Chamber
Meeting of the Parliament 22 January 2014
22 Jan 2014 · S4 · Meeting of the Parliament
Item of business
Anti-social Behaviour, Crime and Policing Bill
We are clear that, in order to ratify the convention, forced marriage requires to become a criminal offence.
The Istanbul convention was, in effect, a game changer. We know that violence against women stakeholders are keen for the Istanbul convention to be ratified, and we want Scotland to be compliant. Criminalising forced marriage is necessary to achieving that.
The LCM offered the opportunity to enable Scotland to continue to be at the forefront of social justice issues. In an ideal world, we would have wished to have had a longer timescale and period of engagement. Indeed, the committee questioned whether it would be practicable for the Government to take forward its own legislation in this area. I wish to assure Parliament that that was central to our initial considerations on whether to pursue an LCM. However, in considering how best to take the issue forward in Scotland, we came to the view that, as our goal was to ensure early ratification of the convention, our preferred legislative framework would be no different from that proposed under the UK bill.
A further disadvantage that would arise if we did not follow this route is the gap that would open up between protections in Scotland and those in the rest of the UK. That period could extend to 18 months or more, and we believe that it is simply unacceptable for victims in Scotland to be denied protection for such a period. We would, quite rightly, attract serious criticism for allowing that to happen.
I turn now to the view that criminalisation will prohibit victims from coming forward. The same argument was made when we criminalised breach of an FMPO in the 2011 act. However, at this point in time, we have no evidence that that would happen. It could equally be argued that the knowledge that perpetrators would face a significant sanction could be empowering to victims, it could encourage them to seek help by sending out a very clear public message, and it could act as a deterrent to those who might consider assisting a forced marriage to take place. That is certainly the view of some stakeholders.
In its written submission to the Justice Committee on 29 November 2013, NHS Lanarkshire ending violence and abuse services stated:
“The symbolism of having such behaviour criminalised could act as an inspiration to women and children living with or in fear of forced marriage ... as well as a deterrent to potential perpetrators.”
Forced marriage is already a criminal offence in a number of European countries and there does not seem to be evidence that reporting has decreased.
I bring to Parliament’s attention the fact that the UK Government is considering amending the bill to ensure that those who might try to take advantage of a person’s lack of capacity to consent to marriage will also be guilty of a criminal offence under the law of England and Wales. Members might be aware that the issue was raised via an Opposition amendment that was tabled by Baroness Thornton in the House of Lords during the bill’s report stage on 14 January. Lord Ahmad then undertook to consider the matter further in advance of the bill’s third reading, which is scheduled for 27 January.
If the UK Government decides to amend the bill to that end, we would be minded for similar amendments to be made in relation to Scotland, as we share the UK Government’s concerns in that regard. That links to the approach that we took in the 2011 legislation. Such a move would fall within the scope of the consent motion before us for approval today.
Concerns have also been raised about how the criminal charge and the civil protection orders will work together. For example, would a criminal case proceed if the victim changed their mind or did not want that to happen? A number of factors would be taken into account, but proceedings could be taken without the victim’s consent if it was deemed appropriate.
That is similar to how we have changed our practice in cases of domestic abuse. It used to be commonplace for the police to ask a victim whether she wanted the perpetrator to be charged. That placed her in a difficult position, having to seemingly take the responsibility for whether her partner was charged and taken to court. Many victims found that to be too heavy a burden and withdrew their statements. Practice has evolved now, however, and cases can be brought even if the victim withdraws her statement. The public interest test is applied, and the increased importance that is now given to domestic abuse throughout the criminal justice system means that the burden of responsibility is removed from the victim.
We have spoken to the Lord Advocate about the issue and he is considering prosecutorial guidance on forced marriage. That will deal with the position if someone who is affected by forced marriage does not want criminal proceedings to be brought. The Lord Advocate will consult key stakeholders on the development of the prosecutorial guidance, and I hope that that will be sufficient to reassure members.
As we will not know the impact of the legislation until it has been implemented, I give a strong assurance to Parliament that we will keep it under review in the medium and longer term. We will, of course, work closely with stakeholders throughout, as we have always done. Those working directly with the communities concerned are in the best position to give us the evidence we need, and we will provide resources for training and awareness raising, just as we did for the 2011 act.
