Clause 70 - Female genital mutilation protection orders

Serious Crime Bill [Lords] – in a Public Bill Committee at 10:15 am on 20 January 2015.

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Photo of Pauline Latham Pauline Latham Conservative, Mid Derbyshire 10:15, 20 January 2015

I beg to move amendment 42, in clause 70, page 62, line 27, after “against”, insert “a risk of”

Photo of Katy Clark Katy Clark Labour, North Ayrshire and Arran

With this it will be convenient to discuss the following:

Amendment 43, in clause 70, page 62, line 34, at end insert

“and (in the case of orders made under paragraph 1(1)(a) of this Schedule), to the level of risk of commission of any genital mutilation offence.”

New clause 26—Encouragement of Female Genital Mutilation Warning Notice and Orders (EWNs and EWOs)—

‘In the Female Genital Mutilation Act 2003, after section 2A (offence of Encouragement of Female Genital Mutilation) insert—

“2B Power to issue an Encouragement of Female Genital Mutilation warning notice

(1) A member of a police force not below the rank of superintendent (“the authorising officer”) may issue an Encouragement of Female Genital Mutilation Warning Notice (an “EWN”) under this section.

(2) An EWN may be issued to a person (“A”) who is aged 18 or over if the authorising officer has reasonable grounds for believing that A has been encouraging the genital mutilation of women and girls as defined in section 1.

(3) Before issuing an EWN, the authorising officer must, in particular, consider any representations made by A as to the issuing of the EWN.

(4) The authorising officer must take reasonable steps to obtain the representations mentioned in subsection (3).

(5) An EWN must prohibit A from encouraging the genital mutilation of women and girls.

2C Contents and service of an Encouragement of Female Genital Mutilation warning notice

‘(1) An EWN must state—

(a) the grounds on which is has been issued;

(b) that a constable may arrest A without warrant if the constable has reasonable grounds for believing that A is in breach of the EWN;

(c) that an application for an Encouragement of Female Genital Mutilation Warning Order (“an EWO”) under (application for an EWO) shall be heard within 48 hours of the time of service of the EWN and notice time and place of the hearing will be given to A, and shall state that the EWN continues in effect until that application has been determined.

(2) An EWN must be in writing and must be served on A personally by a constable.

(3) On serving A with an EWN, the constable must ask A for an address for the purposes of being given notice of the hearing of the application for the Encouragement of Female Genital Mutilation Warning Order.

2D Breach of an Encouragement of Female Genital Mutilation warning notice

‘(1) A person arrested by virtue of section (contents and service of an EWN) for a breach of a EWN shall be held in custody and brought before the magistrates’ court which will hear the application for the EWO under (application for an EWO)—

(a) before the end of the period of 24 hours beginning with the time of the arrest; or

(b) if earlier, at the hearing of that application.

(2) If the person is brought before the court by virtue of subsection (1)(a), the court may remand the person.

(3) If the court adjourns the hearing of the application by virtue of subsection 6(8), the court may remand the person.

(4) In calculating when the period of 24 hours mentioned in subsection (1)(a) ends, Christmas Day, Good Friday, any Sunday and any day which is a bank holiday in England and Wales under the Banking and Financial Dealings Act 1971 are to be disregarded.

2E Application for an Encouragement of Female Genital Mutilation Warning Order

‘(1) If an EWN has been issued, a constable must apply for an Encouragement of Female Genital Mutilation warning order (an “EWO”).

(2) The application must be made by complaint to a magistrates’ court.

(3) The application must be heard by the magistrates’ court no later than 48 hours after the EWN was served pursuant to (contents and service of an EWN).

(4) In calculating when the period of 48 hours mentioned in subsection (3) ends, Christmas Day, Good Friday, any Sunday and any day which is a bank holiday in England and Wales under the Banking and Financial Dealings Act 1971 are to be disregarded.

(5) Notice of the time and place of the hearing of the application must be given to A.

(6) The notice is deemed given if it has been left at the address given by A under section 4(3).

(7) If the notice has not been given because no address was given by A under section 4(3), the court may hear the application for the EWO if the court is satisfied that the constable applying for the EWO has made reasonable efforts to give A the notice.

(8) The magistrates’ court may adjourn the hearing of the application.

(9) If the court adjourns the hearing, the EWN continues in effect until the application has been determined.

(10) On the hearing of an application for an EWO, section 97 of the Magistrates’ Court Act 1980 (summons to witness and warrant for his arrest) does not apply in relation to a person for whose protection the EWO would be made, except where the person has given oral or written evidence at the hearing.

2F Conditions for and contents of an Encouragement of Female Genital Mutilation Warning Order

‘(1) The court may make an EWO if two conditions are met.

(2) The first condition is that the court is satisfied on the balance of probabilities that the conditions set out in section 3(2) are met.

(3) The second condition is that the court is satisfied that making the EWO is necessary to protect women and girls from harm as a result of the encouragement of FGM by A.

(4) An EWO must state that a constable may arrest A without warrant if the constable has reasonable grounds for believing that A is in breach of the EWO.

(5) An EWO may be in force for—

(a) no fewer than 14 days beginning with the day on which it is made; and

(b) up to a maximum of seven years from that date.

(6) An EWO must state the period for which it is to be in force.

2G Breach of an Encouragement of Female Genital Mutilation warning order

‘(1) A person arrested by virtue of (conditions for an contents of an EWO) for a breach of an EWO must be held in custody and brought before a magistrates’ court within the period of 24 hours beginning with the time of the arrest.

(2) If the matter is not disposed of when the person is brought before the court, the court may remand the person.

(3) In calculating when the period of 24 hours mentioned in subsection (1) ends, Christmas Day, Good Friday, any Sunday and any day which is a bank holiday in England and Wales under the Banking and Financial Dealings Act 1971 are to be disregarded.

