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Clause 16 - Sections 10 to 15: marriage exception

Sexual Offences Bill [Lords] – in a Public Bill Committee at 9:30 am on 16th September 2003.

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Photo of Dominic Grieve Dominic Grieve Conservative, Beaconsfield 9:30 am, 16th September 2003

I beg to move amendment No. 149, in

clause 16, page 6, line 26, at end add

'and outside the United Kingdom'.

We come now to an important clause that causes me considerable anxiety. It provides a marriage exception, under which the

''Conduct of a person . . . which would otherwise be an offence under any of sections 10 to 14''—

including sexual activity with a child, causing or inciting a child to engage in sexual activity, engaging in sexual activity in the presence of a child and causing a child to watch a sexual act—would be decriminalised if A and B are lawfully married.

It would be possible, according to the laws of some foreign countries, for an individual to transact marriages with, for example, two or three wives—children perhaps as young as 12—and bring them into the UK. Indeed, there may be lower age limits in other countries—I am certainly aware of countries where the limit is as low as 12. The Solicitor-General may be able to help us with that. An individual may have sexual intercourse and carry out every other form of sexual activity with a child by virtue of the fact that it takes place in the framework of a lawful marriage. That is my understanding of how clause 16 will operate. Although I understand the origin of the clause, which lies in anxiety about respect for marriage under the Human Rights Act 1998, it is highly offensive to the majority of people in the country and will lead to potentially appalling consequences.

It is difficult to justify providing a marriage exception if people, having transacted abroad a marriage that would be unlawful in this country, wish to continue to have sexual relations in this country with their partner, bride or however else we wish to describe the person. Such a provision would provide a potential loophole for paedophiles. It is not beyond the bounds of possibility that a paedophile living in the United Kingdom might go abroad, procure and lawfully marry an underage girl in that country, bring the child back to the United Kingdom and say that, because of the marriage exemption, he was allowed to continue to have sexual relations with her. I shall wait to hear from the Solicitor-General whether I have understand the position correctly.

Such matters cause me great anxiety. A halfway house cannot be established, although I suppose that we could introduce one of different ages. However, that would not tackle the problem. We set laws in this

country to protect children—those under the age of 16. The fact that the child may be married does not justify the existence of an exception and toleration of behaviour that would otherwise be regarded as improper. I appreciate that there are arguments the other way, such as the one that asks why people from perfectly respectable cultures who have come to this country, perhaps to seek asylum, should suddenly find that having underage wives—circumstances that were perfectly normal previously—is criminalised and prohibited until the girl reaches the age of 16.

However, on balance, the protection of such young children is paramount. It should be said that the laws of this country are that 16 is the age at which a person can be married and that sexual relations with children under that age are not sanctioned by the state. Of course, it would still be possible for the Director of Public Prosecutions to exercise his discretion in such matters and I very much hope that he would do so. I hope that, in approaching such cases, the Crown Prosecution Service would pay great attention to the fact that the marriage seemed to be lawful before embarking on an unpleasant and traumatic prosecution. That the Bill will simply provide a blanket exception worries me very much.

Photo of Stephen Hesford Stephen Hesford Labour, Wirral West

I shall be obliged if the hon. Gentleman will help me with a matter. Clause 16(1)(a) states:

''at the time, A and B are lawfully married.''

Does not that mean ''lawfully married'' within the laws of this country? What else can it mean?

Photo of Dominic Grieve Dominic Grieve Conservative, Beaconsfield

Perhaps I have the wrong end of the argument, but we recognise the existence of foreign marriages in this country, including marriages that are transacted between a 40-year-old and a 13-year-old. Such marriages are still lawful marriage.

Photo of Humfrey Malins Humfrey Malins Conservative, Woking

The hon. Member for Wirral, West (Stephen Hesford) raised an interesting point, but the proof that this country recognises marriages from foreign jurisdictions is the fact that our divorce courts will take them on board in respect of a dissolution.

Photo of Dominic Grieve Dominic Grieve Conservative, Beaconsfield

I want to give the hon. Member for Wirral, West the opportunity to intervene again.

Photo of Stephen Hesford Stephen Hesford Labour, Wirral West

Is that not the difficulty? If the couple are lawfully married for all other purposes and we accept, in civil jurisdiction, bipartisan recognition of marriages, I am not sure how far the hon. Gentleman can take his argument. We would be making exceptions and criminalising what, for civil purposes, we recognise to be lawful marriages.

Photo of Dominic Grieve Dominic Grieve Conservative, Beaconsfield

I appreciate the hon. Gentleman's point, but I am not wholly persuaded by it. Last week we discussed, among other things, the desirable fact that non-consensual sexual intercourse within marriage is a criminal offence. For many years it was not; it was permissible for a husband to force himself on his wife, and it was accepted as a societal norm. We have decided to change that in respect of our laws. In some countries outside the United Kingdom, it is permissible for husbands to beat their wives. I am glad to say that that is prohibited in this country, although, from the available evidence, it happens far too

frequently. Just because people might have transacted a marriage where they are allowed to beat their wives, it does not mean that when they come to Britain they are allowed to continue beating their wives as part of their domestic arrangements.

I accept that sexual relations are a fundamental part of marriage, and normally the reason why marriage takes place. Sexual relations are a basic reason for the institution. I also accept that we are going much further if we say that we recognise a marriage as legal, but that the fundamental aspect of that relationship and the reason behind it, namely that the two people have sexual relations, must be prohibited until the party who is under age reaches 16. However, I do not think that that would be negating the existence of the legal relationship completely. We would be saying that the laws of this country provide that a person cannot get married under the age of 16, which is for the protection of one of the parties, and, in such circumstances, we will not accept or legitimise sexual relations with a wife who is under that age. That is wholly different from whether we prosecute anyone.

