second Reading, where mothers were found
guilty of causing the death of their babies but thereafter it was felt that medical science was not yet in a place to help to ascertain possible genetic causes of sudden infant death. To ask those women who were released on appeal—having been in prison and having suffered the anguish of being accused of killing their own babies—to prove that they were innocent on the standard we are discussing is, of course, asking the impossible.
The reality is that with some cases, usually those involving the use of DNA, you can show that the miscarriage of justice most certainly involved the wrong person being accused. However, that happens rarely and usually involves calling into question the evidence that went before a jury and raising the spectre that a wrong decision was made. Too often, I am afraid, it also involves the state having behaved badly through its agents. In the cases mentioned by the noble Baroness, Lady O’Loan, in which I was involved—Irish cases where there were miscarriages of justice—false confessions had been made following the misbehaviour of police officers. Sometimes a question mark is raised over cases because the state has failed to behave appropriately.
We must be clear that, even on the balance of probabilities, it is asking the impossible for someone to show that they are innocent. Great experience gained in the common law has taught us that we do not make innocence a test; we decide as between guilt or non-guilt. On a previous occasion it was a source of shock to me to hear one of our eminent judges speak about a case where it seemed to him that it would be an affront if someone were compensated. Occasionally people are acquitted where they may be guilty but we in our wisdom know that that is a price you sometimes have to pay for having our highly regarded justice system.
I am afraid that this issue is about principle. It is not about arcane law but about the stuff that makes our legal system work and makes it something to be proud of. I sincerely hope that if the Minister does not accept that this issue has to be looked at again, in the fullness of time this House will remedy what the Government seek to do in this clause.
4.45 pm
Lord Pannick (CB): My Lords, I agree with the speeches that have been made this afternoon. Clause 151 should not be included in the Bill unless it is amended in order to restate current law, as the noble Lord, Lord Beecham, suggested. There are three reasons for that. The first is the reason about which the noble Baroness, Lady Kennedy of The Shaws, spoke; namely, a defendant does not have to prove innocence at trial. It would be contrary to basic principles to require the defendant to prove innocence in order to obtain compensation for a wrongful conviction. Even the Scottish verdict of not proven, to which the noble Lord, Lord Beecham, referred, does not, as I understand it, require the defendant to prove anything at all.
The second point is the practical one, which is as important as issues of principle in this context. The point was made at Second Reading by the noble Baroness, Lady O’Loan, and the noble and learned Lord, Lord Hope of Craighead, and made this afternoon by the noble Baroness, Lady Kennedy of the Shaws.
It will often be very difficult indeed for an innocent person to prove their innocence: the evidence may simply be unavailable. It is very unfair that they should be unable to secure compensation for the miscarriage of justice.
The third point is that the approach adopted by Clause 151 breaches the European Convention on Human Rights because it contravenes the presumption of innocence in Article 6.2 of that convention. All 17 judges of the Grand Chamber of the European court stated this on 12 July in the case of Allen v United Kingdom, a case about compensation for miscarriages of justice. It was a unanimous judgment, which found that there was no breach of the presumption of innocence, but an important part of the court’s reasoning, at paragraph 133, was that the courts of the United Kingdom,
“did not require the applicant to satisfy Lord Steyn’s test of demonstrating her innocence”.
That is the test that was stated by the noble and learned Lord, Lord Steyn, in the case of Mullen in 2005—found in 1 Appeal Cases, page 1—in the Appellate Committee of your Lordships’ House. The noble and learned Lord, Lord Steyn, took the view that Section 133 did contain a proof of innocence test. That approach was not adopted by the Supreme Court later, in the Adams case.
Clause 151 now wishes to introduce the approach of the noble and learned Lord, Lord Steyn. It would be a quite remarkable step for Parliament to enact legislation now which contravenes a clear and recent statement in a unanimous judgment by the Grand Chamber of the European court, a step which should be taken only in the most exceptional circumstances, where some fundamental principle of English law is at stake. That is not the case here: we are not dealing with a clause that seeks to maintain some fundamental principle of English law. Indeed, to the extent that fundamental principles are at stake, they are those explained by previous speakers in this debate and which Clause 151 will frustrate and breach.
I will make one other point. At Second Reading, the noble and learned Lord, Lord Brown of Eaton-under-Heywood, who I am very pleased to see in his place today, said he was concerned about a case in which the conviction was quashed because of an abuse of process by the prosecution. However, my understanding of the Adams judgment in the Supreme Court is that compensation is not, in any event, payable under the current law in such a case. The Supreme Court describes such cases as category 4 cases:
“Where something has gone seriously wrong in the investigation of the offence or the conduct of the trial, resulting in the conviction of someone who should not have been convicted”.
