We turn to stage 3 of the Female Genital Mutilation (Protection and Guidance) (Scotland) Bill. Members should have the bill as amended at stage 2, the marshalled list and the groupings of amendments.
I remind members that the division bell will sound for the first division of the afternoon, for which there will be a 30-second vote. Thereafter, there will be a one-minute vote should there be a division following a debate on a group. Any member who wishes to speak to an amendment should press their request-to-speak button immediately after I call the group that contains that amendment.
Members should now refer to the marshalled list.
At stage 2, I said that I would lodge amendments at stage 3 to ensure that the bill reflected the importance of ensuring that women and girls who seek a female genital mutilation protection order receive appropriate and necessary support from front-line bodies. My amendments are intended to meet the spirit of the Equalities and Human Rights Committee’s work and the view that it expressed at both stage 1 and stage 2.
Since stage 2, I have had discussions with front-line third sector providers and statutory bodies about the bill as amended. Several third sector bodies submitted a joint letter, and Social Work Scotland has written a letter, too. I hope that members have had a chance to read those.
I pay tribute to the important work that the Equalities and Human Rights Committee has done throughout the process to ensure that we will have the best possible legislation that will protect women and girls and prevent FGM from happening in the first place. Although I disagreed with Oliver Mundell’s amendments at stage 2, I completely understood what he was trying to achieve in pressing them, and I understand the committee’s strong desire to ensure that women and girls receive appropriate support and that their identities are not disclosed, given the particularly sensitive and personal issues that arise in relation to FGM and the importance of ensuring that they are protected. I thank Oliver Mundell for engaging with the issue. I am sorry that he cannot be here today to speak to his amendments, but I hope that I will do justice to the spirit of what he was trying to do.
At stage 2, I said that I would lodge amendments to deliver on the committee’s aspiration in a sensible and balanced way. In doing so, I have sought to address stakeholder concerns that court-designed and directed support within FGM protection orders would be so precise and directive that it could risk removing the benefits of the professional assessment of need and tailored support. The assessment is best carried out by those who provide complex support packages daily. My amendments therefore place the responsibility for determining appropriate support in the hands of front-line professional experts.
That will provide for a more balanced and sensible approach that starts from the basis that public bodies—in partnership with third sector organisations, and with the needs of the individual at the heart of the process—are best placed to identify and deliver the necessary package of support. My amendments will allow the court to require a public body to consider carefully what support is needed and then to provide that support appropriately and when it is reasonably practicable to do so. They will ensure that vulnerable women and girls will not have to attend court repeatedly to have their support requirements varied. I am sure that everyone agrees that that would not be desirable.
Oliver Mundell’s amendments provide for a power for ministers to issue guidance to the courts in carrying out their duties in a case. However, ministers would never do that, as it would run counter to the independence of the judiciary. Our amendments respect the proper role of the courts and their judicial independence from ministers.
Oliver Mundell’s amendments also provide for the court to name an appointed person to oversee the order. I understand that the reason for that might be to prevent repeated court trips to vary the order as support needs change. However, I hope I can assure members, including Ms Davidson, who will speak to Oliver Mundell’s amendments, that repeated court trips to tweak support packages will also be ruled out by my approach.
I have looked carefully at Mr Mundell’s proposals, and I worry that they could cause confusion and tension between the protected person and the public body that is supporting them. That would mean that, despite mandating someone to be the appointed person, the court would continue to have to step in and resolve any issues. I hope that we can all trust our public bodies to make the right decisions and to provide support that has the needs of the protected person at its heart.
To be clear, the bill will provide guidance on appropriate support. Our statutory guidance at sections 2 and 3 will spell that out clearly to the public body, which must have regard to the seriousness of the order and the steps that it should take in complying with it.
In the light of what I have said, it should be noted that our guidance is expressly prevented from applying to the courts. Mr Mundell has acknowledged that through his proposal to modify section 5A by regulation. However, we have an opportunity to get the bill right today, and I respectfully submit that my amendments are a better way forward.