I accept that the situation that I have described is always unsatisfactory, and we have been round the houses on that earlier. I worry about the principle because, as I said earlier, it will provide some fascinating opportunities for extremely undesirable behaviour, not just from people from foreign cultures who have a different way of life, but from paedophiles in this country who will be able to exploit a loophole. I wonder whether that is sensible.

I shall listen carefully to the Solicitor-General. I am open-minded about the clause, but it troubles me. The purpose of my amendment is to make it clear that the conduct that took place outside the United Kingdom is none of our business, but that within the UK such conduct would not be legal. If other Committee members can think of a better formula or a halfway position that meets the anxieties that I have expressed, I would be only too delighted to hear it. We cannot allow this clause to pass without some consideration.

Photo of Annette Brooke Annette Brooke Shadow Spokesperson (Home Affairs)

I share the hon. Gentleman's concerns about clause 16 and several other clauses, but I am not entirely convinced by his amendment.

Cultural and ethnic differences are certainly important, and we have debated at great length where loopholes might occur. This clause has the potential to create a dangerous loophole, which could be used by child abusers, who could convene a marriage under another jurisdiction. I see that as a possible outcome, and I ask the Solicitor-General whether it would be better to leave the clause out of the Bill and rely on discretion instead, as we have talked about doing for so many other difficult cases. If there was a marriage in which no abuse was going on, would not we argue that discretion should be used and there should be no prosecution? The thought that marriage could be used as a vehicle for abuse fills me with horror, and I have, in my non-legal way, the greatest concerns about the clause.

Photo of Humfrey Malins Humfrey Malins Conservative, Woking 9:45 am, 16th September 2003

This is an important clause, as my hon. Friend the Member for Beaconsfield said. There are

those, including the Law Society, who take the view that the clause is wrong in principle. The Law Society feels strongly that all children in the UK jurisdiction should have the same protection, no matter what their social or immigration status or personal history. It worries me that the provision could be a loophole that allows child abusers impunity by virtue of marriage to a child in another jurisdiction.

This is an interesting clause that raises a few questions, which my hon. Friend has mentioned. The key words are ''lawfully married''. When I looked at the explanatory notes, I found the following sentence on the clause:

''This might arise, for example, where they are foreign nationals who were married in another country.''

That, of courses, raises the question of what marriage means. We all deal with immigration and asylum cases in our surgeries. Hon. Members might be surprised to hear that in my constituency of Woking there is a large and settled population originating in Pakistan. Many asylum and immigration cases come my way. Quite often, one deals with other communities, too.

An applicant for settlement in this country may rely on a marriage to secure that settlement. Members of the Committee know that quite often it is difficult to establish a marriage. What do we mean by a marriage? There are so many different cultures and societies to which the contract of marriage into which we enter in this country is, in a sense, not so relevant. There are countries where the marriage ceremony is no more than a function—by that I mean it is, in effect, a get-together for a meal, but that is regarded as a marriage. Equally, there are countries where divorce is, or used to be, obtained quite simply by the husband or wife—in the past it was the husband—simply saying three times to the spouse: ''I divorce thee'', and that was the end of it. I just wanted to raise the issue of what we would call marriages taking place in a foreign jurisdiction.

Will the Solicitor-General explain the term ''lawfully married''? Does she mean lawfully married under the laws of this country? If so, perhaps we face fewer difficulties. Does the term also mean lawfully married according to the customs or traditions of a different country? That is an interesting point because, as I said to my hon. Friend the Member for Beaconsfield a few moments ago, unless I am grievously mistaken, we in this country recognise foreign marriages to the extent that we are prepared to accept jurisdiction over divorces.

The Solicitor-General might talk to us about the age of consent for marriage in different countries, and she will be right to do so. For example, the European Union's position on ages of consent is comprehensible to us—we talked about that in relation to sexual activity between young people—and I am sure that in some EU countries marriage can be contracted at a different age than in our country. However, I hope that the Government will take the following point on board. About 30 million people—including refugees—are on the move in the world, and more of them than ever before are entering European jurisdictions. Marriage ceremonies that are entirely lawful in the countries from which they come might not be

recognised as lawful by us. I have not even mentioned bigamous marriages.

The clause could present difficulties, not least evidentially. If cases relating to it were to come to court, the defence could say, ''The couple were lawfully married in country X.'' It might be very difficult for a judge or jury to get a handle on that because we simply do not know what may or may not be a lawful marriage in a particular part of the world. Therefore, once that issue is raised, there might be difficulties.

I will say no more, as I am merely echoing what my hon. Friend said. However, I have raised a few questions, which I hope the Solicitor-General can deal with. My main point goes straight back to the issue of whether or not ''lawfully married'' means lawfully married according to the law of our country.

Photo of Vera Baird Vera Baird Labour, Redcar

I too am concerned about the clause, and I wish to echo—but not to repeat—the concerns that have been raised by Committee members.

I am opposed to the clause in principle. We are against sex with children. We are against eroding the age of consent. If we think that a girl cannot lawfully consent to sex under the age of 16—let alone under the age of 13—it is difficult to see how we can at the same time acknowledge that she has the capacity to marry. As the hon. Member for Beaconsfield has said, sex is part and parcel of marriage and it is frequently—although, perhaps, not often—its primary purpose.

It worries me that we will be licensing a person to do what anyone else would risk suffering a 14-year penalty for doing because he happens to have entered into some form of marriage contract. It is wrong in principle to say that because he has married a young person—one who, according to our assessment of what true consent is, would have difficulty consenting—she belongs to him and the rules against underage sex do not apply. That comes very near to reversing R v. R, and to saying, ''It is not all right to have underage sex with someone, but if you marry them it is fine because you own them and you can do what you want with them.''