2H Further provision about remand

‘(1) This section applies for the purposes of the remand of a person by a magistrates’ court under section (Breach of an EWN) or (Breach of an EWO)

(2) In the application of section 128(6) of the Magistrates’ Court Act 1980 for those purposes, the reference to the “other party” is to be read—

(a) in the case of a remand prior to the hearing of an application for an EWO, as a reference to the authorising officer; and

(b) in any other case, as a reference to the constable who applied for the EWO

(3) If the court has reason to suspect that a medical report will be required, the power to remand a person may be exercised for the purpose of enabling a medical examination to take place and a report to be made.

(4) If the person is remanded in custody for that purpose, the adjournment may not be for more than three weeks at a time.

(5) If the person is remanded on bail for that purpose, the adjournment may not be for more than four weeks at a time.

(6) If the court has reason to suspect that the person is suffering from a mental disorder within the meaning of the Mental Health Act 1983, the court has the same power to make an order under section 35 of that Act (remand to hospital for medical report) as it has under that section in the case of an accused person (within the meaning of that section).

(7) The court may, when remanding the person on bail, require the person to comply before release on bail or later, with such requirements as appear to the court to be necessary to secure that the person does not interfere with witnesses or otherwise obstruct the course of justice.

2I Guidance

‘(1) The Secretary of State may issue guidance relating to the exercise by a constable of functions under section (Power to issue an EWN).

(2) A constable must have regard to any guidance issued under subsection (1) when exercising a function to which the guidance relates.

(3) Before issuing guidance under this section, the Secretary of State must consult—

(a) the Association of Chief Police Officers,

(b) the National Crime Agency, and

(c) such other persons as the Secretary of State thinks fit.”’

New clause 28—Offence of encouragement of female genital mutilation—

‘(1) The Female Genital Mutilation Act 2003 is amended as follows:

(2) After section 2 (offence of assisting a girl to mutilate her own genitalia) insert—

“(2A) Offence of encouragement of female genital mutilation—

(a) a person is guilty of an offence of encouragement of female genital mutilation if he makes a statement that is likely to be understood by some or all of the members of the public to whom it is published as a direct or indirect encouragement or other inducement to them to mutilate the genitalia of a girl;

(b) a person commits an offence if—

(i) he publishes a statement to which this section applies or causes another to publish such a statement; and

(ii) at the time he publishes it or causes it to be published, he—

(a) intends members of the public to be directly or indirectly encouraged or otherwise induced by the statement to mutilate the genitalia of a girl; or

(b) is reckless as to whether members of the public will be directly or indirectly encouraged or otherwise induced by the statement to mutilate the genitalia of a girl.”’

Photo of Pauline Latham Pauline Latham Conservative, Mid Derbyshire

It is a pleasure to serve under your chairmanship, Ms Clark. This is the first time that I have spoken in a Bill Committee so I may get one or two things wrong; I am sure that you will guide me if I do.

Amendments 42 and 43 are small amendments, which I hope the Minister will accept. We are all concerned about the current level of protection afforded to girls and women who have undergone or who are at risk of FGM in the UK. Just a decade ago, the number of girls and women having undergone FGM in England and Wales was approximately 66,000. Shockingly, that figure is estimated to have risen to 137,000. That is an alarming and unacceptable increase, and more must be done as a matter of urgency to prevent the number growing further.

Paragraph 1(1) of proposed schedule 2 under clause 70 provides that a court may grant an FGM protection order

“for the purposes of—

(a) protecting a girl against the commission of a genital mutilation offence”.

However—this is of paramount importance—the wording of paragraph 1(1) does not state explicitly, despite being implicitly intended, that the order may in fact be applied for and/or granted in the event of a risk that a genital mutilation offence may be committed.

Amending clause 70(2) would provide greater clarity from a judicial point of view. Given that the courts have factored the issue of the risk of the commission of an offence into the granting of similar orders such as forced marriage protection orders, it would be sensible to make the reference to risk express in the Bill rather than implied. That would remove ambiguity and provide clarification on the scope of the protection that the clause is designed to offer against the risk of FGM. If we leave subsection (2) in its present state, we risk creating a gap in protection, leaving many more girls at risk.

FGM is practised in secret, making it extremely difficult for law enforcement agencies, care professionals and other bodies to ascertain whether a girl or young woman is at risk of undergoing the abusive procedure. As the Minister said, the practice is nothing short of child abuse and it has to be recognised. The difficulty in ascertaining risk, coupled with a fear of offending culture and tradition, and confusion about which protective measures are deemed appropriate have resulted, more often than not, in a failure to put in place the appropriate safeguarding mechanisms.

It is therefore particularly important that there is no ambiguity as to when an FGM protection order may be used to protect a girl or young woman from undergoing FGM. Failure to ensure that may cause professionals to become over-cautious in deciding whether to apply for one, which would almost certainly mean that yet more young girls slip through the net and become victims of a genital mutilation offence—a situation that we would all agree would be unacceptable.

As part of its research, Justice for FGM Victims UK interviewed a number of professionals from the health and child protection sectors, who said that they would welcome the specific guidance provided by amendment 42. They believe that the explicit mention of the requirements to successfully apply for a protection order would support front-line staff and empower them to take action where they thought there was a real risk of FGM being commissioned against a girl or young woman. In fact, I have been working closely with my hon. Friend the Member for Stone (Sir William Cash), who has sought legal advice from Matrix Chambers. That advice has been given and what I am saying this morning is cleared as being exactly what has to happen to make the reference explicit.

Due to the secretive nature of the practice of FGM, protecting girls and young women is difficult. The uncertainty and ambiguity I have outlined make that task unnecessarily harder.

