Lord Wolfson of Tredegar:

Moved by Lord Wolfson of Tredegar

53: Schedule 2, page 65, line 37, leave out from beginning to end of line 10 on page 66Member’s explanatory statementThis amendment is consequential on the Minister’s amendment at page 66, line 21.

My Lords, these amendments fulfil an undertaking I gave in Committee in response to amendments tabled by my noble friend Lady Bertin that sought to ensure that UK citizens who commit marital rape in countries where such behaviour is not criminal may none the less be prosecuted in the UK.

I said then that we would consider this matter ahead of Report and, bearing in mind that the extraterritorial jurisdiction provisions are UK-wide, that we would also consult the devolved Administrations to ensure a consistent approach across the UK. We have done both —we have considered and we have consulted. I am pleased to say that, with the agreement of Ministers in Scotland and Northern Ireland, government Amendments 53 to 55, 58 to 61 and 63 to 65 achieve what my noble friend intended, and will apply to relevant legislation throughout the UK. I shall remind the House briefly, given the hour, of the provisions.

Schedule 2 to the Bill contains amendments to various enactments to provide for extraterritorial jurisdiction over certain offences under the law of England and Wales, Scotland and Northern Ireland. This will ensure that, as required by the Istanbul convention, the UK will be able to prosecute these offences when they are committed outside the UK by one of our nationals or habitual residents. The scheme is this: part 1 of the schedule covers England and Wales, part 2 covers Scotland, and part 3 covers Northern Ireland.

In keeping with the normal principles of extraterritorial jurisdiction and the terms of the convention, there is a requirement that a prosecution for one of the relevant sexual offences—these include rape where the victim of the offence is aged 18 or over—may be brought in the UK only when the offending behaviour is also an offence in the country where it happens. This is known as dual criminality.

In most circumstances, that dual criminality requirement is not a barrier to prosecution because most serious sexual offences against adults are likely to be criminal in most other countries. However, as my noble friend Lady Bertin identified, it could mean that, in some circumstances, UK authorities would not be able to prosecute someone for marital rape committed outside the UK if such behaviour is either not included in or exempt from the equivalent offence in the other jurisdiction. This is a narrow gap, but we believe that it is right, as a matter of principle, to amend the Bill to cater for it.

As it stands, the Bill applies a dual criminality requirement for relevant sexual offences committed against adults outside the UK by UK nationals and by UK residents. Government Amendments 53 to 55 would amend part 1 of Schedule 2 to remove the dual criminality requirement for UK nationals who commit offences under Sections 1 to 4 of the Sexual Offences Act 2003 against adult victims outside the UK. With the agreement of Ministers in Scotland and Northern Ireland, government Amendments 58 to 61 and 63 to 65 will amend parts 2 and 3 of the schedule to make corresponding changes to the Scottish and Northern Irish legislation and orders. These amendments will mean that UK nationals who commit marital rape in the small number of countries where such behaviour is not criminal may none the less be brought to trial in the UK.

However, a dual criminality requirement will continue to apply for UK residents. This means that we could prosecute UK residents who commit marital rape abroad only if the behaviour is also criminal in the country where it is committed. We should not prosecute, for example, a Ruritanian national who is habitually resident in England for doing something in Ruritania that is not criminal under Ruritanian law. I remind the House that existing law already makes the same distinction between UK nationals and UK residents in relation to extraterritorial sexual offences where the victim is aged under 18.

In short, these amendments will ensure that our nationals comply with our laws even when abroad. At the same time, the amendments respect important principles of international law and comity in relation to non-UK nationals ordinarily resident in the UK.

Finally, government Amendments 56, 57 and 62 have been included at the request of Ministers in Scotland. These make additional amendments to part 2 of Schedule 2 to provide—for offences where a dual criminality requirement is being retained—a rebuttable presumption that the act in question constitutes an offence under the law of the country where it took place. This mirrors existing provisions throughout the UK in relation to extraterritorial sexual offences against children and other provisions in this Bill extending extraterritorial jurisdiction to offences that do not currently have extraterritorial effect. The relevant provisions simply provide a procedure under which the defendant can challenge the prosecution to prove that what was done was an offence under the laws of the country where the act was done.

Again, I express my thanks to my noble friend Lady Bertin for raising this issue. For these reasons, I beg to move.

My Lords, given the hour I will be very brief. I thank the Government and my noble friend the Minister for listening and laying their own amendments to close the loophole I raised in Committee. It is a very small gap, but one it is right to fill. Doing so sends the right signal domestically and internationally. The UN said in a recent report that the home is still one of the most dangerous places for women. In many countries, sex is still seen as an automatic part of the marriage contract. No data on marital rape is collected in many countries, where not only is it not a crime but social pressure means that it is rarely reported or discussed. We have been pioneers in this area of law; it is right that this country be able to uphold the high standards of our legislation at all times.

My Lords, I am very grateful to the noble Baroness, Lady Bertin, for identifying this gap whereby marital rape is not an offence in some countries and therefore British nationals would not have been convicted had they committed marital rape in them. I am very grateful to the Minister for responding to the identification of that gap and closing it effectively.

My Lords, this group of amendments addresses marital rape, whereby rape could be committed by a UK citizen in a country that does not consider it a crime and, presently, no prosecution could be brought. The noble Baroness, Lady Bertin, brought the matter to the attention of the House in Committee and has been successful in persuading the Government of the merits of her case and the importance of closing this loophole.

I offer her my sincere congratulations on her success. Her actions will protect women and girls from the horrific crime of rape and ensure that no rapist or perpetrator of these vile crimes can evade justice through making use of this loophole in the law and hide behind the fact that marital rape is not a crime in a small number of countries. This is a good example of the House of Lords doing its job well. An important issue was raised, well argued and supported across the House; the Government considered it carefully and responded positively, bringing forward their own amendments to address the issue.

My Lords, I hope the House will forgive me again if my reply is very brief, not because the issue is not important but because there is obvious agreement across the House. I again thank my noble friend Lady Bertin for bringing this matter to the Government’s attention and for the discussions we have had. I thank the noble Lord, Lord Paddick, for his kind words on this matter this evening, which I appreciate. I also thank the noble Lord, Lord Kennedy of Southwark; I am very pleased to have his and his Benches’ support on this matter. I will not say any more given the time, but I commend this amendment to the House.

Amendment 53 agreed.