I do not decline to acknowledge the cultural sympathy that has motivated this provision, but it raises huge concerns in my mind. I do not think that cultural sympathy is so important that it ought to lead to us authorise non-consensual sex with children, which the exception inevitably will do.

I know that there is an argument that because the current offence refers to unlawful sexual intercourse, someone who is lawfully married might not be committing an offence at present—that there might currently be an exception. I appreciate that point, but it comes back to the issue of what a lawful marriage is—and, probably, to what a lawful marriage should be. I am concerned about the clause, and I want the Government to think about it again.

Photo of Sally Keeble Sally Keeble Labour, Northampton North

I share the concerns about recognising marriage involving

underage girls. I want to know whether recognising such marriages regularises their position, bearing in mind that previously the UK has not recognised polygamous marriages, for example, and has taken steps to ensure that that remains the case if people who contract such marriages abroad become resident here.

I wonder whether the exemption unpicks quite a lot of the work that is being done on forced marriages. I also wonder about its effect in respect of trafficking for the purpose of sexual exploitation. Is it okay if someone takes a girl from the UK abroad, marries her and returns to this country? It would seem that there is a complete contradiction. It is not just a matter of paedophiles taking children abroad. There is also the issue of the attitude to the forced marriages of young girls.

I agree with my hon. and learned Friend the Member for Redcar (Vera Baird). There is a principle involved in saying that a child is a child, and if a child is to be protected from sexual exploitation, it has to be done regardless of their status. The child must be protected, whether people have some sort of arrangement that means that they have a commitment to each other—whatever it is called—which might be recognised as a marriage elsewhere. The messages should not be sent through the exemption that trafficking is wrong unless someone takes a child abroad and marries them.

Photo of Harriet Harman Harriet Harman Solicitor General (Law Officers), Member, Labour Party National Executive Committee

These are important arguments. Hon. Members have raised some difficult issues underlying the amendments, which we have given much thought to. These arguments were not made in the other place

Photo of Humfrey Malins Humfrey Malins Conservative, Woking

I am not a Member of that place yet.

Photo of Harriet Harman Harriet Harman Solicitor General (Law Officers), Member, Labour Party National Executive Committee

The arguments would, no doubt, have been advanced in the other place, if the two hon. Members in question had been present. They are not Members of the other place yet, so we have had the benefit of their arguments, which were pursued by other Committee members who also made important points. We have thought long and hard about these arguments. Hon. Members have made good points with a lot of force behind them, but I hope to be able to persuade the Committee that, on balance, it would be better to leave the Bill unamended and leave the statutory marriage exception in.

My hon. and learned Friend the Member for Redcar is correct in saying that the genesis of the marriage exception is in existing law, in which sexual intercourse with a girl under 16 is not unlawful if she is lawfully married. The hon. Member for Beaconsfield also hinted at that. The marriage defence is already contained in the law relating to unlawful sexual intercourse. That does not mean, however, that it should stay forever.

I assure hon. Members at the outset that if there is non-consensual sex and it is evident that there was not consent, the marriage exception does not apply. A person cannot rape their 13-year-old wife within

marriage. For the marriage exception to apply there must be consent.

A number of points were made about what happens if a paedophile in the UK went abroad and returned purporting to have married a girl aged 13 in a country where such a marriage is okay. Would such a person be able to get a marriage exemption? They would not, because the lawfulness of a marriage is governed by where a person is domiciled. A person domiciled in the UK cannot lawfully contract a marriage with somebody aged 13, bring them back here and have the marriage recognised. On the point made by the hon. Member for Mid-Dorset and North Poole (Mrs. Brooke), paedophiles who are domiciled here would not be able to go abroad, marry somebody and have that marriage declared lawful.

The hon. Member for Beaconsfield referred to a halfway house.

Photo of Humfrey Malins Humfrey Malins Conservative, Woking 10:00 am, 16th September 2003

There are different domiciles in life, such as domicile of origin and domicile of choice. Will the Solicitor-General confirm that if I, domiciled in this country, lawfully married someone abroad according to that country's custom or law and returned to this country with that person, our courts would be seized of the marriage in respect of divorce proceedings, thus recognising the lawfulness of my marriage?

Photo of Harriet Harman Harriet Harman Solicitor General (Law Officers), Member, Labour Party National Executive Committee

No. As you said, there are different domiciles, but you cannot leave your domicile here, marry someone abroad whom you could not marry here, bring that person back to this country and expect the marriage to be lawful. We are talking about two foreign nationals, as you read from the explanatory notes.

Photo of Roger Gale Roger Gale Conservative, North Thanet

Order. I did not read that.

Photo of Harriet Harman Harriet Harman Solicitor General (Law Officers), Member, Labour Party National Executive Committee

I beg your pardon, Mr. Gale. As the hon. Member for Woking read from the explanatory notes, we are discussing two foreign nationals coming to this country and having sex, having contracted a marriage that was lawful in the country in which they were domiciled. The question is whether the marriage exception protects them from the offence of sex with a child.

Photo of Sally Keeble Sally Keeble Labour, Northampton North

Does my right hon. and learned Friend accept that many of us deal with communities in which domicile is difficult to establish because one partner is domiciled abroad? Movement between countries can mean that domicile changes and can be incredibly difficult to establish. Sometimes, although they are UK nationals, couples are not taken to be domiciled here, especially for child benefit purposes. The matter needs careful thought because domicile is not as straightforward as people sometimes think. It can be difficult to establish. It might be disputed and split.

