Serious Crime Bill [Lords]

Public Bill Committee, 20 January 2015.

Clause 67 - Offence of female genital mutilation: extra-territorial acts

Katy Clark (Labour, North Ayrshire and Arran)

With this it will be convenient to discuss the following:

New clause 25—Offence of female genital mutilation: reinfibulation—

‘The Female Genital Mutilation Act 2003 is amended as follows—

In section 1 (Offence of female genital mutilation), in subsection (1), after “infibulates”, insert “, reinfibulates”’

Seema Malhotra (Labour, Feltham and Heston)

It is a pleasure to open proceedings and to serve under your chairwomanship this morning, Ms Clark. I am delighted to be able to say a few words on clause 67 and to speak to new clause 25 on the definition of reinfibulation. I welcome clause 67, which covers extraterritorial acts and recognises that, as noted in the Select Committee on Home Affairs report, at the moment there is a significant gap that needs to be addressed. The clause amends section 4 of the Female Genital Mutilation Act 2003 to ensure that it protects girls who are habitual UK residents and applies to those perpetrating female genital mutilation who are habitual UK residents.

The changes mean that the 2003 Act will capture offences of female genital mutilation committed by or against those who are habitually resident in the UK. Campaigning organisations such as Forward fully support the clause. The Metropolitan police told the Select Committee that that significant loophole may have hampered their ability to proceed to prosecution in a number of cases.

However, there are a few issues about the practicalities of the offence that I would like to ask the Minister about so that we can ensure that the measure can be implemented effectively. First, how will the extraterritorial nature of the offence work in practice, particularly regarding the gathering of evidence? One of the main reasons that there have been no convictions so far for FGM in the UK is the difficulty of gaining evidence for a prosecution. For offences that take place abroad, that could become even more difficult. How will the evidence of FGM abroad be gathered? How does the Minister anticipate the police working with authorities overseas if need be? This is a challenging task that the police will need proper training and preparation for.

Secondly, there has been little discussion about the practicalities of prosecuting perpetrators who are habitual UK residents and have carried out FGM abroad. Will the perpetrators be prosecuted on their return to the UK? How would police deal with situations where the perpetrators remain overseas—believing they may be out of reach of the authorities—and return after several months or years? Would the police be notified of the perpetrator’s return and if so, by whom?

I want to flag up what appears to be an inconsistency in the Government’s approach to ensuring the prosecution of perpetrators for acts committed abroad. FGM committed abroad is to be a criminal offence, but being in possession of a paedophile manual abroad, which we debated when we considered clause 66, is currently not a criminal offence. I am grateful to the hon. Member for Mole Valley for raising that issue in Committee last week. I know that we will be looking at the matter further before and on Report. Several questions about the practicality of the clause need to be addressed to ensure that it will make the difference that we hope and intend. Closing that obvious loophole is clearly a step in the right direction. I look forward to the Minister’s response.

The Opposition have tabled a new clause to clarify that reinfibulation is included in the definition of FGM in section 1 of the 2003 Act. The issue has been on the political agenda for months and we know that it is topical. We do not want to talk about the ongoing case, but it raises an issue and relates to a matter that was debated previously. It is also of concern to the medical profession. The Select Committee’s report on FGM recommended amending the 2003 Act so that reinfibulation is explicitly included. To all intents and purposes, I understand that the intention has been that the law be interpreted in that way. I would be grateful if the Minister clarified that today. I would like to advance my arguments as to why that should be made explicit in the Bill.

In November, Baroness Smith of Basildon introduced an amendment to the Bill on Third Reading in the other place calling for reinfibulaton to be included explicitly in the definition. I do not need to lay out her robust and cogent reasons for ensuring that the criminalisation of reinfibulation is explicit. I am also grateful to Baroness Meacher, who spoke about the issue in some detail.

To clarify, reinfibulation involves recreating a seal over an infibulated woman’s vulva after it has been opened, usually to allow for childbirth. That can be repeated every time the woman has a child. It can cause women serious harm. The World Health Organisation says that it is equivalent to performing the initial act of female genital mutilation. I have spoken to the Royal College of Nursing, to midwives and to campaigners, who wholeheartedly support making the measure explicit to cover situations where professionals or others may not be clear that reinfibulation is a criminal offence.

In 2010, an RCN study of the views of over 1,700 midwives found that only 21% knew that reinfibulation after childbirth was considered illegal. The intercollegiate group of organisations said that there are cases where women were deinfibulated during delivery and returned in subsequent pregnancies having undergone reinfibulation.

I have sought expert legal opinion on the matter from the Bar Human Rights Committee and I thank Dexter Dias QC, Charlotte Proudman and others for their work. Making the position explicitly clear in the Bill will mean that we are even tighter in our international duty to protect young women and girls from discrimination, gender violence and genital mutilation. I look forward to the Minister’s response.

Karen Bradley (Conservative, Staffordshire Moorlands)

It is a pleasure to have you in the Chair, Ms Clark. Clause 67 extends the reach of the extraterritorial offences in the Female Genital Mutilation Act 2003 and its Scottish equivalent, the Prohibition of Female Genital Mutilation (Scotland) Act 2005. It is part of a major package of measures in the Bill designed to ensure that our legislative response to the terrible crime of FGM is as strong as possible. Those legislative initiatives are part of the Government’s wider programme to combat that appalling practice at home and abroad, as announced by the Prime Minister at the girl summit last July.

The provisions in the Bill are not a panacea for the ongoing problem of FGM in this country. Legislation alone cannot eradicate a practice that has been deeply engrained in the culture and tradition of the practising communities for centuries. More needs to be done to stop such violence against women and girls. However, the law is an important part of our response to this abhorrent practice and it is right that we change it where necessary.

I am not going to share with the Committee the very graphic details of what is done to young girls and, as the shadow Minister mentioned, women after childbirth. It is utterly horrendous. On Friday, I was at a high school in my constituency, where I talked about FGM. I watched 16, 17 and 18-year-old girls squirming in their seats thinking that it was probably slightly too soon after breakfast to be sharing such information, but it is important that they know that the practice exists and recognise, as we do, that it is plain and simple child abuse. There are no ifs or buts; there can be no excuse for it. The sooner that our whole society says that out loud and makes that clear, the sooner we will be able to deal with the cultural and political difficulties that have stopped us from tackling this horrendous and awful practice, which happens in the UK and abroad.

I pay tribute to my right hon. Friend the Secretary of State for International Development for the enormous amount of work that she has done on the issue internationally, and to my right hon. Friend the Member for Hornsey and Wood Green (Lynne Featherstone), now Minister for Crime Prevention, for the work that she did when she was in the Department for International Development. I also pay tribute to my right hon. Friend the Member for Lewes, who, as Minister for Crime Prevention, did an enormous amount to tackle the problem.

Seema Malhotra (Labour, Feltham and Heston)

I support the Minister’s comments. FGM has been an important issue, which Members on both sides of the House have been dealing with. I pay tribute to my hon. Friend the Member for Slough (Fiona Mactaggart), who has played an important role in bringing us to where we are today.

Karen Bradley (Conservative, Staffordshire Moorlands)

I thank the shadow Minister for that point. She and other Members of the House deserve credit. This is not a party political matter, but something on which we are united in tackling and on which we have a shared objective.

We should be focusing on the victim and the outcome for the victim. That outcome may be prosecution but we may be able to do many other things. As the Government—as legislators—we can look at the offences and make the provisions as strong as possible. We can legislate for certain elements of victim support, but we need to ensure that we all join together, work and act to recognise the crime—including the signs and indications to prevent the crime from happening—and to ensure that victims get the support that they need.

At the girl summit, the Prime Minister and the Home Secretary announced an unprecedented package of measures to tackle FGM, including a number of commitments to strengthen the law. Extending extraterritorial jurisdiction is part of the overall package. Clauses 68 to 70 provide for lifelong anonymity for victims of FGM; create a new offence of failure to protect a girl from the risk of FGM; and introduce a new civil order to help to protect those at risk of mutilation.

Before I address clause 67 in detail, I will remind the Committee of the background to the current legislative position. FGM became a specific offence in 1985 when the UK-wide Prohibition of Female Circumcision Act 1985 was passed. The purpose of the Act was to remove any ambiguity there may have been about the legality of the practice.

The Female Genital Mutilation Act 2003 replaced the 1985 Act in England, Wales and Northern Ireland, and the Prohibition of Female Genital Mutilation (Scotland) Act 2005 replaced it in Scotland. The changes in the short title of the legislation enabled those Acts to describe more clearly the nature of the prohibited behaviour and removed any suggestion of acceptability that the term “circumcision” might have implied. Both Acts extended significantly the protection the law affords these vulnerable young girls and, indeed, women, who may also be victims of this crime. The Acts created extraterritorial offences to deter people from taking girls abroad for mutilation. To reflect the serious harm caused by this dreadful practice they also increased the maximum penalty for FGM, on conviction on indictment, from five to 14 years’ imprisonment.

I turn now to the detail of the extraterritorial provisions that clause 67 amends. Section 4 of the 2003 Act extends the offences in sections 1 to 3 to extraterritorial acts committed by a UK national or permanent UK resident. In addition, section 3 makes it an offence to aid, abet, counsel or procure a person who is not a UK national or permanent UK resident to carry out an act of FGM outside the UK on a victim who is a UK national or permanent UK resident.

The shadow Minister asked about the operational response. It is important to say that it would be for the police to investigate offences committed abroad, in co-operation with the relevant foreign authorities or international organisations. The 2003 Act already criminalises offences committed abroad, and gives the UK extraterritorial jurisdiction. We are not introducing but extending that jurisdiction. It would be open to police and prosecutors to seek extradition of offenders abroad, or the Border Force might be alerted to the offenders on their return to the UK. We will work closely with the police and the Crown Prosecution Service to ensure appropriate training and guidance is in place.

Section 6(3) of the 2003 Act gives the definition:

“A permanent United Kingdom resident is an individual who is settled in the United Kingdom (within the meaning of the Immigration Act 1971”.

That is to say, that applies to a person who ordinarily lives in this country without being subject under the immigration laws to any restriction on the period for which he or she may remain. The intention when the 2003 Act was passed was to catch offences involving those with a substantial connection to the UK but not those who are here temporarily. That is because the stronger the connection to the UK, the greater the justification for taking extraterritorial jurisdiction.

Andrew Stunell (Liberal Democrat, Hazel Grove)

I listened to the definition the Minister gave with real interest. Perhaps at a later stage in the debate she could let us know whether that covers those who are illegally in Britain and who are found to have caused an offence. On the face of the wording she gave us, they might not be covered.

Karen Bradley (Conservative, Staffordshire Moorlands)

I thank my right hon. Friend for that. If he will allow me to continue with my comments, I will endeavour to address his concerns. In 2003, taking extraterritorial jurisdiction over UK residents—permanent or otherwise—as opposed to UK nationals was unusual. The extent to which the 2003 Act did so was considered then to be groundbreaking. A decade on, it is less unusual to take extraterritorial jurisdiction over UK residents, and evidence suggests that the law needs to go further. My right hon. Friend asked whether the new provisions catch offences committed by asylum seekers or people who are here unlawfully, and as it happens I am now getting to that point in my comments. The answer is potentially yes. Someone could be habitually resident in the UK while their asylum application was being considered. To be habitually resident in the UK it is not necessary for all or any of the period of residence here to be lawful. In all cases, whether a person is habitually resident in the UK will be determined on the facts of a given case.

Andy McDonald (Labour, Middlesbrough)

While the Minister is on the issue of status, I wonder whether she would comment on the many cases that she and I receive in our surgeries, as do other Members here, which involve women who have successfully fled their home country. They have been subjected to FGM, and they bring with them their daughters who are seeking the protection and sanctuary of this country. I would be grateful if the Minister would comment on how that would play in terms of justification for us granting a refuge in this country to those who are seeking such security.

Karen Bradley (Conservative, Staffordshire Moorlands)

I thank the hon. Gentleman for his question. As we go through the debate, and particularly when we talk about risk orders, we will discuss the level of protection that is and will be available to victims and potential victims following the enactment of the Bill. The Director of Public Prosecutions has brought to our attention a small number of cases where a prosecution for FGM committed abroad could not be brought because those involved were not, at the material time, permanent UK residents as defined in section 6(3) of the 2003 Act. The closure of that loophole was welcomed by the Select Committee on Home Affairs in its report on FGM, which was published in July last year.

Against that background, clause 67(1) amends section 4 of the 2003 Act so that the extraterritorial jurisdiction extends to prohibited acts done outside the UK by a UK national or a person who is resident in the UK. Consistent with that change, clause 67(1) also amends section 3 of the 2003 Act so that it extends to acts of FGM done to a UK national or a person resident in the UK. A UK resident is defined as an individual who is habitually resident in the UK. The term “habitually resident” covers a person’s ordinary residence, as opposed to a short, temporary stay in a country.

Those changes mean that the 2003 Act will be able to capture offences of FGM committed abroad by or—in the case of a section 3 offence—against those who are habitually resident in the UK, irrespective of whether they are the subject of immigration restrictions. That covers the point that my right hon. Friend the Member for Hazel Grove made.

Provided that the offence is committed when the accused person and/or the victim is resident in this country, it should not matter whether they intend to live here indefinitely or whether they also live elsewhere. It will be for the courts to determine on the facts of individual cases whether those involved are habitually resident in the UK and thus covered by the 2003 Act. Subsection (2) makes equivalent amendments to the Prohibition of Female Genital Mutilation (Scotland) Act 2005.

New clause 25 is one of a number of amendments and new clauses that suggest that the Government have not gone far enough and that further legislative change is needed to deal with FGM as best we can. The new clause would simply insert the word “reinfibulates” into section 1(1) of the Female Genital Mutilation Act 2003 so that it read:

“A person is guilty of an offence if he excises, infibulates, reinfibulates or otherwise mutilates the whole or any part of a girl’s labia majora, labia minora or clitoris.”

As the hon. Member for Feltham and Heston explained, the purpose is to make explicit that reinfibulation is an offence under the 2003 Act to bring clarity, because the argument is that that point is unclear.

The Government’s firm view, which we set out on Report and on Third Reading in the House of Lords, and again in response to the Home Affairs Committee last month, is that reinfibulation is already covered by section 1(1) of the 2003 Act. Because infibulation is an offence under that subsection, so is reinfibulation—if it is an offence to break someone’s arm, it is also an offence to break it again once it has healed. That reinfibulation or resuturing is an offence is clearly stated in the multi-agency practice guidelines on FGM and in the relevant guidance of almost all the royal colleges. That some of the guidance might be less clear on that point indicates a need to communicate the law more effectively to practitioners, which we must do. However, I do not accept that there is currently any need to clarify the law.

Last, but definitely not least, we should all welcome the first trial under the 2003 Act, which started yesterday. That case involves reinfibulation, so, by the end of that trial, we should have confirmation from the courts that reinfibulation is definitely covered by the 2003 Act. For all those reasons, I invite the hon. Lady not to press the new clause.

I hope that the Committee agrees that clause 67 will be a useful extension to the reach of the criminal law in combating FGM.

Seema Malhotra (Labour, Feltham and Heston)

I thank the Minister for her comments and reassurance on the work that will be undertaken. She is correct that the extraterritorial nature of the offence extends previous provisions, but the extra complexity that will come from that may require extra training and closer working. In the light of her comments on the definition of reinfibulation and the ongoing case, I will not press my new clause, but we reserve the right to return to this matter at a later stage.

Clause 68 - Anonymity for victims of female genital mutilation

Seema Malhotra (Labour, Feltham and Heston)

I am pleased to be able to speak about this important clause and to acknowledge the campaigning work of so many individuals and organisations, including Leyla Hussein, Nimco Ali, Daughters of Eve and Celestinecelest. I pay tribute to the work many local councils have undertaken in raising awareness of female genital mutilation in their local communities as part of the campaign to end FGM within a generation. I also pay tribute to the work on making that a reality in our local communities.

In that context, I will make a few comments on the clause. We know that thousands of girls are at risk and that the daughters of mothers who have undergone FGM may be at greater risk than others. It is still difficult for the individuals and communities affected by FGM to talk about it. However, we have seen a step change as the issue has risen up the international and domestic political agendas. In conversations I have had and events I have been to, women have stood up and talked about something that throughout their lives—they are now grandmothers—they have not been able to talk about, even within their communities.

In that context, we can truly understand why the fear of being identified as a victim or a survivor stops people coming forward. It is one reason why there is under-reporting and why people do not come forward for medical help when they need it. It is also one of the reasons why many women do not associate the health conditions they have—whether they are to do with fertility and reproduction or bladder problems and infections—with FGM. Sometimes, medical help could resolve those health issues.

In different areas, we are seeing FGM performed on girls who are very young—sometimes they are babies or toddlers—because parents think that if their daughters are a bit older, they might be able to say more about what is happening to them. The rise of the conversation on FGM has to recognise the cultural context more, as well as the importance of giving confidence to communities to come forward and talk about these issues. We can understand the vulnerability of the girls who are at risk, as well as those who are affected and fearful about what will happen to them if they come forward or are identified in public and those in other communities know what has happened to them.

Although we support the clause, it is not clear how the Government intend to raise awareness of the change in law among practising communities. Will the Government look at education, which is an important factor in providing girls with information on their legal rights in relation to a number of these changes and on the protections available to them or their families under the law, if they come forward? While the clause makes a good and important amendment—it is an important part of the package of reforms—I would be grateful if the Minister outlined how it is being promulgated so that people are aware that there is anonymity, not only at the time of disclosure, but for life.

Karen Bradley (Conservative, Staffordshire Moorlands)

As hon. Members may know, the clause was added to the Bill in the other place as part of a package of measures announced by the Prime Minister and the Home Secretary at the girl summit in July. The clause delivers on the commitment to give victims of female genital mutilation the right to anonymity for the rest of their lives. FGM is an offence of a particularly personal and sensitive nature. Without the prospect of anonymity victims may be discouraged from reporting such an intimate offence to the police. Granting lifelong anonymity, therefore, will reassure victims that their identity will be protected and so encourage them to report the offence. The provisions of the clause are tried and tested, as lifelong anonymity already applies to the alleged victims of many sexual offences under the provisions of the Sexual Offences (Amendment) Act 1992.

Any publication of material that could lead members of the public to identify a person as the alleged victim of an offence will be prohibited. That includes online content, so as to cover social media as well as traditional print and broadcasting.

The shadow Minister rightly asked about awareness raising. Much of what we talk about here, including this clause, will be effective only if those at risk of FGM and those communities in which it has previously been seen as acceptable are aware of what we are doing and saying, what the offences are, and what protection is available to victims.

I am proud that the Government have taken a cross-Government approach to the offence. I have already mentioned the Department for International Development, which is working in source countries to ensure that awareness is raised there of the law in Britain, and the implications for those communities in international acceptance and recognition.

In addition, there is multi-agency practice and work. The Department of Health is leading the Government’s work in high-risk areas, identified by data showing a prevalence of high-risk individuals, to ensure that all health care professionals—midwives, health visitors and others—are aware and understand the law, so that they can communicate that.

Teachers need to know. We need to ensure that everybody knows what happens, what the law is and what their rights are. If a victim comes forward and shows any indications, the professionals should know what protections are available. It is a challenge but we are working on it.

Seema Malhotra (Labour, Feltham and Heston)

Will the Minister clarify the routes used to reach girls more directly, for example, sex and relationship education in schools?

Karen Bradley (Conservative, Staffordshire Moorlands)

The shadow Minister is right. The Department for Education is leading work to ensure that personal, social, health and economic education includes FGM. I have also seen, through my work on the Modern Slavery Bill, currently in the other place, that many of the victims of slavery, particularly from west Africa, are also victims of FGM. It is important to raise awareness with those professionals who come across the trafficked victims to note the signs. I met a victim some time ago and it was only when she gave birth that professionals were able to identify that she had also been a victim of FGM, in addition to all the other horrendous things she had gone through as a victim of trafficking and then slavery in the UK.

Seema Malhotra (Labour, Feltham and Heston)

The Minister makes an important point about how these issues are not isolated but are joined up and need a more holistic approach to communication and education. I might touch on the point a bit later, but I think it is also important to look at the links between FGM-practising communities and forced marriage and modern slavery.

Karen Bradley (Conservative, Staffordshire Moorlands)

The shadow Minister hits the nail on the head. We cannot look at any of these things in isolation. We have to look at all indicators of FGM, which will be linked to many other practices, so that those in the public sector and other agencies who may come into contact with victims do not look at just one possible crime, for example forced marriage, but consider the possibility of FGM, trafficking and all the areas that the Government are committed and determined to deal with. We need to give law enforcement the tools and weapons they need to be able to bring prosecutions of the heinous criminals who are committing these acts and help to change the attitudes of those communities and cultures to what is acceptable and what is not.

The Government are spending £100,000 on the FGM community engagement initiative. That follows a successful bid to the European Union progress funding stream, and the Home Office was awarded approximately €300,000 in November 2013 for work to raise awareness of FGM in the UK. As part of this work we launched a communications campaign to raise awareness of FGM and to signpost the NSPCC FGM helpline. The campaign included online and poster advertising in changing rooms and shopping centres. Materials have been provided to communities so that they can run their own educational events and workshops to open up the debate on FGM.

The Home Office has also launched an e-learning tool so that all practitioners, social workers, teachers, health care professionals, the Border Force and police are able to have an introduction to FGM. We will raise awareness of the new e-learning through a national outreach programme with local safeguarding children boards.

We also have a new FGM unit in the Home Office, which will work with community groups to ensure that all the changes in the Bill and the existing law are properly understood, so that there is complete understanding of the indicators and of the penalties that are available.

Seema Malhotra (Labour, Feltham and Heston)

I thank the Minister for talking more about the grants and funds that the Government have put in place for ensuring awareness and understanding of FGM and of the legislation that is being rolled out. May I clarify two points? First, is the Minister also working with the Department for Communities and Local Government on these issues? She rightly raises child safeguarding and the importance of having these issues understood and embedded in local safeguarding procedures. Secondly, are communications, particularly to schools, going to all schools or does the Minister see that as being decided by others at a different level?

Karen Bradley (Conservative, Staffordshire Moorlands)

I thank the shadow Minister for her comments. On working with the Department for Communities and Local Government, the answer is yes. Local authorities will deliver much of this, and clearly the Department for Communities and Local Government has a big role to play. I met the Secretary of State for Communities and Local Government to discuss this very issue, so I can assure the shadow Minister that the Department is absolutely involved.

I will come back to the hon. Lady about the Department for Education’s approach to the way that this is being rolled out. I am not sure whether the Department is taking a risk-based approach initially—oh, I am sure, in fact. When “Keeping children safe in education” was issued in April, the Secretary of State wrote to all schools drawing their attention to the guidance, which included specific coverage of FGM. The Department for Education’s “Need to know” e-mail to all schools in September 2014 highlighted the fact that keeping children safe in education now has a link to the updated multi-agency guidelines on FGM. I hope that that clarifies the point.

As with the Sexual Offences (Amendment) Act 1992, breach of the prohibition on publication of material that would identify an FGM victim will be a criminal offence subject, in England and Wales, to an unlimited fine. As with alleged victims of sexual offences, this protection needs to be automatic rather than discretionary. It must apply from the outset, when an allegation is first made, rather than from the point of charge, and it must last for the duration of that person’s life, rather than for the duration of any criminal proceedings. The clause delivers each of those requirements.

Clause 69 - Offence of failing to protect girl from risk of genital mutilation

Seema Malhotra (Labour, Feltham and Heston)

I thank the Chair for the opportunity to speak to this important clause. As the Minister has already stated, we have a consensus in our understanding that female genital mutilation is child abuse. The clause makes it clear that parents have a responsibility under the law to protect their children. Indeed, I was talking to campaigners yesterday who said that it is incredibly important for it to be made clear that parents are responsible for their children.

While there is a concern, as with forced marriage, that girls may not want to see their parents criminalised and may not therefore be prepared to give evidence against them, we know from charities and survivors that parents are often deeply implicated. Indeed, this law will give parents who are being pressurised a defence in their communities and a tool to say no. They will be able to say, “You’re not going to force me to do this to my daughter and do something that I don’t want to do. I would be breaking the law and I do not wish to take that risk.”

Parents often know that their child may be at risk of FGM if they take her abroad and leave her with relatives. The new offence addresses an important point made by the intercollegiate group when giving evidence to the Home Affairs Committee, which is that if the law does not see FGM as a

“criminal dereliction of parents’ and guardians’ duty to protect their children”,

parents who support FGM can avoid responsibility. The new offence would shift responsibility on to parents and make them accountable. There is a similar law in Spain, and the first prosecutions have now been brought against parents.