In bringing forward the amendment, I am not widening the net for convictions. Amendment 43 would change paragraph 1(2) of proposed schedule 2 to the Female Genital Mutilation Act 2003 to ensure that courts continue to factor into their decisions the level of risk of the commission of a genital mutilation offence faced by a girl before they grant an order. It simply provides much  needed clarity which will ensure that no girl is put at risk of this terrible practice because of the uncertain wording of that paragraph.

Photo of Seema Malhotra Seema Malhotra Opposition Whip (Commons) 10:30, 20 January 2015

It is a pleasure to speak to clause 70 and to new clauses 26 and 28. I am grateful to the hon. Member for Mid Derbyshire for her comments and for raising issues about the need to clarify how the proposed female genital mutilation protection orders may apply.

We welcome the Government’s support for female genital mutilation protection orders, which we called for in the other place. We are grateful to the Government for bringing forward their clauses. The introduction of these protection orders is welcomed by many survivors and stakeholders, including the Muslim Women’s Network, the Association of Chief Police Officers and others who have already been mentioned today, including Rosa, Forward, Daughters of Eve and the British Arab Federation, as well as the activist Alimatu Dimonekene, who has done some incredible work to ensure that we have legal protection for those at risk. Our concern, however, is that the Bill does not go far enough to ensure that we have a prevention strategy in place, are able to respond where a girl is cut and have measures where we can bring others to account under the law.

Protection orders have the advantage over criminal remedies in not requiring the removal of children from their parents—which, of course, could remain the option of last resort—and of protecting girls and young women identified as being at risk of being cut before FGM has taken place. That is in line with what I am sure is a cross-party belief that a strong prevention strategy is absolutely fundamental. It is also entirely sensible for the Government to introduce a proposal modelled on forced marriage protection orders, an existing provision which we know works,. More than 600 orders have been made since the Forced Marriage (Civil Protection) Act 2007 came into force in 2008. The provision of legal aid for such orders is one reason that we are able to protect many from the scourge of forced marriage and I am pleased that the Government have agreed to provide legal aid for FGM protection orders, which we will debate further later in Committee.

There is no disagreement about implementing female genital mutilation protection orders, but I want to raise a few issues for the record and for clarification by the Government. The first is about practicality. The Government are placing female genital mutilation protection orders within criminal law through the Female Genital Mutilation Act 2003. In the other place, we called for the orders to be introduced by amending the Family Law Act 1996. Baroness Smith of Basildon introduced an amendment to that effect in the other place on 5 November. There are a number of reasons for that and I have received some guidance from barristers. Part of the reason is that there is a confusing situation with different definitions of FGM used in different parts of the law.

FGM is covered in criminal law by the definition in the 2003 Act. However, family law applies the World Health Organisation’s definition of FGM, not the definition in the 2003 Act. The World Health Organisation definition, which led to a slightly extended debate in the other  place, has to be explored further to see whether we need to close the gap between the definition in statute and the definition internationally. The WHO defines FGM broadly, as

“injury to the female genital organs for non-medical reasons.”

However, FGM comes under criminal law only when it involves mutilation. The key issue is that it is not clear whether type IV FGM as defined by the World Health Organisation, which includes “pricking, piercing, incising, scraping” the genital organs, constitutes mutilation for the purposes of criminal law.

Let us consider the following situation. A six-year-old child is about to have her genitals pierced as a form of cultural marking. Are we saying that that child cannot be protected by an FGM protection order from the UK courts? Is that a scenario where the perpetrator may not be prosecuted under criminal legislation on FGM? We know that every form of FGM is internationally recognised as a form of child abuse and a violation of women’s and girl’s rights. That was highlighted in a family law judgment involving type IV FGM handed down on 14 January this year in the case of B and G. In his judgment, Sir Justice Munby stated that any form of FGM constitutes significant harm, including type IV.

Therein lies a confusing legal situation. Family law applies the World Health Organisation’s definition of FGM, but criminal law appears to refer only to mutilation, which could be seen as excluding type IV FGM. That could have consequences in practice, resulting in a confusing situation for FGM protection orders, as it is not clear whether the criminal or family law definition of FGM will apply. FGM protection orders will be situated in criminal law but it will be mainly family courts that make the orders. I look forward to the Minister’s response on that point. She may also wish to write to me if she needs to take further advice.

The second issue that has not been addressed sufficiently by the Government is how the number of FGM protection orders will be recorded and who will monitor them. I recently held a round table meeting with organisations that work with survivors or victims of forced marriages. Representatives from those organisations were concerned that the number of forced marriage protection orders that, as they understood it from their community contacts, were being issued on the ground seemed to be higher than the figures in the statistics issued by the Ministry of Justice. Whether that is because courts are not sharing all their data with the Ministry of Justice and reporting as they need to, or whether the figures are not being fully collated, I want to raise the issue with the Minister. Will she clarify how the statistics on FGM protection orders will be collated and reported?

My third point relates to the FGM unit announced by the Government. The Home Secretary announced at the girl summit in July that the Government would open a Government-run FGM unit that for all intents and purposes may be similar to the forced marriage unit opened in 2005 in the Home Office and the Foreign and Commonwealth Office. That unit is absolutely to be welcomed, but I do not believe—I hope the Minister will correct me if I am wrong—that there have been any further announcements about when it will be opened, the services it will provide or where it will be situated.

In my discussions with NGOs and charities, a number of issues have been raised. Will the unit have an operational element, such as a telephone line, or will services continue  under the NSPCC’s line? The forced marriage unit has a telephone point of contact that receives more than 1,000 calls every year. There may be issues at the time of start-up about awareness of greater questions and whether those are monitored, so it will be useful to know what thinking has taken place about that.