Photo of Harriet Harman Harriet Harman Solicitor General (Law Officers), Member, Labour Party National Executive Committee

My hon. Friend raises important points. We have thought about them and it is true that, with a flux of people from different cultures travelling around the world, it is not always immediately obvious and straightforward whether a marriage is lawful and capable of recognition in this country. The courts are used to identifying whether a

marriage is lawful in this country. Sometimes they consider two types of marriage, such as secular and religious marriage. They must decide whether the marriage abroad was religious but does not comply with the secular laws, and they must decide which laws this country will recognise for the purpose of marriage in the other country. A sensible line of argument can be recognised when working out whether a marriage is lawful and capable of recognition.

Photo of Paul Beresford Paul Beresford Conservative, Mole Valley

The Solicitor-General was present at the teach-in given by the paedophile police at which mention was made of an Australian au pair who has now been bundled out of the country. He preferred boys. I know that most paedophiles prefer boys, but some do prefer girls. It is thought that that gentleman is disappearing to Australia, but it is feasible that he will stop in Thailand, a country in which he can become domiciled. He was not domiciled here. He will not want to return to Australia because he may receive a tap on the shoulder when he arrives. What is to prevent his becoming domiciled in a country, marrying a child and returning here?

Photo of Harriet Harman Harriet Harman Solicitor General (Law Officers), Member, Labour Party National Executive Committee

Well, if the child is under 13, he will not be subject to the marriage exception. There is the default position in which care proceedings can be taken in respect of a child because that affects the criminal law, not civil proceedings. It is a matter of whether the person is domiciled in the place where he contracts the marriage and whether he has changed his domicile from Australia. I may have to give further consideration to such matters and return to the hon. Gentleman. The clause is difficult.

The hon. Member for Mid-Dorset and North Poole referred to the recurring theme of whether we put exceptions, and other difficult points, in guidance rather than statute. There is an argument for including them in guidance, but we preferred to include these exceptions in the Bill.

Photo of Mr Hilton Dawson Mr Hilton Dawson Labour, Lancaster and Wyre

Given the huge discussion that we have had about the Government's understandable reluctance to put exceptions to the age of consent in the Bill, would it not be more consistent, certainly with the Government's commitment to protecting children, to remove the clause?

Photo of Harriet Harman Harriet Harman Solicitor General (Law Officers), Member, Labour Party National Executive Committee

We do have some exceptions in the Bill, which we have been discussing. For example, there is the exception of the person who is doing something to protect children. It could be argued that we are being consistent both by leaving that out of the Bill and by leaving that in the Bill. The Bill includes other exceptions, so the clause is not unique.

Photo of Vera Baird Vera Baird Labour, Redcar

However, my right hon. and learned Friend makes the clear point that the exceptions in the Bill are designed to balance the welfare of the child. The exception that we are talking about could not assist the welfare of the child; it could be only potentially damaging.

Photo of Harriet Harman Harriet Harman Solicitor General (Law Officers), Member, Labour Party National Executive Committee

That is an interesting point. Until this weekend, I thought that that was the case. Then someone suggested to me that a young person

who was married might get left behind and not brought to this country because the husband feared committing a sexual offence. That could cause disruption and problems for the relationship. It might not be in the interests of that young person to be left behind; it might be in her interests to be with her husband. That is the best answer that I can come up with—[Laughter.] It is a serious point that it might not be in the interests of the child to disrupt the marriage.

Photo of Vera Baird Vera Baird Labour, Redcar

I hear what my right hon. and learned Friend says, but although we have a fixed position that a child cannot consent, tea and sympathy or affection and support from a partner can still be provided. The man can bring the child with him and give her all of that. This discussion is about sex. There is no reason why the child should be left behind, but she should not be having sex with him.

Photo of Harriet Harman Harriet Harman Solicitor General (Law Officers), Member, Labour Party National Executive Committee

That is what I thought. The girl could come here so that the marriage would not be disrupted and they could be in separate bedrooms. All these points are good, but it is difficult to balance the interests of the institution of marriage and the interests of children. The arguments are difficult, but on balance it is right to keep the clause in the Bill.

I shall respond to the point about trafficking raised by my hon. Friend the Member for Northampton, North (Ms Keeble). She asked whether someone would be able to take a young girl aged 13 from this country and arrange a marriage for her abroad. Her country of domicile would be here, so it would not be lawful for her to enter into such a marriage. The marriage would not be lawful or capable of recognition here, so it would not come under the marriage exception.

Photo of Sally Keeble Sally Keeble Labour, Northampton North

I am a bit reluctant to mention this, but I have been married under a foreign jurisdiction and it was assumed that my place of domicile was different so I lost all my property rights and became a legal minor at one humiliating stage in my life. Under South African law on community of property, the place of domicile is not set.

It is right that UK law should set standards for conduct, for what is accepted, for the legal weight that should be attached to people and for issues such as whether women are equal and whether children are in need of protection. There are very basic issues involved; I am reluctant to bring in personal stuff, but I am probably the only person here who has had a marriage under a foreign jurisdiction and paid a very heavy price for it.

Photo of Harriet Harman Harriet Harman Solicitor General (Law Officers), Member, Labour Party National Executive Committee

My hon. Friend asks whether we should include the exception at all, or have absolute standards that apply to everyone who sets foot in this country, regardless of whether they are lawfully married. She also asks whether one can work out, as matter of practicality, whether a marriage is lawful and should be recognised here.

The family courts—no doubt the criminal courts could go through the same process—have to make choices day in, day out as to whether a marriage is

lawful. I know that I have not managed to simplify the matter sufficiently for hon. Members, but it is not that complicated. It is something that is considered every day in the courts for all sorts of reasons, such as for property and immigration purposes, and the courts are capable of making rational and sensible decisions, notwithstanding my hon. Friend's experience.