I want to raise two points of concern. The first is one that the Minister has outlined somewhat, but it is important to understand how this will be embedded in terms of parents and guardians. Will it be within the same channels or does she see other routes through which parents will be made aware of this change? They must fully understand the legal framework and the risks to them of being prosecuted.

The second issue is the two defences. It is a defence under the proposed offence for the defendant to show that they did not think that there was a “significant risk” of FGM being committed against the girl at the time and could not “reasonably have been expected” to be aware. Another defence is that the defendant took steps that they could reasonably have been expected to take to “protect the girl” from FGM. My concern is that the defences are extremely broad in scope and cover a range of eventualities that could serve as loopholes.

I have been told of cases where parents have left their children with elderly relatives in their home country for a holiday, only to find when they return that their daughter has been cut. In that scenario, parents could claim that they took reasonable steps to protect their daughter from FGM, such as informing relatives not to cut their daughter. Relatives abroad might, indeed, corroborate that evidence with written statements. As overseas residents are outside the scope of UK law, they have less to fear. The Government’s own factsheet on the new offence states that

“The onus would then be on the prosecution to prove the contrary.”

Lawyers who have worked on FGM cases, particularly abroad, have told me that when faced with prosecution and a criminal record, some defendants can feel the pressure of the criminal justice system and lie. These defences could give parents whose intent was committing FGM the space to do so.

It would be helpful to know whether the Government have asked for input on the technicalities of the offence from, for example, lawyers abroad who have prosecuted parents for similar offences. For the offence to work and to go further in ensuring prevention, as well as having a way to prosecute parents—not just take them to court, but ensure that they are convicted when guilty—we do need to consult experts and have a grasp of the practicalities of the new legislation. Although we welcome the new offence in theory—time will tell how effective it is—it is important to build in from the start measures to ensure effectiveness, so that parents know that there is a strong likelihood of conviction should they be prosecuted. I look forward to the Minister’s response.

Karen Bradley (Conservative, Staffordshire Moorlands)

Clause 69, as the shadow Minister has said, introduces a new offence of failing to protect a girl from risk of genital mutilation. It is the third of the new FGM measures in the Bill. At the request of the Northern Ireland Justice Minister David Ford, it will extend, along with clauses 67(1), 68 and 70, to Northern Ireland as well as England and Wales.

As with the extension of extra-territorial jurisdiction, the new offence gives effect to a recommendation made by the Director of Public Prosecutions for the law to place a positive duty on parents or carers to prevent their children being mutilated. We recognise that this is a novel approach that may run contrary to how some feel the criminal law should operate, but it is intended to tackle what we know is a prevalent practice of unnecessary permanent mutilation of children. Parents and others trusted with the care of children have a duty of care. If it can be shown that a girl has suffered FGM, we do not think it is unreasonable for those responsible for the girl to be answerable in law for how it happened.

Clause 69(2) inserts a new section 3A in the 2003 Act. Subsection (1) of 3A provides that if an FGM offence—that is, one of the offences in sections 1 to 3 of the 2003 Act—is committed against a girl under the age of 16,

“each person who is responsible for the girl at the relevant time is guilty of an offence”.

It might assist the Committee if I explain the ingredients of the offence in more detail. We recognise that parental responsibility can be exercised in relation to a child under the age of 18. We have discussed previously in this Committee whether 16 and 17-year-olds should be treated as children in the eyes of the law.

Criminal offences that specifically protect children focus on children and young persons under the age of 16, particularly in the context of FGM where victims are typically aged five to eight. With the diminishing control that a parent would have over a 16 or 17-year-old, let alone an older woman, we believe it is right that the offence should apply where FGM has been committed on a girl under 16.

The offence refers to the person responsible for a girl. There are two cases where a person is responsible for a girl. The first case, in new section 3A(3), is where the person

“(a) has parental responsibility for the girl, and

(b) has frequent contact with her”.

The second case, in new section 3A(4), is where the person

“(a) is aged 18 or over, and

(b) has assumed…responsibility for caring for the girl in the manner of a parent”.

That is aimed primarily at people to whom parents might send their child for a period, for example to stay with family members living abroad during the summer holidays—an example raised by the shadow Minister.

As the Home Affairs Committee report noted,

“Anecdotal evidence suggests it is common for girls…to be taken back to their country of origin during the holidays to undergo the procedure.”

I will come shortly to the position of the parents in that situation.

The offence has been carefully drawn to avoid criminalising people unnecessarily or unjustifiably. The requirement in new section 3A(3)(b) for “frequent contact” is intended to ensure that a person who in law has parental responsibility for a girl, but who in practice has little or no contact with her, would not be caught. Similarly, the requirement in new section 3A(4)(b) that the person should be

“caring for the girl in the manner of a parent”

is intended to ensure that a person who is looking after a girl for a very short period—such as a babysitter—would not be liable.

The offence refers to the “relevant time”. The relevant time for a person responsible for the girl to be liable is defined as the time when the mutilation takes place. That does not mean that the prosecution has to prove the precise day on which the mutilation took place. Such a requirement would render the offence unworkable, because once a wound has healed it can be very difficult to establish precisely when it occurred.

Rather, the prosecution will be required to establish a period of time within which the mutilation occurred and the person or persons responsible for the girl during that period. The period in question might range from years down to weeks or days, depending on the evidence available. If the period is years, the prosecution would have to establish that a defendant was responsible for the girl throughout that long time. If the period can be narrowed to weeks or days, however, evidence that a person was responsible for the girl only during that time would be enough to bring a prosecution.

Liability for the offence is subject to certain defences. Under subsection (5) of new section 3A, it is a defence for the defendant to show that, at the relevant time, the defendant did not think that there was significant risk of FGM being committed against the girl and could not reasonably have been expected to be aware that there was any such risk, or that the defendant took such steps as he or she could reasonably have been expected to take to protect the girl from being a victim of FGM.

It is worth saying that the defences are only that—defences. A defendant would have to produce evidence to support the defence, but it would be open to the prosecution to disprove the evidence. The offence follows a proposal by the Director of Public of Prosecutions, and the Government considered carefully and were aware of the risk of casting the net of liability too widely. In our view, the defences are the correct balance, providing appropriately for, for example, parents who might be abused by a partner and are not reasonably able in such circumstances to speak out and protect their daughter from FGM. A strict liability offence did not seem appropriate given the various factual situations that might occur.

Looking at the components of defence and reasonable steps in particular, it would be for a jury to decide in the case before it whether any steps taken to prevent FGM were reasonable. What constitutes reasonable steps will vary according to the circumstances of each case. Thus, steps that could be reasonably taken by a woman whose overbearing and violent husband arranged for FGM to be carried out on their daughter might be different from those taken by a woman not subject to such pressures.

Seema Malhotra (Labour, Feltham and Heston)

Perhaps the Minister will help by expanding slightly on the Government’s thinking. I heard of a case yesterday, when a woman told me her story. She was cut when she was very young, indeed when she went home. Her mother had tried to protect her, to hold back the grandparents and to stop FGM happening. The father had been more complicit. In that situation, how could a case be brought or what would happen to either or both parents?

Karen Bradley (Conservative, Staffordshire Moorlands)

It is clearly difficult for me to interpret how the CPS and the courts may deal with such a situation. On the face of what the hon. Lady said, the mother seems to have taken steps to prevent the FGM from happening. As I said, the defence is a defence and if the CPS had decided on the need for a prosecution in the case, were the mother able to bring forward facts to establish that she had taken the reasonable steps, that would be her defence against any charges. From what the hon. Lady said, it sounds as though the father had a slightly different approach, so he would not be able to use the defence because he had been active in encouraging the FGM. I hope that that makes things clear, but without all the details and because I am not a prosecutor, it is impossible to know exactly what the CPS would do.

Sarah Champion (Labour, Rotherham)

The Minister has introduced the word “reasonable”, which always provides wriggle room. Will she give some clarity? Obviously, we want to prevent the crime of FGM happening in the first place, rather than prosecuting once it has happened. The crime is very much seen as a woman’s crime—groups of women doing this to their daughters and granddaughters—but two male doctors who allegedly carried out the crime were male, the majority of preachers are male and, indeed, 50% of parents are male. We ought to be very clear that the whole of society needs to take ownership of the issue.

I am also anxious about a possible defence for a father being that he was not aware of the crime or that it was an offence. The Minister outlined Government work to make children and communities aware of FGM, but she also gave two examples, one of which was putting up posters in shopping malls and on lockers. That made me think that she was focusing more on women than on the whole community. Will the Minister reassure us that the Government are targeting the whole community, so that everybody knows that this is a crime and the element of a reasonable defence of ignorance is taken out?

Karen Bradley (Conservative, Staffordshire Moorlands)

The hon. Lady is right that the whole of society needs to be aware of this and take responsibility for it. The person who commits the offence of FGM is clearly guilty under the 2003 Act. This clause targets those people who should have been able to stop the offence from happening. It targets those people who allow their daughter, or another child for whom they have parental responsibility, to be cut. The defence is to try to give some comfort to parents or others in parental responsibility who take all steps that they could reasonably take to stop that happening.

For example, it will be a defence for the defendant to show that at the relevant time they did not think there was a significant risk of FGM being committed and that they could not reasonably have been expected to be aware of such a risk. The hon. Lady is right that raising awareness helps to deal with that, because then ignorance cannot be part of the defence. It will also be a defence to show that they took steps that they could reasonably be expected to take to protect the girl from being a victim of FGM. Obviously, it is for the jury in each individual case to decide what is reasonable in the circumstances.

In the shadow Minister’s example of a girl going overseas, it would depend on the facts of the case. If it was known that the family was liable to cut the girl and the parents allowed the girl to travel knowing that was a risk, potentially they could not use the defence. However, if they took reasonable steps—again, this is for the jury to decide and the prosecution to disprove—they may be able to use the defence in that case. The defendant will only need to produce evidence to support either defence. The onus would then be on the prosecution to prove that the normal criminal standard of defence does not apply.

The term “reasonable steps” has been used and interpreted by the courts in the context of the offence under section 5 of the Domestic Violence, Crime and Victims Act 2004, namely causing or allowing a child or vulnerable adult to die or suffer serious physical harm. In that context, the courts have held that it may in certain circumstances be reasonable for a defendant not to have taken steps to protect the victim where the defendant was also the subject of abuse from the victim’s assailant. We would expect the courts to take a similar approach here.

The evidential burden will be on the defence to show that either the defendant did not think that there was a significant risk of FGM being committed against the girl and could not reasonably have been expected to be aware that there was any such risk, or the defendant took such steps as he or she could reasonably have been expected to take to protect the girl from being the victim of FGM. The evidential burden means that it would only be necessary to produce evidence to support either defence. If that is done, the onus would then be on the prosecution to prove the offence to the normal criminal standard of beyond reasonable doubt.

Subsection (3) amends section 4 of the 2003 Act to ensure that the new offence attracts the extra-territorial jurisdiction contained there. Subsection (4) amends section 5 of the 2003 Act to provide that the maximum penalty for the new offence will be seven years imprisonment or a fine or both. We believe that this is proportionate when considered against the maximum penalties for offences of violence, and bearing in mind that this is an offence of failing to prevent, rather than of directly perpetrating violence.

As with existing offences under the 2003 Act, non-custodial sentences will also be available. It does not necessarily follow that a girl who has suffered FGM and whose parents have been convicted of failing to prevent it would suffer the further upheaval and possible upset of changed arrangements for her care.

In conclusion, we recognise that this new offence is not of itself a panacea to the long-standing difficulties in prosecuting FGM, but we hope that it will help to overcome some of the barriers to prosecution and enable the Crown Prosecution Service to bring prosecutions in cases where one could not have been brought before. I beg to move.

Clause 70 - Female genital mutilation protection orders

Pauline Latham (Conservative, Mid Derbyshire)

I beg to move amendment 42, in clause 70, page 62, line 27, after “against”, insert “a risk of”

Katy Clark (Labour, North Ayrshire and Arran)

With this it will be convenient to discuss the following:

Amendment 43, in clause 70, page 62, line 34, at end insert

“and (in the case of orders made under paragraph 1(1)(a) of this Schedule), to the level of risk of commission of any genital mutilation offence.”

New clause 26—Encouragement of Female Genital Mutilation Warning Notice and Orders (EWNs and EWOs)—

‘In the Female Genital Mutilation Act 2003, after section 2A (offence of Encouragement of Female Genital Mutilation) insert—

“2B Power to issue an Encouragement of Female Genital Mutilation warning notice

(1) A member of a police force not below the rank of superintendent (“the authorising officer”) may issue an Encouragement of Female Genital Mutilation Warning Notice (an “EWN”) under this section.

(2) An EWN may be issued to a person (“A”) who is aged 18 or over if the authorising officer has reasonable grounds for believing that A has been encouraging the genital mutilation of women and girls as defined in section 1.

(3) Before issuing an EWN, the authorising officer must, in particular, consider any representations made by A as to the issuing of the EWN.

(4) The authorising officer must take reasonable steps to obtain the representations mentioned in subsection (3).

(5) An EWN must prohibit A from encouraging the genital mutilation of women and girls.

2C Contents and service of an Encouragement of Female Genital Mutilation warning notice

‘(1) An EWN must state—

(a) the grounds on which is has been issued;

(b) that a constable may arrest A without warrant if the constable has reasonable grounds for believing that A is in breach of the EWN;

(c) that an application for an Encouragement of Female Genital Mutilation Warning Order (“an EWO”) under (application for an EWO) shall be heard within 48 hours of the time of service of the EWN and notice time and place of the hearing will be given to A, and shall state that the EWN continues in effect until that application has been determined.

(2) An EWN must be in writing and must be served on A personally by a constable.

(3) On serving A with an EWN, the constable must ask A for an address for the purposes of being given notice of the hearing of the application for the Encouragement of Female Genital Mutilation Warning Order.

2D Breach of an Encouragement of Female Genital Mutilation warning notice

‘(1) A person arrested by virtue of section (contents and service of an EWN) for a breach of a EWN shall be held in custody and brought before the magistrates’ court which will hear the application for the EWO under (application for an EWO)—

(a) before the end of the period of 24 hours beginning with the time of the arrest; or

(b) if earlier, at the hearing of that application.

(2) If the person is brought before the court by virtue of subsection (1)(a), the court may remand the person.

(3) If the court adjourns the hearing of the application by virtue of subsection 6(8), the court may remand the person.

(4) In calculating when the period of 24 hours mentioned in subsection (1)(a) ends, Christmas Day, Good Friday, any Sunday and any day which is a bank holiday in England and Wales under the Banking and Financial Dealings Act 1971 are to be disregarded.

2E Application for an Encouragement of Female Genital Mutilation Warning Order

‘(1) If an EWN has been issued, a constable must apply for an Encouragement of Female Genital Mutilation warning order (an “EWO”).

(2) The application must be made by complaint to a magistrates’ court.

(3) The application must be heard by the magistrates’ court no later than 48 hours after the EWN was served pursuant to (contents and service of an EWN).

(4) In calculating when the period of 48 hours mentioned in subsection (3) ends, Christmas Day, Good Friday, any Sunday and any day which is a bank holiday in England and Wales under the Banking and Financial Dealings Act 1971 are to be disregarded.

(5) Notice of the time and place of the hearing of the application must be given to A.

(6) The notice is deemed given if it has been left at the address given by A under section 4(3).

(7) If the notice has not been given because no address was given by A under section 4(3), the court may hear the application for the EWO if the court is satisfied that the constable applying for the EWO has made reasonable efforts to give A the notice.

(8) The magistrates’ court may adjourn the hearing of the application.

(9) If the court adjourns the hearing, the EWN continues in effect until the application has been determined.

(10) On the hearing of an application for an EWO, section 97 of the Magistrates’ Court Act 1980 (summons to witness and warrant for his arrest) does not apply in relation to a person for whose protection the EWO would be made, except where the person has given oral or written evidence at the hearing.

2F Conditions for and contents of an Encouragement of Female Genital Mutilation Warning Order

‘(1) The court may make an EWO if two conditions are met.

(2) The first condition is that the court is satisfied on the balance of probabilities that the conditions set out in section 3(2) are met.

(3) The second condition is that the court is satisfied that making the EWO is necessary to protect women and girls from harm as a result of the encouragement of FGM by A.

(4) An EWO must state that a constable may arrest A without warrant if the constable has reasonable grounds for believing that A is in breach of the EWO.

(5) An EWO may be in force for—

(a) no fewer than 14 days beginning with the day on which it is made; and

(b) up to a maximum of seven years from that date.

(6) An EWO must state the period for which it is to be in force.

2G Breach of an Encouragement of Female Genital Mutilation warning order

‘(1) A person arrested by virtue of (conditions for an contents of an EWO) for a breach of an EWO must be held in custody and brought before a magistrates’ court within the period of 24 hours beginning with the time of the arrest.

(2) If the matter is not disposed of when the person is brought before the court, the court may remand the person.

(3) In calculating when the period of 24 hours mentioned in subsection (1) ends, Christmas Day, Good Friday, any Sunday and any day which is a bank holiday in England and Wales under the Banking and Financial Dealings Act 1971 are to be disregarded.

2H Further provision about remand

‘(1) This section applies for the purposes of the remand of a person by a magistrates’ court under section (Breach of an EWN) or (Breach of an EWO)

(2) In the application of section 128(6) of the Magistrates’ Court Act 1980 for those purposes, the reference to the “other party” is to be read—

(a) in the case of a remand prior to the hearing of an application for an EWO, as a reference to the authorising officer; and

(b) in any other case, as a reference to the constable who applied for the EWO

(3) If the court has reason to suspect that a medical report will be required, the power to remand a person may be exercised for the purpose of enabling a medical examination to take place and a report to be made.

(4) If the person is remanded in custody for that purpose, the adjournment may not be for more than three weeks at a time.

(5) If the person is remanded on bail for that purpose, the adjournment may not be for more than four weeks at a time.

(6) If the court has reason to suspect that the person is suffering from a mental disorder within the meaning of the Mental Health Act 1983, the court has the same power to make an order under section 35 of that Act (remand to hospital for medical report) as it has under that section in the case of an accused person (within the meaning of that section).

(7) The court may, when remanding the person on bail, require the person to comply before release on bail or later, with such requirements as appear to the court to be necessary to secure that the person does not interfere with witnesses or otherwise obstruct the course of justice.

2I Guidance

‘(1) The Secretary of State may issue guidance relating to the exercise by a constable of functions under section (Power to issue an EWN).

(2) A constable must have regard to any guidance issued under subsection (1) when exercising a function to which the guidance relates.

(3) Before issuing guidance under this section, the Secretary of State must consult—

(a) the Association of Chief Police Officers,

(b) the National Crime Agency, and

(c) such other persons as the Secretary of State thinks fit.”’

New clause 28—Offence of encouragement of female genital mutilation—

‘(1) The Female Genital Mutilation Act 2003 is amended as follows:

(2) After section 2 (offence of assisting a girl to mutilate her own genitalia) insert—

“(2A) Offence of encouragement of female genital mutilation—

(a) a person is guilty of an offence of encouragement of female genital mutilation if he makes a statement that is likely to be understood by some or all of the members of the public to whom it is published as a direct or indirect encouragement or other inducement to them to mutilate the genitalia of a girl;

(b) a person commits an offence if—

(i) he publishes a statement to which this section applies or causes another to publish such a statement; and

(ii) at the time he publishes it or causes it to be published, he—

(a) intends members of the public to be directly or indirectly encouraged or otherwise induced by the statement to mutilate the genitalia of a girl; or

(b) is reckless as to whether members of the public will be directly or indirectly encouraged or otherwise induced by the statement to mutilate the genitalia of a girl.”’

Pauline Latham (Conservative, Mid Derbyshire)

It is a pleasure to serve under your chairmanship, Ms Clark. This is the first time that I have spoken in a Bill Committee so I may get one or two things wrong; I am sure that you will guide me if I do.

Amendments 42 and 43 are small amendments, which I hope the Minister will accept. We are all concerned about the current level of protection afforded to girls and women who have undergone or who are at risk of FGM in the UK. Just a decade ago, the number of girls and women having undergone FGM in England and Wales was approximately 66,000. Shockingly, that figure is estimated to have risen to 137,000. That is an alarming and unacceptable increase, and more must be done as a matter of urgency to prevent the number growing further.

Paragraph 1(1) of proposed schedule 2 under clause 70 provides that a court may grant an FGM protection order

“for the purposes of—

(a) protecting a girl against the commission of a genital mutilation offence”.

However—this is of paramount importance—the wording of paragraph 1(1) does not state explicitly, despite being implicitly intended, that the order may in fact be applied for and/or granted in the event of a risk that a genital mutilation offence may be committed.

Amending clause 70(2) would provide greater clarity from a judicial point of view. Given that the courts have factored the issue of the risk of the commission of an offence into the granting of similar orders such as forced marriage protection orders, it would be sensible to make the reference to risk express in the Bill rather than implied. That would remove ambiguity and provide clarification on the scope of the protection that the clause is designed to offer against the risk of FGM. If we leave subsection (2) in its present state, we risk creating a gap in protection, leaving many more girls at risk.

FGM is practised in secret, making it extremely difficult for law enforcement agencies, care professionals and other bodies to ascertain whether a girl or young woman is at risk of undergoing the abusive procedure. As the Minister said, the practice is nothing short of child abuse and it has to be recognised. The difficulty in ascertaining risk, coupled with a fear of offending culture and tradition, and confusion about which protective measures are deemed appropriate have resulted, more often than not, in a failure to put in place the appropriate safeguarding mechanisms.

It is therefore particularly important that there is no ambiguity as to when an FGM protection order may be used to protect a girl or young woman from undergoing FGM. Failure to ensure that may cause professionals to become over-cautious in deciding whether to apply for one, which would almost certainly mean that yet more young girls slip through the net and become victims of a genital mutilation offence—a situation that we would all agree would be unacceptable.

As part of its research, Justice for FGM Victims UK interviewed a number of professionals from the health and child protection sectors, who said that they would welcome the specific guidance provided by amendment 42. They believe that the explicit mention of the requirements to successfully apply for a protection order would support front-line staff and empower them to take action where they thought there was a real risk of FGM being commissioned against a girl or young woman. In fact, I have been working closely with my hon. Friend the Member for Stone (Sir William Cash), who has sought legal advice from Matrix Chambers. That advice has been given and what I am saying this morning is cleared as being exactly what has to happen to make the reference explicit.

Due to the secretive nature of the practice of FGM, protecting girls and young women is difficult. The uncertainty and ambiguity I have outlined make that task unnecessarily harder.

In bringing forward the amendment, I am not widening the net for convictions. Amendment 43 would change paragraph 1(2) of proposed schedule 2 to the Female Genital Mutilation Act 2003 to ensure that courts continue to factor into their decisions the level of risk of the commission of a genital mutilation offence faced by a girl before they grant an order. It simply provides much needed clarity which will ensure that no girl is put at risk of this terrible practice because of the uncertain wording of that paragraph.

Seema Malhotra (Labour, Feltham and Heston)

It is a pleasure to speak to clause 70 and to new clauses 26 and 28. I am grateful to the hon. Member for Mid Derbyshire for her comments and for raising issues about the need to clarify how the proposed female genital mutilation protection orders may apply.

We welcome the Government’s support for female genital mutilation protection orders, which we called for in the other place. We are grateful to the Government for bringing forward their clauses. The introduction of these protection orders is welcomed by many survivors and stakeholders, including the Muslim Women’s Network, the Association of Chief Police Officers and others who have already been mentioned today, including Rosa, Forward, Daughters of Eve and the British Arab Federation, as well as the activist Alimatu Dimonekene, who has done some incredible work to ensure that we have legal protection for those at risk. Our concern, however, is that the Bill does not go far enough to ensure that we have a prevention strategy in place, are able to respond where a girl is cut and have measures where we can bring others to account under the law.

Protection orders have the advantage over criminal remedies in not requiring the removal of children from their parents—which, of course, could remain the option of last resort—and of protecting girls and young women identified as being at risk of being cut before FGM has taken place. That is in line with what I am sure is a cross-party belief that a strong prevention strategy is absolutely fundamental. It is also entirely sensible for the Government to introduce a proposal modelled on forced marriage protection orders, an existing provision which we know works,. More than 600 orders have been made since the Forced Marriage (Civil Protection) Act 2007 came into force in 2008. The provision of legal aid for such orders is one reason that we are able to protect many from the scourge of forced marriage and I am pleased that the Government have agreed to provide legal aid for FGM protection orders, which we will debate further later in Committee.