The Supreme Court said very clearly that such cases do not, under current law, confer a right to compensation.
At Second Reading, the noble Lord, Lord Taylor of Holbeach, said that Clause 151 is designed to introduce certainty into the law, but Section 133 already has a clear meaning, as the noble Lord, Lord Beecham, explained. The Government intend to change that meaning; I hope they will withdraw this clause before Report.
Lord Brown of Eaton-under-Heywood (Non-Afl): My Lords, I recognise that the great majority of noble Lords who took part in the Second Reading debate on this clause, and the great majority of those who have spoken or propose to speak in this debate, are against Clause 151. However, if I may say so, they are under a considerable misapprehension as to the essential nature of this provision.
The clause has everything to do with statutory compensation but, frankly, little to do with criminal justice. That may sound simplistic but it is true. Convictions may be quashed in a wide variety of circumstances. It may be that fresh evidence comes to light that shows that the accused could not possibly have committed the particular offence. That may be as a result of DNA evidence, or perhaps someone later admitted to the very offence of which he has been convicted. Or it may be that the fresh evidence gives rise to a “lurking doubt”, as it is called, as to whether the defendant really was guilty. Or perhaps the judge can be shown to have unfairly admitted evidence or possibly misdirected the jury so that the conviction can no longer be regarded as safe. In all these cases, the conviction must be quashed and the defendant set free, and the presumption of innocence applies at that point in all those cases. However, it would be a very great mistake to suppose that all those defendants, merely because their convictions have been set aside and they are now presumed to have been innocent, are thereby entitled to the payment of compensation.
On the contrary, under the international convention to which our legislation is giving effect, only a very restricted number of cases are entitled to compensation: only those who by virtue of new facts disclosed on a late appeal can be shown conclusively to have suffered a miscarriage of justice are entitled to compensation. The critical question is: what, for this purpose, is a miscarriage of justice? It is not—I repeat and emphasise, not—the case that any conviction subsequently shown to be unsafe and set aside is a miscarriage of justice.
In the case that we have all been considering, Adams, the Supreme Court divided by 5:4. I should make it plain, as I did at Second Reading, that I was in the minority of four. The appellants and Justice, which intervened in that case, argued for the position that is apparently being taken by those participating in this debate, whereby all those whose convictions are set aside as unsafe should qualify for compensation. That, I understand, is what the noble Baroness, Lady Kennedy, contends. That indeed clearly appears to be the point made by the noble Baroness, Lady O’Loan, at Second Reading. She said:
“If we legislate in the way suggested by the Government, we will create two types of ‘not guilty’ … those who are fortunate enough to be able to present evidence that proves conclusively that they are innocent; they will be entitled to compensation. Others, not so fortunate, will only be able to prove that they should not have been convicted”.—[Official Report, 29/10/13; col. 1515.]
However, even under the amendment, those whose convictions are set aside as unsafe and who may well be, in the words of the noble Lord, Lord Beecham, truly innocent will still, by common consent, not be able to claim compensation. The international covenant that we have given effect to in our law shows that only a limited category is entitled to compensation.
The noble and learned Lord, Lord Judge, then the Lord Chief Justice, in the minority of four in Adams, explained that Section 133, which gave effect to our international obligation distinguishes the reversal of a conviction and a miscarriage of justice. These concepts are distinct. In short, for the purposes of Section 133, the reversal of a conviction and the consequent revival of the legal presumption of innocence are not synonymous with a miscarriage of justice.
The noble and learned Lord, Lord Steyn, in the case of Mullen, concluded that compensation was payable only when,
“the person concerned was clearly innocent”.
That, if I may say, was entirely consistent with the explanatory report that related to an article in the protocol to the European convention, which was enacted in terms virtually identical to those of Article 14.6, which our Section 133 is designed to implement. The explanatory report said:
“The intention is that states would be obliged to compensate persons only in clear cases of miscarriage of justice, in the sense that there would be acknowledgement that the person concerned was clearly innocent”.
In Adams, the majority devised a sort of halfway house, which was later redefined by the Divisional Court in Ali to say that compensation is payable if a new fact shows,
“beyond reasonable doubt, that no reasonable jury (or magistrates) properly directed as to the law, could convict on the evidence now to be considered”.
That, noble Lords will readily see, is essentially the identical language to that which Amendment 15 now proposes to put into Clause 151. That, I respectfully suggest, is the worst of all possible worlds.