I make it clear that I see criminalising forced marriage as sending the strongest possible message that we will not tolerate such behaviour in Scotland.
I move,
That the Parliament agrees that the relevant provisions of the Anti-social Behaviour, Crime and Policing Bill, introduced in the House of Commons on 9 May 2013, relating to the criminalisation of forcing a person to marry, cross-border application of the new Sexual Harm Prevention and Sexual Risk Orders and in respect of a new firearms offence, so far as these matters fall within the legislative competence of the Scottish Parliament or alter the functions of the Scottish Ministers, should be considered by the UK Parliament.
17:09
The Istanbul convention was, in effect, a game changer. We know that violence against women stakeholders are keen for the Istanbul convention to be ratified, and we want Scotland to be compliant. Criminalising forced marriage is necessary to achieving that.
The LCM offered the opportunity to enable Scotland to continue to be at the forefront of social justice issues. In an ideal world, we would have wished to have had a longer timescale and period of engagement. Indeed, the committee questioned whether it would be practicable for the Government to take forward its own legislation in this area. I wish to assure Parliament that that was central to our initial considerations on whether to pursue an LCM. However, in considering how best to take the issue forward in Scotland, we came to the view that, as our goal was to ensure early ratification of the convention, our preferred legislative framework would be no different from that proposed under the UK bill.
A further disadvantage that would arise if we did not follow this route is the gap that would open up between protections in Scotland and those in the rest of the UK. That period could extend to 18 months or more, and we believe that it is simply unacceptable for victims in Scotland to be denied protection for such a period. We would, quite rightly, attract serious criticism for allowing that to happen.
I turn now to the view that criminalisation will prohibit victims from coming forward. The same argument was made when we criminalised breach of an FMPO in the 2011 act. However, at this point in time, we have no evidence that that would happen. It could equally be argued that the knowledge that perpetrators would face a significant sanction could be empowering to victims, it could encourage them to seek help by sending out a very clear public message, and it could act as a deterrent to those who might consider assisting a forced marriage to take place. That is certainly the view of some stakeholders.
In its written submission to the Justice Committee on 29 November 2013, NHS Lanarkshire ending violence and abuse services stated:
“The symbolism of having such behaviour criminalised could act as an inspiration to women and children living with or in fear of forced marriage ... as well as a deterrent to potential perpetrators.”
Forced marriage is already a criminal offence in a number of European countries and there does not seem to be evidence that reporting has decreased.
I bring to Parliament’s attention the fact that the UK Government is considering amending the bill to ensure that those who might try to take advantage of a person’s lack of capacity to consent to marriage will also be guilty of a criminal offence under the law of England and Wales. Members might be aware that the issue was raised via an Opposition amendment that was tabled by Baroness Thornton in the House of Lords during the bill’s report stage on 14 January. Lord Ahmad then undertook to consider the matter further in advance of the bill’s third reading, which is scheduled for 27 January.
If the UK Government decides to amend the bill to that end, we would be minded for similar amendments to be made in relation to Scotland, as we share the UK Government’s concerns in that regard. That links to the approach that we took in the 2011 legislation. Such a move would fall within the scope of the consent motion before us for approval today.
Concerns have also been raised about how the criminal charge and the civil protection orders will work together. For example, would a criminal case proceed if the victim changed their mind or did not want that to happen? A number of factors would be taken into account, but proceedings could be taken without the victim’s consent if it was deemed appropriate.
That is similar to how we have changed our practice in cases of domestic abuse. It used to be commonplace for the police to ask a victim whether she wanted the perpetrator to be charged. That placed her in a difficult position, having to seemingly take the responsibility for whether her partner was charged and taken to court. Many victims found that to be too heavy a burden and withdrew their statements. Practice has evolved now, however, and cases can be brought even if the victim withdraws her statement. The public interest test is applied, and the increased importance that is now given to domestic abuse throughout the criminal justice system means that the burden of responsibility is removed from the victim.
We have spoken to the Lord Advocate about the issue and he is considering prosecutorial guidance on forced marriage. That will deal with the position if someone who is affected by forced marriage does not want criminal proceedings to be brought. The Lord Advocate will consult key stakeholders on the development of the prosecutorial guidance, and I hope that that will be sufficient to reassure members.