There is no disagreement about implementing female genital mutilation protection orders, but I want to raise a few issues for the record and for clarification by the Government. The first is about practicality. The Government are placing female genital mutilation protection orders within criminal law through the Female Genital Mutilation Act 2003. In the other place, we called for the orders to be introduced by amending the Family Law Act 1996. Baroness Smith of Basildon introduced an amendment to that effect in the other place on 5 November. There are a number of reasons for that and I have received some guidance from barristers. Part of the reason is that there is a confusing situation with different definitions of FGM used in different parts of the law.

FGM is covered in criminal law by the definition in the 2003 Act. However, family law applies the World Health Organisation’s definition of FGM, not the definition in the 2003 Act. The World Health Organisation definition, which led to a slightly extended debate in the other place, has to be explored further to see whether we need to close the gap between the definition in statute and the definition internationally. The WHO defines FGM broadly, as

“injury to the female genital organs for non-medical reasons.”

However, FGM comes under criminal law only when it involves mutilation. The key issue is that it is not clear whether type IV FGM as defined by the World Health Organisation, which includes “pricking, piercing, incising, scraping” the genital organs, constitutes mutilation for the purposes of criminal law.

Let us consider the following situation. A six-year-old child is about to have her genitals pierced as a form of cultural marking. Are we saying that that child cannot be protected by an FGM protection order from the UK courts? Is that a scenario where the perpetrator may not be prosecuted under criminal legislation on FGM? We know that every form of FGM is internationally recognised as a form of child abuse and a violation of women’s and girl’s rights. That was highlighted in a family law judgment involving type IV FGM handed down on 14 January this year in the case of B and G. In his judgment, Sir Justice Munby stated that any form of FGM constitutes significant harm, including type IV.

Therein lies a confusing legal situation. Family law applies the World Health Organisation’s definition of FGM, but criminal law appears to refer only to mutilation, which could be seen as excluding type IV FGM. That could have consequences in practice, resulting in a confusing situation for FGM protection orders, as it is not clear whether the criminal or family law definition of FGM will apply. FGM protection orders will be situated in criminal law but it will be mainly family courts that make the orders. I look forward to the Minister’s response on that point. She may also wish to write to me if she needs to take further advice.

The second issue that has not been addressed sufficiently by the Government is how the number of FGM protection orders will be recorded and who will monitor them. I recently held a round table meeting with organisations that work with survivors or victims of forced marriages. Representatives from those organisations were concerned that the number of forced marriage protection orders that, as they understood it from their community contacts, were being issued on the ground seemed to be higher than the figures in the statistics issued by the Ministry of Justice. Whether that is because courts are not sharing all their data with the Ministry of Justice and reporting as they need to, or whether the figures are not being fully collated, I want to raise the issue with the Minister. Will she clarify how the statistics on FGM protection orders will be collated and reported?

My third point relates to the FGM unit announced by the Government. The Home Secretary announced at the girl summit in July that the Government would open a Government-run FGM unit that for all intents and purposes may be similar to the forced marriage unit opened in 2005 in the Home Office and the Foreign and Commonwealth Office. That unit is absolutely to be welcomed, but I do not believe—I hope the Minister will correct me if I am wrong—that there have been any further announcements about when it will be opened, the services it will provide or where it will be situated.

In my discussions with NGOs and charities, a number of issues have been raised. Will the unit have an operational element, such as a telephone line, or will services continue under the NSPCC’s line? The forced marriage unit has a telephone point of contact that receives more than 1,000 calls every year. There may be issues at the time of start-up about awareness of greater questions and whether those are monitored, so it will be useful to know what thinking has taken place about that.

Will the unit’s role be to provide professional training on FGM? The agencies involved in child safeguarding, which include schools, the police, local authorities, charities, third parties and families’ and girls’ services, will have a host of questions on the risks of FGM and its consequences, should a girl have been cut. It is important to raise awareness, so the question is: who will be responsible for training and who will monitor it for effectiveness?

We want to be sure that the unit will be able to work with embassies in other countries that may have a higher prevalence of FGM to ensure that parents, families and others who need support know that they can turn to the British embassy for advice. In cases where forced marriage is raised by citizens aboard, the forced marriage unit can work with British embassies to locate those UK nationals and residents at risk and help repatriate them to the UK. How will the FGM unit work with the Foreign and Commonwealth Office? That is important, because this crime has an international element. To make the measures effective we need to understand how our structures and processes work across borders.

The FGM unit will take resources and in times of austerity we are all looking to efficiency. However, an important consideration is how the forced marriage and FGM units may work closely together and gain from the synergy of sharing knowledge and understanding of communities as well as networks and resources.

I have a final point, which the Minister has raised, on the Department for Education’s communication on female genital mutilation and awareness of the law relating to that. In the proposed legislation, an application could be made by a girl who is to be protected by the order. We know that the girls at risk can be very young—they can even be at infants school. As the Minister will be aware, Labour has called for effective and age-appropriate sex and relationship education to be brought in from key stage 1, which could build confidence and self-esteem as well as an understanding of relationships and the importance of respecting values. Those are important formative development points for young people, because we know the risks and threats to development that they face. A culture that normalises violence in relationships is becoming more of a reality for many young people.

To ensure that an age-appropriate awareness of female genital mutilation is there for families, parents and young girls is incredibly important. I would be grateful if the Minister would extend her comments to this matter, or write to me about how, while girls may have this option available to them under the law, the Department for Education will make sure that girls are actually reached. It must be a matter not of us having policies on a website, but of ensuring that girls who need to know that this provision is available to them are being reached.

I raise this point because I met a young girl who was at risk of female genital mutilation. She realised this in school, when a charity came in to do some work. She was able to turn to those who could help her and make sure that she was not cut. She has now become a very important and effective voice for young people of her age, making sure that these issues are raised. I pay tribute to the work of many of those who have been raising these issues with schoolchildren, such as Leyla Hussein and others in Bristol. With this new legislation, we need to look again at our strategies.

New clauses 26 would provide for a stronger encouragement offence than exists in legislation at the moment. We tabled the new clauses to give a stronger weight to measures in UK law to help to end the practice of female genital mutilation, and to do so within a generation. As Leyla Hussein—the inspiring FGM campaigner and herself a survivor—put it,

“I’m the granddaughter of a survivor of child marriage, I’m the daughter of a woman who was freed from child marriage and I’m the mother to a daughter who is free from all forms of violence.”

In order to see an end to female genital mutilation within a generation we need to take really strong action, and we need to take action now. We need to take it in order to stem the tide for girls who are at risk, not just react when a girl is identified as being at risk.

While we welcome the measures in the Bill and give them our full support, and while they address important ways to respond when a girl is at risk or has been cut, in our opinion they do not go far enough to prevent the crime of FGM in the first place. What is actually needed for the prevention of FGM is a much stronger upstream measure that addresses the pressure to commit FGM, which is much more upstream than the actual cutting. We need to get to the source of some of the pressures that are applied in communities. Under its international law obligations, the UK must actively combat FGM, not merely react to the ongoing practice. The offence of encouraging FGM would be not just a message but a very strong preventative measure. I hope that as we explore this further this measure will get support from the Government, and indeed we may also want to press the new clause to a Division.

The UK’s international law obligations are clear in their requirement for the UK to take active steps to end the practice of FGM. Treaties include the convention on the elimination of all forms of discrimination against women, the convention on the rights of the child, the European convention on human rights and the convention on preventing and combating violence against women and domestic violence, which was signed in 2011. It is also the opinion of leading lawyers that the Serious Crime Bill as currently drafted falls short of meeting our international obligations. I am particularly grateful to the Bar human rights committee for their work with me on this new clause, particularly to Dexter Dias QC, Kirsty Brimelow QC, Charlotte Proudman and Zimran Samuel. A first draft of this encouragement offence was introduced in an amendment by Baroness Meacher of Spitalfields in the House of Lords in July 2014, but the new clause I am speaking to today is a tighter offence. For the first time, it would give parents and girls the opportunity in law to challenge the public encouragement of FGM.

The offence of encouraging FGM is incredibly important when considering the cultural context within which it takes place in practising communities. Many activists tell us that pressures from others in the community on parents can become too difficult to resist, even when they have no wish to cut their daughters. Affected communities often retain a strong hierarchical structure, and encouragement or admonishment from elders can carry enormous weight. Not only are parents told that their daughters will never get married, but whole families can be ostracised and isolated as unclean.

We need to support those who are seeking to change the culture in affected communities and send the message that the practice is breaking the law. We know from research by the Bar human rights committee and others that there is still significant support among affected communities in Britain for sunna: that is, type 1 and type 2 FGM. The process by which FGM occurs is complex, and sometimes encouragement takes place in small gatherings and in informal settings behind the scenes, where it is difficult to intervene. Many campaigners and activists unanimously support a distinct offence of making the public encouragement of female genital mutilation unlawful.

The Hawa Trust, an organisation that works with local communities in Hackney to tackle FGM, told the Home Affairs Committee last year,

“The young uncircumcised girl is still considered today as a second-class citizen, impure…Such a young girl can neither marry nor even be allowed to prepare the family meal until she agrees to be circumcised.”

In research that I have already quoted, Sara, a teenager from a practising community told researchers, when they asked what makes parents do it:

“People. People telling them to. You call it encouragement, I call it people telling them you must follow our tradition, or else.”

Lucee, an FGM survivor, explains:

“The community leaders play an important role in the life of ordinary people from birth, throughout childhood and adulthood to death. No one wants to grow up outside that circle—you join or become ostracised. It is not just religious leaders who influence people to do FGM, but community leaders.”

If we are to end FGM, we need a proper prevention strategy. Campaigners are telling us that measures to tackle public encouragement of FGM are missing. We need this new measure to change the culture and help break the cycle. The measures on the statute book are not working to stem the tide. Even with the prosecution currently underway, there have only been two prosecutions since the introduction of the Female Genital Mutilation Act 2003.

The measures in the new clause have been carefully considered and are based on what we have learned from encouragement of terrorism legislation. We know that girls and families do not want their loved ones to come under the criminal justice system. I will talk about new clause 28 shortly and why we proposed civil measures in the first instance. It is important to recognise that a free-speech argument has been used against this measure, but this is not a free-speech issue. We propose safeguards and effective measures in respect of the new offence and provisions relating to it. For example, a statement would have to be published with the intent of encouraging members of the public, directly or indirectly, to mutilate the genitalia of a girl, or be

“reckless as to whether members of the public will be directly or indirectly”

encouraged. Our proposal would not criminalise every public statement or speech encouraging FGM in the first instance, but would allow the police to introduce encouragement warning notices and to follow up with encouragement warning orders. It is not a matter of free speech to encourage others to commit an offence. We need to make it clear that we are not curtailing opinion or belief, but the active encouragement of an offence.

New clause 26 would introduce encouragement warning notices and orders, creating a statutory scheme to provide tools to help to deter and disrupt the encouragement of FGM. They must be considered in combination with the proposed new offence of the encouragement of female genital mutilation. This approach is informed by the policy objective of creating a greater emphasis on the prevention of FGM. These legal powers would form part of a comprehensive scheme designed to strengthen the protective mechanism that the UK has and would enable the UK to better meet its obligations under international law.

The proposed process for encouragement warning notices and orders is similar to that already in place for domestic violence prevention notices and domestic violence prevention orders. The wording of the amendments draws heavily on sections 24 to 31 of the Crime and Security Act 2010, with the necessary adjustments. The scheme will provide for essential legal and judicial checks and balances in its two-tier structure. The initial notice that we are proposing can be served only by a constable, having been authorised by a senior officer of a rank not lower than superintendent. Following this and within a specified period, the police must get the notice ratified by a court.

The benefits of the proposed changes would include the creation of legal powers specifically aimed at one of the principal mechanisms of the perpetuation of FGM, disrupting and deterring harmful social norms—an objective advocated by the United Nations—and creating a statutory scheme of closely allied warning notices and orders that empower the police to intervene at the stage of encouragement of genital mutilation before the more serious offence of FGM is committed. In combination with the other amendments and new clauses being proposed, we would strengthen the Bill considerably and also provide a greater reassurance to at-risk young women and girls and concerned members of their families.

In short, the encouragement warning notices and orders, allied with the new encouragement offence, would give parents and campaigners greater confidence under the law to report where people are having pressure put on them by others in affected communities. Before a girl is identified as being at immediate risk, measures can be taken to stem the tide and help change a culture, which we know needs to happen in order for us to eradicate FGM within a generation.

Norman Baker (Liberal Democrat, Lewes)

I have listened to the contribution from the hon. Member for Feltham and Heston without any knowledge of what my hon. Friend the Minister is going to say. The Government has done much to deal with the discouragement of FGM and it continues to do so, which is absolutely right, and it has done so in a reasonably creative way. I believe it is having a beneficial impact in changing mindsets and perhaps, to use an overused metaphor, turning the oil tanker around, because we are dealing with hundreds of years of opinions about cultural norms in parts of the world.

I am genuinely concerned that the proposal may be counter-productive. I am keen, as is everyone else in the House, to see the end of FGM, which is child abuse. It is an appalling act of violence against girls and women, and cannot be defended. However, we have to win hearts and minds. My right hon. Friend the Member for Hornsey and Wood Green (Lynne Featherstone), the then International Development Minister and now my replacement at the Home Office, concluded from her discussions with countries in Africa and their diaspora that these mindset changes had to be “African-led” in many cases. If it is seen as being imposed by western culture, that may drive matters underground and reinforce the determination of some people to carry out FGM, which is not the outcome that she and I want to see.

Seema Malhotra (Labour, Feltham and Heston)

The right hon. Gentleman makes an important point about the distinction between imposing a cultural view and supporting those in affected communities so that they are empowered to shift a dominant culture where these traditions have been in place for generations. My point is that the public encouragement of FGM is an issue that has been raised from within affected communities. I am sure that he, as a former Minister, has had discussions with affected communities. Indeed, he and I have sat on the same panel at events. He will understand, from those who were at the same event as us and who have talked to me about the importance of this, that this is a global issue. What happens in one country affects and empowers campaigners abroad.

I saw that at the launch of the “End FGM” initiative, where a woman stood up and said that this had given people in her country, where she was a Minister, greater power to stand up and say that these measures need to be looked at more effectively. I understand the right hon. Gentleman’s point, but we have to make the important statement that there is no cultural excuse for violence against women and girls. We need to do what we can in this country to empower those vital campaigners for change. This is not a cultural issue; it is a violence against women and girls issue.

Norman Baker (Liberal Democrat, Lewes)

I certainly agree that it is a violence against women issue and that there are no cultural excuses, if the hon. Lady wants to use that particular phrase. I also agree that we must do everything we can to encourage the eradication of FGM in our country. The point I was making was whether her proposal will actually achieve that end or not. We have the same objective; it is simply a question of whether or not that proposal will be effective. Her new clause talks about police officers effectively intervening, authorised by a superintendent, to issue such a warning notice. I seriously question what the consequence will be of such a warning notice being issued to someone and what that will do in that community. That is the point I am making.

I am very happy to look at anything we can do to eradicate FGM. However, the combination of the measures in the Bill and the slightly softly, softly approach of discouraging FGM by involving community leaders and so on has been and will be effective. The hon. Lady wants to get from A to Z as fast as possible; so do I. However, I am not sure that her particular method will get to Z quicker than the Government’s proposals in the Bill. I am very conscious that we need to take communities with us, and it would be deeply unhelpful if there were some counter-reaction to what she proposes.

Seema Malhotra (Labour, Feltham and Heston)

The right hon. Gentleman, again, makes an important point. The police starting to intervene, as they already are in cases of FGM, is not a situation that should be taken lightly. However, there is a sensitivity—not a cultural sensitivity, but a sensitivity within communities that are working through change themselves when the state comes in and intervenes.

I make the point again that it would be interesting to know what alternative proposals the right hon. Gentleman has for a situation where someone is inciting others to commit FGM and where parents feel under pressure. Those parents and girls might go to the police and say, “Please help to protect us so that this doesn’t happen. I might protect my daughter but my neighbour may come under great pressure and I don’t know what will happen to her daughter.” There is a point about what we can do under UK law to protect the majority who are concerned about FGM from someone who stands up and says, “FGM is part of our culture and part of our tradition.” It would be helpful if I could read out a short paragraph by Asma, who is a survivor of FGM.

Katy Clark (Labour, North Ayrshire and Arran)

Order. The hon. Lady is making an intervention—I will bring her in at a later stage, if she wishes—and she should keep it fairly short.

Seema Malhotra (Labour, Feltham and Heston)

I apologise; I have got carried away. This is the voice of Asma, a survivor, who said:

“Our elders tell”—

our parents—

“to cut their daughters. It happens in small groups when we come together and when we worship here in Britain. They say you must cut. And people agree. You cannot marry amongst us if you don’t cut. You are not clean if you don’t cut. And people agree. The pressure is like water from a tap. Can you turn the tap off? I don’t know. But I hope you try. It will help girls in danger. Even knowing you are trying to turn off the tap helps girls in danger. Thank you.”

Norman Baker (Liberal Democrat, Lewes)

That was a long intervention. It was longer than my speech, in fact, but I will do my best to respond to it. Of course we must try, and we are trying. A series of measures in the Bill allow state intervention to prosecute those who are guilty of offences. The fact that prosecution is possible—the statute book will be altered—will discourage the acts from being committed in the first place. That, I imagine, is the purpose of the measures.

Would the hon. Lady’s new clauses stop someone standing up and advocating that girls be cut in the sort of environment that she describes? I am not sure they would. They might simply drive it underground, so that we do not know about it, which would be more harmful. If it happens underground, it requires someone to make an official complaint to the police and give a statement that it has occurred, which implies even greater resistance to the cultural norm, if I can call it that, than adhering to the strictures that have been put forward in the Bill. I am making a practical point on what the new clauses might do, rather than objecting to the direction of travel she wishes to take. If I thought they would be effective, I would be more sympathetic.

The hon. Lady mentioned free speech. In my view, if someone is encouraging a particular act of violence against a specific girl or women by suggesting that that girl or women should undergo FGM, that is an incitement to violence, and I hope that that would be captured by existing legislation. However, in the case of someone making a general point on FGM, I am worried that the new clauses would criminalise free speech. I would much rather have people making speeches that we can counteract and challenge than the matter being criminalised. It is a difficult balance. Particularly in light of recent events, we have to be careful not to drive matters underground and prevent people from saying what they think, even if we totally disagree with it.

Andy McDonald (Labour, Middlesbrough)

The right hon. Gentleman talks about his concerns on free speech, but would we tolerate free speech that incites grievous bodily harm, which is what this activity is, or free speech that encourages torture, which is what this activity is? Why should we separate it and treat it any differently from the violent and barbaric act that it truly is?

Norman Baker (Liberal Democrat, Lewes)

The answer is that there is a difference between the general and the particular. We allow discussions to occur. There are discussions, for example, about whether we should manufacture and export leg irons to different countries. We have discussions about whether torture should occur and what our role should be in that. We have discussions about whether hanging should be brought back. Many points of view are expressed by members of the public generally that I fundamentally disagree with and regard as barbaric, but I am loth to stop them doing that. That is the point I am making. Both for the reason of being careful not to unduly inhibit free speech, but more importantly because I think it might be counter-productive, I have doubts about the new clauses, although I entirely agree with the direction of travel that the hon. Member for Feltham and Heston wishes to take.

Sarah Champion (Labour, Rotherham)

On a point of order against myself, I apologise to the Chair. I was so caught up in the debate that I did not say that it was a pleasure to serve under your chairmanship, Ms Clark.

Katy Clark (Labour, North Ayrshire and Arran)

I do not think that is obligatory. If no other Members wish to come in, I call the Minister.

Karen Bradley (Conservative, Staffordshire Moorlands)

It is always a pleasure to serve when you are in the Chair, Ms Clark.

We can see from the debate that we all share the objective of seeking to eradicate the terrible practice of FGM. As I indicated, the Government have acknowledged that the law needs to be strengthened, and the measures we have discussed are intended to achieve that aim.

I thank all Members who have contributed. My right hon. Friend the Member for Lewes talked about turning round the oil tanker, and he has extensive experience of these issues, having been the Minister responsible for dealing with them for some time in the Home Office—

Norman Baker (Liberal Democrat, Lewes)

Transport, you mean.

Karen Bradley (Conservative, Staffordshire Moorlands)

No, the Home Office, and a valued colleague he was there, too. However, he makes an important point: it is worth saying that no FGM cases were referred to the Crown Prosecution Service before 2010. We talk about a lack of prosecutions, but if no cases are referred, it is impossible to get a prosecution. We have had a law in some form since 1985, but not a single case was referred to the CPS in 25 years.

An enormous amount therefore needs to be done, and my right hon. Friend is right about mindset changes. However, these things cannot be imposed—people have to be led. My right hon. Friend the Secretary of State for International Development and the new Home Office Minister for Crime Prevention, who was previously a Minister in the Department for International Development, have both said that the only way things will change is if the communities affected lead from the front.

I have heard of some fantastic initiatives, particularly involving young people and girls in these communities. Last week, I heard about an initiative in Hammersmith called “Made Perfectly”. This is about girls saying, “We are perfect. We were born perfect. We do not need to be changed.” They are taking the lead and taking the initiative in educating fellow students. They go to Hammersmith shopping centre on Saturdays, and they stand there explaining to people, “This is what’s going on, and we need to change it.” That generation can make an amazing and incredible difference. Our job is to give them the power and the tools they need to go out there and make that difference. This really has to be led by them, with us giving them all the powers they need and making sure law enforcement and prosecution services have the weapons in their arsenal to make a difference.

Clause 70 provides for female genital mutilation protection orders. An order could be made to protect a girl against whom a genital mutilation offence has been committed or to protect a girl against the commission of such an offence.

Let me turn now to the amendments. My hon. Friend the Member for Mid Derbyshire has been a member of the International Development Committee throughout this Parliament, and she has taken a real interest in this issue. She has travelled extensively, and she knows a considerable amount about practices in the diaspora community and overseas. I pay tribute to my hon. Friend the Member for Stone for assisting her with the amendment. He made a contribution on Second Reading, and although it was only short because we were unfortunately short of time, he made some important and pertinent points.

I will set out my reservations about the amendments tabled by my hon. Friend the Member for Mid Derbyshire, but I would like to discuss them outside the Committee with her and my hon. Friend the Member for Stone because I want to make sure that we give law enforcement officers and others the weapons they need and that we get this right. I hope that she will take my comments in that spirit, because I would like to continue discussions with her.

Amendment 42 would amend the sub-paragraph that refers to the second of the orders’ two purposes so that it referred to “protecting a girl against a risk of the commission of a genital mutilation offence”. Amendment 43 would add to the statement of what the court must have regard to in deciding whether to make an order for this purpose a reference to

“the level of risk of commission of any genital mutilation offence.”

My hon. Friend the Member for Stone set out the case for the amendments on Second Reading, after which I wrote to him, and my hon. Friend the Member for Mid Derbyshire has eloquently set out the case for them this morning. Having now carefully studied the amendments, I am still unpersuaded; but I would like to discuss them.

All our legal advice, including from parliamentary counsel, is that the current provision would already allow the court to make an FGM protection order if it is judged that the girl to be protected was at risk of the commission of an FGM offence. That is not just the Government’s view. In their written evidence to the Committee, the Royal College of Nursing says that it supports this measure, which most importantly offers protection to at risk girls and young women.

My hon. Friend the Member for Mid Derbyshire referred to the advice from chambers. We are not persuaded that there is a gap in protection for those girls in respect of whom the risk of subjection to FGM is less than 50%, as suggested in that advice. The issue for the courts is whether there is a risk of FGM. The court will take into account all the circumstances and make an appropriate order to protect. My hon. Friend argues that these amendments would nevertheless make clearer to front-line practitioners that they can apply for these orders when they fear that a girl is at risk of FGM. Of course, professionals need to be clear about that, but the best way to get that message across is in guidance, which we will provide, and not by adding to the legislation.

I fear that these amendments could do more harm than good. The courts may puzzle unnecessarily over why we have included these additional words, especially as they are not found in the provision for forced marriage protection orders on which this clause is modelled. The courts may even conclude that we only intended these orders to be made when there is a particularly high risk of FGM being carried out, which is not what any of us want. I hope that my hon. Friend will consider those comments, and I would appreciate it if we met her very shortly, because I would like to discuss this further.