Our proposals meet the spirit behind the amendments that Oliver Mundell lodged at stage 2—and the committee’s majority support for them—in reinforcing the provision of support in a sensible and balanced way, ensuring that vulnerable women and girls who require support can access the right support in the right way and that their needs are at the very heart of the process. Once the court has done its job, our public services will be freed to do theirs.
As I said at stage 2, we all agree on the importance of supporting women and girls and their families when there is a current or future risk of FGM. It is certainly right that those who need support should have access to it. As members know, my entire approach to tackling FGM through our strategy, our preventative work in communities and the 2005 act is to support vulnerable girls by taking a person-centred approach. Members will all agree that I am utterly committed to that. All that we want to do is ensure that we have good and competent legislation. That is our collective aspiration for any legislation that is passed by Parliament.
I move amendment 1.
The amendments that have been lodged in the name of my colleague Oliver Mundell are designed to address a number of practical and technical concerns that were raised at stage 2, when an amendment on the provision of direct practical support to those protected by an FGM order was agreed to by a majority of committee members.
At the outset, we acknowledge that the Government has lodged alternative amendments, and we recognise that, if they are agreed to, they will improve the bill. Although my colleague believes that the Government’s amendments do not give everything that the committee members were looking for, he acknowledges that they might be more practical for exactly the reasons that the minister has just outlined. Nevertheless, we are still keen to explain to Parliament the reasons for the amendments that have been lodged by my colleague, to thank all those who came to give evidence to the committee and to demonstrate that the points that were raised at committee, particularly by Scottish National Party members, have been listened to.
Amendment 1 clarifies that any direction from the courts would be limited to public bodies as defined under the Scotland Act 1998. At stage 2, concerns were raised that unfair or unreasonable burdens could be placed on third sector organisations, which was not the intention.
Amendment 3 makes it clear that any support outlined may be “immediate or ongoing”, and amendment 5 would allow the courts to appoint a suitable individual to take charge of arrangements moving forward and a mechanism for any support to be reviewed without returning to court. Again, that responds to a specific concern that was raised at stage 2.
I know that our colleague across the chamber, Mary Fee, was keen to see in the bill more detailed examples of what such support might include. That is covered in amendment 6, which focuses on health, housing, “financial support” and education as a starting point.
Amendments 7, 8 and 9 speak to the protections that we seek for the individual who is at the heart of any decision, offering direction to the court and giving scope to ministers to issue guidance.
That was the rationale behind the amendments being lodged. However, we recognise that the minister has taken on board a great number of the concerns that were raised at stage 2. We thank her for that and, to that end, I will not move the amendments in the name of Oliver Mundell. We will support the Government’s amendments in their stead.
The Scottish Green Party is not represented on the Equalities and Human Rights Committee, but we are very grateful for the work that it does. We have monitored it closely and are supportive of the Government’s bill.
I was involved with this issue through my previous involvement in the Equal Opportunities Committee and the Justice Committee; therefore, I am aware of the sensitivities around it and the perniciousness of the practice. On each of the occasions on which I was previously involved, we called on the expertise of many people. I understand that the bill is about strengthening protections, and there is no doubt that that is what everyone has sought to do.
I should declare my interest as a member of the cross-party group on men’s violence against women and children. The role that Scottish Women’s Aid has played in informing previous discussions on the matter is important, as are the views of various other groups, such as Engender, Amina—the Muslim Women’s Resource Centre, Saheliya and Shakti Women’s Aid. The minister has already referred to the letter from Social Work Scotland.
We ignore at our peril the wisdom of the practitioners on the issue. The letter to the committee from Scottish Women’s Aid, which was signed by some of the groups that I have mentioned and many others, including many academics, talks about
“unforeseen consequences which undermine the efficacy of the Bill and will prove harmful to victims and survivors.”
I think that we have to pay heed to that statement. Given Ms Davidson’s comments, I do not propose to say any more than that. We are entirely supportive of the minister’s amendment 1.
I speak in support of amendments 1 and 10, in the name of the minister. I am a member of the Equalities and Human Rights Committee, and the amendments seek to address some of the difficulties that were caused by some earlier amendments, as Ruth Davidson discussed with regard to what happened at stage 2.