As we will not know the impact of the legislation until it has been implemented, I give a strong assurance to Parliament that we will keep it under review in the medium and longer term. We will, of course, work closely with stakeholders throughout, as we have always done. Those working directly with the communities concerned are in the best position to give us the evidence we need, and we will provide resources for training and awareness raising, just as we did for the 2011 act.
I make it clear that I see criminalising forced marriage as sending the strongest possible message that we will not tolerate such behaviour in Scotland.
I move,
That the Parliament agrees that the relevant provisions of the Anti-social Behaviour, Crime and Policing Bill, introduced in the House of Commons on 9 May 2013, relating to the criminalisation of forcing a person to marry, cross-border application of the new Sexual Harm Prevention and Sexual Risk Orders and in respect of a new firearms offence, so far as these matters fall within the legislative competence of the Scottish Parliament or alter the functions of the Scottish Ministers, should be considered by the UK Parliament.
17:09
In the same item of business
The Deputy Presiding Officer (John Scott)
Con
The next item of business is a debate on motion S4M-08797, in the name of Shona Robison, on the Anti-social Behaviour, Crime and Policing Bill, which is Unit...
The Minister for Commonwealth Games and Sport (Shona Robison)
SNP
Forced marriage is, thankfully, not an issue that affects the majority of people in Scotland. However, it is a blight on those communities where it still hap...
Malcolm Chisholm (Edinburgh Northern and Leith) (Lab)
Lab
Is it not the case that the UK Government has signed but not ratified the convention, and that it becomes legally binding only when ratified? If the minister...
Shona Robison
SNP
We are clear that, in order to ratify the convention, forced marriage requires to become a criminal offence. The Istanbul convention was, in effect, a game c...
Elaine Murray (Dumfriesshire) (Lab)
Lab
Only one part of the legislative consent memorandum is contentious and that is the proposals on forced marriage.In starting, I think that it is important to ...
The Deputy Presiding Officer
Con
Thank you for your brevity.17:15
Margaret Mitchell (Central Scotland) (Con)
Con
The Justice Committee report on the Anti-social Behaviour, Crime and Policing Bill legislative consent memorandum did not make a recommendation on the provis...
The Deputy Presiding Officer
Con
We move to the open debate. If members could speak for not too long, that would be helpful.17:18
Sandra White (Glasgow Kelvin) (SNP)
SNP
Thank you, Presiding Officer. I will try to keep my speech as short as possible.As a member of the Justice Committee, to which consideration of the LCM fell,...
John Pentland (Motherwell and Wishaw) (Lab)
Lab
The LCM’s proposals on forced marriage proved very contentious. The shortcomings of the process were such that the committee decided not to recommend support...
Christine Grahame (Midlothian South, Tweeddale and Lauderdale) (SNP)
SNP
The Justice Committee requested time for the debate, and I thank the Parliamentary Bureau for allowing us to have it. All members of the committee were conce...
Malcolm Chisholm (Edinburgh Northern and Leith) (Lab)
Lab
In 2005, I introduced a consultation on forced marriage and listened to the views of violence against women organisations, such as Scottish Women’s Aid, Hema...
The Deputy Presiding Officer
Con
We move to the closing speeches. I call Margaret Mitchell—four minutes, please.17:30
Margaret Mitchell
Con
This debate, which is an unusual one, was triggered by the Justice Committee’s decision not to make a recommendation on the inclusion of forced marriage with...
Elaine Murray
Lab
A number of important points have been brought out in this very brief debate. Sandra White made the point about the need to treat forced marriage as we do ot...
Shona Robison
SNP
I thank everyone for their contributions to the debate. Although we might not all agree on the details, I have a strong feeling of the commitment that member...
Margaret Mitchell
Con
The point is that there is time, especially given the information that Malcolm Chisholm supplied, to look again and see whether a Scottish solution can be fo...
Shona Robison
SNP
I find that comment slightly ironic, given the UK Government’s clear position. As for Malcolm Chisholm’s point about ratification, the UK cannot ratify the c...
Malcolm Chisholm
Lab
There is disagreement on the legal advice, because that is not the legal advice that Scottish Women’s Aid has received. However, if the minister takes that v...
Shona Robison
SNP
We are looking at forced marriage today. We are clear that, to ratify the convention, we require to criminalise forced marriage. The other articles are anoth...