New clauses 26 and 28, to which the hon. Member for Feltham and Heston has spoken, seek to tackle the encouragement of FGM. New clause 28, which, as she said, is similar to an amendment tabled in the House of Lords by Baroness Meacher, would do that by making encouragement of FGM a specific criminal offence. New clause 26 takes a different approach, by providing for civil

“Encouragement of Female Genital Mutilation Warning Notice and Orders”.

Of course, FGM is a criminal offence, so encouraging its commission is already also a criminal offence. The Serious Crime Act 2007 includes the so-called inchoate liability offences of encouraging or assisting a crime. The approach taken in that Act, which we believe is the right one, is that there must be a connection between the encouragement or assistance and the principal offence. The person encouraging the offence must intend or believe that he or she will encourage or assist in commission of an offence. Depending on the circumstances, that may apply not only to the encouragement of a specific act of FGM, but to the general encouragement of FGM. As I say, that will depend on the facts of the case, and in particular what was in the mind of the encourager.

The hon. Lady talked about type IV FGM. The Government are satisfied that the current law—not just the FGM Act, but also criminal offences of assault—covers a wide range of activities, such as those raised by the shadow Minister. The president of the family division touched on this issue in a recent case, looking at whether the criminal law covers type IV FGM. As the shadow Minister says, the question under the FGM Act is whether the activity constitutes mutilation. In circumstances where the conduct on a girl takes place without her consent, the Government are clear that this would be covered by criminal law.

New clause 28 would go much further than this, by criminalising all speech that is likely to be understood as encouraging FGM in general. There is no consideration of what was in the mind of the encourager. While none of us would condone statements encouraging the practice of FGM, the proposed new offence would engage article 10 of the European Convention on Human Rights, which protects freedom of expression. Any restrictions on free speech must be shown to be necessary and proportionate. On the basis of the current evidence available to us, we have serious concerns about the necessity and proportionality of such an all-encompassing offence of encouraging FGM.

Moreover, new clause 28 is modelled on the offence of encouraging terrorism in section 1 of the Terrorism Act 2006. That offence was introduced following the 7 July attacks in 2005, which were powerful evidence of the terrorist threat to the UK; but we should be wary of applying terrorism-related offences more widely. We have seen no compelling evidence that would justify the introduction of such an offence for FGM.

As I have said, new clause 26 takes a different approach, by providing for civil

“Encouragement of Female Genital Mutilation Warning Notice and Orders”.

It is aimed at those

“encouraging the genital mutilation of women and girls as defined in section 1”

of the 2003 Act.

On the hon. Lady’s point about civil protection orders and whether they would sit better in the Family Law Act 1996 than in the Female Genital Mutilation Act 2003. Under clause 70, proceedings for FGM protection orders would be heard in the family court or family division of the High Court. The relevant provisions do not need to be inserted into the 1996 Act to achieve that.

Inserting the FGM protection order provisions in the 2003 Act does not in any way reduce the court’s powers. The proceedings would be in the family court or the family division of the High Court—for example, if the FGM protection order were considered in proceedings within the High Court’s exclusive jurisdiction, such as wardship or child abduction proceedings, with the full range of powers of the court and expressly without prejudice to any other protective powers that the court might have.

The location of the provisions does not affect that. Indeed, we believe it would be helpful to practitioners to have all FGM-related provisions in one statute. We will work with the legal profession and others to ensure that the FGM provisions in the Bill are widely publicised when we bring them into force. That leads me on to the subject of training.

The Royal College of Nursing supplied written evidence, which I have referred to. The multi-agency practice guidelines on FGM will be updated to reflect changes to legislation. We are developing work to support professionals in areas with a high prevalence of FGM through the new FGM unit’s programme of outreach work. The unit will also offer bespoke targeted peer support to local areas that want to strengthen their ability to tackle FGM.

The hon. Lady asked about the FGM unit, which was launched on 5 December. In addition, the Home Office has recently launched an e-learning package for all professionals, which is free to use. We are funding the Foundation for Women’s Health Research and Development to carry out face-to-face training with local safeguarding children boards in high-prevalence areas. The Department of Health has commissioned Health Education England to produce five new e-learning FGM training sessions, the first of which was launched on 26 November 2014. They will be provided on the national e-Learning for Healthcare platform and will be available to all NHS trusts at no charge.

The hon. Lady asked about the reporting of FGM. For the first time ever, NHS staff must now record in patient health care records whenever it is identified through the delivery of NHS care that a patient has had FGM. There is a legal requirement on NHS organisations to comply with that. It applies to all clinicians and health care professionals across the NHS.

The specialist FGM unit launched on 5 December has been set up to drive a step change in national outreach on FGM with criminal justice partners, children’s services, health care professionals and affected communities. That work complements the ambitious programme of work by the Department for International Development. I should be happy to write to the hon. Lady about the unit’s further work.

The hon. Lady talked about our international obligations. The provisions are intended to tackle FGM in an effective and proportionate way. Contrary to her suggestion, nothing in international law requires the United Kingdom to create an offence of encouraging or promoting FGM or to include in the law provisions such as new clauses 26 and 28.

The provisions are modelled on those for domestic violence protection orders and notices in the Crime and Security Act 2010. Those notices allow police officers to deal with an urgent situation where they reasonably believe there is a need to protect someone at risk of domestic violence. They deal with a real and present danger. The order then allows a court to provide longer, but still strictly limited, protection, so that for instance a woman at risk can secure the safety of her accommodation.

The general encouragement of FGM is a very different situation. There is, it seems clear, not the same urgency. Where a girl is at risk, an FGM protection order could be used to protect her, but the proposed FGM warning notices are not about protecting someone in immediate danger; they are simply about restricting someone from encouraging FGM. It is not clear what terms the orders might include to prevent the encouragement of FGM, or how a breach of them might be assessed. In short, it is not clear how they would work.

New clause 26 is intended to curb the general encouragement of FGM in much the same way as the general encouragement offence proposed by new clause 28, although through a different mechanism. Our view that restricting that sort of speech is not necessary applies to that provision as well.

As I am sure we would all agree, we have had an interesting and stimulating debate on important issues. I hope that both sides accept that the Government are committed to making the legislative changes that are necessary to provide better protection against FGM; but we are not persuaded that the amendments and new clauses are necessary. As I have indicated, I believe that the issue raised by my hon. Friend the Member for Mid Derbyshire about FGM protection orders is best dealt with in guidance. I can assure her that it will be appropriately addressed, but I would like to discuss that further with her. I hope that in the light of those assurances she will be content to withdraw her amendment. If she has continued concerns, we will continue to discuss the matter.

Pauline Latham (Conservative, Mid Derbyshire)

I beg to ask leave to withdraw the amendment, on the basis that we will meet to discuss the issue, but I might return to it at a later stage.

Seema Malhotra (Labour, Feltham and Heston)

I wish to make a few concluding remarks on clause 70. I would welcome the Minister’s responses to a range of issues that I raised, but I would like to comment on one in particular and explain why we will be pushing new clause 28 to a vote. The Minister talked about the Serious Crime Act 2007, which contained measures to bring prosecutions for encouraging someone to commit an offence. She suggested that, while we have provisions within legislation, we could possibly be contravening the European Convention.

In the European Convention, there are two competing rights. We have made a strong argument that encouragement to commit an offence is not an issue of free speech. It is not the expression of an opinion or political belief; it is an encouragement to commit an offence and should be treated with seriousness under our criminal law.

The Minister may be familiar with Professor Graham Virgo’s report and the Archbold review, which criticised the measures in the Serious Crime Act. They said that it made it harder to bring such a prosecution; that it had been easier before under the common law of incitement, where the defendant had communicated the encouragement to commit an offence, but the offence might or might not have taken place. The issue of whether or not the offence took place makes it harder to bring a prosecution under the Act. That is why it is increasingly important for us to consider whether the public encouragement of an offence, whether or not a person is identified as a victim, can still lead to a prosecution. The case going through Southwark at the moment is an offence under section 44 of the Serious Crime Act, but there is a particular identified individual.

The second complexity with the Serious Crime Act 2007 and its inchoate offences is that it requires a different charge to be brought—as far as I understand—for different offences. If one person encourages a room of 50 parents to commit FGM and 10 go off and do it, that person would have a strong defence that they did not believe that it would happen. Then there would be not just one prosecution—they would be charged with 10 offences. The complexities of the existing legislation, the need to intervene now in relation to the cultural context in which FGM is taking place, and the request from campaigners and communities for the tools to stand up to what is going on are all points that should lead to a reconsideration and a close look at the offence of encouragement to commit FGM. We will therefore press new clause 28 to a vote.

Clause 71 - Knives and offensive weapons in prisons

Katy Clark (Labour, North Ayrshire and Arran)

With this it will be convenient to discuss the following:

Government new clause 11—Prevention or restriction of communication devices by prisoners etc

Government amendments 7, 12 and 29

Steve Reed (Labour, Croydon North)

It is a pleasure to serve under your chairmanship, Ms Clark. I will focus on new clause 11 and the use or otherwise of mobile phones in prisons. I will preface that by saying that we support the proposals elsewhere in this clause to make it a criminal offence to possess an offensive weapon in prison and have that treated in the same way as it would be if the weapon was held by somebody intending to use it outside prison in a public place.

The previous Government banned the use of mobiles in prison, but we certainly support measures to disconnect phones that are smuggled in and used illegally. I question whether the Government are doing all that they can outside legislation.

Paul Beresford (Conservative, Mole Valley)

I bring the Shadow Minister’s attention to a small private Member’s Bill that went through, which ensures that facilities are available—they can be used legally in prisons—to block phones digitally and take the numbers coming in and going out. Perhaps he is going down a path that is already covered.

Steve Reed (Labour, Croydon North)

I suspect that his Front-Bench colleagues who tabled new clause 11 may be going down that route, but I believe there are issues with the cost of such approaches. I want to look at the cost of what is being proposed compared to alternatives. We do not necessarily have to go down the legislative route to prevent prisoners having mobile phones in prison. Will the Minister enlighten us about the findings of a piece of research that the Ministry of Justice commissioned last year at a cost, I understand, of around £70,000 into why and how prisoners are able to obtain and use mobile phones that are smuggled into prison?

From the Government’s figures, I understand that between 2013 and 2014, 7,400 mobile phones or SIMs were seized in prison. That is an awful lot, given that they are not supposed to be there. Not all prisons have the problem on the same scale. It appears, from the fact that some prisons seize no mobiles at all whereas others seize hundreds, that different approaches to preventing prisoners from getting their hands on mobile phones may be more effective than others. It may be worth looking at what best practice is, and see how we can share that across the prison establishment to ensure that prisoners’ opportunities to get hold of mobile phones, which they should not have, are limited or even removed.

It is clearly much more cost-effective to prevent prisoners from getting their hands on mobile phones than to block them or go through the processes that are necessary to cut them off so that they cannot be used. Will the Minister tell us how long it would take, if and when the clause is enacted, to disconnect the mobile phone that is being used by a particular prisoner? Presumably, that process will involve identifying the mobile phone being used, making an order to the courts, securing a restriction order on the mobile phone operator, and requiring the mobile phone operator to take the action that is necessary to cut the service off. Court processes do not tend to be quick. During the ongoing process and throughout any appeals that the prisoner may be able to lodge, it is entirely feasible that the prisoner will get another SIM card and have access to the outside world via that; then the whole process would have to start again.

Although we welcome the provisions in the legislation, I hope that the Government will make more efforts to focus on preventing prisoners from getting their hands on mobile phones and SIM cards, and learning from the prisons that are doing the job better than others so that that information can be shared right across the system.

Elfyn Llwyd (Plaid Cymru, Dwyfor Meirionnydd)

I have been contacted by the Prison Reform Trust, which has expressed concern about how the clause will operate in practice. I recognise that there is presently a lacuna in the law regarding knives and weapons in prison, and that clearly needs to be addressed. In 2012, 14,511 assaults were recorded in prison, but only 1,881 were recorded as involving a weapon of some sort. In the three preceding years, only 12% of the total number of recorded assaults involved the use of a weapon and, according to the National Offender Management Service’s safety and custody statistics of 2012:

“The majority of assault incidents do not involve weapons. Of those that do, most involve items that may be found to hand. Relatively few involve a designed for purpose weapon.”

As I have said, I do not disagree with the motivation behind clause 71, but I do share the Prison Reform Trust’s viewpoint that sanctions against assailants should form part of a wider strategy to reduce violence in prisons. It is surely of great concern that the past year has seen a 27% increase in serious assaults in prisons. Assaults by prisoners on officers have also risen by 12%. There are fewer officers available and an increase in the number of prisoners. That usually means that the figures will rise further still.

Can the Minister give an assurance that the Ministry will examine all aspects of how it might reduce violence in prisons? I am minded to table an amendment along these lines on Report, but I would welcome the Minister’s comments on the need for a holistic approach.

Karen Bradley (Conservative, Staffordshire Moorlands)

This Government are determined to take the necessary steps to improve security in prisons. Clause 71 does that by creating a new offence of unauthorised possession in prison of a knife or any other offensive weapon. I will come on shortly to talk about the points raised by the right hon. Member for Dwyfor Meirionnydd, but let me focus now on Government new clause 11, which deals with the use in prisons of illicit mobile phones. The unauthorised use of mobile phones in prisons presents a range of serious risks to the security of prisons and to public safety. They can be used to plan escape or indiscipline or to conduct serious organised crime, including drug imports and serious violence, from behind bars.

In 2013, the use of an unauthorised mobile phone was instrumental in the escape of two prisoners. In 2009, a prisoner was sentenced to 18 years for organising cocaine smuggling from his prison cell using a mobile phone. In the same year, a gang leader was jailed for life for arranging the murder of a rival gang member using a mobile phone in prison. And just last week hon. Members may have seen the reports of a prisoner in Wandsworth prison who used a mobile phone to arrange the importation into this country of sub-machine-guns from Germany. I am sure that the whole Committee would agree that the use of unauthorised mobile phones by prisoners is unacceptable.

The National Offender Management Service uses a range of measures to prevent mobile phones from getting into prisons, as well as seizing mobile phones and SIM cards from prisoners. As the shadow Minister, the hon. Member for Croydon North, said, it recovered in 2013 some 7,400 SIM cards and handsets from prisons in England and Wales. NOMS uses a range of techniques to detect and seize phones already in prisons, including detection technology and regular cell and prisoner searches. However, despite the success of those approaches, as mobile phone technology advances and the size of handsets decreases, it is becoming easier for prisoners to conceal illicit phones and move them around the prison estate.

It is a criminal offence to possess or use an unauthorised mobile phone in prison, but it is not always possible to attribute that use to individuals, and prosecutions are rare. My hon. Friend the Member for Mole Valley drew the Committee’s attention to the private Member’s Bill to block mobile phones. The powers conferred on prison governors relate to the blocking or detection of mobile phone signals in prisons. The use of blocking equipment has been successful in some prisons, but it would cost up to £300 million to install blocking technology across the prison estate. Given the rate at which that equipment can become technologically obsolete, that investment would not render value for money across the whole estate.

In contrast, our new clause will enhance the weapons available to prison governors and others and enhance the ability of NOMS to tackle mobile phone use in prisons with a targeted, flexible and financially manageable approach. New clause 11 will enable the Secretary of State or, in Scotland, the Scottish Ministers, to make regulations conferring a power on the civil court to make an order—a telecommunications restriction order —requiring a mobile network operator to disconnect those SIM cards and handsets that are in prisons without authorisation. NOMS or an appropriate law enforcement agency will identify those phones that are being used and present the evidence before the civil courts. If satisfied that a phone is being used inside a prison without authorisation, the courts will make a telecommunications restriction order, directing that the relevant mobile network operator or operators disconnect the phone from their networks, putting it beyond normal operational use.

The shadow Minister asked about time frames for getting a phone or SIM card disconnected. This is still being worked through with Her Majesty’s Courts and Tribunals Service. We will set it out fully when we introduce regulations under the new clause, but I absolutely agree that we need to make the process as quick as possible.

Subsection (3) of the new clause sets out the matters that must be included in the regulations, including provisions conferring rights on affected persons to make representations and to appeal.

Subsection (4) sets out additional matters that may be covered in the regulations, including the enforcement of orders. This element of the regulation-making powers is discretionary, as it may not prove necessary to make provision in respect of all the matters listed in subsection (4). For example, in relation to the enforcement order, if as we are minded, the normal rules governing contempt of court apply, then there would be no need to make bespoke provision in relation to enforcement.

The regulation-making power is subject to the affirmative procedure, so the regulations will need to be debated and approved by both Houses before they can come into force. The mobile network operators support this legislation. They have told us that they welcome a clear legal framework which requires them to act. The new power provides that clarity.

There are, of course, legitimate circumstances in which prison staff and others may need to have a mobile phone in their possession while working in or visiting a prison. This is recognised in the scope of the new clause. It is clear from subsection (1) that the power relates only to telecommunications devices used by persons “detained in custodial institutions”. Prisoners themselves have access to approved fixed-line telephones so that they can keep in contact with their families, friends and legal advisers. There is no justification for prisoners to use illicit mobile phones, and this amendment will be an effective tool in the fight against the use of unauthorised phones for criminal purposes.

The right hon. Member for Dwyfor Meirionnydd asked about the problem of knives and other weapons in prisons. NOMS is committed to reducing violence in prison. Prisons already have in place security measures to detect and deter weapons, including metal detectors and wands, frequent searching programmes of both prisoners and locations within the prison, as well as intelligence systems to target searches. There is a comprehensive programme of work under way to reduce violence and the effect of violence, including, for example, the protection of staff by stab-resistant vests and deterring attacks by introducing body cameras to record prisoner interaction. Work is also being undertaken with the Crown Prosecution Service and the national policing lead in developing a new joint protocol for reporting crimes committed in prison.

Apart from the occasional weapons stolen from workshops or smuggled into prison, prisoners most commonly manufacture weapons from everyday items. A frequently used weapon is a plastic toothbrush with two or more razors melted into the head. Other weapons include screws inserted through the base of deodorant bottles, snooker balls, cans or other heavy items inserted inside socks to produce a cosh, broken chair legs, broom handles, wooden or plastic items whittled into a point, and makeshift or real knuckle dusters.

The new provision in relation to the possession of knives in prison will provide the Prison Service with a further option when dealing with this problem. It does not follow that offenders will be prosecuted in every case. It will continue to be possible to deal with possession of a knife through internal disciplinary arrangements, and I agree with the right hon. Gentleman that we need a flexible approach. Clause 71 provides for this.

Clause 72 - Preparation or training abroad for terrorism

Katy Clark (Labour, North Ayrshire and Arran)

With this it will be convenient to discuss Government amendments 10, 11 and 13.

Robert Buckland (Conservative, South Swindon)

It is a pleasure to serve again under your chairmanship, Ms Clark. I am sure that in discussing this clause all members of the Committee will be conscious of the very real threat that we continue to face from terrorism, particularly in relation to Syria and Iraq and to individuals both here and abroad who seek to disrupt the peace and security of this country. The tragic events in France last week are a salutary reminder of these dangers.

Terrorism is, of course, not new, but the struggle to keep the public safe from harm today is more difficult than ever due to the continuous and rapid diversification of terrorism. It is an evolving threat. Many of the threats that we face today have significant overseas connections. The places where UK-linked individuals, and those seeking to harm UK interests, may now be training or otherwise preparing for terrorism are increasingly likely to be located abroad, hence the reason for this clause.

Syria, in particular, remains the world’s No. 1 destination for violent extremists, posing not only a regional threat but a wider threat. The issue of individuals from the UK seeking to engage in combat and conflicts abroad is sadly not new, nor is it specific to Syria. Members will be aware that, currently, the biggest challenge to our peace and security comes from ISIL, which is using a combination of terrorism and brutality to hold large swathes of Syria and Iraq and now occupies a third of those countries combined—that is an area almost the size of Great Britain. Those events further demonstrate foreign fighters’ fluidity of movement, but they represent only a portion of the terrorist organisations and individuals who seek to harm the west and the UK, so it is absolutely right that the Government take steps to respond to that challenge.

The House has recently agreed measures in the Counter-Terrorism and Security Bill that will provide new legal powers and increase the capability of our law enforcement and intelligence agencies so that they can disrupt individuals involved in terrorist activities and, importantly, prevent others from being radicalised in the first instance. The measure before the Committee is intended to achieve a similar end. Clause 72 amends section 17 of the Terrorism Act 2006 to extend the territorial jurisdiction of UK courts over the specific offences of preparation and training for terrorism, which are contained in sections 5 and 6 of the 2006 Act. The effect of the measure will be that, where UK-linked individuals and those who seek to harm the UK do anything outside this country that would constitute an offence under sections 5 or 6, they can be prosecuted on their return to the UK, thereby ensuring that they no longer remain beyond the reach of the law. As a safeguard, any prosecution under this measure will require the express consent of either the Attorney-General or me. In addition, for a prosecution to be brought, the Crown Prosecution Service must be satisfied that there is sufficient evidence and that prosecution is in the public interest.

Andrew Stunell (Liberal Democrat, Hazel Grove)

I thank the Solicitor-General for giving way. He has referred to the offence being prosecuted when the perpetrator returns to this country. I assume that the offence must have been committed after the Bill comes into force and that existing cases will not be caught by this new legislation.

Robert Buckland (Conservative, South Swindon)

As is consistent with the law and practice in this country, the effect of these criminal offences will not be retrospective. I will address commencement in a moment.

Our priority is to dissuade people from travelling to take part in conflicts abroad. Our legislation should leave no doubt in the mind of individuals engaging in preparation or training abroad for terrorism, of the action that we are prepared to take to protect the public. That is why we intend to act as early as possible, through amendments 10, 11 and 13, to ensure that clause 72 is commenced immediately on the passing of the Bill. That crucial change will enhance the ability of our law enforcement partners, who work tirelessly to keep us all safe, to take the appropriate action against people who return to the United Kingdom having undertaken such criminal acts.

I have already addressed the issue of retrospectivity, but I make it clear that we believe that there is an overriding need to ensure that our legislation is as robust as possible to ensure that our operational capability to protect the public is not in any way impeded. I therefore commend the clause and the Government amendments to the Committee.

Jack Dromey (Labour, Birmingham, Erdington)

It is a pleasure to serve under your chairmanship once again, Ms Clark. The Solicitor-General is absolutely right that the world faces a horrific threat in Syria and Iraq, in France and Belgium and in our own country. Over the past year or two we have seen haunting images of beheadings, of gay people being thrown from towers and of women and young girls being bought and sold. On our own continent, we now see journalists massacred, police officers executed and Jewish people shot simply because they are Jews. This offends humanity and demands that the world stand together and act, not least because so many of those involved are leaving our shores to engage in barbarism. In so doing, they pose a threat not just in Syria and Iraq but when they return to this country.

The phenomenon of foreign fighters is not a new one, yet the number of volunteers leaving parts of Europe to join the Syrian conflict is quite unprecedented. The Government’s own estimation is that at least 500 people have left the UK to join the conflict. Indeed, while some other smaller countries such as Belgium and Denmark have contributed higher numbers relative to their size, Britain is among the countries in Europe that are contributing the largest overall numbers of foreign fighters to the conflict in Syria.

The chilling sound of a familiar accent in those who have filmed their atrocities and made them widely available online brings home just how extreme some UK citizens have become. It is estimated that, of the 500 people who have embarked in fighting abroad, up to half may have returned. It is true to say that some of the returnees have come back bitterly regretting their involvement. However, there are equally those who return tasked with carrying out acts of terror. They come back to recruit fighters or to spread propaganda. Some have military experience and want to live out their violent jihadism in Britain and Europe. According to the evidence given to the Home Affairs Committee last year by Dr Thomas Hegghammer, director of terrorism research at the Norwegian Defence Research Establishment, as many as one in nine foreign fighters will return to their country of origin specifically to carry out terrorist attacks. The new legislation introduced by the Government is therefore entirely appropriate, as it makes it as difficult as possible for those individuals and provides extraterritorial jurisdiction. We therefore wholeheartedly support speedy implementation.

How many people do the Government feel are likely to be prosecuted under the proposed legislation? How do the Government intend to go about the difficult task of collecting viable evidence from extraterritorial acts? It is noted in the impact assessment that it is often difficult

“to prove evidentially direct engagement”

in terrorism. The Solicitor-General was absolutely right to say that, in addition, we must dissuade people from leaving our shores in the first place to travel to Syria. Sadly, the fact that so many have gone can signify a failure at home to tackle terrorism and radicalisation at its root. I accept that it is not the case with every instance of people travelling to Syria, but there have been failures to prevent young people from being radicalised or drawn into extremism in the first place.