It is fair to say that the committee was united in agreeing that endeavours to include practical support in FGM protection orders to reduce on-going risk and harm were based on the very best of intentions, but we were divided on the practical effect and impact of Mr Mundell’s proposition. Nonetheless, I welcome the position that Ruth Davidson has taken today on behalf of Oliver Mundell. Oliver Mundell was a very diligent member of the Equalities and Human Rights Committee who cared deeply about the bill. Despite our differences, he genuinely sought to make it the best possible legislation.
I come to the bill as someone who has many years of front-line experience in assessing vulnerable people, those who are at risk and those who present a risk. I have made many applications and recommendations to courts, tribunals and parole boards. Admittedly, that front-line experience is somewhat old now—it is from more than a decade ago—but those of us with such experience will have wrestled with the very delicate balance between the responsibilities, competencies and expertise of the courts on the one hand and service providers on the other. The minister’s amendments try to ensure that, when the courts impose duties, they will be based on assessed need and professional judgment.
John Finnie has already drawn the chamber’s attention to the correspondence that the committee received from Scottish Women’s Aid, which was signed by other organisations including
Shakti Women’s Aid, Multi-Cultural Family Base, Dundee International Women’s Centre, Saheliya and Amina—the Muslim Women’s Resource Centre.
As he and other members have said, we will do well to pay heed to those services and workers who have current front-line experience of trying to protect women and girls who are at risk of FGM.
I echo what other members have said about the intent of Oliver Mundell’s amendments at stage 2, which I was happy to support—imperfect as they were, as he admitted. However, the Scottish Government has done a great deal of work to bring parties together to discuss Opposition plans to alleviate the concerns that we had at stage 2, and I am happy to support the Government’s amendments on that basis.
I do not have a lot to add to what my colleagues have already said. In particular, Angela Constance summed it up well.
I support amendments 1 and 10, in the name of the minister. I also welcome Ruth Davidson’s approach today. She summed up where Oliver Mundell was coming from and the fact that the Government’s amendments have captured where he was trying to go. Along with other committee members, I shared concerns at stage 2 about the risk of the support being so precise and directed that it could minimise the benefits of professional assessment and a tailored approach, as well as the complex support packages that are in place.
In the spirit of the current climate, I welcome the Conservatives’ approach to the amendments today.
I thank Oliver Mundell and Ruth Davidson for the position that they have taken today. When we work together like this, it is incredibly helpful. Everyone in the chamber has drawn attention to the letter that was sent to the committee from all the organisations that do the day-to-day work in these complex situations. I reiterate my commitment that, when we formulate the statutory guidance for the bill, we will be open to the same collegiate approach that we have taken with the committee, stakeholders and members from across the chamber.
John Finnie raised a few points from the letter. He said that the stakeholders who do that work every day are the experts and that we should always remember that.
Angela Constance talked about getting the balance right between the competencies of the court and those of the statutory bodies. When the courts impose duties, they must be based on assessed need.
The core of this bill is about ensuring that those little girls—or their sisters or mums—who have been victims or who could be at risk are protected. We do ourselves proud in agreeing to this amendment and in moving forward with the bill.
Amendment 1 agreed to.
Amendments 5 to 9 not moved.
Amendment 4 is a technical amendment to make it clear that an FGM protection order is not to be used to regulate matters that are unconnected to Scotland. Although the bill currently reiterates the powers of the sheriff to decline jurisdiction in such an instance, I consider it to be prudent to put the matter beyond any doubt.
Technical amendment 4 will make it clear that FGM protection orders, which cover individuals who are “ordinarily resident in Scotland”, irrespective of their immigration status or whether they are a UK national, will also cover any person within Scotland.
It will ensure that an FGM protection order can be sought to protect even the most transient visitors.
By way of example, if Police Scotland were to receive credible intelligence that a non-UK national girl who was due to visit Scotland could be subjected to FGM when she goes home, our bill will operate so as to allow Police Scotland, while the girl is here, to seek an FGM protection order and, in turn, to protect that girl from future harm. Amendment 4 will not change that, but will put it beyond doubt that an FGM protection order cannot be used in relation to circumstances in which there is no connection to Scotland.