Photo of Stephen Hesford Stephen Hesford Labour, Wirral West

Are we not left with two positions if the clause is taken out? One would be that the current law, under which unlawful sexual intercourse can be a lawful excuse, would remain. The other would result in parallel jurisdictions, whereby the civil jurisdiction would recognise a marriage for financial purposes, while next door a criminal court refused to recognise the same marriage for different purposes.

Photo of Harriet Harman Harriet Harman Solicitor General (Law Officers), Member, Labour Party National Executive Committee

My hon. Friend is right; that would be the case. However, that does not change the point made by my hon. Friend the Member for Northampton, North: arrangements made for the recognition of marriage for financial purposes should not apply in relation to sex. So I think that he is right, but sadly he has not assisted me in overcoming the objections of colleagues.

I have been dealing with individual points as they have come up; I should like to ''recap'' some of the arguments. To remind Committee members: the legal age for marriage varies widely between countries, even within Europe. It is possible to be lawfully married to a 12-year-old in Spain and lawfully to have sex within that marriage. A married couple, where one or even both of the parties is under 16, could live in this country having legally contracted a marriage overseas that would be recognised as valid according to the laws of England and Wales. We have no wish to interfere with the right of individuals to engage in sexual activity within a lawful marriage except where the child is under 16. The hon. Member for Beaconsfield asked whether we could have a halfway house. We have a halfway house; if the child is under 13, we interfere in the matter. The rule is not absolute.

In allowing for a marriage defence, as set out in clause 16, we aim to ensure that the criminal law does not interfere with normal sexual behaviour within a marriage. However, it goes without saying that it is not our intention to legalise abusive sexual behaviour within marriage. Clearly, where sexual activity is non-consensual, the generic non-consensual offences will apply.

In addition, to protect children from being coerced into what many would consider to be abnormal sexual activity, the marriage defence in clause 16 provides that where the sexual activity complained of involves a third party or images of a third party engaging in sexual activity, the fact that the defendant and the complainant are lawfully married will not absolve the defendant of criminal liability. So we define what sort of sex they can have in their marriage; we do not let them do it a certain way and we do not let them do it below a certain age. We have circumscribed the marriage defence more narrowly than it would have been under unlawful sexual intercourse.

The Government's policy is to recognise marriage as a defence against child sex offences only if the complainant is aged 13 or over.

Photo of Dominic Grieve Dominic Grieve Conservative, Beaconsfield 10:15 am, 16th September 2003

I just wanted some clarification. I appreciate that the exception does not extend to clause 6, which is about rape of a child under 13. However, the Solicitor-General cited a moment ago the example of a 12-year-old Spanish child who could be lawfully married and, presumably, have sexual intercourse with her lawful husband. If I understand correctly, it would be a criminal offence if that child was brought to this country by her lawful husband and they had sexual relations.

Photo of Harriet Harman Harriet Harman Solicitor General (Law Officers), Member, Labour Party National Executive Committee

The hon. Gentleman is absolutely right—that would not be lawful. They would not be able to obtain the marriage exception. I was simply making the point that some ages for contracting marriage are quite surprising. Marriage might be recognisable for purposes of civil law and property, but it would not be recognisable for the purpose of a marriage exception for having sex. I shall not go further down that path, as I can see where I am taking myself.

Moving from civil jurisdiction back to the Bill, the hon. Gentleman's amendment would have the effect of disapplying the marriage defence if the parties to the marriage were in the UK. I note that the hon. Gentleman has also put his name to an amendment that clause 16 should not stand part of the Bill.

I remind hon. Members that clause 16 and the child sex offences in the Bill to which it relates apply in England and Wales only. I do not wish to make too much of that technical point. Of course, persons outside England and Wales who are involved in sexual activity within a marriage that is recognised as valid in that country will not be committing a sexual offence, so the marriage defence in clause 16 is irrelevant.

However, the situation is different if persons who have contracted a marriage overseas engage in sexual activity in England and Wales, which is what we are discussing. If a person domiciled in England or Wales contracts a marriage overseas with a person aged under 16, even though the marriage may be valid in that country and he would not be committing an offence by having sex there, the marriage would not be capable of recognition according to the laws of England and Wales because he would not have the capacity, according to the laws of his country of domicile—that is, England or Wales—to contract a marriage if either he or his spouse is under 16.

Recognition of foreign marriages is governed by common law, although a declaration of status may be sought under the provisions of section 55 of the Family Law Act 1986. In general terms, common law provides that the capacity to marry is governed by the marriage laws of a person's country of domicile. It follows that if a marriage contracted overseas that involves a child under 16 is not valid in this country, a person would be committing a child sex offence by having sex with that child in England or Wales. The marriage defence would not apply because he would not be lawfully married. Such are the terms of clause

16. It follows that a man would not be able to travel to Thailand, marry a girl of 13, bring her back to England and have sex with her.

I also stress that a person living in England and Wales could not get around the regulations simply by claiming to have adopted a domicile of choice in a country where the age for marriage is under 16. The laws on domicile are comprehensive and complex—[Laughter.] They are not that complex—they are comprehensive and detailed.

Photo of Dominic Grieve Dominic Grieve Conservative, Beaconsfield

I do not claim to be an expert on the law of domicile, but I remember doing it as a student. It was amazingly complex. It was not just about whether someone had bought property but whether they had put down roots in a particular location. I suggest that it is actually very easy to change one's domicile and then to reverse that decision. Equally, one may spend years in a foreign country but not be considered by English courts as having taken up domicile if one intended to return to England.