The Home Secretary has said in recent debates that she wants to strengthen prevention programmes generally and the Prevent programme in particular, including putting it on a statutory footing. We welcome that. However, getting the Prevent programme right is not simply about legislation. The programme has been narrowed over recent years. That has led to criticism, including from the Intelligence and Security Committee, which noted in a recent report

“the relatively low priority (and funding) given to Prevent in the CONTEST programme as a whole.”

It concluded that the “scale of the problem”, by which it meant the number of people travelling,

“indicates that the Government’s counter-radicalisation programmes are not working.”

Mistakes have been made, but I have to say that there have been some welcome announcements of late by the Government and a determination to put that right. It is crucial that we develop a much more effective counter-narrative. The current programmes do not sufficiently address two significant challenges: peer group recruitment, which is clearly taking place in many areas, and social media, through which recruitment and radicalisation are taking place. Much more needs to be done to address those challenges and to dissuade in the first place, as the Minister said. Community-led programmes might be considerably more effective than police or Government-led programmes.

On social media, there was a fascinating report over the weekend on the excellent work being done by King’s college London. It argued that, with additional resources being made available to the acknowledged experts in our country, the effective monitoring of social media can have a devastating effect in finding out who is responsible for some of these appalling atrocities.

Fourthly and finally, I stress again that while I wholeheartedly support the proposed change to the law, in a wider context, the unprecedented cuts to our police service is inevitably having an ever more serious impact on the police’s ability to do their job. Only yesterday Peter Clarke, former head of counter-terrorism, said in TheTimes:

“Neighbourhood police hold one end of the ‘golden thread’ that can take us from Britain’s streets to wherever in the world terrorists are trained, equipped and radicalised … A reduction in police officer numbers increases the risk to the public”.

I have seen at first hand in the west midlands just how important neighbourhood policing and the patient building of community relationships are. The excellent Chris Sims, chief constable of West Midlands police, revealed figures last November showing that in the previous five years, of 40 cases brought before the courts for serious terrorist crimes, there were 31 convictions. All bar one person convicted was Muslim, and that one was an eastern European who murdered a Muslim. However, Chris Sims said that that patient building of community relationships had been key, with the community co-operating with the police in identifying those wrongdoers within their ranks. The unprecedented cuts to policing will inevitably have an effect at the next stages.

In summary, in supporting the clause, I ask the Minister to carry out that assessment of the effectiveness of its implementation, I ask the Government to reflect further on the importance of strengthening prevention and, crucially, I ask them to think again about the scale of the cuts to our police service.

Robert Buckland (Conservative, South Swindon)

I am grateful to the hon. Gentleman for his response. I shall answer his questions in turn. First, on prospective prosecutions, he rightly refers to the impact assessment. It is difficult to predict precisely the number that will be prosecuted under the new measures but we have assessed that there will be between one and five prosecutions under section 5, covering the offence of preparation, and one prosecution every other year under section 6, covering training.

Section 5, in particular, has been one of our most operationally useful offences. Home Office statistics show that since September 2001 there have been 56 convictions for preparation for terrorism under the Terrorism Act 2006 and its predecessor. Of those, 13 prosecutions were conducted since June 2012. Under section 6 and section 8, covering attendance at a terrorist training camp, there have been seven successful convictions since September 2001, two since last June.

On operational effectiveness, the key question that the hon. Gentleman asked was, rightly, about obtaining the evidence. Clearly, evidence gathering involving other jurisdictions is going to be more challenging, but our law enforcement partners are already well accustomed to working with the relevant authorities in other countries to gather evidence, either by mutual legal assistance agreements or otherwise. They are clear that evidence obtained from abroad is frequently used in UK prosecutions, including other types of terrorism offence, for which there is already extraterritorial jurisdiction. This is not, as the hon. Gentleman will well appreciate, a wholly new departure.

The hon. Gentleman made a very good point about social media. That was mentioned by David Anderson QC, the independent reviewer, in his evidence to the Joint Committee on Human Rights, of which I was a member until recently. The evidence stated that, like other young people, violent extremists and jihadis use social media. That helps in terms of evidence gathering. It is also reassuring to know that, like other terrorism offences, these new offences will be subject to the annual review that David Anderson QC carries out.

I turn now to dissuasion and Prevent. We believe that the work of Prevent is now more properly targeted. While I hear what the hon. Gentleman says about casting the net more widely, we know from bitter experience that sometimes the net has been cast to include groups that were themselves either apologists for, or too deeply involved in, the culture of extremism which, sadly, has led to the commission of terrorism offences. There was a real concern about how we could more effectively target resources and projects in order effectively to address the risks that we all understand and are concerned about. Of course, he is right to allude to the statutory duty in the Counter-Terrorism and Security Bill. That will enhance and reinforce the Home Office’s assumption of responsibility for a new counter-extremism strategy that involves not just the Home Office—although its role will be to oversee the strategy—but the whole of Government, the rest of the public sector and, indeed, wider civil society so that we can, first, confront; secondly, challenge; and thirdly, defeat extremism. I hear what the hon. Gentleman says about continuing concerns, which we all share, but I believe that the Government’s policy is clear, compelling and represents a real sense of purpose and duty when it comes to challenging the threats which, sadly, exist in our society.

I commend the clause to the Committee and welcome the support of Her Majesty’s Opposition. I very much hope that the measure will give more encouragement, resource and power to the investigating authorities to make sure that criminals who get involved in this form of extremism are prosecuted. The number of prosecutions in connection with Syria is a clear sign that the best way of dealing with barbaric methods is to use our own rule of law and due process, which eloquently emphasise the difference between us and them.

Katy Clark (Labour, North Ayrshire and Arran)

According to the programme motion on 13 January we now come to new clauses. The first is Government new clause 7, which we have already debated.

New Clause 7 - Exemption from civil liability for money-laundering disclosures

New Clause 8 - Sexual communication with a child

New Clause 9 - Controlling or coercive behaviour in an intimate or family relationship

Robert Buckland (Conservative, South Swindon)

I beg to move, That the clause be read a Second time.

Katy Clark (Labour, North Ayrshire and Arran)

With this it will be convenient to discuss the following:

Government new clause 10—Guidance.

New clause 3—Offences of coercive control and domestic violence—

‘(1) Any person who commits an act of or engages in a course of conduct that amounts to coercive control in a domestic setting shall be guilty of an offence.

(2) A person guilty of an offence under this section is liable—

(a) on summary conviction to a community order or imprisonment for a term not exceeding 12 months or a fine not exceeding level 5 on the standard scale; or

(b) on conviction on indictment to a community order or term of imprisonment not exceeding 14 years or a fine not exceeding the statutory maximum.

(3) The Secretary of State shall by regulations—

(a) set out matters that the court must take into account when determining whether to refer the matter to the Crown Court;

(b) require a court, local authority or other public body not to disclose the current address or postcode of the victim of an alleged offence under subsection (1) if, in the court’s view, it would place the victim at risk of harm by the alleged perpetrator or any other person;

(c) provide the court with the power to require those convicted of an offence under subsection (1) to successfully complete a domestic violence programme and/or another appropriate counselling programme as ordered by the court; and

(d) provide the court with the power to issue domestic violence orders under section 28 of the Crime and Security Act 2010 to those convicted of an offence under subsection (1).

(4) Regulations under this section shall be made by statutory instrument and may not be made unless a copy has been laid in draft before, and approved by, both Houses of Parliament.”

New clause 4—Prosecution of offences of coercive control—

‘(1) The prosecution of any person under the terms of New Clause [Offences of coercive control and domestic violence] shall not be the subject of statutory time limits.”

New clause 5—Definition of domestic violence—

‘(1) For the purposes of this Act, “Domestic Violence” means—

(a) controlling, coercive or threatening behaviour;

(b) physical violence; or

(c) abuse, including but not limited to, psychological, physical, sexual, financial or emotional abuse between those aged 16 or over who are or have been intimate partners or family members regardless of gender or sexuality.

(2) For the purposes of the definition in subsection (1)—

“coercive controlling behaviour” shall mean a course of conduct, knowingly undertaken, making a person subordinate and/or dependent by isolating them from sources of support, exploiting their resources and capacities for personal gain, depriving them of the means needed for independence, resistance and escape and regulating their everyday behaviour.

“coercive or threatening behaviour” means a course of conduct that knowingly causes the victim or their child or children to—

(a) fear that physical violence will be used against them;

(b) experience serious alarm or distress which has a substantial adverse effect on the victim’s day-to-day activities.

(3) For the purposes of subsection (2) a person shall be deemed to have undertaken a course of conduct knowingly if a reasonable person in possession of the same information would conclude that the individual ought to have known that their course of conduct would have the effect in subsection 2(a) or (b).”

New clause 6—Domestic violence: policies, standards and training—

‘(1) The Secretary of State shall require every police service in England, Wales and Northern Ireland to develop, adopt, publish and implement written policies and standards for officers’ responses to coercive control and domestic violence incidents within one year of this Act coming into force.

(2) The purpose of the policies required under subsection (1) shall be to ensure that police forces prioritise cases of domestic violence involving coercive control as serious criminal offences.

(3) The purpose of the standards required under subsection (2) shall be to ensure—

(a) a minimum level of information and support for victims of alleged domestic violence; and

(b) all police officers involved in domestic violence cases shall have had appropriate training in domestic violence behaviours.

(4) In developing these policies and standards each police service shall consult with local domestic violence experts and agencies.”

New clause 27—Report on effectiveness of national register of domestic abusers and serial stalkers—

‘(1) The Secretary of State must, within six months of commencement of this Act, commission a report on the potential effectiveness of a national register of individuals convicted of more than one domestic abuse or stalking offence.

(2) The report should include a cost-benefit analysis of such a register.”

Government amendments 3, 6 and 28.

Robert Buckland (Conservative, South Swindon)

Thank you, Ms Clark, for listing everything comprehensively to allow us to have a debate that will encompass Second Reading and stand part as well as contributions on amendments tabled by other hon. Members.

It is my particular pleasure—I think that is the right word, or perhaps “honour”— to move the amendment that stands in the name of my right hon. Friend the Home Secretary. Domestic abuse is unquestionably a serious and intolerable crime. I have had to deal with it as a practitioner and I have seen the consequences of the litany of abuse inflicted not only on adults but on the children and young people in the families concerned. Lives are destroyed and tragically cut short.

In 2012-13, more than 1.9 million people in this country dealt with the terrifying reality of being victims of violence and abuse at the hands of those closest to them, and 76 women were murdered by a current or former partner, yet we know that that appalling crime is still under-reported. In fact, some victims do not think that what is happening to them is wrong. More shockingly still, some of those controlled and dominated by someone they trust may even blame themselves for what is happening. As a result, such abuse is hidden behind the closed doors of far too many families. We must bring domestic abuse out into the open if we are to end it. The first step is to call it what it is: a crime of the worst kind.

Andy McDonald (Labour, Middlesbrough)

Does the Minister think that the situation is assisted or hindered by the barriers placed in the way of women in employment who wish to secure legal aid funding to take action? They also face funding barriers in getting places in women’s refuges.

Robert Buckland (Conservative, South Swindon)

The hon. Gentleman raises important points about the extent of legal aid. We cannot rehearse the arguments about the Legal Aid, Sentencing and Punishment of Offenders Act 2012, but he will know that, where there is evidence of domestic violence and the criteria are met in respect of the legal aid fund, there will be funding for civil and family proceedings relating to domestic violence in family situations. On refuges, I must say that I am proud that the Government have seen more refuges and rape crisis centres opened, because they are a vital resource for many women who have nowhere else to turn. The Government’s record is good when it comes to enhancing and spreading awareness of the role of those important services.

I say to the hon. Gentleman that we are dealing primarily with the criminal sphere. He will know that legal aid and public funding are available not only for the prosecution of offences but for criminal defence and the conduct of criminal cases in the magistrates or Crown courts. That is what we are discussing today.

I will deal with criminal prosecution, because the Government have made significant strides to improve the criminal justice response to domestic violence and abuse. The number of referrals from the police for prosecution is higher than ever before, and the number of cases reaching court has risen. In 2012-13, there were just over 70,700 prosecutions for domestic abuse nationally, and current projections expect that figure to increase to nearly 90,000 by the end of this financial year. The conviction rate for domestic violence and abuse is also at its highest-ever level, yet a stark comparison of crime survey and Crown Prosecution Service figures suggests that just one in 20 of those abused by family members or partners are able to access justice.

That is just not good enough. It suggests that too many cruel and manipulative perpetrators are getting away with their actions, so last summer the Government ran a consultation asking whether the law needs to be strengthened to provide better protection to victims of domestic abuse. Some 85% of respondents told us that it does indeed need to be strengthened, and 55% highlighted the need for a new offence. I am sure that the Committee would agree that a person who causes someone to live in constant fear through a campaign of intimidation should face justice for their actions. If such a person is unknown to their victim or is known but unrelated they would be called a stalker. What if that person is related to the victim? What if they share a home or a life together? The laws against stalking are not readily applicable in such circumstances. How do we ensure that they face justice? The reality at the moment is that they might not. We have to change that. We must create a new offence that makes it crystal clear that a pattern of coercion is as serious within a relationship as it is outside one. In many ways it is worse, because it plays on the trust and affection of the victim. That is why we need a new offence.

New clause 9 would close a gap in the law that should not exist. It would ensure that those abused by the people closest to them are protected by the law. The new offence seeks to address repeated or continuous behaviour in relationships where incidents viewed in isolation might appear unexceptional but have a significant cumulative impact on the victim’s everyday life, causing them fear, alarm or distress.

It is not our ambition to intrude into ordinary relationships. Every relationship will have its own power dynamics, and this proposal is not about outlawing arguments or saying that couples cannot disagree. We recognise the importance of ensuring that the new offence does not impact on non-abusive relationships that might be more volatile than others. As such, the repeated or continuous nature of the behaviour and the ability of a reasonable person, whether part of or external to the relationship, to appreciate that their behaviour will have a serious effect on the victim, are key elements of the new offence.

As an additional safeguard against the inappropriate use of the power, a defence is set out within the new offence. That will operate where someone was genuinely acting in the best interests of another, for example, where a spouse is a carer and needs to restrict the movement of a partner, perhaps with mental health issues, for their own safety.

However, we also recognise the importance of ensuring that that defence cannot be used as a “get out of jail free” card by manipulative perpetrators. The defence will not be available where the victim has been caused to fear violence. Where the defence is available, a defendant will need to show that a reasonable person would agree that their behaviour was reasonable in all the circumstances. That is not an easy test to meet, I submit, if someone has been responsible for perpetrating a campaign of control against another person.

We have ensured that the new offence does not overlap the existing criminal law. For that reason, we have decided that child abuse should not fall within the remit of the new offence, because it is covered by the existing law on child cruelty, which we have already debated in the context of clause 65. Similarly, the new offence does not apply to extended family members who have never lived with the victim, because stalking legislation is applicable in those circumstances.

Norman Baker (Liberal Democrat, Lewes)

Will my hon. and learned Friend clear up in my mind what a child is in the context of the new clause? Subsection (3)(b) refers to an exemption if the person is under 16, yet subsection (7) refers to a child being a person under the age of 18. Will he please explain the difference?

Robert Buckland (Conservative, South Swindon)

I will do my best. Subsection (3)(b) relates to the exclusion that I have just mentioned in relation to the commission of an offence against B. The later definition of “child” deals with how we define the members of the same family. Those are two different purposes. The first purpose relates to the nature of the victim and the second to the test of whether parties are members of the same family. That perhaps eloquently illustrates the inconsistencies that we debated last week. Because of the different capacities, it is difficult for the law to have a rational coherence in every circumstance. Again, I do not apologise for that. The legislation is carefully drafted to make that point powerfully.

Sarah Champion (Labour, Rotherham)

This measure is very much needed and I welcome the Minister’s bringing it forward. In a number of the child sexual exploitation cases I have come across, although the grooming process started before the child was 16, the actual sexual exploitation and trafficking of that person tended to go on from the age of 16 until the early 20s, and the person believed that they were in an intimate relationship with the abuser. Does the Minister think that this new legislation would be another tool that the police could use to stop child exploitation?

Robert Buckland (Conservative, South Swindon)

Certainly, in the context of a family relationship, there might be a situation where somebody has reached the age of 16 and this would apply. There are of course other sexual offences that could cover that conduct. The police, in looking at a particularly coercive relationship, might then uncover revelations about exploitation. That is why these reforms are so useful for the police. Through one doorway another door is often opened to even more serious or different types of offending, such as child sexual exploitation, on which the hon. Lady has campaigned so eloquently.

We have carefully considered the maximum sentence. Such a pattern of abuse is illegal whether it is within or outside a relationship. We have decided on a maximum sentence of five years’ imprisonment, because we want to recognise the damage that coercive or controlling behaviour can do to its victims. That penalty is commensurate with the maximum available on the stalking offence in the Protection of Freedoms Act 2012. This new offence will send a clear message to abusers and victims alike that domestic abuse is wrong and it will not be tolerated in this country. If you are a victim, come forward and gain access to protection and justice. If you are an abuser, change your behaviour or face the full impact of the law. It is plain and simple.

This legislation is not a substitute for other vital work that the Government are doing to improve the response to domestic violence. The new offence cannot be implemented without an effective police response. The work that the Home Secretary is doing to drive improvements through her national oversight group on domestic abuse remains as high a priority as ever but this new offence, together with the guidance for investigators provided for in new clause 10, will make it easier for the police to protect victims and to bring those who abuse them to justice.

The new offence is an opportunity to take an enormous step forward towards the eradication of the scourge of domestic abuse from our society, and I commend the new clause to the Committee. I am conscious that the right hon. Member for Dwyfor Meirionnydd has new clauses in this group, which in part overlap with the Government’s new clause, and that the hon. Member for Feltham and Heston has tabled new clause 27. I look forward to hearing what they have to say about the new clauses, and I will respond when winding up the debate.

Elfyn Llwyd (Plaid Cymru, Dwyfor Meirionnydd)

The Solicitor-General pointed at me when he mentioned the word “stalking”. That was not because I am a stalker but because I had the privilege of chairing the group that brought in that law two years ago. Now another law I have worked on might well come through. The situation of two in three years is like London buses: there are many years of nothing, and then one after the other. As the Solicitor-General said, he had great experience of domestic violence and abuse while in practice as a lawyer. I share that experience, both as a solicitor and as a member of the Bar. I believe that this has been a long-standing void in our domestic violence laws. I am extremely pleased that the Government are moving forward on this today. I rise to speak to new clauses 3, 4, 5 and 6, which stand in my name.

Essentially, new clause 3 sketches out the offence of coercive control in the context of domestic violence. It deals with making regulations and also concerns the maximum sentence. New clause 4 if enacted would ensure that there would be no statutory time limits on the offence. I know that the Solicitor-General will respond positively on that.

New clause 5 deals with the definition of domestic violence, which is more or less in line with what the Government have put in their clause. New clause 6 is entitled: “Domestic violence: policies, standards and training”. That new clause is key. It is vital that we get this matter right. There is no point whatsoever in introducing a law such as this, and I readily thank the Government for listening to the arguments for it, unless the prosecuting authorities are up to speed and ready to implement it properly.

It took some time to get police forces up and down the UK ready for the stalking law; now they are ready, but there was about a two-year time lag. This measure is as important, because the fallout of getting it wrong would be very damaging to many families. Let us not forget something the Solicitor-General said: such a fallout would be potentially damaging not only to the male and female in the association, but, crucially, to the children. We owe children a duty always.

I am delighted that the Government have accepted the rationale behind my ten-minute rule Bill. I shall support Government new clauses 9 and 10, although I wish to seek clarification from the Solicitor-General on some points in those new clauses.

Members of the Committee may be aware that, in February last year, I introduced a ten-minute rule motion that sought to criminalise all aspects of domestic violence and to bring in the offence of coercive and controlling behaviour. Therefore, I am delighted that the Government have accepted that offence. A meeting that I had with the Home Secretary a couple of months ago was extremely positive and I was encouraged from that point onwards.

I am happy to say that I had the support of the hon. and learned Member for South Swindon, now Solicitor-General, who was then a Back Bencher; the hon. Member for Ayr, Carrick and Cumnock (Sandra Osborne); the right hon. Member for Chesham and Amersham (Mrs Gillan); the hon. Members for Manchester, Withington (Mr Leech), for Colchester (Sir Bob Russell) and for Hayes and Harlington (John McDonnell); the hon. and learned Member for Harborough (Sir Edward Garnier); the hon. Members for Brighton, Pavilion (Caroline Lucas), for South Down (Ms Ritchie), and for Islington North (Jeremy Corbyn); and my hon. Friend the Member for Arfon (Hywel Williams) when I introduced my Bill.

My motivation for introducing the Bill was that, although the Government adopted a new definition of domestic violence in March 2013, it was not yet a statutory definition, meaning that until this Bill Committee there were gaps in the law whereby individuals could perpetrate domestic violence and abuse and could not be arrested for that behaviour.

The cross-Government definition that I alluded to was adopted from the one used by the Association of Chief Police Officers:

“Any incident or pattern of incidents of controlling, coercive or threatening behaviour, violence or abuse between those aged 16 or over who are or have been intimate partners or family members regardless of gender or sexuality. This can encompass but is not limited to the following types of abuse:

psychological

physical

sexual

financial

emotional.”

Members will notice that new clause 5(1) defines domestic violence in those terms and would put that definition on the statute book. That would be an important and perhaps symbolic move, so I still urge the Government to take similar measures to set out the definition in the Bill.

As has been said, last summer, the Home Office launched a consultation, which I believe triggered about 750 to 850 responses, asking whether a new offence of coercive control should be introduced. I understand that an overwhelming 85% of respondents signalled that they would support such a move. So I am gratified to see the Government new clauses, although there are still some points I wish to raise.

Members will notice that the penalties set out for being found guilty of an offence of coercive control under new clause 3, which I tabled, are stricter than those set out by the Government in new clause 9. I maintain that offenders who are found guilty on conviction on indictment should be liable to imprisonment, in the worst cases, for up to 14 years if their behaviour merits such a term, although I heard what the Solicitor-General said—the sentence would be in line with that for the more serious stalking offences in the Protection of Freedoms Act 2012.

I have already welcomed clause 65, which recognises that psychological harm in relation to child cruelty can be every bit as debilitating as physical violence. My new clauses are motivated by the same conviction—that emotional abuse and manipulative behaviour over a long period can be corrosive to a person’s self-esteem to such an extent that many go on to suffer from post-traumatic stress disorder and anxiety-related issues, and some contemplate suicide.

A pattern of behaviour that involves coercive and controlling behaviour and a catalogue of abuses that a perpetrator uses deliberately in a crafted fashion is not a crime of passion that happens on the spur of the moment. Such behaviour has been described by some criminal behaviour psychologists as emotional rape, which, though extreme, goes some way to capturing the incapacitating impact it can and does have on its victims. For that reason, I do not think that a maximum of five years’ imprisonment is a strict enough penalty for the worst offenders, but I await the response of the Solicitor-General.

A recent BBC “Panorama” episode, which centred on coercive control, claimed that one in 10 prosecutions now involves domestic violence, but only 6.3% of domestic violence cases reported to the police in England and Wales in 2012-13 resulted in a conviction. At the end of last year, my office undertook research into the laws covering domestic violence in four states of the United States: New York, North Carolina, Massachusetts and Texas. We were assisted by an American intern who was placed with us through the Hansard scholars programme. Where possible, direct contact was made with the assistant district attorneys and advocacy organisations in those states.

We discovered that in New York, when police are called to respond to a domestic violence incident, it is mandatory that they arrest the abuser on sight and fill out a domestic violence incident report. The most recently available figures showed that the Bronx had a 39% incarceration rate for cases involving domestic violence, and Brooklyn had a 35% rate. From our communications with Amily McCool, the systems advocacy co-ordinator of the North Carolina Coalition Against Domestic Violence, we discovered that in North Carolina, individuals have two years to bring a misdemeanour offence, and there is no statutory time limit for felonies. According to our research, that state had a one third conviction rate and a 23% rate of misdemeanour prosecutions that resulted in a sentence of incarceration.