That is because it is important that we take a proportionate approach, and that jurisdiction should not be extended to interfere unduly in the affairs of sovereign nations and their citizens. We would not want a Scottish sheriff to issue an FGM protection order in relation to a woman or girl—or, indeed, in relation to a potential perpetrator—who has never set foot in Scotland, who has no connection to this country, and who has never had any intention of coming here. It is not for us to interfere in the role of a state in keeping that woman or girl safe, or in holding to account that potential perpetrator of FGM.
However, the bill remains deliberately drafted to provide robust protection of girls who might be taken from Scotland to be abused. Furthermore, the bill is equally robust in tackling non-Scottish perpetrators who might come here to carry out that form of abuse, irrespective of whether a potential victim has been identified. Amendment 4 will make no difference to that comprehensive approach.
I move amendment 4.
Amendment 4 is a technical amendment. We have no particular comments to make on it, other than to say that we support the Government’s approach, which seems to be sensible and will, we think, strengthen the existing provisions.
Amendment 4 agreed to.
Amendment 10 moved—[Christina McKelvie]—and agreed to.
As the Equalities and Human Rights Committee and I acknowledged at stage 2, we all know that individuals may wish to be made anonymous for a number of reasons, and the needs of the person who is seeking protection from harm will always be at the heart of what we are trying to do.
In the context of an FGM protection order, it is absolutely right that the court should consider that carefully and act in the best interests of the protected person.
At stage 2, the committee was sympathetic to undoubtedly well-intentioned amendments from Oliver Mundell. However, I was concerned about the workability of those amendments and that they in effect granted automatic anonymity for perpetrators. I explained that the courts already have powers at their disposal to grant anonymity, that there is no evidence to suggest that they do not take their duties in that regard seriously and that they are well placed to decide how best to exercise such powers in a given case. However, the committee was sympathetic to the spirit of the amendments and voted to amend the bill at stage 2 by inserting Oliver Mundell’s provisions. As I said, I understand why it did so.
My focus was then, and remains now, on ensuring that we have good, workable law that the courts are able to exercise, that works well for those whom it is designed to protect and that does not have any unintended consequences. I welcome the fact that Oliver Mundell has sought to fix some of the issues that were highlighted at stage 2. As with group 1, I have lodged what I think are balanced and sensible amendments to strengthen the bill in that area, and I hope that Parliament as a whole can get behind them.
We are fortunate in this country to have a highly skilled and professional judiciary that is well used to ensuring the effective delivery of justice and the protection of persons’ rights within that process. That is one of the reasons why we entrust those decisions of enormous personal importance not to individuals, but to courts. As part of that, we need to allow the courts to act justly and to react to the facts of the case that is before them. I continue to believe that the courts have sufficient powers at their disposal and that they are well capable of exercising them and do so seriously. However, I have also listened carefully to the views of the committee and I note—again—the spirit and good intentions that were behind the original amendments. I have therefore lodged an amendment that will insert into the Prohibition of Female Genital Mutilation (Scotland) Act 2005 new sections 5FA, 5FB, and 5FC, which meet that spirit and provide workable law that will meet the purpose of the bill.
Together, those new sections will require the court to consider using the new power to make an anonymity order. That requirement will arise not only when the court receives an application for an FGM protection order but when the need for one arises in other civil proceedings. My amendments do not set out the detail of the measures that are to be used; rather, they set out the effect that is to be achieved.
My amendments are more expansive than Oliver Mundell’s approach, in that they require the court to properly consider the whole issue of anonymity. Oliver Mundell’s amendments are still a bit too narrow and could constrain the court’s thinking and the actions that it can take. My amendments also leave the existing powers of the court untouched in order to guard against any unforeseen circumstances that may arise that are outwith the ambit, allowing the court to fall back on the existing powers if need be.