Will the unit’s role be to provide professional training on FGM? The agencies involved in child safeguarding, which include schools, the police, local authorities, charities, third parties and families’ and girls’ services, will have a host of questions on the risks of FGM and its consequences, should a girl have been cut. It is important to raise awareness, so the question is: who will be responsible for training and who will monitor it for effectiveness?

We want to be sure that the unit will be able to work with embassies in other countries that may have a higher prevalence of FGM to ensure that parents, families and others who need support know that they can turn to the British embassy for advice. In cases where forced marriage is raised by citizens aboard, the forced marriage unit can work with British embassies to locate those UK nationals and residents at risk and help repatriate them to the UK. How will the FGM unit work with the Foreign and Commonwealth Office? That is important, because this crime has an international element. To make the measures effective we need to understand how our structures and processes work across borders.

The FGM unit will take resources and in times of austerity we are all looking to efficiency. However, an important consideration is how the forced marriage and FGM units may work closely together and gain from the synergy of sharing knowledge and understanding of communities as well as networks and resources.

I have a final point, which the Minister has raised, on the Department for Education’s communication on female genital mutilation and awareness of the law relating to that. In the proposed legislation, an application could be made by a girl who is to be protected by the order. We know that the girls at risk can be very young—they can even be at infants school. As the Minister will be aware, Labour has called for effective and age-appropriate sex and relationship education to be brought in from key stage 1, which could build confidence and self-esteem as well as an understanding of relationships and the importance of respecting values. Those are important formative development points for young people, because we know the risks and threats to development that they face. A culture that normalises violence in relationships is becoming more of a reality for many young people.

To ensure that an age-appropriate awareness of female genital mutilation is there for families, parents and young girls is incredibly important. I would be grateful if the Minister would extend her comments to this matter, or write to me about how, while girls may have this option available to them under the law, the Department for Education will make sure that girls are actually reached. It must be a matter not of us having policies on a website, but of ensuring that girls who need to know that this provision is available to them are being reached.

I raise this point because I met a young girl who was at risk of female genital mutilation. She realised this in school, when a charity came in to do some work. She was able to turn to those who could help her and make  sure that she was not cut. She has now become a very important and effective voice for young people of her age, making sure that these issues are raised. I pay tribute to the work of many of those who have been raising these issues with schoolchildren, such as Leyla Hussein and others in Bristol. With this new legislation, we need to look again at our strategies.

New clauses 26 would provide for a stronger encouragement offence than exists in legislation at the moment. We tabled the new clauses to give a stronger weight to measures in UK law to help to end the practice of female genital mutilation, and to do so within a generation. As Leyla Hussein—the inspiring FGM campaigner and herself a survivor—put it,

“I’m the granddaughter of a survivor of child marriage, I’m the daughter of a woman who was freed from child marriage and I’m the mother to a daughter who is free from all forms of violence.”

In order to see an end to female genital mutilation within a generation we need to take really strong action, and we need to take action now. We need to take it in order to stem the tide for girls who are at risk, not just react when a girl is identified as being at risk.

While we welcome the measures in the Bill and give them our full support, and while they address important ways to respond when a girl is at risk or has been cut, in our opinion they do not go far enough to prevent the crime of FGM in the first place. What is actually needed for the prevention of FGM is a much stronger upstream measure that addresses the pressure to commit FGM, which is much more upstream than the actual cutting. We need to get to the source of some of the pressures that are applied in communities. Under its international law obligations, the UK must actively combat FGM, not merely react to the ongoing practice. The offence of encouraging FGM would be not just a message but a very strong preventative measure. I hope that as we explore this further this measure will get support from the Government, and indeed we may also want to press the new clause to a Division.

The UK’s international law obligations are clear in their requirement for the UK to take active steps to end the practice of FGM. Treaties include the convention on the elimination of all forms of discrimination against women, the convention on the rights of the child, the European convention on human rights and the convention on preventing and combating violence against women and domestic violence, which was signed in 2011. It is also the opinion of leading lawyers that the Serious Crime Bill as currently drafted falls short of meeting our international obligations. I am particularly grateful to the Bar human rights committee for their work with me on this new clause, particularly to Dexter Dias QC, Kirsty Brimelow QC, Charlotte Proudman and Zimran Samuel. A first draft of this encouragement offence was introduced in an amendment by Baroness Meacher of Spitalfields in the House of Lords in July 2014, but the new clause I am speaking to today is a tighter offence. For the first time, it would give parents and girls the opportunity in law to challenge the public encouragement of FGM.

The offence of encouraging FGM is incredibly important when considering the cultural context within which it takes place in practising communities. Many activists tell us that pressures from others in the community on parents can become too difficult to resist, even when  they have no wish to cut their daughters. Affected communities often retain a strong hierarchical structure, and encouragement or admonishment from elders can carry enormous weight. Not only are parents told that their daughters will never get married, but whole families can be ostracised and isolated as unclean.

We need to support those who are seeking to change the culture in affected communities and send the message that the practice is breaking the law. We know from research by the Bar human rights committee and others that there is still significant support among affected communities in Britain for sunna: that is, type 1 and type 2 FGM. The process by which FGM occurs is complex, and sometimes encouragement takes place in small gatherings and in informal settings behind the scenes, where it is difficult to intervene. Many campaigners and activists unanimously support a distinct offence of making the public encouragement of female genital mutilation unlawful.

The Hawa Trust, an organisation that works with local communities in Hackney to tackle FGM, told the Home Affairs Committee last year,

“The young uncircumcised girl is still considered today as a second-class citizen, impure…Such a young girl can neither marry nor even be allowed to prepare the family meal until she agrees to be circumcised.”

In research that I have already quoted, Sara, a teenager from a practising community told researchers, when they asked what makes parents do it:

“People. People telling them to. You call it encouragement, I call it people telling them you must follow our tradition, or else.”