Telephone conversations were conducted with Amily McCool; Rachel Newton, an assistant district attorney in Erie County in western New York; and Aaron Setliff, director of policy at the Texas Council on Family Violence. Each reported that, on average, victims of domestic violence in their states wait for seven or eight instances of abuse to occur before reporting the behaviour to the police. According to Refuge, victims in England and Wales suffer an average of 35 instances before reporting to the police. Therefore, tougher domestic violence laws are obviously needed to combat the lack of awareness and possible lack of confidence in our justice system to punish the behaviour and protect the victims. I am sure we all agree that we owe it to victims of domestic violence, whatever the nature of that violence or abuse, to ensure that perpetrators are brought to justice and that victims will be released from what is an imprisonment for them.

Subsection (3)(b) of new clause 3 requires a court, local authority and other public bodies not to disclose the current address of a victim, if it would place that victim under harm. I included this measure in response to the case of Eve Thomas, who was set on fire by her former husband and underwent domestic abuse over a period of 20 years. During an unrelated civil case, Bolton county court ordered Eve to disclose her address, which prompted her to campaign for a change in the law, so that addresses could be kept secret in unrelated court proceedings. The campaign, which goes under the name of Eve’s Law, has won the backing of many, including the Deputy Prime Minister. I urge the Government to consider adopting it.

Subsection (3)(c) of new clause 3 gives the court the power to require perpetrators of coercive control to undergo appropriate counselling programmes to address their behaviour. The purpose of new clause 4 is to ensure that prosecutions for coercive control will not be subject to statutory time limits. Section 127 of the Magistrates’ Courts Act 1980 provides a time limit of six months from the time that an offence is committed to the laying of an information. This applies to summary offences only, but I anticipate that the answer from the Solicitor-General will be that this offence will be an either way offence, in other words, it could be tried summarily or on indictment.

Robert Buckland (Conservative, South Swindon)

I reassure the right hon. Gentleman that is the case. They are either way offences, so time limits will not apply.

Elfyn Llwyd (Plaid Cymru, Dwyfor Meirionnydd)

I am grateful to the Solicitor-General, because that is an important point. That is a considerable step forward. New clause 5 sets out a definition of domestic violence as well as coercive controlling behaviour. I draw the Committee’s attention to subsection (2) of new clause 5 which sets out that coercive controlling behaviour involves a course of conduct that knowingly causes the victim or child to fear violence or experience serious alarm or distress which has a substantial impact on their day-to-day life and activities. I welcome the fact that subsection (4) of Government new clause 9 addresses the same points.

Finally, new clause 6 sets out that the Secretary of State shall require every police service in England, Wales and Northern Ireland to develop and adopt written policies and standards for officers’ responses to coercive control and domestic violence incidents, within one year of the Act coming into force. The new clause will also ensure that all police officers will have appropriate training in how to deal with these offences and provide adequate support for victims of this offence. I believe that the Minister will say something about training when he responds, so I will not dwell on that point.

I welcome the fact that, in new clause 10, the Government have conceded the need for the Secretary of State to issue guidance on how cases involving coercive control should be investigated. However, I am a little concerned that they are not going far enough by putting a duty on police forces to train all officers in the new offence. I urge the Government to consider doing so. I think the Minister will respond on that point when he closes the debate.

I say this, not only because it is worth saying, but because my experience of the stalking law was that there was a period of about 12 months when relatively nothing happened. It took another 12 months for a good number of police forces and Crown prosecutors to be brought up to speed. I am pleased to say that we are there now, more or less. I made the point earlier that it would be awful if we introduced this without immediate training, so that people have confidence from the very beginning. If not, people will just go back to the old feeling of, “Oh well, nobody will listen to me, it is just business as usual”. It is absolutely vital that we get the training done as soon as possible.

There are a few more points on which I would welcome the Minister’s comments. I was originally concerned about the motivation behind new clause 9, subsections (8) to (10). Having spoken to Government Members, I now appreciate the nuances of when this limited defence could be used: if the defendant believes they are acting in the best interests of the victim, for example when the victim is mentally ill, and the defendant has to find a way to compel the victim to take medication or be kept at home for protection.

I am glad that the defence will not be available when a court is satisfied that the defendant has caused the victim to fear violence. I note that the provision complies with the European convention on human rights. However, I must say that groups such as Women’s Aid have been very concerned about this. Concerns about the tests are deeply held and are expressed by workers in the field of domestic violence, such as probation officers. Abusers can often be manipulative and are frequently the dominant partner in the relationship. They dominate, manipulate, undermine and make life miserable for their partner.

We have to look at that carefully. No doubt some will give the excuse that they are acting in such a way only because they love the victim. I ask for clear assurances that the guidelines that police will receive on this test will make it 100% clear that defendants must prove beyond reasonable doubt that the behaviour was in the best interests of the victim, and that the test would be objective and sparsely applied. When I first read the defence I was very concerned, and I know others in the Committee from all parties shared that view. Women’s Aid is still very concerned. We have to be very careful, lest we undermine all the good work that is included in the two new clauses.

I have already asked whether the new offence will be subject to time limits, and I anticipate a positive answer. I would also be glad to have clarification on whether the police will be able to make an arrest in cases where a victim has already divorced their partner and even settled financially. The new clauses proposed by the Government centre on controlling or coercive behaviour that takes place in an

“intimate or family relationship”.

I would be glad to hear whether those circumstances could include relationships where coercive control has occurred post-separation.

Age UK is also concerned that the definition of family members in proposed new clause 9 is limited to those who live together, and would not cover family members who suffer from coercive control at the hands of another family member who does not live with them. That can take many forms, for example, financial abuse.

I have been approached by criminal justice professionals who have queries about how the new offence would operate. They are keen to know whether police investigations into coercive control could force the disclosure of documents such as bank statements. Other queries include the extra resources that prosecutors will be able to put into proving these cases and training operatives, and whether the police will be able to compel agencies such as district councils, social care and the Department for Work and Pensions to reveal the source of malicious allegations—risks to children, benefit fraud and so on—without a court order.

I would welcome the Solicitor-General’s comments on all those points. As I have indicated, I shall not press my own clauses. I have of course read new clauses 9 and 10, and most of the contents of my clauses are encapsulated within those Government new clauses. I am delighted that the campaign, which began in February, has now seen the introduction of a very important law to bridge a gap that, I am afraid, has existed for some time. My particular misgivings remain, and I would be grateful if the Solicitor-General addressed them.

Seema Malhotra (Labour, Feltham and Heston)

It is a pleasure to speak in this debate and to follow the right hon. Member for Dwyfor Meirionnydd, who spoke extremely eloquently. He deserves a huge amount of credit for his work on this issue and indeed on the stalking legislation, on which I will also touch during my remarks. I also acknowledge the contribution of my hon. Friend the Member for Middlesbrough, who made some important points about refuges. Support for victims of domestic abuse and domestic violence is very important. That is one of the reasons why we have committed to funding for refuges of £3 million a year for the next five years.

I also want to acknowledge Hutoxi Davis and Jackie Duke in my constituency and in Hounslow for their work on this and for their advice on some of these issues, and the work of Carl Bussey, the borough commander in Hounslow. As I became the shadow Minister just a few months ago, talking to those in the justice system, local authorities and campaign groups, as well as the sector which deals with victims of domestic abuse and sexual violence, has been important. I will draw on a couple of case studies from my visits to Rise in Brighton, in which Rise board member Purna Sen played a very important part. I also acknowledge the work of Thangam Debbonaire of Respect, who contributed very helpfully to our thinking on these issues.

We very much welcome new clause 9. We are really pleased that it has been tabled and that we are debating the long-standing need for a change in legislation. Indeed, Labour has been calling for an offence of coercive control for some time. The shadow Home Secretary raised this issue back in 2012, so it has had an important history in the House. It is absolutely right that it has had cross-party support. Indeed, in July, the shadow Home Secretary also said that Labour would absolutely support and call for a specific offence of domestic abuse, with the scope for including emotional abuse and coercive control, which is so important.

Delighted as we are by the stage we have reached today, we all know that there is a huge amount more that we need to do to tackle the scourge of domestic abuse and domestic violence. Current laws have done very little to dent the number of cases that are reported every year. We have also been concerned about and have raised the use of inappropriate community sentences in domestic violence cases. Instances of this doubled between 2009 and 2013, which may not send the necessary message of zero tolerance or provide intervention in what becomes repeat behaviour.

The policing of domestic abuse has been a matter of huge concern. The report by Her Majesty’s inspectorate of constabulary last March raised huge issues—deep, systemic issues—about the policing of domestic violence and domestic abuse. The Bill and our debates come at an important time, as the police look at how to reform their systems and their processes to support victims more effectively. The Police Foundation has also done some important work on this. We welcome the change in the law, but with the caveat that it must be used properly and effectively to tackle domestic abuse and give victims the confidence to come forward early. There will be issues, which we must address now, about how evidence will be collected and collated in instances of psychological and emotional abuse, the perpetrators of which see themselves as beyond the reach of the criminal justice system and the police.

Indeed, our partners in the sector, which have worked closely with hon. Members of all parties, provide ample evidence of that fact. Women’s Aid’s domestic violence law reform campaign, Paladin National Stalking Advocacy Service, and the Sara Charlton Charitable Foundation conducted a survey of survivors of domestic violence. Some 98% of those they surveyed had experienced

“controlling, domineering and/or demeaning behaviours”

including,

“isolation from friends, family… removal of all communications devices; food being withheld as well as use of the toilet; control of what the victim would wear…sleep deprivation”

—a whole range of issues. Those of us who have been to many refuges across the country have heard those stories again and again; it is shocking that it continues to the extent that it does.

Within the current framework, if those behaviours were reported to the police, to date there would be very few arrestable offences, perhaps with the exception of stalking since November 2012. Perpetrators have been aware of the shortcomings of legislation and walked the fine line that allows them to control and manipulate their partners and family members without falling foul of the criminal law. It is time to ensure that the criminal justice system and the police move beyond seeing the scope of domestic violence as being about physical violence, and that we overhaul our approach to domestic abuse.

I echo and support some of the sentiments of the right hon. Member for Dwyfor Meirionnydd in his new clauses, one being the point about adequate training and guidelines for the police and other legal practitioners. It is incredibly important that we have that so that there is an understanding of how to collect evidence and bring an effective prosecution. Indeed, in the work that Vera Baird QC has done as police and crime commissioner in Northumbria, she has raised a number of issues that are important to address. One is the requirement for training for all judges on the new offence. Perhaps that should be a condition of hearing domestic abuse cases.

Last week, I met a woman who told me a sad story about how she had started off in a positive relationship, which changed when she was pregnant with the first child. The abuse was psychological, including a number of the symptoms that I mentioned about control of what she could wear and who she could see. It isolated her from her family so she had very few support networks, and led to violence, including when the second child was born. Despite the perpetrator having been in and out of prison for the violent offences on more than one occasion, she now has to move to a completely different area. Her son, who is six years old, is waiting for mental health support services—therapy services—because he has been so traumatised.

The impact of domestic abuse, as has been highlighted by other hon. Members, on children is tremendous, hence the need to have clarity around the law and intervene early. The woman told me about a traumatic experience that she had in court, where it was extremely difficult for her to give evidence. She was told that if she did not give evidence, she would be jailed for 28 days. At that time, she was four months pregnant with a second child. There are more sensitive ways of dealing with such matters, where there is a deeper understanding of what a victim is experiencing. Has the Minister considered whether there could be automatic special measures in domestic abuse cases, as there are in rape cases, where there is a particular issue around manipulation, fear and control that victims experience, often for many years to come as they rebuild their lives? As those in the sector have told us, it is currently too easy for abusers to get away with what they do, because they know that if there is insufficient physical evidence they might not be convicted.

Robert Buckland (Conservative, South Swindon)

The hon. Lady makes a very interesting point about special measures While it is fresh in my mind, my understanding—which is substantiated by advice I have been given—is that special measures are available where the witness can demonstrate that the quality of their evidence will be diminished if they have to give evidence in the conventional way. Applications can be made in a variety of cases involving violence and other types of criminality. I envisage that this offence would certainly be encapsulated by the special measures regime with which the courts are familiar. I hope that that gives her some assurance.

Seema Malhotra (Labour, Feltham and Heston)

I thank the Minister for that intervention and I am extremely pleased to hear that. As this legislation comes into effect, it will be interesting to monitor how well it is being implemented and some of the issues that might be experienced, given that the same level of awareness might not exist across the country.

I have a few points of concern to raise before speaking about new clause 27. The first concerns the clarity of the definition and the proposed guidance. Again, I support the sentiments of the right hon. Member for Dwyfor Meirionnydd on this. The Government’s intentions are clear from the consultation paper in August, which focused on the specific offence of domestic abuse to fill what was seen as a gap: there was a need for greater clarity about coercive and controlling behaviour in intimate relationships, given that violent behaviours were considered to be effectively criminalised through existing provisions. I assume—and perhaps the Minister can clarify this—that the guidance will contain clarity on the definition of coercive and controlling and that it will be line with the new definition of domestic violence which, though it is not in statute, came out in March 2013 and does provide wording. Will the Minister also say exactly how he would expect that to be considered in any prosecutions?

It is difficult when there are violent and non-violent aspects of somebody’s behaviour and there are multiple offences that may need to be tackled under different legislation. Perhaps the Minister might also touch on this point. Although I understand that there are no statutory time limits for the new offence, when it comes to domestic violence cases, common assault is a common offence that has a six-month time limit. Therefore, if somebody reports both violent and non-violent aspects of abuse, but reports the non-violent aspects only after a year because of the trauma they have experienced, we could be in a situation where the non-violent aspects of the abuse can be considered under criminal law but the violent aspects cannot. I would be grateful for clarity about whether that is the case and whether that can be looked at again.

My second concern is about the issues that were raised by the right hon. Member for Dwyfor Meirionnydd, who also talked about Women’s Aid’s concerns about the defence. I thank the Minister for the letter that she sent to the shadow Home Secretary and me on this issue and the need for a defence, which I know has been drawn on. I have some further points. As has been stated, the defence is in two parts: subsections 8(a) and 8(b). This offence is often a particularly mendacious and manipulative form of abuse. It is often difficult to detect, recognise and prove, and we will face challenges as we move through cases for the first time. It is often based on the perpetrator exerting undue influence and control over the victim through intimidation or emotional manipulation.

To have a defence based on A believing that he or she was acting in B’s best interest could lead to a subjective justification that could be misused by the perpetrator, in a way that lends itself to further abuse within the court system. It is important to be careful with the wording, particularly in subsection (8)(a).

A very successful public figure—not in politics—spoke to me, giving no indication of trauma, after I told her of my new role. She described her experience of being abused at home and what she had been through post-university in what had seemed a blossoming relationship. She talked about the different roles that the perpetrator played in her life.

“When a woman meets a man and he is charming, then turns nasty and controlling, then abusive, then sexually abuses you, then cries, what do you do? They grind you down so much and then they are the ones who pick you up. They are your abuser and hero all in one.”

There is something deliberately and deeply manipulative about such a relationship. Then, six months or a year later, the perpetrator says in court, “It was in her best interests that I did this to her.” Imagine having to go through that experience.

Did the Minister consider whether subsection (8)(b) could offer a more objective defence, where the behaviour was in all circumstances reasonable? Would that sufficiently cover the different scenarios that are rightly of concern?

New clause 27 proposes a study by Government of the benefits of having a national register of domestic abusers and serial stalkers. That follows various campaigns and a recognition that we need to do more to prevent the risk of harm from growing numbers of serial stalkers and perpetrators of domestic violence.

We know that there are more than 1 million victims of domestic abuse each year. We know that every 30 seconds the police will receive a call about domestic abuse. We know that a recent British crime survey found that 89% of victims who experienced four or more incidents of domestic violence are women. Over 30% of women experience domestic abuse in their lifetime, often with years of psychological abuse. More than two thirds of cases of sexual assault or stalking in the UK are against women.

The Local Government Association and Croydon council have begun to look at the issue following a murder in Croydon by somebody known to the police and previously convicted.

Steve Reed (Labour, Croydon North)

I thank my hon. Friend for giving way and for that reference to Croydon’s campaign. I congratulate her on an incredibly powerful speech about the horrors of domestic abuse and how widespread it is. Croydon’s campaign was set up in light of the case of Paula Newman who was violently murdered by her abusive partner in November 2013 after a relatively short relationship. Neither the local authority nor the police were aware of the fact that her partner had a long history of violent abuse elsewhere. Because there was no national register, they were not alerted when he moved into the area and could offer no support to Paula on the risks of entering a relationship with him. Tragically, as a result of that she is now dead. Croydon is leading a campaign in local government for the establishment of a national register of domestic abusers. I hope the Government will, at least, explore that idea. I invite my hon. Friend to comment on that campaign.

Seema Malhotra (Labour, Feltham and Heston)

I thank my hon. Friend for his comments and pay tribute to Croydon council on their campaign. It has helped to bring together the work done by Laura Richards and ACPO, and Paladin’s arguments for such a register, and started a conversation about whether we need to explore this issue further. In Hounslow, Councillor Sue Sampson has been looking at what more we need to do to get better data on stalkers and to share that across forces for reasons that are very similar to those that my hon. Friend outlined.

There is no doubt that cases of stalking and harassment and the risks to victims are increasing. That includes the new ways in which people are approached, particularly through social media and spyware. There is a growing industry of harm to women and men, with stalking and its impact on the increase. This was described to me in conversations with ACPO. There is also ample evidence of serial stalkers as well as serial domestic violence perpetrators. A report on the facts about this issue, and the costs and benefits of a new measure in the future, could be the right way to start a conversation about whether we can do more to prevent harm to victims.

Other gaps need filling which could be considered as part of this measure or alongside it. For example, there are no sentencing guidelines for stalking behaviour, as far as I understand, so we do not know how judges might be likely to sentence. The sentences that are handed down vary hugely.

Some have raised questions about the purpose of the register. It could be a register for citizens to call up, such as under Clare’s law, or one that could improve the justice system. Our conversations so far have been much more in line with the debate about how we improve and join up the justice system to give forces more of the tools they need to be able to protect and intervene early. Consider the situation, for example, when somebody goes to the police for the first time in an area. The police may identify the perpetrator as someone who had actually been convicted elsewhere, possibly on more than one occasion. The register could highlight the potential seriousness and speed with which a domestic situation could escalate and provide stronger support to the victim at that time, who might otherwise continue without that knowledge and be unaware of how seriously the situation could develop.

The new clause calls for the commissioning of a report on the potential effectiveness of a national register of individuals convicted of more than one domestic abuse or stalking offence. It would ask key questions for protection and prevention, such as whether a national database should be available and accessible by all police forces. There would be a positive obligation to report a change of name or address or other possible relevant circumstances. The report would need to analyse the costs and benefits of such a measure. The current technical architecture of police and criminal justice information systems is a huge issue for the effective delivery of justice—I am sure that we would all acknowledge that. However, with local crime reporting systems, the police national computer, the police national database, and ViSOR we have potential options. We now need the analysis to see how these and other bits of the jigsaw puzzle can more effectively fit together. We believe that that analysis will be helpful in deciding whether this is a useful road down which to travel and how we can strengthen the tools of prevention to better tackle violence against women and girls.

Paladin has also provided us with a number of important case studies showing in stark terms the consequences of the ineffective system we have today. Indeed, Paladin has highlighted to me that it tends to do more joining up than the police. It can identify the same perpetrator in a different part of the country because it deals with different victims. That is an important consideration. Are we looking to the voluntary and support sector to actually do some of our policing for us when their resources are already stretched?

Paladin raised the case of Ryan Ingham, who murdered his fiancée Caroline Finegan a few months after a violent attack which was so bad that she needed hospital treatment. It states that

“He already had 23 convictions for violence and harassment, mostly towards other partners. However, Caroline would not have been able to learn of his violent history by Clare’s Law, as he was using a false name.”

A second case is pregnant 17-year-old Jayden Parkinson, who was brutally murdered. As Paladin says,

“Her ex-partner Ben Blakeley was found guilty of her murder and sentenced to life. He has a history of serial abuse and was violent and controlling during all his relationships. Previous offences had been reported to the police, but there is no system which allows for flagging and tagging and monitoring of serial offenders.”

A similar amendment was tabled in the other place by Baroness Smith and Lord Rosser. They asked whether serial stalkers should be added to the violent and sex offenders register and managed through the multi-agency public protection arrangements or “MAPA”. New clause 27 is slightly different. The Government’s reasoning for rejecting that amendment at the time was that they were looking at a range of options to strengthen responses to stalking and domestic violence, which would rightly include the police response to managing perpetrators of these serious crimes. That absolutely needs to happen. However, we are also talking about the serial nature of this crime. We absolutely support the goal of managing perpetrators of stalking and domestic violence and ensuring that that goal is effectively met through operation improvements.

The reason that we believe this report is so important is that it will help to inform the best way forward in terms of improving current databases and systems for stalking and domestic violence. That will hopefully feed into conclusions about the cost-effectiveness of joining up systems more effectively to prevent many more victims from harm in the future. I look forward to the Minister’s response.

Norman Baker (Liberal Democrat, Lewes)

I welcome Government new clauses 9 and 10, which take matters forward in a helpful way. It is particularly good to see the progress that has been made over the past four years or so under the coalition Government in tackling violence against women and girls and, indeed, violence against men and boys; that factor should not be neglected when discussing these issues. I was particularly pleased by the introduction of the domestic violence protection orders and the domestic violence disclosure scheme. The latter seems to perform some of the functions which the Opposition’s national register seeks to discharge, though the hon. Member for Feltham and Heston makes an interesting point about whether people using false names can be captured by the disclosure scheme on that basis. My hon. and learned Friend the Minister might want to reflect on that narrow point.

I also want to draw attention to the comments of Women’s Aid on new clause 9(8). I do not actually believe, as the hon. Lady suggested, that deleting subsection (8)(a) would be helpful; in fact, it would weaken the subsection. However, I share the general concerns that we must ensure that this particular element of the new clause is appropriately worded and does what it is supposed to do, which is to provide a legitimate defence for those with a legitimate reason and not a way out for those who seek to exploit it.

Polly Neate, the chief executive of Women’s Aid, says that

“the reality of the pattern of control and fear women experiencing abuse describe to us”

shows that

“the very nature of coercive control is that both the perpetrator’s and the victim’s perception of what is in her best interest are commonly distorted. In a situation where the alleged perpetrator is also the victim’s carer, for example, we believe the only test of ‘best interest’ must be objective, for example the opinion of a trained professional.”

That echoes the point the right hon. Member for Dwyfor Meirionnydd made earlier in the debate.

Frankly, I am not quite sure what the answer is. Personally, I find the word “reasonable” in subsection (8) a little jarring, and “justified” might be better, but I am not a parliamentary draftsman. However, I ask the Government to look again at the words in that subsection to make sure they are absolutely accurate in terms of what we all want to achieve.

Will the Minister explain again—either now or in writing subsequently—the explanation he gave to my intervention earlier about the definition of a child? I do not want to labour the point, but new clause 9(2) refers to

“members of the same family”.

Subsection (3), which relates back to it, talks about a child being under 16—that is the same family. However, subsection (7), which defines a child as being under 18, refers back to subsection (6), which also talks about people being in the same family. There is an issue there, and there may be an explanation, which I may have failed to understand when the Minister gave it to me earlier, but we should be clear. As Members will know, what happens to 16 and 17-year-olds is often brought up in these cases, and we need to be sure we are not creating a loophole.

I want to raise a further point on new clause 9 with the Minister. Subsection 4(a) states:

“A’s behaviour has a ‘serious effect’ on B if…it causes B to fear, on at least two occasions, that violence will be used against B”.

I am not clear from new clause 9 what the time scale for those two occasions is—they could, in theory, be 20 years apart. We need to be clear what the Government have in mind. Twenty years apart would probably not be a fair way of describing it, whereas six months apart would clearly be very relevant. Perhaps that will be picked up in the Government’s guidance on new clause 10, but the point needs to be nailed down a bit more.

The right hon. Member for Dwyfor Meirionnydd made a good speech, and he has made some great contributions on this area over some time. He talked about the low prosecution and conviction rate, which is absolutely a concern for all of us. However, I hope he will recognise that this is not simply a matter of legislation—it is also a matter of enforcement and the way the police approach these issues. That is why Her Majesty’s inspectorate of constabulary looked into them and why the Government were completely right to require each of the 43 police forces to say what they were doing about domestic violence and domestic abuse. No doubt, subsequent to my departure, those reports have arrived at the Home Office and are being pursued as they should be.