The briefing by Scottish Women’s Aid and Engender raised a specific concern in relation to the Government’s amendments, about whether the courts would use the provision to grant anonymity for perpetrators or potential perpetrators of FGM. Those organisations sought reassurances from the Government on how the provisions are intended to apply in practice, and I am happy to give those reassurances now. There are sometimes occasions when the court has to consider whether to make a perpetrator anonymous. However, the courts are clear that they will do that only in order to protect the victim.
The crime can often take place in small, close-knit communities and families. In such situations, naming the perpetrator will automatically mean identifying the victim, their sibling or perhaps even a brave mother who has taken a stand in seeking protection for her daughter. Journalists call that the jigsaw identification process. That is why our amendments require the court, in considering whether to make anyone anonymous, to keep in mind the key test of the health, safety and wellbeing of the protected person, and only the protected person. That is a critical point.
In extreme circumstances, anonymity can be granted to a perpetrator, but only where to do otherwise would harm the victim or where there is a chance that the case to protect the victim may not proceed at all. If we do not allow the courts to do that, we may inhibit at-risk women and girls from coming forward if they think that a family member could be identified publicly, even when that family member is a potential perpetrator.
As part of the implementation of the bill, we will work closely with the Judicial Institute for Scotland to ensure that the courts understand the particular dynamics of FGM and respond appropriately. That is the right balance—it focuses on building the capacity of the whole system to respond effectively while respecting the fundamental independence and wisdom of the judiciary. We will of course continue to work with front-line experts and communities to shape the approach.
In general, my amendments tidy up a number of technical issues relating to who can make an application, how the protected person’s views should be taken into account and how the court deals with issues such as variation. If Parliament supports the amendments, those changes will make the final bill better law. That is reflective of the complexity of the process. We have tested our thinking with the Scottish Courts and Tribunals Service, the Faculty of Advocates, the Family Law Association and JustRight Scotland, which is a group of specialist human rights lawyers who act with potential victims of FGM on a day-to-day basis. Yesterday, the Law Society of Scotland made a submission supporting our approach. I will ensure that the court’s decision making continues to be underpinned by the needs of the protected person—that should be beyond any doubt—and in a way that is right for the protected person.
I urge members to support our sensible and balanced amendments and to delete proposed new section 5CA of the 2005 act from the bill.
I move amendment 11.
Amendments 12 to 16 in the name of Oliver Mundell aim to simplify the amendment on victim anonymity that was made at stage 2. In particular, we felt that amendments 12 to 16 more accurately captured what victims and survivors were asking for. Often, they are looking for support and help, but they want to ensure that their details and those relating to an order do not make it into the public domain, which is not quite the same thing as anonymity. We believed that the proposed new wording provided the necessary privacy and dignity that people were looking for and that it was self-evidently simpler and clearer than the Scottish Government’s alternative.
However, we recognise the minister’s amendments in the group, which go further than she was willing to go at stage 2. We welcome the fact that, crucially, the Government’s amendments will move the issue of anonymity into the bill.
As all speakers today have recognised, every member, official and minister who has been involved has sought in good faith to act on behalf of some of Scotland’s most vulnerable women and to give them the best protection under the law that is within our power. There are perhaps different methods of doing that, but we have the same motivation and commitment. Given the assurances that we have just heard from the minister on anonymity, I am content not to move the amendments in Oliver Mundell’s name.
T he aim of the bill is to
“strengthen the existing legal protection for those at risk of female genital mutilation.”
The bill lays out how that will be done. The very clear point that has been made by practitioners is that the courts already have the power to grant anonymity. We are all familiar with people wanting things on the face of the bill for particular reasons, but, as an organisation told the committee, one of the unintended consequences of that would be
“the potential for promising perpetrators they will not be named.”
That would be decidedly unhelpful. It is equally unhelpful when such organisations conclude that
“the potential for criminalising support efforts and organisations is particularly alarming.”
Therefore, I am grateful for the amendments that the minister has lodged. They strike the right balance and the Greens will support them.
It is worth reminding the chamber that, on the issue of anonymity, the committee concluded in its stage 1 report that it
“strongly supports the principle that the views and wishes of victims and survivors should be paramount and central to court considerations. The Committee believes that anonymity on request is a reasonable expectation for victims of FGM and asks the Scottish Government how this can be given.”