Lucee, an FGM survivor, explains:

“The community leaders play an important role in the life of ordinary people from birth, throughout childhood and adulthood to death. No one wants to grow up outside that circle—you join or become ostracised. It is not just religious leaders who influence people to do FGM, but community leaders.”

If we are to end FGM, we need a proper prevention strategy. Campaigners are telling us that measures to tackle public encouragement of FGM are missing. We need this new measure to change the culture and help break the cycle. The measures on the statute book are not working to stem the tide. Even with the prosecution currently underway, there have only been two prosecutions since the introduction of the Female Genital Mutilation Act 2003.

The measures in the new clause have been carefully considered and are based on what we have learned from encouragement of terrorism legislation. We know that girls and families do not want their loved ones to come under the criminal justice system. I will talk about new clause 28 shortly and why we proposed civil measures in the first instance. It is important to recognise that a free-speech argument has been used against this measure, but this is not a free-speech issue. We propose safeguards and effective measures in respect of the new offence and provisions relating to it. For example, a statement would have to be published with the intent of encouraging members of the public, directly or indirectly, to mutilate the genitalia of a girl, or be

“reckless as to whether members of the public will be directly or indirectly” encouraged. Our proposal would not criminalise every public statement or speech encouraging FGM in the first instance, but would allow the police to introduce encouragement warning notices and to follow up with encouragement warning orders. It is not a matter of free  speech to encourage others to commit an offence. We need to make it clear that we are not curtailing opinion or belief, but the active encouragement of an offence.

New clause 26 would introduce encouragement warning notices and orders, creating a statutory scheme to provide tools to help to deter and disrupt the encouragement of FGM. They must be considered in combination with the proposed new offence of the encouragement of female genital mutilation. This approach is informed by the policy objective of creating a greater emphasis on the prevention of FGM. These legal powers would form part of a comprehensive scheme designed to strengthen the protective mechanism that the UK has and would enable the UK to better meet its obligations under international law.

The proposed process for encouragement warning notices and orders is similar to that already in place for domestic violence prevention notices and domestic violence prevention orders. The wording of the amendments draws heavily on sections 24 to 31 of the Crime and Security Act 2010, with the necessary adjustments. The scheme will provide for essential legal and judicial checks and balances in its two-tier structure. The initial notice that we are proposing can be served only by a constable, having been authorised by a senior officer of a rank not lower than superintendent. Following this and within a specified period, the police must get the notice ratified by a court.

The benefits of the proposed changes would include the creation of legal powers specifically aimed at one of the principal mechanisms of the perpetuation of FGM, disrupting and deterring harmful social norms—an objective advocated by the United Nations—and creating a statutory scheme of closely allied warning notices and orders that empower the police to intervene at the stage of encouragement of genital mutilation before the more serious offence of FGM is committed. In combination with the other amendments and new clauses being proposed, we would strengthen the Bill considerably and also provide a greater reassurance to at-risk young women and girls and concerned members of their families.

In short, the encouragement warning notices and orders, allied with the new encouragement offence, would give parents and campaigners greater confidence under the law to report where people are having pressure put on them by others in affected communities. Before a girl is identified as being at immediate risk, measures can be taken to stem the tide and help change a culture, which we know needs to happen in order for us to eradicate FGM within a generation.

Photo of Norman Baker Norman Baker Liberal Democrat, Lewes 10:45, 20 January 2015

I have listened to the contribution from the hon. Member for Feltham and Heston without any knowledge of what my hon. Friend the Minister is going to say. The Government has done much to deal with the discouragement of FGM and it continues to do so, which is absolutely right, and it has done so in a reasonably creative way. I believe it is having a beneficial impact in changing mindsets and perhaps, to use an overused metaphor, turning the oil tanker around, because we are dealing with hundreds of years of opinions about cultural norms in parts of the world.

I am genuinely concerned that the proposal may be counter-productive. I am keen, as is everyone else in the House, to see the end of FGM, which is child abuse. It  is an appalling act of violence against girls and women, and cannot be defended. However, we have to win hearts and minds. My right hon. Friend the Member for Hornsey and Wood Green (Lynne Featherstone), the then International Development Minister and now my replacement at the Home Office, concluded from her discussions with countries in Africa and their diaspora that these mindset changes had to be “African-led” in many cases. If it is seen as being imposed by western culture, that may drive matters underground and reinforce the determination of some people to carry out FGM, which is not the outcome that she and I want to see.

Photo of Seema Malhotra Seema Malhotra Opposition Whip (Commons) 11:00, 20 January 2015

The right hon. Gentleman makes an important point about the distinction between imposing a cultural view and supporting those in affected communities so that they are empowered to shift a dominant culture where these traditions have been in place for generations. My point is that the public encouragement of FGM is an issue that has been raised from within affected communities. I am sure that he, as a former Minister, has had discussions with affected communities. Indeed, he and I have sat on the same panel at events. He will understand, from those who were at the same event as us and who have talked to me about the importance of this, that this is a global issue. What happens in one country affects and empowers campaigners abroad.

I saw that at the launch of the “End FGM” initiative, where a woman stood up and said that this had given people in her country, where she was a Minister, greater power to stand up and say that these measures need to be looked at more effectively. I understand the right hon. Gentleman’s point, but we have to make the important statement that there is no cultural excuse for violence against women and girls. We need to do what we can in this country to empower those vital campaigners for change. This is not a cultural issue; it is a violence against women and girls issue.