5 pm
First, it actually lacks principle. The notion of a prosecution case so undermined, as it was put in Adams,
“that no properly directed court could convict”,
is simply not a notion known to the court of criminal appeal. The court of criminal appeal deals only in the safety of convictions. A conviction may be unsafe because it is perfectly obvious that the man could no longer be regarded as guilty, or because doubt has been thrown on an important aspect of the evidence. It may be that the jury would still have convicted even in the light of new facts, or it may be that they would not. It may sound certain but there is considerable uncertainty over how this would apply. It will always be for the Secretary of State to decide, whatever the test, whether it is satisfied. The Secretary of State will have to decide, by reference to what is called in this clause,
“the evidence now to be considered”,
whether a reasonable jury, properly directed, could still have convicted, notwithstanding the doubt now thrown on some particular aspect of the evidence. It will require compensation to be paid in various cases where the defendant, although, of course, to be presumed innocent and set free, can nevertheless still be seen as quite likely to be guilty of the offence. I gave one instance of that at Second Reading, in col. 1539. The noble Lord, Lord Beecham, referred to it today, as did
my noble friend Lord Pannick. However, with respect, my noble friend misunderstood the concept of the abuse of process that we were discussing in Adams. That was the sort of abuse of process that had caused Mullen in the earlier case to be brought wrongly from, I believe, Zimbabwe and tried, when he should never have been tried at all. That was not the sort of abuse of process under consideration in the case that I discussed and for which I gave the facts, which I will not repeat, at Second Reading.
Let me give another instance of where a probably guilty person could fall to be compensated under the proposed language in the amendment. Let us assume that the main prosecution evidence is a confession of guilt and it can later be shown that it was procured by an inducement. It may be that the police officer said, “Come along, you’ve only got to tell us what happened and we’ll give you bail. You’ll go free”. So a confession is made, perhaps to rape, and it may be demonstrably true. It may contain the sort of facts that only the guilty person could know. It is completely irrelevant whether it is demonstrably true; if it is obtained through an inducement, it has to be disregarded. In those circumstances, on this test, that person would be compensated. It could be that, such a conviction having been set aside, the victim of the rape could bring a civil claim for damages for assault, and establish the case on a balance of probabilities, which is the test on a subsequent civil claim. That claim would succeed and the assailant would be shown to be probably guilty but nevertheless entitled to compensation.
I am conscious of the time, so I shall come fleetingly to Strasbourg. The Joint Committee and my noble friend Lord Pannick appear to understand Allen to be saying that the proposed test would be incompatible with the convention. I can entirely see those passages in the judgment that could take one to that conclusion, although those were not the facts of that case and it was not the conclusion arrived at by the court. To my mind, that simply cannot be right. It would be complete nonsense. The higher the state raises the bar for what is necessary to qualify for compensation, the less the chance that a decision to refuse compensation would be understood as an allegation of criminal liability—in other words, a denial of the presumption of innocence.
If, as everybody agrees, a claimant is to be refused compensation because his conviction can be shown to be merely unsafe, in the sense that a jury could properly have convicted him on the other evidence, notwithstanding the new facts which cast doubt on part of the evidence that really might be thought to suggest that he was probably guilty. If, however, he is refused because he cannot conclusively demonstrate his innocence that is a great deal further away from suggesting that he was probably guilty. In other words, Strasbourg swallows the former, the camel, and it would be quite illogical for it to strain at the latter, the gnat.
There was much else that I would have liked to say, as said at Second Reading, including how I am perfectly agnostic and relaxed as to whether the burden on the claimant for compensation should be that of establishing his case on a balance of probabilities rather than beyond reasonable doubt. Those, however, are not the
critical issues today. The critical issue is: how large should be the category of those who on any view will be truly innocent but refused compensation, and how large the category of those who are truly guilty but get compensation? That is the critical question that eventually this amendment, or its rejection, will decide.
Baroness Hamwee: My Lords, I was quite right to wait for others to table the amendment before adding my name, so that they could all go first with the arguments. I tried to canter through them at Second Reading in considerable haste and will try to be quick now. I accept that the new clause is to do with compensation, not the criminal law, otherwise every overturned conviction would lead to a right to compensation and Section 133 makes it clear that that is not the case. However, what has been troubling me is that if you do not have to prove innocence at the original trial and then the matter turns on a new or a newly discovered fact, surely you would not have had to prove that. If the fact had been available at the time of the trial, this would not have changed whether you would have to have proved your innocence, which you did not have to do. I do not see that bringing in a new fact should change that at all. I do not see why that is necessary now.
The noble and learned Lord, Lord Brown, has said that this is about who should be entitled to compensation. The Government say that it is about clarity. They do not argue in any effective way that the amounts involved are such as to require a change in the law in order to save the taxpayer. The impact assessment on this clause says:
“The intended effect is to lessen the burden on taxpayers and reduce unnecessary and expensive legal challenges to Government decisions to refuse compensation”.