The spirit of that is best reflected in the minister’s amendments 11, 17 and 18.
One discrete bill will never be the vehicle for wholesale legal change to our justice system and it is problematic to try to carve out a separate set of arrangements for one particular set of victims and survivors. I am pleased that the minister has taken that recommendation forward as far as she can, and that she has consulted an extensive range of stakeholders, including JustRight Scotland, which acts for potential victims of FGM, day-in, day-out.
John Finnie reflected on the correspondence that the committee received from practitioners in the field. It is important to point out that courts must already withhold a person’s identity in circumstances in which that person faces a threat to life or limb and, further, in which it is
“in the interests of justice to protect a party to proceedings from painful and humiliating disclosures of personal information where there is no public interest” in doing so. Those circumstances are a good description of FGM cases, and the approach offers significant protections already.
I listened carefully to the minister speak to her amendment 17, which includes provision allowing the court to consider making anyone anonymous—for example, a sibling. That is important. Crucially, as the minister said, the court can grant anonymity to someone who is not a protected person, but only if it has the health, safety and wellbeing of the protected person at the heart of its considerations. I listened carefully to the minister’s explanation that her amendments will indeed remove the prospect of perpetrators being granted anonymity.
I echo a lot of what has been said by other members on this group of amendments. I was one of the committee members who supported Oliver Mundell’s original attempt to get anonymity into the bill. He did so for very important reasons. By definition, we are talking about communities in which FGM is an issue of massive cultural sensitivity, and the fear of being named or identified might act as an inhibitor to those who are victims or might become victims of female genital mutilation. During stage 2, we all recognised the imperfections in his amendments—problems that the amendments that he lodged at stage 3 were designed to rectify. However, I salute the Government for moving a great distance once again to recognise the need for provision for anonymity in the bill. It has got the balance right and the Liberal Democrats will therefore support its amendments.
I pressed my request-to-speak button to keep the list of speakers the same as it was for group 1 as much as anything else, because I do not have a lot to add to what my colleagues have already said.
Anonymity was probably the most pressing, and the key, issue at stages 1 and 2. Witnesses told us about various approaches that could be taken. I was concerned about some of the amendments that were agreed to at stage 2, but I think that Oliver Mundell and others who voted for them agreed that they were not the finished article. I welcome the minister’s approach, and I think that Oliver Mundell, who is obviously not here today, can be very happy with what he has achieved.
I welcome the Conservatives’ approach to the amendments before us today.
John Finnie made a key point about the issue of not criminalising charitable and third sector organisations. That was a key part of the work that we needed to do. I wanted to put that absolutely beyond doubt, because we will need stakeholders such as charities and third sector providers to do this detailed and expert work.
Angela Constance talked about the need for the views and wishes of the victim to be put at the heart of the process. I cannot reiterate enough that that is what we have attempted to do through the actions that we have taken. She is absolutely right—it is not just the law that will make the difference here; the work that we do with stakeholders and the work that we do through guidance and our FGM action plan will also be important. She is right that it is important that the scope of what we propose is broad enough to allow for a sibling, and maybe a mother or a grandmother, to be protected, too.
Alex Cole-Hamilton gave a clear explanation of why this is such a sensitive and complex issue, which is to do with the fear of being named in a community. That was raised with me—and, I know, with the committee—repeatedly by communities and stakeholders, and we wanted to make sure that we gave a commitment on that. In his comments, Fulton MacGregor backed up our position.
The bill is about the protection of women and girls, and I think that we have done a good job by putting them at the heart of the process. Ensuring that siblings and others are protected, too, is a key aspect of what we want to do.
I thank everyone for their contributions.
Amendment 11 agreed to.
The Presiding Officer:
That ends formal consideration of the amendments.
As members will be aware, at this stage in proceedings, I am required under standing orders to decide whether, in my view, any provision of the bill relates to a protected subject matter—that is, whether it modifies the electoral system or the franchise for Scottish Parliament elections. As the bill does no such thing, it does not require a supermajority to be passed at stage 3.