I do not share the Solicitor-General's view that the issue is simple. I am not an expert on the subject, but my memory is that it was fascinating in the abstract but horrific in reality when it came to determination.

Photo of Harriet Harman Harriet Harman Solicitor General (Law Officers), Member, Labour Party National Executive Committee

A set of issues must be considered and a decision must be made about what the domicile is, and that will lead on to whether the marriage is capable of being recognised. Many factors are involved and evidence is often an issue. Sometimes there will be a conflict of evidence. However, such decisions are made every day. The matter may have seemed unbelievably complicated when the hon. Gentleman was a student, but it is more or less common sense, and quite straightforward, although many factors may have to be taken into account when deciding whether a marriage is lawful.

I do not want us to get too bogged down by the idea that we are taking criminal law into an area of uncertainty by giving a defence of which we do not know the scope, because we do not know the scope of what is lawful in terms of a marriage being capable of recognition. If that were the case, we would not advance the defence. The laws of domicile are detailed and comprehensive and a person must be able to produce significant and compelling evidence to support their claim. Those are evidential issues.

The only circumstance in which we intend the marriage defence to apply is when a marriage contracted overseas is capable of recognition as valid according to the law of England and Wales and no party to the marriage is aged under 13 at the time of the alleged offence.

Precluding recognition of overseas marriages that involve children under 13 is in line with our general policy that children below that age deserve maximum protection under criminal law. Any interference in the right to private family married life in such circumstances would be justified by the greater need to protect very young children from sexual experience at such a young age. So, the defence is not absolute. It is qualified.

When an overseas marriage involves a child or children aged 13 or over but under 16, we believe that the balance between child protection and unnecessary interference by the criminal law falls somewhat differently. I sometimes wonder whether, if we had left the marriage exception out, the hon. Member for Beaconsfield would have tabled an amendment to put it in. It could be argued either way—certainly by him. He would be saying, ''This is dreadful interference with the institution of marriage.''

In the cases that I just mentioned, we are concerned to ensure that the criminal laws of this country do not interfere unnecessarily in the right of any individual to have sexual relations within a legally valid marriage. We are just trying to be practical and make the law sensible. I reassure hon. Members that should any concern arise about the welfare of a child spouse living in the UK, it is open to the authorities to apply to the courts for a care order. The civil procedure continues. Should the courts decide that a child is being abused within a marriage, provision could be made for care arrangements to be put in place.

We believe that clause 16 strikes the right balance between keeping state interference in the private lives of individuals to the minimum and maintaining under the law maximum protection for children from sexual abuse and exploitation. For the reasons that I have given, we do not accept the amendment.

Photo of Dominic Grieve Dominic Grieve Conservative, Beaconsfield

The Solicitor-General has been helpful and has provided a degree of reassurance about the Government's reasoning. I tabled the amendment because of my slight uncertainty about the territoriality of the clause, which was why I included the term ''outside the United Kingdom''. I accept that that is the wrong issue and that it is an all-or-nothing clause. We either delete it entirely or we keep it.

I remain curiously unhappy about the clause. It was noted that this matter was not debated in the other place. I do not wish to cast aspersions on the age of those in the other place, but there is a generation gap—a good thing in the context of legislation—between the other place and ourselves. I have no doubt that they did not focus on the clause because, when they examined it, they saw that it simply repeated the existing law, given that such sexual intercourse would be lawful because it occurs within marriage whereas the old offence of unlawful sexual intercourse applied to intercourse outside marriage. Given the circumstances, they did not see any reason to intervene.

This may be a generational matter, but we are producing a Sexual Offences Bill for the 21st century. We are making a number of radical changes to how the state views sexual activity. We have gone to great lengths to ensure that the legislation does not, for example, discriminate against homosexuals, which the previous law did. We are going to considerable lengths to introduce new offences because we think that children need protection—we will, for example, consider sexual grooming in a moment, and we have chosen to decriminalise some other areas.

We have had a lengthy debate about appropriate sexual behaviour for under-16s, although we know that many under-16s will not behave appropriately. I tabled amendments concerning the behaviour of children aged between 13 and 16 acting consensually with others of similar ages. They might have gone some way to meeting the issues in this clause, but not entirely, because they would not have permitted full sexual intercourse.

I believe in the sanctity of marriage, I am a practising member of the Church of England and I appreciate the need to respect other people's cultures. However, taking all those things into account, a bit of me still says, ''I cannot see the rational basis for someone coming into this country being exempt from our laws, which state that a child under the age of 16 should not be allowed to have full sexual relations, because they are married. We live in a world in which more than the odd individual will enter this country. Large numbers of immigrants will enter this country for long-term settlement, and we are in serious danger of ending up with two-tier systems of justice. What is prohibited to one section of society will be allowed to another on more than an exceptional, one-off basis. Quite a few people in a community will enjoy a right—some would say an abusive right—that other people do not have.

It is time to examine the matter again. I appreciate that such legislation interferes with private rights, but I am bound to say to the Solicitor-General that if the success of a marriage is based on whether it is permissible for sexual intercourse to occur although one of the parties is under the age of 16, that marriage's future may not be rosy. We know the remark, ''Absence makes the heart grow fonder,'' but I do not know whether abstinence makes the heart grow fonder. Such arguments could be advanced in relation to a child. Given what we are seeking to achieve, I am not persuaded that the exception is right.

Photo of Paul Beresford Paul Beresford Conservative, Mole Valley

A large part of the Bill rightly concerns protecting children and attacking the stance taken by paedophiles. Anyone who has watched the BBC programme, ''Hunting Britain's Paedophiles'', will recognise that paedophiles believe that their activities are right. They believe that we are moving in their direction. For example, each time that we have lowered the age of consent they have taken it as meaning that we are moving in their direction. My hon. Friend's point about a two-tier system is also a step in that direction. I am concerned that in protecting children throughout the Bill, we have made positive changes for paedophiles, which they will be prepared to use. Those people are obsessed and will go to huge lengths to have sex with underage children.