Photo of Norman Baker Norman Baker Liberal Democrat, Lewes

I certainly agree that it is a violence against women issue and that there are no cultural excuses, if the hon. Lady wants to use that particular phrase. I also agree that we must do everything we can to encourage the eradication of FGM in our country. The point I was making was whether her proposal will actually achieve that end or not. We have the same objective; it is simply a question of whether or not that proposal will be effective. Her new clause talks about police officers effectively intervening, authorised by a superintendent, to issue such a warning notice. I seriously question what the consequence will be of such a warning notice being issued to someone and what that will do in that community. That is the point I am making.

I am very happy to look at anything we can do to eradicate FGM. However, the combination of the measures in the Bill and the slightly softly, softly approach of discouraging FGM by involving community leaders and so on has been and will be effective. The hon. Lady wants to get from A to Z as fast as possible; so do I. However, I am not sure that her particular method will get to Z quicker than the Government’s proposals in the Bill. I am very conscious that we need to take communities with us, and it would be deeply unhelpful if there were some counter-reaction to what she proposes.

Photo of Seema Malhotra Seema Malhotra Opposition Whip (Commons)

The right hon. Gentleman, again, makes an important point. The police starting to intervene, as they already are in cases of FGM, is not a situation that should be taken lightly. However, there is a sensitivity—not a cultural sensitivity, but a sensitivity within communities that are working through change themselves when the state comes in and intervenes.

I make the point again that it would be interesting to know what alternative proposals the right hon. Gentleman has for a situation where someone is inciting others to commit FGM and where parents feel under pressure. Those parents and girls might go to the police and say, “Please help to protect us so that this doesn’t happen. I might protect my daughter but my neighbour may come under great pressure and I don’t know what will happen to her daughter.” There is a point about what we can do under UK law to protect the majority who are concerned about FGM from someone who stands up and says, “FGM is part of our culture and part of our tradition.” It would be helpful if I could read out a short paragraph by Asma, who is a survivor of FGM.

Photo of Katy Clark Katy Clark Labour, North Ayrshire and Arran

Order. The hon. Lady is making an intervention—I will bring her in at a later stage, if she wishes—and she should keep it fairly short.

Photo of Seema Malhotra Seema Malhotra Opposition Whip (Commons)

I apologise; I have got carried away. This is the voice of Asma, a survivor, who said:

“Our elders tell”— our parents—

“to cut their daughters. It happens in small groups when we come together and when we worship here in Britain. They say you must cut. And people agree. You cannot marry amongst us if you don’t cut. You are not clean if you don’t cut. And people agree. The pressure is like water from a tap. Can you turn the tap off? I don’t know. But I hope you try. It will help girls in danger. Even knowing you are trying to turn off the tap helps girls in danger. Thank you.”

Photo of Norman Baker Norman Baker Liberal Democrat, Lewes

That was a long intervention. It was longer than my speech, in fact, but I will do my best to respond to it. Of course we must try, and we are trying. A series of measures in the Bill allow state intervention to prosecute those who are guilty of offences. The fact that prosecution is possible—the statute book will be altered—will discourage the acts from being committed in the first place. That, I imagine, is the purpose of the measures.

Would the hon. Lady’s new clauses stop someone standing up and advocating that girls be cut in the sort of environment that she describes? I am not sure they would. They might simply drive it underground, so that we do not know about it, which would be more harmful. If it happens underground, it requires someone to make an official complaint to the police and give a statement that it has occurred, which implies even greater resistance to the cultural norm, if I can call it that, than adhering to the strictures that have been put forward in the Bill. I am making a practical point on what the new clauses might do, rather than objecting to the direction of travel she wishes to take. If I thought they would be effective, I would be more sympathetic.

The hon. Lady mentioned free speech. In my view, if someone is encouraging a particular act of violence against a specific girl or women by suggesting that that girl or women should undergo FGM, that is an incitement  to violence, and I hope that that would be captured by existing legislation. However, in the case of someone making a general point on FGM, I am worried that the new clauses would criminalise free speech. I would much rather have people making speeches that we can counteract and challenge than the matter being criminalised. It is a difficult balance. Particularly in light of recent events, we have to be careful not to drive matters underground and prevent people from saying what they think, even if we totally disagree with it.

Photo of Andy McDonald Andy McDonald Labour, Middlesbrough

The right hon. Gentleman talks about his concerns on free speech, but would we tolerate free speech that incites grievous bodily harm, which is what this activity is, or free speech that encourages torture, which is what this activity is? Why should we separate it and treat it any differently from the violent and barbaric act that it truly is?

Photo of Norman Baker Norman Baker Liberal Democrat, Lewes

The answer is that there is a difference between the general and the particular. We allow discussions to occur. There are discussions, for example, about whether we should manufacture and export leg irons to different countries. We have discussions about whether torture should occur and what our role should be in that. We have discussions about whether hanging should be brought back. Many points of view are expressed by members of the public generally that I fundamentally disagree with and regard as barbaric, but I am loth to stop them doing that. That is the point I am making. Both for the reason of being careful not to unduly inhibit free speech, but more importantly because I think it might be counter-productive, I have doubts about the new clauses, although I entirely agree with the direction of travel that the hon. Member for Feltham and Heston wishes to take.

Photo of Sarah Champion Sarah Champion Labour, Rotherham

On a point of order against myself, I apologise to the Chair. I was so caught up in the debate that I did not say that it was a pleasure to serve under your chairmanship, Ms Clark.

Photo of Katy Clark Katy Clark Labour, North Ayrshire and Arran

I do not think that is obligatory. If no other Members wish to come in, I call the Minister.

Photo of Karen Bradley Karen Bradley The Parliamentary Under-Secretary of State for the Home Department

It is always a pleasure to serve when you are in the Chair, Ms Clark.

We can see from the debate that we all share the objective of seeking to eradicate the terrible practice of FGM. As I indicated, the Government have acknowledged that the law needs to be strengthened, and the measures we have discussed are intended to achieve that aim.