It is not necessarily the case that tougher domestic violence law is the answer; we need a combination of appropriate law and appropriate enforcement. My impression was that a large part of the problem was that the police did not have the correct mindset to take matters forward and were not looking at this issue with the seriousness that Members of Parliament have been looking at it. It is that, more than anything else, that needs to change.

Colleagues on both sides of the House will remember that the police were not even photographing examples of domestic abuse when they came across them, and evidence was not collected. There was a catalogue of failures, and I hope that is being sorted out. Nevertheless, that is a major reason why the conviction rate is so low in this country compared with elsewhere.

The right hon. Gentleman has a couple of good points in his new clauses. Again, it would be helpful if the Government reflected on those points to see whether there is some merit in taking them forward. I was struck by his point about not disclosing current addresses or postcodes—that was in new clause 3(3). Certainly, the case he referred to made that point well. There was also his point about the power to require those convicted of an offence to complete a domestic violence programme or an appropriate counselling programme. Again, the point was well made. We should reflect on those two points to see whether they can be taken forward sensibly—not necessarily through legislation, but through guidance or some other means—because they have validity.

Lastly, I draw the Minister’s attention to a private Member’s Bill in my name that is being debated on Friday. It seeks to deal with the one area in which we have not been as successful as I would have liked us to be in government, namely the provision of refuges throughout the country. That is because they have not been centrally controlled—I am not saying that they should be centrally controlled, but central Government’s levers of influence have been fewer than in other areas. Different local authorities are taking different approaches, so we have seen a patchwork outcome. As a result, in some areas refuges are not present, or poor commissioning by local authorities has achieved the wrong result with the money they have. For example, some might exclude women who come from a different area and limit access to women from that area, which is clearly bonkers. If people are trying to escape violence, they do not want to be in a refuge close to where they were living. Such issues need to be sorted out, so I commend my private Member’s Bill to the Minister. I trust that he will have a word with the Whips on Friday to ensure that it does not face objections.

Andy McDonald (Labour, Middlesbrough)

It is a delight, as ever, Ms Clark, to serve under your chairmanship. I wish to flag up one or two issues, but also to congratulate Members on both sides of the Committee, because there have been some terrific contributions. The level of knowledge and expertise is heartening.

I want to flag up something for the Solicitor-General, not for a response today, because that would not be right, but for future reference. Often, domestic violence is not carried out by a single perpetrator; it is inflicted by many people in a family, or by an extended network. In that context, I have a concern about the disclosure of information by third parties as to the whereabouts of a victim of domestic violence and about steps taken by third parties to undermine the effectiveness of any court order, be that by disclosing information or interfering with the safety of children.

The Solicitor-General might wish to reflect on that and to have a discussion on a later day, but another issue is to do with new clause 6. The right hon. Member for Dwyfor Meirionnydd talked about the need for every police service to develop written policies and standards, but on the transporting of victims and families—this was referred to in terms of refuges in the private Member’s Bill of the right hon. Member for Lewes—there might be an opportunity to develop best practice so that a safe and secure means of transport is provided for victims and children. Information about their whereabouts could therefore not be disclosed to the very people who are trying to overturn the efficacy of a court order or a place of safety.

I make those points generally. I am not expecting comprehensive responses today. I merely flag the issues up for the Solicitor-General’s consideration in due course.

Robert Buckland (Conservative, South Swindon)

I am grateful to all right hon. and hon. Members who have taken part in probably one of the most significant debates that we have had in Committee. In order to do as much justice as I can to everyone, I will try to answer all the points made.

I will deal first with the speech made by the right hon. Member for Dwyfor Meirionnydd, who talked about pieces of legislation being like the proverbial buses that do not come around and then there are two at once. I was waiting at the bus stop with him—on two occasions. Our work together on the law on harassment and stalking and now on domestic abuse will certainly live long with me as proof that things can be done by this place and that change can be made if there is a will and a cross-party purpose to boot.

I want to deal with the new clause that the right hon. Gentleman tabled and consider properly the reasons for the Government’s slightly different approach. The Government new clause has no reference to domestic violence or domestic abuse. That is deliberate. We are dealing with specific behaviour that can be characterised as coercive or controlling, but that should not be the subject of over-prescriptive statutory definition, which would do a disservice to victims. Myriad different relationships exist that are clearly, to the observer, dysfunctional, controlling and coercive. Victims would not be assisted by the creation of artificial definitions that could be misused. We did not fall into that trap when it came to the law on stalking and harassment. We should not fall into it now with the law on coercive and controlling behaviour within the context of domestic abuse.

The law serves a different purpose from the published guidance and the definition of domestic violence that is contained within it. We must ensure that we do not duplicate existing law, that the law is practical and that it can be used by criminal justice professionals. In drafting the new offence we worked carefully with the draftsmen to make it clear but not over-prescriptive.

In the consultation, we identified a gap in the law—behaviour that we would regard as abuse that did not amount to violence. Again, that is perhaps the important difference between the thrust of the probing provisions tabled by the right hon. Gentleman and the Government new clause. Violent behaviour already captured by the criminal law is outside the scope of the offence. Within the range of existing criminal offences a number of tools are at the disposal of the police and prosecution, which are used day in and day out. We do not want duplication or confusion; we want an extra element that closes a loophole.

Having listened carefully to front-line professionals and groups such as Women’s Aid, and other groups mentioned in the debate such as Paladin and the Sara Charlton Charitable Foundation, we understand fully that the stalking and harassment legislation, which should afford protection for victims through the criminal and civil courts, is applied inconsistently when it comes to intimate relationships. We believe that our new clause will deal with that problem.

We do not want victims to be deterred by a legal framework that does not work for them and that captures circumstances that fall short of the isolation and control they have experienced. I fear, despite the right hon. Gentleman’s admirable intentions, that his new clauses could create loopholes and that they would fall short of the aspirations that he rightly has.

It is right to deal with the defence, as several Members have raised that. A balance must be struck. It is important to remember that the offence is not a subjective test that can easily be manipulated by cunning perpetrators. Importantly, under the provision, such behaviour must be reasonable in all the circumstances. It is not just a question of A saying “I think it was in B’s best interest.” There is an objective element to the test that allows the magistrate or jury to apply commonly understood principles of justice. What is reasonable in the circumstances should be considered through the objectivity test.

The burden is evidential rather than legal, rather as it is with self-defence—something that many right hon. and hon. Members will be familiar with. Again, we know that in the law of self-defence there needs to be a genuine and reasonable belief. It cannot simply be used as an easy get-out when it comes to the commission of offences. I am satisfied that the way in which the defence is drafted—let us not forget it excludes the threat of violence, which is important—will provide the necessary balance and take out those obvious cases of care that should not be within the purview of the provision.

Elfyn Llwyd (Plaid Cymru, Dwyfor Meirionnydd)

The Solicitor-General understands the concerns—he has addressed them—but he will also know that people such as Harry Fletcher, who has been working extremely hard in putting these new clauses together, are still a little concerned. I am sure the Solicitor-General will ensure that prosecutors are fully up to speed on this matter, otherwise—I know he is aware of it and that he does not want it to happen—this could undermine the efficacy of the whole new clause, we would all be wasting time and, worse still, be raising hopes outside.

Robert Buckland (Conservative, South Swindon)

I agree with the right hon. Gentleman, which is why the training of police, prosecutors and judges—everybody involved in implementing the provisions—is vital. I want to make sure—he made this point in the context of stalking—that any commencement of the provisions is consistent with proper training. It will take time to get proper training done, but let us do it properly so that we do not unduly raise the expectations of victims, only to find that we see poor implementation, a lack of understanding and in effect a complete let-down of those whom we seek to protect through the new provisions.

The right hon. Gentleman asked various questions, which he helpfully put in writing, and I have written to him. He will have received my letter, which has been copied, today. I will deal quickly with some of the points he raised. On the application of the new offence where two former partners no longer live together, the offence will not apply in such circumstances, but of course we have existing legislation on stalking and harassment to deal with the circumstances in which coercive behaviour goes on beyond the marriage and the relationship, and beyond the couple’s living together. The provision deals with the loophole where people are still in an intimate relationship.

I hear what the right hon. Gentleman says about a maximum sentence. I entirely agree that very long prison sentences, which are available for very serious offences, should be meted out. We are dealing with serious conduct, but non-violent conduct, which is why the offences are either way and therefore triable in the Crown court, and why we have adopted the same level as adopted for the most serious stalking offences following the reforms.

Elfyn Llwyd (Plaid Cymru, Dwyfor Meirionnydd)

The Solicitor-General says that the provision will not apply to divorced couples, but is there not a slight conflict? New clause 9(6)(e) states that couples who

“have entered into a civil partnership agreement (whether or not the agreement has been terminated)”

would be caught, but couples who divorce would not.

Norman Baker (Liberal Democrat, Lewes)

It is (6)(a).

Elfyn Llwyd (Plaid Cymru, Dwyfor Meirionnydd)

I apologise.

Robert Buckland (Conservative, South Swindon)

What I am saying is that it is not dependent upon the actual act of divorce or termination of a partnership. I am talking about when couples are not living together. They might not be nisi or absolute, or there might not be a dissolution of the partnership. It is where they are not living together. That is the point that was concerning some practitioners in the field. I hope I have clarified that point. I took very seriously the point that was raised not only by the right hon. Gentleman, but by Advocacy After Fatal Domestic Abuse, which was another charity that took the trouble to contact me directly about the matter.

I will also put on the record the fact that I met Women’s Aid late last week to talk about the concerns that it had about the defence and about its application. I think we agree absolutely that training is key.

On anonymity for victims, a powerful point was made about Eve’s law. I am very familiar with that campaign and, in particular, with the problem that Eve Thomas had when it came to the civil jurisdiction. When it comes to the criminal jurisdiction, the Coroners and Justice Act 2009 confers powers on the court to make a witness anonymity order.

I assure the right hon. Gentleman that the Government’s violence against women and girls action plan, which is for this year, is empowering the Home Office and the Ministry of Justice. They have committed to producing a new code of practice for protecting identities and safe addresses of domestic abuse victims. That has to apply across the piece. Eve’s campaign and Eve’s law is about ensuring that the criminal, civil and family jurisdictions are all talking to each other when it comes to the need for anonymity. The Government absolutely understand the powerful point made and I pay tribute to Eve Thomas for her campaign.

I want to mention perpetrators and perpetrator programmes. I am sure that a lot of right hon. and hon. Members have been involved in their constituencies, as I have, in making the point that, if we do not deal with the perpetrators, we will never fully deal with the scourge of domestic abuse. It is important that male role models stand up and talk about how wrong domestic abuse is—I certainly have in my capacity as a constituency MP—and that work is done to ensure that there are accredited programmes. I am pleased to say that the Offender Rehabilitation Act 2014 will introduce a new rehabilitation activity requirement, which courts can use to determine appropriate interventions, including programmes aimed at domestic violence perpetrators.

Seema Malhotra (Labour, Feltham and Heston)

I wish to acknowledge the point that the Solicitor-General made, in relation to Eve’s law and campaign, about the importance of anonymity in court. I want to pick up on the points that he is making, very effectively, about perpetrator programmes by recognising the work of Respect, which this week launched its final report on Project Mirabal, which contains some good insights and lessons that I am sure will continue to be valuable in the debate about perpetrator programmes and what makes them effective.

Robert Buckland (Conservative, South Swindon)

I am grateful to the hon. Lady for bringing that up. In that context, it is right to talk about the domestic violence protection orders—the new civil orders that deal with powers for the police and magistrates courts to put in place protection in the immediate aftermath of a domestic violence incident, preventing perpetrators from returning to the residence and from having contact with a victim for up to 28 days. That gives the victim breathing space so that they can consider their options, rather than in the context of a constricted and often panicked immediate reaction when nobody has any time to think straight or to come to some sort of conclusion about their options.

One option that a victim might choose during that 28-day period is the application for a non-molestation order. Breach of those orders can be a criminal offence. After trial, there is the power to apply for restraining orders in domestic violence and abuse cases on the conviction or, in fact, the acquittal of a defendant. Criminal behaviour orders were introduced by the Anti-social Behaviour, Crime and Policing Act 2014 and can be issued by any criminal court against an offender who is likely to cause harassment, alarm or distress to another person. They can include not only prohibitory requirements, but positive ones to get the offender to start to address the underlying causes of their behaviour.

If perpetrator engagement is done well, it can be effective. In the minds of many victims, there are concerns about how perpetrators are engaged with. Practitioners in the field understand that. Sensitively applied, thorough, careful perpetrator engagement programmes can work—not in every circumstance, but where it is finely judged, they are a proper option.

Police standards and training are the thrust of new clause 6. Last March, there was the important report from Her Majesty’s inspectorate of constabulary, which related to the police response to domestic abuse. The Home Secretary responded by setting up a new national oversight group to drive delivery against the report’s recommendations. That includes work by the College of Policing to establish new professional standards for the policing of domestic abuse. My right hon. Friend wrote to chief constables setting out her expectation that every force should have in place an action plan to improve their responses to domestic abuse. I am happy to say that all 43 forces have now published action plans, which have been quality reviewed by HMIC. I am sure we were all pleased to note that Sir Tom Winsor’s report, which was released in November, highlighted encouraging progress. I can see the thrust of the approach of the right hon. Member for Dwyfor Meirionnydd, but I am sure that he would agree that it is through those measures, rather than primary legislation, that we will achieve the leadership and driving up of standards that are essential.

The hon. Member for Feltham and Heston referred to the police and crime commissioner for Northumbria. One of my predecessors, Vera Baird QC, is doing admirable work in providing some leadership on training, particularly of the judiciary. It is an example of how police and crime commissioners work and are doing an effective job. We should remember that in the context of the wider debate on their efficacy. They do have a role to play, and Vera Baird is certainly doing that.

The right hon. Member for Dwyfor Meirionnydd asked about the gathering of evidence. I assure him and the Committee that section 8 of the Police and Criminal Evidence Act 1984 will apply to investigations of the new offence of coercive control. It allows the police to apply for search warrants to gain access to materials, such as bank statements, that are likely to be of substantial value to the investigation where they are relevant evidence. We can already think of examples of coercive control, such as where one bank account or debit card is controlled by one partner, with no access to finance or resources for the victim. That would clearly be important evidence.

That brings me to the general point on how evidence is to be gathered. I have given the right hon. Gentleman one example. We already have experience under the new stalking and harassment legislation of how to gather evidence on a course of abusive conduct. It all starts with a properly gathered complainant’s statement, painstakingly setting out the course of events that that person has had to live with. From that section 9 statement should flow a police investigation that seeks to substantiate the claims that are made. It is not to start with an impossible task by any means. Yes, there will be some complex cases, but experience has shown that neither the police nor the Crown Prosecution Service has been deterred from pursuing cases to successful conclusions, and I see no exception to that here. When it comes to detail, we will publish statutory guidance that will address the issues and concerns raised by Members.

I wholeheartedly agree with the sentiment behind new clause 27, which was tabled by the hon. Member for Feltham and Heston. The police, wherever they are in the country, should have ready access to information on serial abusers and stalkers. That is absolutely vital if we are to manage effectively the risk that they pose. From my many meetings with such organisations as Paladin, I understand the need for risk management and risk assessment of serial perpetrators.

The hon. Lady referred to the need to establish a bespoke register of such individuals. As I understand it, the new clause is slightly different from the Lords amendment, in that it does not propose a fully blown register as pursuant to the Sex Offenders Act 1997, which created a register on which all certain types of serious sex offender have to register on conviction. The new clause proposes more of a database and sets out the means by which information would be collected. It is important to note that convicted stalkers and domestic abusers are already captured on the police national computer, but we should always look to try to improve how data are recorded, accessed and shared.

Seema Malhotra (Labour, Feltham and Heston)

I want to touch on the point about what information is held on the police national computer versus the police national database. It is not clear what is held or what is transferred from local forces, where 43 police areas have their own local databases. There is inconsistency about what goes on to the police national database. On the police national computer, I do not believe that there is anything that would automatically identify domestic violence perpetrators, because they could be prosecuted and convicted for a range of crimes. Unless there is a flag on there saying DV, there would be no way of knowing that that common assault offence was DV-related. There are still conversations to have about what is held and what is accessible for the purposes of this policy goal.

Robert Buckland (Conservative, South Swindon)

I note what the hon. Lady says about perpetrators and offenders who have a range of offences. Sometimes in the past, when there has been a lead offence, perhaps involving serious violence, that has been flagged, but it has not necessarily been reflected in the data.

There is, of course, a difference between the police national database and the police national computer. The difference is essentially about intelligence, as opposed to the fact of conviction. The PNC holds details of all convictions and cautions for recordable offences. The PND holds data on crime custody records, child abuse, domestic abuse and intelligence. In addition, the PND will link records from the different systems and different forces into a match group, which is deemed to pertain to one real-life individual, so there is a more complete picture of the offending behaviour. Through that, alerts can be sent to notify officers when new data on a person, location, object or event are loaded on to the PND.

These are current data: 37 out of 43 forces provide daily uploads of data on domestic abuse cases; three provide monthly updates and three are currently implementing new systems, and consequently uploading legacy updates only. Daily data loaded to the PND are matched and indexed and available to all forces within 24 hours.

Elfyn Llwyd (Plaid Cymru, Dwyfor Meirionnydd)

When there is a conviction for stalking, is it recorded as a breach of the Protection from Harassment Act 1997 or is it specified as being an offence of stalking?

Robert Buckland (Conservative, South Swindon)

It will depend on how the input is made. The stalking legislation amended the 1997 Act, so it should specify the subsection under which the person was prosecuted. Looking at that, the right hon. Gentleman and I would know that the particular section—I think it is 4A—would tell us that it is a stalking offence. If that process is followed properly, those reading it should have an easy understanding that that was a stalking offence, as opposed to simple harassment. He is right to make the point, because clearly the quality of recording is always important.

I hope that I can offer the hon. Member for Feltham and Heston some reassurance. It is possible to flag recorded offences on the PNC as domestic abuse cases. We know, however, following the HMIC report, that that is not done consistently. We are addressing that by mandating a national data standard from 2015-16 that will ensure that all forces systematically capture all convictions for domestic abuse-related recordable offences. That is an important change that will go a long way to dealing with the mischief she rightly identifies.

Steve Reed (Labour, Croydon North)

I am working closely with Croydon council on its campaign. It insists, as do the local police, that the existing ways to capture and share data are inadequate to alert them to the risks. The Minister says that the Government are looking at new ways to capture that data, but will he at least agree to consult the sector directly affected—voluntary organisations, local authorities and police—on whether what he proposes will meet its requirements for effectiveness before he takes a final view on the register?

Robert Buckland (Conservative, South Swindon)

I am grateful to the hon. Gentleman. What I can say is that the Government will look very carefully at the rolling out of the national data standard to make sure that the aspiration and the recommendation made by Sir Tom Winsor is carried out. We want a national flagging system so that the sorts of problems that his council and local police officers talk about are dealt with. We do not have that at the moment. We have the national database, which can give a picture of individuals, but we still do not have consistency on the PNC. It is this year that it is happening. We need to keep a very close eye on the rolling out of the national data standard and if that, for whatever reason, still does not deliver what we all want to see, then, of course, all these matters should be looked at in due course.

It is a question of continually monitoring the situation, but it is important to note that the Government are already taking real action to deal with the problems that we have talked about. It is not, by any means, the only step we are taking to manage effectively the risk posed by serial perpetrators. Following the report, the Home Secretary’s national oversight group on domestic abuse is overseeing work by the College of Policing to evaluate current risk assessment techniques and to provide practical advice on how to get the best from them. The college’s What Works Centre for Crime Reduction is also undertaking a review of the evidence base on the effectiveness of criminal justice interventions in reducing domestic abuse. That includes the effectiveness of perpetrator programmes, to reference comments I made earlier.

Police force action plans, which were published following the Home Secretary’s letter to chief constables, demonstrate that the police are actively focusing on effective and practical steps to identify and disrupt perpetrators. Of course, this also complements the roll-out of the domestic violence disclosure scheme, which we all know as Clare’s law, which allows the disclosure of information about a perpetrator’s offending past. We have achieved this without the legislation, however well intentioned, proposed in new clause 27.

I shall deal briefly with the points made by my right hon. Friend the Member for Lewes. On the question of “two or more occasions”, that is, quite properly, deliberately left open to allow proper consideration of the full circumstances of the case and we will provide further guidance on this in the statutory guidance, as he suggested. Taking a leaf out of the harassment and stalking book, it will depend very much on the facts of each case. A course of conduct has to be established on at least two occasions under that legislation and it has been proved to work very well. There have been a number of case authorities about the nature and frequency of incidents, but there is no hard and fast rule, nor should there be, because each case will be different and will depend upon individual evidence.

I remind my right hon. Friend of where we are. He did a lot of work when he was a Minister on the investment that we have made over the past two years—up to £10 million—to stop refuges closing and to help local authorities grow refuge provision for vulnerable victims. This is all part of the work we have to do to increase confidence among victims that not only will they have a safe haven if there is nowhere else to go, but that they will be listened to with the utmost seriousness and taken seriously when they make a complaint about violence or coercive and controlling behaviour.

In putting forward the offence in new clause 9, the Government considered very carefully the 757 responses to the public consultation. We have used that feedback to hone our proposals and to ensure that we can deliver the best possible outcome for victims. Having heard my explanations, I hope that my right hon. Friend and the other Members of the Committee who have spoken will understand why the Government’s new offence is framed as it is and will withdraw their amendments. I firmly believe that our proposals will deliver our shared aim plainly and proportionately.

Elfyn Llwyd (Plaid Cymru, Dwyfor Meirionnydd)

The Solicitor-General has examined the amendments in great detail and responded in full. I do not think that I could have expected any more, to be honest. New clauses 3 to 6 are, more or less, encapsulated in new clauses 9 and 10. It would therefore be churlish and not a little foolish of me to do anything other than say that I will not press new clauses 3 to 6 to a Division.

Seema Malhotra (Labour, Feltham and Heston)

I also acknowledge the detail with which the Minister has responded. On new clause 27, I was pleased to hear a positive response with acknowledgment of the issue and of the fact that we may need to look at whether current arrangements are fit for purpose. We will not press the new clause on this occasion but reserve the right to raise the issue again following further exploration.

New Clause 10 - Guidance

New Clause 11 - Prevention or restriction of use of communication devices by prisoners etc

New Clause 1 - Child Sexual Exploitation

Ann Coffey (Labour, Stockport)

I beg to move, That the clause be read a Second time.

Katy Clark (Labour, North Ayrshire and Arran)

With this it will be convenient to discuss the following:

New clause 2—Child Sexual Exploitation: Consent—

“(1) The Sexual Offences Act 2003 is amended as follows.

(2) In section 9 (Sexual activity with a child), after subsection (3), insert—

“(4) A Court shall presume that a defendant, A, does not believe that B is aged 16 or over if there is evidence to suggest that B is a victim of child sexual exploitation in which A is involved; unless A adduces evidence which raises an issue as to his reasonable belief in whether B was aged 16 or over at the time or immediately before the offence.

(5) Child sexual exploitation is any scheme or offence which is calculated or designed to create a position whereby B can be exploited so that B is or might be the subject of a sexual offence.”

(3) In section 75 (Evidential presumptions about consent), after subsection (2)(f), insert—

“(g) the complainant was a victim of child sexual exploitation: or

(h) the defendant can be shown to have been directly involved in child sexual exploitation.

( ) In this section, “child sexual exploitation” means any scheme of offence as defined by section 9(5).””

New clause 24—Duty to publish information: National Crime Agency—

“(1) The Director General of the National Crime Agency (NCA) must—

(a) make arrangements for publishing statistical information with regard to allegations of child sexual exploitation and abuse, and

(b) publish information in accordance with those arrangements.

(2) This information must include the number of cases of child sexual exploitation and abuse reported each year to the Agency.”

Amendment 1, in schedule 4, page 112, line 1, at end insert—

“( ) In section 5 of the Sexual Offences Act 2003 (Rape of a child under 13), after subsection (2) insert—

(3) For the purposes of this Act, the consent of a child under the age of 13 is irrelevant.

(4) The common law of “ostensible consent” in relation to sexual offences is hereby abolished.

(5) For the purposes of sentencing an offender in connection with offences under this Act in relation to a child, a court shall presume the consent of child to be absent.”

Ann Coffey (Labour, Stockport)

It is a pleasure to serve under your chairmanship, Ms Clark.