Photo of Dominic Grieve Dominic Grieve Conservative, Beaconsfield

I am mindful of what my hon. Friend says, and I have an anxiety that, notwithstanding what the Solicitor-General said about domicile laws, it is possible to change domicile quite quickly. If I leave this country for Thailand—let us say that I intend to spend the rest of my life there—and sell up everything and buy property there, I will be domiciled there quickly, even if I come back a year later because of a complete change of circumstances. Changing domicile

is, in that sense, easy. Equally, I could go to Thailand for 10 years, leaving my house and various things in the UK, without ever changing domicile.

I have no doubt that paedophiles who go away and try to come back to this country within a reasonably short period will find loopholes to exploit. I come back to the wider issue, and I accept that it is difficult. Here am I, a Conservative, a believer in the institution of marriage, advancing an argument that might in the past have been thought rather radical. However, I seriously question whether, having set down such strongly worded guidelines on what is acceptable, we should allow such a major exemption simply on the ground of lawful marriage.

I do not think that the prohibition on sexual intercourse before the age of 16 will in any way alter the lawfulness of the marriage. I accept that there may be an issue about non-consummation if the marriage did not take place abroad, but that would be a rather unusual circumstance. Otherwise, civil laws of recognition of the relationship do not seem to be affected one way or the other. Of course, we are not talking about requiring abstinence for ever; we are talking, probably in many cases, about rather a short period. The longer the period, the younger the age at which the marriage was transacted.

Photo of Humfrey Malins Humfrey Malins Conservative, Woking 10:30 am, 16th September 2003

My hon. Friend provokes me strongly with reference to non-consummation. If I am not being too flippant, can he envisage a situation in which someone might bring proceedings to annul a marriage on the ground of non-consummation, in which case the spouse's defence could be that consummation would have been an unlawful act?

Photo of Dominic Grieve Dominic Grieve Conservative, Beaconsfield

I raised the issue because I could envisage that that might happen, but I think that the situation is fairly far-fetched. I can imagine that it would be a subject for an A.P. Herbert ''Misleading Cases''-style story, but I hope that it would be no more than that.

I do not want to take up the Committee's time further. There is a temptation to force not the amendment but the clause to a Division, but I want to hear how other members of the Committee feel about that. The alternative is to urge the Government to think again on the matter and to return to the issue on Report, when, of course, the wider view of the whole House can be sought on what I accept is a difficult issue. I note that there is a wide cross-party support for the view that clause 16 is a mistake. I think that it is but at this stage we should move on to consider the clause. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Amendment made: No. 47, in

clause 16, page 6, line 18, leave out

'a photograph or pseudo-photograph'

and insert 'an image'.—[The Solicitor-General.]

Question proposed, That the clause, as amended, stand part of the Bill.

Photo of Harriet Harman Harriet Harman Solicitor General (Law Officers), Member, Labour Party National Executive Committee

The Committee has done justice to the clause and it was right to have this debate. We are trying to strike a balance between the great need to protect children and the great need for the law to be practical and for people to feel that it has not extended further than it should.

The marriage exemption would create a two-tier system, because someone coming from abroad could do something with his wife that he could not do if he were married here. My hon. Friend the Member for Lancaster and Wyre (Mr. Dawson) made the point that it is different from the other exemptions in that it is not a child welfare exemption; it is an institution of marriage exemption. Also, as the hon. Member for Beaconsfield pointed out, it is ironic that I should be advancing the protection of the institution of marriage and that he should be advancing the importance of the priority of child protection—I think that that is an irony that is not lost on either of us.

It is interesting that the proposal was not objected to when it was included ''Setting the Boundaries: reforming the law on sex offences''. I would have expected all the arguments about it that have been advanced by hon. Members to have come from the National Society for the Prevention of Cruelty to Children and other child welfare organisations. I think that Committee members are ahead of the game in this instance, together with the Law Society: there are many rich ironies here.

Because of the prompt that was given by the amendment, we have already given a lot of what the courts would describe as ''anxious consideration'' to the matter. That was extended because we did not deal with it last Thursday; we have given anxious consideration to it throughout the weekend. It has been a good discussion, and we will reflect on what has been said. This is not a party political Bill: the Government do not want to railroad over what might appear to be consensus. The hon. Gentleman has advanced arguments that have resonated, although it is not the case that we did not think about them. We will reflect on what has been said.

Photo of Mr Hilton Dawson Mr Hilton Dawson Labour, Lancaster and Wyre

Earlier, my right hon. and learned Friend held out the prospect of care proceedings being used in some cases. I have been pondering what would be the grounds for care proceedings if sexual relations under 16 were allowed within a marriage relationship.

Photo of Harriet Harman Harriet Harman Solicitor General (Law Officers), Member, Labour Party National Executive Committee

Care proceedings will often be taken on the basis of action that falls short of a criminal offence, so that will not be too much of a problem. One does not need to worry about the criminal law when one looks at care proceedings; one has to look only at the welfare of the child. Some things that are against the welfare of the child are not criminal offences, and they would come under that part of the law—care proceedings would still have jurisdiction because of the person being a child and being in this country. The care proceedings remit is absolute in that we are not asking for the criminal law to be overriding. The care proceedings would override the institution of marriage in the interests of the welfare of the child. Many things that are not in the interests of the child are not criminal offences but they could be the foundation of care proceedings.