I thank all Members who have contributed. My right hon. Friend the Member for Lewes talked about turning round the oil tanker, and he has extensive experience of these issues, having been the Minister responsible for dealing with them for some time in the Home Office

Photo of Karen Bradley Karen Bradley The Parliamentary Under-Secretary of State for the Home Department

No, the Home Office, and a valued colleague he was there, too. However, he makes an important point: it is worth saying that no FGM cases  were referred to the Crown Prosecution Service before 2010. We talk about a lack of prosecutions, but if no cases are referred, it is impossible to get a prosecution. We have had a law in some form since 1985, but not a single case was referred to the CPS in 25 years.

An enormous amount therefore needs to be done, and my right hon. Friend is right about mindset changes. However, these things cannot be imposed—people have to be led. My right hon. Friend the Secretary of State for International Development and the new Home Office Minister for Crime Prevention, who was previously a Minister in the Department for International Development, have both said that the only way things will change is if the communities affected lead from the front.

I have heard of some fantastic initiatives, particularly involving young people and girls in these communities. Last week, I heard about an initiative in Hammersmith called “Made Perfectly”. This is about girls saying, “We are perfect. We were born perfect. We do not need to be changed.” They are taking the lead and taking the initiative in educating fellow students. They go to Hammersmith shopping centre on Saturdays, and they stand there explaining to people, “This is what’s going on, and we need to change it.” That generation can make an amazing and incredible difference. Our job is to give them the power and the tools they need to go out there and make that difference. This really has to be led by them, with us giving them all the powers they need and making sure law enforcement and prosecution services have the weapons in their arsenal to make a difference.

Clause 70 provides for female genital mutilation protection orders. An order could be made to protect a girl against whom a genital mutilation offence has been committed or to protect a girl against the commission of such an offence.

Let me turn now to the amendments. My hon. Friend the Member for Mid Derbyshire has been a member of the International Development Committee throughout this Parliament, and she has taken a real interest in this issue. She has travelled extensively, and she knows a considerable amount about practices in the diaspora community and overseas. I pay tribute to my hon. Friend the Member for Stone for assisting her with the amendment. He made a contribution on Second Reading, and although it was only short because we were unfortunately short of time, he made some important and pertinent points.

I will set out my reservations about the amendments tabled by my hon. Friend the Member for Mid Derbyshire, but I would like to discuss them outside the Committee with her and my hon. Friend the Member for Stone because I want to make sure that we give law enforcement officers and others the weapons they need and that we get this right. I hope that she will take my comments in that spirit, because I would like to continue discussions with her.

Amendment 42 would amend the sub-paragraph that refers to the second of the orders’ two purposes so that it referred to “protecting a girl against a risk of the commission of a genital mutilation offence”. Amendment 43 would add to the statement of what the court must have regard to in deciding whether to make an order for this purpose a reference to

“the level of risk of commission of any genital mutilation offence.”

My hon. Friend the Member for Stone set out the case for the amendments on Second Reading, after which I wrote to him, and my hon. Friend the Member for Mid Derbyshire has eloquently set out the case for them this morning. Having now carefully studied the amendments, I am still unpersuaded; but I would like to discuss them.

All our legal advice, including from parliamentary counsel, is that the current provision would already allow the court to make an FGM protection order if it is judged that the girl to be protected was at risk of the commission of an FGM offence. That is not just the Government’s view. In their written evidence to the Committee, the Royal College of Nursing says that it supports this measure, which most importantly offers protection to at risk girls and young women.

My hon. Friend the Member for Mid Derbyshire referred to the advice from chambers. We are not persuaded that there is a gap in protection for those girls in respect of whom the risk of subjection to FGM is less than 50%, as suggested in that advice. The issue for the courts is whether there is a risk of FGM. The court will take into account all the circumstances and make an appropriate order to protect. My hon. Friend argues that these amendments would nevertheless make clearer to front-line practitioners that they can apply for these orders when they fear that a girl is at risk of FGM. Of course, professionals need to be clear about that, but the best way to get that message across is in guidance, which we will provide, and not by adding to the legislation.

I fear that these amendments could do more harm than good. The courts may puzzle unnecessarily over why we have included these additional words, especially as they are not found in the provision for forced marriage protection orders on which this clause is modelled. The courts may even conclude that we only intended these orders to be made when there is a particularly high risk of FGM being carried out, which is not what any of us want. I hope that my hon. Friend will consider those comments, and I would appreciate it if we met her very shortly, because I would like to discuss this further.

New clauses 26 and 28, to which the hon. Member for Feltham and Heston has spoken, seek to tackle the encouragement of FGM. New clause 28, which, as she said, is similar to an amendment tabled in the House of Lords by Baroness Meacher, would do that by making encouragement of FGM a specific criminal offence. New clause 26 takes a different approach, by providing for civil

“Encouragement of Female Genital Mutilation Warning Notice and Orders”.

Of course, FGM is a criminal offence, so encouraging its commission is already also a criminal offence. The Serious Crime Act 2007 includes the so-called inchoate liability offences of encouraging or assisting a crime. The approach taken in that Act, which we believe is the right one, is that there must be a connection between the encouragement or assistance and the principal offence. The person encouraging the offence must intend or believe that he or she will encourage or assist in commission of an offence. Depending on the circumstances, that may apply not only to the encouragement of a specific act of FGM, but to the general encouragement of FGM. As I say, that will depend on the facts of the case, and in particular what was in the mind of the encourager.

The hon. Lady talked about type IV FGM. The Government are satisfied that the current law—not just the FGM Act, but also criminal offences of assault—covers a wide range of activities, such as those raised by the shadow Minister. The president of the family division touched on this issue in a recent case, looking at whether the criminal law covers type IV FGM. As the shadow Minister says, the question under the FGM Act is whether the activity constitutes mutilation. In circumstances where the conduct on a girl takes place without her consent, the Government are clear that this would be covered by criminal law.

