Hansard

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 make the distinction between arranged and forced marriage. I am sure that every member of Parliament is appalled by forced marriage, and wishes the law in Scotland to be effective in preventing forced marriages from taking place, and in bringing justice to women and men who have been subjected to it in the past.

Members of the Justice Committee took evidence from a range of witnesses, all of whom shared the desire that legislation should act both as a deterrent and as an avenue to justice for victims. However, they did not all share the same views on the LCM.

Members have been contacted by Scottish Women’s Aid, Hemat Gryffe Women’s Aid and Shakti Women’s Aid, which have outlined their concerns over the LCM’s content. As we have heard, as recently as 2011, the Scottish Government attempted to address the problem through the Forced Marriage etc (Protection and Jurisdiction) (Scotland) Act 2011. That introduced civil forced marriage protection orders which, if breached, can result in a criminal proceeding and prosecution carries a maximum sentence of two years.

The Istanbul convention, which the UK Government signed in 2012, requires that forced marriage be a criminal offence. The situation is different from that in England and Wales, where breach is not criminalised. The three organisations that I mentioned have argued that the difference in Scotland meant that our legislation was compliant with the Istanbul convention and the LCM was not necessary here. Obviously, given the nature of the organisations involved, that was not because they wished in any way to excuse forced marriage but because they were concerned that the threat of criminal prosecution on report would deter victims from coming forward. It is often the families of victims who have forced marriage on the victims, and victims may be very reluctant to report family members who then become exposed to criminal procedure. Amina—the Muslim Women’s Resource Centre raised concerns in written evidence to the committee that victims might be less likely to seek an annulment if that could result in their families facing criminal charges.

Scottish organisations also felt that they had not had the opportunity to contribute to consultation on the issue other than to the committee, unlike sister organisations in England and Wales that had taken part in the UK consultation. It is interesting that the majority of those organisations agreed with the proposals in the LCM.

As the key argument was initially about whether Scotland was compliant with the Istanbul Convention, a legal opinion was sought by the committee. I assume that committees are not bound by the ministerial convention on legal advice, so I disclose that the opinion received was that Scottish legislation is not compliant. The Law Society of Scotland, despite many reservations about the LCM, also agrees that the Scottish Government is obliged to take steps to ensure compliance. Therefore, we require a change in our legislation, too.

That leaves us with two options. One is to sign up to the LCM; the other is to pass our own legislation. The committee has asked the minister to consider whether it would be practicable for the Government to introduce its own legislation. As we have heard, if we do the latter, that will take longer, so would it be a problem if we are not compliant within the rest of the UK’s timescale? I think—I do not quite remember where I got this information from—that the idea is that ratification will take place in 2015.

It is a dilemma. We have concerns about how the proposals might work in practice. All witnesses to the committee stressed the need for cultural change and education, citing, for example, the route by which domestic abuse became recognised for the abhorrent crime that it is. Will the legislation act as a deterrent, or will it make victims less keen to come forward in case relatives face criminal charges?

We have been told that the civil process will continue to run in tandem with the criminal process but that it does not have to be the victim who reports the criminal offence. However, what will happen if the victim wants to go down the civil forced marriage protection order route but someone else reports the forced marriage as a criminal offence? I would be interested to hear more about what the Lord Advocate has in mind to ensure that the wishes of the victim take precedence. However, I am reassured to hear that the Lord Advocate is looking into the matter.

The other major change is that the maximum sentence for the criminal offence will be seven years instead of the current two years. That change is being introduced in Scotland without consultation.

The alternative would be for us to introduce our own legislation. I initially thought that that could be done using the emergency procedure, and I was quite attracted to that option. However, on thinking about that further, I am not convinced that the end result be very different from what is proposed in the LCM. Moreover, our experience of emergency legislation is that we often do not quite get it right in the long term and subsequent legislation is required to rectify the deficiencies. Furthermore, would the emergency route enable the consultation to take place that witnesses felt had not taken place with the LCM? The likelihood is that we would either adopt very similar proposals to those contained in the LCM or take the risk of passing different legislation through the emergency route only to repent and amend at a later date.

The other problem is that, if our legislation appears to be more lax than that in the rest of the UK, what message would that send about Scotland’s attitude to forced marriage? How would that affect the cultural change in Scotland that we all agree is required? Therefore, it is with some considerable reservations that Labour will support the motion on the LCM.