Those are two quite separate points. The lessening of the burden on taxpayers is very small, but legal challenges to government decisions are another matter. That goes to clarity and it seems to me—I am not nearly as well qualified as everyone else who has spoken—that the chain of cases we have has produced the clarity. The impact assessment says that we need the provisions to be unambiguous and decisions on eligibility to be more transparent. I should have thought that the cases have taken us to that point.
Lord Faulks: My Lords, I fear that I do not share the view just expressed by my noble friend Lady Hamwee that the law is clear at the moment. The number of decisions, one following another, with disagreements between judges in the same tribunal indicates the difficulty of the question and, I conclude, the lack of clarity in the test that should be applied. One of the reasons for this provision is in order to provide clarity. That, I believe, it does. The second question is whether it is appropriate and whether it offends the presumption of innocence. I am part of the Joint Committee on Human Rights and originally I took the view that it did offend the presumption of innocence. I have changed my mind, having thought about it. Although I was not often able to persuade the noble and learned Lord, Lord Brown, of anything, he has contributed to persuading me, on the other
hand, of the merits of the arguments he advanced, both at Second Reading and today.
I have also had the opportunity of reading the cases of Allen v the United Kingdom and KF v the United Kingdom and I agree with the noble and learned Lord that they do not in any way require the retention of the law in its current state, or that they offend the presumption of innocence—provided, it seems, that some judge, in declining to award compensation, does not make any comment to the effect that there is any doubt about someone’s innocence.
I also respectfully disagree with the noble Baroness, Lady Kennedy, that the point of these applications for compensation is to hold the state to account. The point of the applications is to obtain compensation, and the difficult question is that of who is entitled to it. It is not an easy question, but in my submission the Government have come to the correct answer. Sadly, a few people who are genuinely innocent will not obtain compensation, which in my view, for the reasons given, is an unsatisfactory element. However, it does not involve people being deprived of their liberty; it is simply a question of compensation.
5.15 pm
Lord Hope of Craighead: My Lords, I would like to make four brief points. The first is whether there should be a test in the statute, taking account of what has been said by the judges so far. The second is a brief word about the standard of proof, to which my noble and learned friend Lord Brown of Eaton-under-Heywood referred. The third question is the wording of the amendment, and the fourth is the wording of the clause that the Government are proposing.
On the first point, I am very much in sympathy with the points made by the noble Lord, Lord Faulks. Particularly in view of what the Divisional Court said following what the majority said in Adams, there is a bit of confusion as to the way the judges are going. I must say that I would have hoped that Adams had settled the matter, admittedly by a small majority, but then we find the Divisional Court in Ali using a formula which I do not think fits with the majority view in Adams very well, if at all. Given that state of affairs, the Government are probably right to say that the time has come for the matter to be laid down in statute. This has a bearing on a point with which I am inclined to agree with the noble Lord as well. We are dealing here with compensation, not the criminal law as such, and therefore while one has a concern about the presumption of innocence, it is not going to affect the individual’s position as to whether or not he is to be convicted.
I support the Government in principle on those points and, coming to my second point, I also support them on the standard of proof. The wording of Article 14(3) uses the phrase “shows conclusively”, which points the way to the standard of proof that the new clause is adopting. I would be very uneasy about reducing it to a balance of probabilities test in view of the background of the article and the purpose of the provision, which is to provide for compensation in exceptional cases which really do justify that kind of award.
On the third point concerned with the wording of the amendment, I am bound to say that I am troubled by it. I hope that the noble Lord, Lord Beecham, will look at it again. What he has done, as I understand it, is adopt the formula that was used in Ali by the Divisional Court. If one looks more closely at the judgments in Adams, it will be found that the majority were not adopting a formula that, as my noble and learned friend Lord Brown rightly pointed out, is used more or less every day in the court of criminal appeal. It was not in the mind of the majority—I have to say that I am speaking as a member of that majority—that any conviction which is shown to be unsafe should justify an award of compensation; not at all. Lord Bingham, who started thinking about this before we came to it in Adams, was talking about some kind of failure in the trial process, something quite fundamental which has gone wrong. The example mentioned by my noble and learned friend Lord Brown was the person brought to trial here who should never have been brought to trial here at all. That is quite a strong example. One is looking for something different from and more exceptional than the Ali test indicated. I suggest that the noble Lord, Lord Beecham, and his advisers look more closely at what the noble and learned Lord, Lord Phillips, said in paragraph 55, supported by the noble and learned Baroness, Lady Hale, in paragraph 114, the noble and learned Lord, Lord Clarke, in paragraph 217 and myself in paragraph 74, indicating that what was really being looked for was something that is so fundamental that it undermines the evidence so that no conviction could possibly be based on it. The words “so undermined” and “could not possibly” were intended to indicate a much tougher test than the test that rightly is of concern to my noble and learned friend Lord Brown.