New clause 28 would go much further than this, by criminalising all speech that is likely to be understood as encouraging FGM in general. There is no consideration of what was in the mind of the encourager. While none of us would condone statements encouraging the practice of FGM, the proposed new offence would engage article 10 of the European Convention on Human Rights, which protects freedom of expression. Any restrictions on free speech must be shown to be necessary and proportionate. On the basis of the current evidence available to us, we have serious concerns about the necessity and proportionality of such an all-encompassing offence of encouraging FGM.

Moreover, new clause 28 is modelled on the offence of encouraging terrorism in section 1 of the Terrorism Act 2006. That offence was introduced following the 7 July attacks in 2005, which were powerful evidence of the terrorist threat to the UK; but we should be wary of applying terrorism-related offences more widely. We have seen no compelling evidence that would justify the introduction of such an offence for FGM.

As I have said, new clause 26 takes a different approach, by providing for civil

“Encouragement of Female Genital Mutilation Warning Notice and Orders”.

It is aimed at those

“encouraging the genital mutilation of women and girls as defined in section 1” of the 2003 Act.

On the hon. Lady’s point about civil protection orders and whether they would sit better in the Family Law Act 1996 than in the Female Genital Mutilation Act 2003. Under clause 70, proceedings for FGM protection orders would be heard in the family court or family division of the High Court. The relevant provisions do not need to be inserted into the 1996 Act to achieve that.

Inserting the FGM protection order provisions in the 2003 Act does not in any way reduce the court’s powers. The proceedings would be in the family court or the family division of the High Court—for example, if the FGM protection order were considered in proceedings within the High Court’s exclusive jurisdiction, such as wardship or child abduction proceedings, with the full range of powers of the court and expressly without prejudice to any other protective powers that the court might have.

The location of the provisions does not affect that. Indeed, we believe it would be helpful to practitioners to have all FGM-related provisions in one statute. We will work with the legal profession and others to ensure that the FGM provisions in the Bill are widely publicised when we bring them into force. That leads me on to the subject of training.

The Royal College of Nursing supplied written evidence, which I have referred to. The multi-agency practice guidelines on FGM will be updated to reflect changes to legislation. We are developing work to support professionals in areas with a high prevalence of FGM through the new FGM unit’s programme of outreach work. The unit will also offer bespoke targeted peer support to local areas that want to strengthen their ability to tackle FGM.

The hon. Lady asked about the FGM unit, which was launched on 5 December. In addition, the Home Office has recently launched an e-learning package for all professionals, which is free to use. We are funding the Foundation for Women’s Health Research and Development to carry out face-to-face training with local safeguarding children boards in high-prevalence areas. The Department of Health has commissioned Health Education England to produce five new e-learning FGM training sessions, the first of which was launched on 26 November 2014. They will be provided on the national e-Learning for Healthcare platform and will be available to all NHS trusts at no charge.

The hon. Lady asked about the reporting of FGM. For the first time ever, NHS staff must now record in patient health care records whenever it is identified through the delivery of NHS care that a patient has had FGM. There is a legal requirement on NHS organisations to comply with that. It applies to all clinicians and health care professionals across the NHS.

The specialist FGM unit launched on 5 December has been set up to drive a step change in national outreach on FGM with criminal justice partners, children’s services, health care professionals and affected communities. That work complements the ambitious programme of work by the Department for International Development. I should be happy to write to the hon. Lady about the unit’s further work.

The hon. Lady talked about our international obligations. The provisions are intended to tackle FGM in an effective and proportionate way. Contrary to her suggestion, nothing in international law requires the United Kingdom to create an offence of encouraging or promoting FGM or to include in the law provisions such as new clauses 26 and 28.

The provisions are modelled on those for domestic violence protection orders and notices in the Crime and Security Act 2010. Those notices allow police officers to  deal with an urgent situation where they reasonably believe there is a need to protect someone at risk of domestic violence. They deal with a real and present danger. The order then allows a court to provide longer, but still strictly limited, protection, so that for instance a woman at risk can secure the safety of her accommodation.

The general encouragement of FGM is a very different situation. There is, it seems clear, not the same urgency. Where a girl is at risk, an FGM protection order could be used to protect her, but the proposed FGM warning notices are not about protecting someone in immediate danger; they are simply about restricting someone from encouraging FGM. It is not clear what terms the orders might include to prevent the encouragement of FGM, or how a breach of them might be assessed. In short, it is not clear how they would work.

New clause 26 is intended to curb the general encouragement of FGM in much the same way as the general encouragement offence proposed by new clause 28, although through a different mechanism. Our view that restricting that sort of speech is not necessary applies to that provision as well.

As I am sure we would all agree, we have had an interesting and stimulating debate on important issues. I hope that both sides accept that the Government are committed to making the legislative changes that are necessary to provide better protection against FGM; but we are not persuaded that the amendments and new clauses are necessary. As I have indicated, I believe that the issue raised by my hon. Friend the Member for Mid Derbyshire about FGM protection orders is best dealt with in guidance. I can assure her that it will be appropriately addressed, but I would like to discuss that further with her. I hope that in the light of those assurances she will be content to withdraw her amendment. If she has continued concerns, we will continue to discuss the matter.

Photo of Pauline Latham Pauline Latham Conservative, Mid Derbyshire 11:15, 20 January 2015

I beg to ask leave to withdraw the amendment, on the basis that we will meet to discuss the issue, but I might return to it at a later stage.

Amendment, by leave, withdrawn.

The Chair adjourned the Committee without Question put (Standing Order No. 88).

Adjourned till this day at Two o’clock.