I am not making any promises but we will look again at the wording of the clause and its positioning in the Bill. We want everyone to feel that the Bill gets such judgments right: we want to be where the consensus is on the issue. There are no competing agendas here but a lot of difficult decisions have to be made. I strongly think that we should leave this clause in the Bill, but I do not rule out the possibility that we will have some further thoughts about it before the Bill is on Report.

Photo of Dominic Grieve Dominic Grieve Conservative, Beaconsfield

I am not minded to press for a Division on this matter. That would not be desirable. It is not a party-political issue. That is not a reason not to seek to press for a Division, but I do not wish to engage in a confrontation with the Government or to encourage their Back Benchers to embarrass the Solicitor-General.

I accept that this is a serious and difficult issue. The Government have approached it with precedent on their side and their decision can be rationally explained. I hope, however, that the Solicitor-General will seriously consider what has been said. Looking round the Room , I see no majority in favour of the clause. When we consult the wider House on Report, it may turn out that Committee members are in a minority in their own parties on the matter—it is possible. I hope that the fact that we have been charged by the House to scrutinise the Bill and to give it a lot of thought—and that a majority are very unhappy about the clause—will have some weight with the Government.

Perhaps the Solicitor-General will, after this morning's consideration, let Committee members know what happens in other countries in comparative terms. It would be useful to know whether it is largely universal in the international community to recognise the lawfulness of marriages, and thereby sexual relations in marriage, whether other countries take a different view and how that may work in practice. It would be helpful if she could do some research on that, if she does not already have the information.

We are moving into society changes and new worlds. One such change that we already know about in relation to marriage is that many of the rights that existed in marriage are no longer allowed to exist by law. We have removed many of the husband's rights in marriage, which would previously have been regarded as the norm. I never thought that that was objectionable in any way. The clause contains the idea that marriage overrides the protection of the child against sexual activity that Parliament deems to be a bad thing. I think that that is slightly strange when viewed in the context of what we are trying to achieve with the Bill.

We may have come to the point at which it is right that we as a Parliament say that the activity is undesirable and should be criminalised. The Solicitor-General argued forcefully against providing exemptions for those under 16, which I have argued for in certain limited contexts. Since that is the view, marriage should no longer be able to override child

protection. That is a perfectly logical, rational position. I am encouraged by the fact that other Committee members seem to think likewise.

Photo of Sally Keeble Sally Keeble Labour, Northampton North

I am grateful to my right hon. and learned Friend the Solicitor-General for assuring the Committee that she will consider the matter further.

On reading the Bill, I did not think that the clause could mean what it appeared to mean. Having listened to the debate, I realise that it did mean what it appeared to mean. The clause provides an exemption for married people who come into the country.

I would like the Solicitor-General to consider the following issues. We know that there is an issue around British girls going abroad for marriage. Everybody recognises that. There is no point citing the communities that are particularly involved with it. Girls who are UK citizens might go abroad and get married to a person who is not. The domicile at the time of the marriage might be quite unclear—it might be abroad. The man might say that he wants to remain in his country, but the situation might change, in which case they might decide to return, although the girl could still be under 16.

We must be clear about the age at which British girls go abroad to get married. We must ensure that in those circumstances a girl has very clear protection and that she does not have to prove where her domicile and that of her husband's is or was at the time of the marriage, or what the intentions were. We should bear it in mind that in the communities where such patterns occur the woman is likely to have a much lower status than the man and is therefore rarely in a position to challenge the decisions that are being taken for her. If she does, she will pay a heavy price. I am sure that my right hon. and learned Friend has dealt with such cases, and probably many more than I have. The ones that I have seen have not been pleasant.

That is an immediate practical issue, but we must also consider what we are saying to girls about the protection that the law here would extend to them. Speaking from experience, I know that it is very important that girls growing up here are clear that the law will protect them and that they can look to the United Kingdom, as their country of origin or of permanent residence, to protect them absolutely. Clear, unambiguous standards must be set down.

I also wonder about the consistency in saying that we will pursue paedophiles abroad and thus extend our jurisdiction—which is a difficult issue in relation to the measures in the Bill and elsewhere—while saying that we are softer when it comes to what happens in our own country. I hope that clarity can be provided, so that it is clear for girls growing up here and for the communities involved where the law stands and whose side it is on.

Photo of Annette Brooke Annette Brooke Shadow Spokesperson (Home Affairs) 10:45 am, 16th September 2003

I welcome the Solicitor-General's comments about a period of reflection. I hope that that means reconsultation with some of the major children's bodies. That is important. We all know about the classic communication gaps that can occur when everyone focuses on one aspect and loses sight of

something else. Perhaps that is what has happened: so many other concerns were addressed in the House of Lords that something was overlooked.

I have been given some reassurance by the Solicitor-General's comments. However, I still have the vision of a 13 or 14-year-old child who is in a marriage in this country and living outside her culture being told by her husband, ''This is okay. We are married, so I can do anything.'' That child will not be able to distinguish between the exceptions. How will she know? As the Bill stands, I fear that there is scope for exploitation and abuse because a child does not know what is acceptable. An additional period of reflection is most important, and I hope that there will be some change to the current situation.

Question put and agreed to.

Clause 16, as amended, ordered to stand part of the Bill.

Photo of Roger Gale Roger Gale Conservative, North Thanet

Before we proceed, I apologise to the Committee for the racket going on outside. I have asked Officers of the House to investigate it, but I fear that it is a symptom of the early recall and the work that is being carried out.

I do not often do this, but I also thank the Committee for giving me the opportunity and privilege of listening to an exemplary debate. I sometimes wish that people outside this House could hear some of the work we do in the manner in which it is being done this morning.