New clause 1 stands in my name and that of my hon. Friend the Member for Rotherham. It seeks to remove all references to child prostitution in legislation, substituting the phrase “child sexual exploitation”. Currently, 16 pieces of legislation use the term “child prostitution”, a phrase that implies choice, consent and a commercial contract. Offences under section 1 of the Street Offences Act 1959 as amended by section 16 of the Policing and Crime Act 2009 can still be committed by a child aged 10 or over.

There is no doubt that in recent years much has been done to take the word “prostitute” in relation to children out of Government guidance, an important move because language shapes attitudes. Six years ago, the sexual exploitation of children was still being referred to as child prostitution in statutory guidance. Fresh guidance in 2009 was entitled “Safeguarding children and young people from sexual exploitation”, whereas previous guidance from 2000 had been entitled “Safeguarding children involved in prostitution”.

Attitudes are changing. Between 1992 and 1996 there were 1,449 cautions—about 300 a year—for prostitution by under 18-year-olds and 976 court proceedings for loitering or soliciting for the purpose of prostitution under the 1959 Act. Between 2010 and 2013, 15 cautions were received by juveniles under the age of 18 and there were proceedings against seven defendants under the age of 18; of those seven, three were found guilty but none was imprisoned. Last year, there were five cautions for prostitution-related offences for those aged 15 to 17; there were proceedings against two, who were found guilty.

It is vital that wider cultural attitudes are tackled and changed if we are to protect children and young people from sexual exploitation. The new clause to remove reference to child prostitution has widespread support. In 2012, the interim report by the Office of the Children’s Commissioner on sexual exploitation in gangs and groups, “I thought I was the only one. The only one in the world”, called for a Government review of all legislation and guidance that made reference to children as prostitutes or as involved in prostitution. In June 2013, the Home Affairs Committee produced a report entitled, “Child sexual exploitation and the response to localised grooming”, which supported all recommendations from the Office of the Children’s Commissioner.

In 2012, I chaired a joint all-party inquiry into children missing from care that called for changes to schedule 5 of the Children’s Homes Regulations 2001. We recommended that the obligation on homes to notify

“involvement or suspected involvement of a child accommodated at the home in prostitution”

be changed to

“suspicion that a child accommodated in a home is at risk of abuse or child sexual exploitation”.

I am pleased that that has now been done.

In a 2012 report entitled, “Out of place: The policing and criminalisation of sexually exploited girls and young women”, the Howard League for Penal Reform highlighted the importance of language:

“To speak of girls and young women’s involvement in prostitution without also stating that they are emotionally, physically or economically coerced is now the same as saying ‘girls and young women’s involvement in their own abuse’. To state that they are involved in prostitution is regarded as a denial that they are being abused.”

In April 2013, Barnardo’s published a report of the parliamentary inquiry into the effectiveness of legislation for tackling child sexual exploitation and trafficking within the UK. That inquiry was ably chaired by my hon. Friend the Member for Rotherham. It recommended the removal of all references to child prostitution in legislation, as did the report I produced last October. Indeed, it has the support of the Minister, the hon. Member for Staffordshire Moorlands, who said at the conclusion of Second Reading:

“I want to be absolutely clear that children who are sexually exploited, whether for commercial or other reasons, should not be referred to as prostitutes. They should be recognised as victims and we will certainly consider references in older legislation and guidance as opportunities arise, as well as considering carefully the wording used in any new legislation or guidance.”—[Official Report, 5 January 2014; Vol. 590, c. 123.]

I am offering the Solicitor-General an opportunity to do just that.

We need to see some action on this. It was raised in 2012, and the Government accepted the recommendations in the Children’s Commissioner’s report at that time. I hope that the Solicitor-General will give some indication of how and when that action will happen. A lot has been done in this Parliament to raise awareness and start to tackle child sexual exploitation by introducing both new legislative measures and guidance. As he said a few minutes ago, change can be made by this place if there is a will. It would be good if this was the Parliament that abolished the offensive, inappropriate and damaging term “child prostitution” in our legislation.

Andrew Stunell (Liberal Democrat, Hazel Grove)

I want to say first that the hon. Member for Stockport has done a huge amount of work on this and we should all give her credit for that. We are in her debt and the debt of those who work with her for bringing this important issue forward. I do not know precisely how the Solicitor-General will respond, but I hope that he will pick up the theme of what his ministerial colleague the hon. Member for Staffordshire Moorlands said on Second Reading. I also hope that he will give us some assurance that, if not part of the Committee’s proceedings this afternoon, this important issue will at least be part of our consideration on Report so that it can be dealt with as it should. It is quite clear that society and our understanding have moved on. The time has come to get rid of this offensive wording in our legislation and replace it with what we really mean, which is child abuse.

Sarah Champion (Labour, Rotherham)

I speak to support the new clauses tabled by my hon. Friend the Member for Stockport and to give a voice to some of the young people whom this impacts on. She mentioned the report of the inquiry which I chaired with Barnardo’s and which she sat on. We made a very clear recommendation that the term “child prostitution” should not be used in our legislation any more. Unfortunately, it is still used in 16 pieces of legislation. I met the Minister at the time, the right hon. Member for Lewes, who agreed with that position and said that, as laws come up, we should look to change them. I would like the Solicitor-General to make an actual commitment to start doing that. It is fantastic that we have the warm words, but if we could actually have some action that would be very positive.

One of the things that the young people who spoke to us in our inquiry said was that, because the term is still there, they will still hear it used against them in court or by the police. Adults are allowed to use the term—it is within the law, but the young people said that it made them feel dirty, complicit, and disgusted with themselves. I will briefly read out what I think is a poem by one of the victims from Rotherham, which sums up in her words exactly how the abuse makes them feel. She is a 17 year-old survivor, but was 14 at the time of the abuse. “They call us slags, tarts, whores, up for it, trash, trouble, prozzies. This name-calling was not just from the abusers but labelled upon us by the services that are supposed to protect us. How are those names helping children who are victims of rape? My name is Sally. Others call me daughter, sister, cousin, niece, grandchild. I am a survivor of child rape, so call me by my name, while I call myself a proud survivor.”

I ask the Solicitor-General to act on these recommendations, work to remove the term, and support the new clause.

Jack Dromey (Labour, Birmingham, Erdington)

I did not intend to make a contribution, but having been asked, I will speak very briefly about what we have just heard. A very powerful case has been put. Archaic language is being used that is profoundly insulting. The idea that we demonise victims by calling them prostitutes is entirely wrong and therefore we very much hope that the Government will respond positively.

I turn now to clause 24. There is a great national will to tackle the obscenity of child sexual exploitation and child abuse. Parliament has a duty to rise to that challenge. There is much in the Bill that is welcome; indeed, we have sought to strengthen the Bill further. For example, while we accept that we have got to get mandatory reporting right—and therefore the consultation process will move ahead—it is now clear as a consequence of our debate that it is no longer a question of if but of when we will see the introduction of mandatory reporting.

Crucially, to tackle a problem, we have to know the scale and nature of that problem, the better to inform the action that the Government and agencies take, including in respect of the allocation of resources. The public have a right to know both the scale and nature of the problem and to be reassured that we are rising to the challenge, taking all powers necessary, making available all resources necessary and holding Parliament and the Government to account. Transparency is therefore key. Before 2010, in the document “The Way Forward”, the proposal was for a consolidation of child protection measures and actions under the banner of the Child Exploitation and Online Protection Centre. In addition, the proposal was that CEOP would become compliant with freedom of information legislation. Previously, in line with the arrangements for the Serious Organised Crime Agency, it had been exempted from freedom of information requests. Then, when the National Crime Agency was established, it was decided that it would not be freedom-of-information-compliant and that it would be directly answerable to the Home Secretary, whereas previously the reporting line had been to an independent chair and board.

We are not proposing necessarily that the solution to the problem of transparency is to become FOI compliant. However, with proposed new clause 24 we are urging the Government to make provisions for the National Crime Agency to publish statistical information about allegations of child sexual exploitation and abuse. The NCA has details of tens of thousands of people who have accessed vile images of child abuse, but only hundreds have been arrested and acted against. We are therefore calling for the NCA to be transparent about the scale of the problem and to publish information on allegations of child sexual exploitation and abuse. Thus far, there has been a distinct reluctance regularly to release such information—for example, on the number of people in the UK who are accessing indecent images of children.

We understand that some NCA areas cannot be subject to information requests, because of their sensitive nature, but it is wrong that the agency should be able to hide behind that exemption on the issue of child sexual exploitation. If the NCA is properly to discharge its function, it must be willing to be open, not only with local authorities, the police and front-line services as to the scale of the problem but with the public. It is simply wrong that such information is not made available by the NCA in the way that it should be and that other arms of government and agencies do so, not least because both Parliament and public want to hold the Government to account for whether they are acting effectively to tackle that great national scandal. In addition, it is simply wrong that the vast majority of those downloading vile child abuse images are not investigated while children remain at risk. The NCA says that it does not have the resources to investigate all cases, but the police arrest more than 220,000 people a year for theft and more than 110,000 a year for drug offences.

In conclusion, our strong view is that the time has come for effective transparency on the part of the NCA to inform precisely the kind of great national debate now taking place, including, in the context of the two inquiries, why we do not have a much more robust approach to going after those evil people—overwhelmingly men—who access such abuse images online. If we are therefore to stay true to what the public want from us, the NCA needs to open up in future. We very much hope that the Minister will respond positively.

Katy Clark (Labour, North Ayrshire and Arran)

We are debating whether new clause 1 should be read a second time, but I understand that Ann Coffey wishes to speak on the other new clauses.

Ann Coffey (Labour, Stockport)

Thank you, Ms Clark. I will speak to the other new clauses in the group. The aim of new clause 2 is to support the new guidelines issued by the Sentencing Council in April 2014 that the focus should be more on the offender’s actions and behaviour towards the victim than on the victim’s behaviour. The provision would create a presumption that a defendant did not believe that a child was over 16 if there is evidence to suggest that the child was a victim of child sexual exploitation in which the defendant was involved. Child sexual exploitation is an offence that is calculated or designed to create a position in which a child can be exploited and is or might be subject to a sexual offence.

I see new clause 2 as covering offences against children by multiple men—children passed around for sex—victims of grooming, which is intended to get children to accept sexual activity, and victims of coercion, force, fear and intimidation. The provision would basically move the focus on to the offender to give evidence to substantiate his belief that a child was over 16.

We should not forget how traumatic cross-examination in court is for some young witnesses. When I was preparing the “Real Voices” report that I produced last October, one young witness told me:

“There is not a word to describe how bad it was. I have never experienced anything like that in my life, and I never want to experience anything like that ever again… One of the barristers was not even asking me questions, he was just shouting at me, and the judge kept having to tell him to stop.”

In recent high-profile cases we were shocked not only by the depths of depravity of the offenders when we heard about the abuse that they inflicted on the children who were their victims but by the aggressive cross-examination by defence lawyers, which was designed to depict the children as willing partners in the jurors’ eyes or suggest that the defendant had reason to believe that the child, because of their behaviour or the way they dressed, was over the age of legal consent. They were depicted not as children in need of protection, or as children at all, but as sexual commodities complicit in their sexual abuse.

There is a widespread problem in wider society of adults not understanding their responsibilities to all children—undeserving children as well as deserving children. When he was Director of Public Prosecutions, Keir Starmer made the point that all children should have the protection of the criminal justice system. He issued new guidance in October 2013 and said:

“The final guidelines, which have been subject to a three month public consultation, confirm that the now accepted approach is that the prosecution must focus on the overall credibility of an allegation rather than the perceived weakness of the person making it.”

New clause 2 would help to do that by focusing on the credibility of the defendant’s belief that a child victim of sexual exploitation was over 16. I do not believe that the criminal justice system can eliminate child sexual abuse. Indeed, in my research for the report I found that, over the past six years, 13,000 reported cases of major sexual offences against children in Greater Manchester resulted in only 1,000 convictions. There are many reasons for that, as shown by “Achieving best evidence in child sexual abuse cases,” which was published by the Criminal Justice Joint Inspection in December 2014. The main reason was the way in which evidence is gathered for the court. We have a very adversarial court system, but progress is being made and there is better support for witnesses. Cross examination is now focusing on the credibility of the allegation. I look forward to meeting the recorder in Liverpool to discuss how the section 28 pilot is proceeding.

Better protection of children will come from a change in attitudes towards children, a better understanding of vulnerability and the exploitation of that vulnerability and a cultural shift that leads to change in the behaviour of adults towards children so that adults, and not the children themselves, are seen as responsible for their relationships with children. The judge’s summing up in the case last week in which a teacher was convicted of sexual activity in a position of trust demonstrates how far the judiciary have to go in understanding exploitative relationships. More focus on the credibility of allegations in the context of sexual offences against children would help to shift the culture of victim-blaming and would underline that it is the responsibility of adults to ensure that they are not exploiting or having sex with children.

Amendment 1 would amend section 5 of the Sexual Offences Act 2003, which introduced separate offence categories for children under the age of 13. The main difference between the under-13 offences and the equivalent offences for those aged 13 and over is that a victim under the age of 13 is deemed to be legally incapable of consenting to sexual behaviour. The under-13 offences were included in the Act following the policy decision to provide increased protection for younger children. However, the 2007 sentencing guidelines state that, notwithstanding that, there will be cases involving victims under 13 years of age where there was in fact consent even though in law it cannot be given—that is known as ostensible consent.

The guidelines continue by stating that in such circumstances presence of consent may be material in relation to sentencing. Since then, there has been a greater understanding of the grooming process. In 2012, the Sentencing Council issued a consultation, which stated:

“The Council feels it is important that, for these under 13 offences, cases where a child has been groomed into acquiescence are taken as seriously by sentencers as cases where there is forced non-consensual sexual activity.”

Barnardo’s stated in the consultation document:

“Younger children are increasingly at risk of sexual exploitation. The experience of at least a third of our services is that overall, the children we are working with are getting younger…the average age of service users has fallen from 15 to around 13, and some services have started working with children as young as 10.”

In April 2014 the Sentencing Council issued new guidelines that make it clear that victims are not responsible for what has happened to them. That is particularly emphasised in relation to offences committed against children. In the previous guidelines, some child sexual offences were labelled as involving ostensible consent; that is, where a child aged over 13 has apparently agreed to sexual activity. The Sentencing Council believes that that is the wrong way of looking at such offences, because children do not consent to their own abuse. The new guidelines, therefore, look more at the offender’s action and behaviour towards the victim:

“When dealing with the statutory offence of rape of a child under 13, the court may be faced with a wide range of offending behaviour. Sentencers should have particular regard to the fact that these offences are not only committed through force or fear of force but may include exploitative behaviour towards a child which should be considered to indicate high culpability.”

New clause 2 is designed to ensure that the Bill reflects our increased understanding of predatory behaviour that is intended to groom a child into sexual acts, to which a child should in no way be seen as consenting. The new clause would reinforce the fact that there can be no consent to sexual activity by a child under 13, and it would remove any defence of ostensible consent.

Robert Buckland (Conservative, South Swindon)

I am happy to respond to hon. Members at the end of another stimulating debate. I am grateful to the hon. Member for Stockport, who has helpfully brought us fully up to date the position with regard to young victims. She has set out current thinking in the courts about what I will call the myth of consent, and about the fact that we are dealing with people who are clearly in a position of inequality of bargaining power. There is no equivalence between the mind of a 13-year-old and the mind of a 40-year-old. That has been a problem that we have sometimes struggled to deal with.

It would be wrong of me to comment about a case that has just occurred—in fact, the case I am talking about has been concluded and is not now within the unduly lenient sentence scheme. I can think of other examples in which what has been referred to as ostensible consent could actually be an aggravating factor, because it was accompanied by a background of grooming, planning and cultivation to create the myth of consent.

I am grateful to the hon. Lady for setting out the position. She is quite right to say that the guidelines of 2007 have been superseded entirely. The new guidelines contain no reference to ostensible consent; indeed, there is no reference to that phrase in the criminal law. I reassure her that that principle, if it ever existed, is not one that belongs in the statute book or in common law. Neither is it part of any of the guidelines that are applied to sentencing in sexual offences. I will come back to that briefly when I talk about the relevant amendments and new clauses.

We all agree that child sexual exploitation is abhorrent, and we are all determined to tackle it in whatever form it takes. The Bill contains some excellent provisions, some of which we have debated, to help us to achieve that. Grooming and child sexual exploitation happen in all areas of the country, and they take many different forms. They are never acceptable, and we must all work together to ensure that those sickening crimes no longer remain hidden and that offenders are brought to justice.

The important points made by hon. Members today are an eloquent testament to the way in which some of the most vulnerable people in our society are viewed after suffering appalling abuse. Those points reflect the findings of a number of recent reports, such as following the Office of the Children’s Commissioner’s inquiry into child sexual exploitation in groups and gangs, the hon. Member for Rotherham’s cross-party inquiry into the effectiveness of child sexual exploitation legislation and, indeed, the report, “Real Voices”, on child sexual exploitation in Greater Manchester, which was authored by the hon. Member for Stockport.

The Government are clear that children who are sexually exploited, whether for financial gain or other reasons, should not be referred to as “prostitutes”; rather, they should be recognised as victims. That is why the Government have acted to update guidance. For example, the Department of Health’s “Safeguarding Children Involved in Prostitution” guidance from 2000 was replaced in 2009 by the “Safeguarding Children and Young People from Sexual Exploitation” guidance, which states that any child or young person who has been “forced into prostitution” should be

“treated by the CPS as an abused child and victim who needs help rather than as a defendant.”

Therefore, we support the principle behind new clause 1. We have been clear, in response to the reports that I mentioned, that we will consider amending such references in existing legislation and guidance as opportunities arise, as well as considering carefully the wording used in any new legislation or guidance. I can see why the hon. Member for Stockport has taken the opportunity to table new clauses.

On new clause 1, I point out that sections 28 and 29 of the Sexual Offences Act 1956 were repealed by the Sexual Offences Act 2003. Technically, we do not need to make those changes because the sections are no longer on the statute book. However, it is important to recognise that those changes would go further than simply changing the nomenclature used in various statutes. A number of the proposed provisions would have the effect of changing the scope of various criminal offences. As such, they require rather more careful examination.

Subsection (4) of new clause 1 seeks to amend section 1 of the Street Offences Act 1959, so that the offence of loitering or soliciting for the purposes of prostitution would apply only to adults. The Government recognise how the provision fits with the spirit of the hon. Member for Stockport’s proposals. It could, however, have a material impact in terms of the criminality and enforcement tools available to the police, and may risk unforeseen consequences. We certainly do not have a closed mind to it but it is only right that we consider carefully the impact of that change with police and others before coming to a final view.

Norman Baker (Liberal Democrat, Lewes)

My hon. and learned Friend has reiterated a point that I made in office, and that others have made: the term “prostitution” should not be used in this context. Although I am happy to accept his analysis that new clause 1 is faulty, I am sure that Opposition Members would be happy to accept that if we could have an undertaking that the point will be dealt with. Will he undertake to come back with a Government amendment on Report to deal with this better than the way it has been set out?

Robert Buckland (Conservative, South Swindon)

We are going to give further careful consideration to both new clauses as a matter of urgency. I am not yet in a position to offer an assurance that the Government will table their own amendments on Report, but I can undertake to set out our conclusions in good time so that if the hon. Member for Stockport is not satisfied with those conclusions, she and others have the opportunity to re-table their own amendments, or a variation of them, on Report. We are getting to a position where things are progressing.

New clause 2 is about consent and producing evidence to show a reasonable belief that the child was aged 16 or over at the time of, or immediately before, the alleged offence. That is an evidential burden, and if it is raised the prosecution has to prove that the defendant did not reasonably hold such a belief.

I was interested to hear some of the examples that the hon. Member for Stockport provided. Of course, in many cases, the prosecution will not have to bring forward specific evidence to prove that the belief was not reasonable because it will be apparent from the facts of the case that the defendant knew the age of the child. We will further consider the points that she made on that.

Subsection (3) of new clause 2 seeks to add the fact that the child was a victim of child sexual exploitation, or the fact that the defendant can be shown to have been directly involved in such exploitation, to the list of circumstances that give rise to the consent presumptions in section 75 of the 2003 Act, which applies to offences of rape, assault by penetration, sexual assault, and causing a person to engage in sexual activity without consent.

In a nutshell, the section provides that if it is proved that the defendant did the relevant act, and it is also proved that any of the circumstances listed in that section existed and that the defendant knew they existed, the victim will be taken not to have consented to the relevant act, and the defendant will not be taken to have reasonably believed the victim consented, unless sufficient evidence is adduced to raise an issue as to whether the victim consented.

At the moment—rightly so—proof of such offences involving children under 16 does not require proof of the absence of consent on the part of the victim. Consent is irrelevant. Where rape or other consent-based offences are charged, the prosecution can benefit from the existing presumptions. They bear directly on the victim’s ability to give free consent at the time of the act in question. So my immediate thought is that it might not be appropriate to refer in that list to the more general circumstances surrounding the offence. Again, however, I undertake to consider the matter further.

The amendment tabled by the hon. Member for Stockport to section 5 of the 2003 Act seeks to clarify that the consent of a child under 13 is irrelevant in proceedings under the section that deals with the rape of a child under 13. As I have said, consent is not relevant in such a case. That is why the offence can be committed whether the child consented or not, so I do not believe we need to clarify something that is already part of our law.

I have already dealt with the guidelines that the hon. Lady mentioned, and we will look at how her amendment relates to such guidance as part of our consideration.

The hon. Member for Birmingham, Erdington argued in favour of new clause 24. I agree that transparency and robust accountability is crucial to the effective working of our law enforcement agencies. That is one of the reasons why the National Crime Agency was established, with a direct line of accountability between the director general to the Home Secretary and, through her, to Parliament. There are already robust arrangements in place for the publication of information on allegations of child sexual abuse, without the need for the imposition of an additional duty, however well intentioned.

Section 6 of the Crime and Courts Act 2013 already provides that the director general of the NCA must make arrangements for publishing information about the exercise of its functions and other matters relating to the agency, and must publish information in accordance with those arrangements. Annex A of the framework document for the NCA, which was laid before Parliament in October 2013, sets out how this obligation should be carried out. It provides that the director general will publish information where the material falls within one or more of the following categories: first, the threat from serious, organised and complex crime; secondly, general information about the NCA—who leads it, what it does and how it does it; thirdly, the agency’s priorities and performance; fourthly, its spending; and fifthly, the summary of the records of NCA board meetings.

The director general may edit, redact or decline to publish any information, the publication of which he reasonably considers would prejudice or jeopardise, or would be likely to prejudice or jeopardise: the discharge of the NCA’s functions as set out in the Act; national security; the health and safety of any person; the commercial interests of the NCA or any person; or evidence that might jeopardise diplomatic or international relations with foreign governments. These transparency arrangements are set out in a document entitled “Transparency: The NCA Publication Approach”, which was published in September 2014.

The arrangements for publishing information are clear. The National Crime Agency already publishes the information that the duty introduced by this new clause would demand. The published “National Crime Agency Annual Report and Accounts 2013/14” includes data on the number of referrals received by the child exploitation and online protection command alongside the number of intelligence packages disseminated and the numbers of children protected or safeguarded. Local police forces also hold information on allegations of child sexual exploitation and abuse. Imposing a duty on the NCA along the lines proposed in the new clause would only give a partial view of the extent of enforcement activity.

The sensitivity of ongoing operations means that it is right that the director general has the option to protect information relating to them so as not to jeopardise some of the desired outcomes.

I hope I can assure the hon. Member for Birmingham, Erdington that his points, though well made, are already covered by fairly recent legislation and guidance, which encourage robustness and transparency while protecting certain information for operational requirements. I thank all Members for their speeches and the amendments and new clauses they have submitted. I commend the Government’s new clause to the House and urge Members to withdraw their amendment and new clauses.

Ann Coffey (Labour, Stockport)

I entirely accept the Minister’s comments on amendment 1, which I am happy to withdraw. I took his response on new clause 2 to be positive, and I am pleased that he will give further consideration to the issue that it attempted to raise. On new clause 1, I believe that there is a lot of support for changing the wording in legislation. I understand that there might be unintended consequences, but I gently say that it was first proposed in 2012, so there has been a long time to look at unintended consequences.

I am anxious that we resolve the matter in this Parliament, because it would be a fitting end to a Parliament in which there has been a lot of cross-party support in raising awareness of child sexual exploitation. I am happy to wait to hear the Minister’s comments, but I am determined to push the matter to a Division on Report, where I hope I would have the support of the House. I beg to ask leave to withdraw the motion.

New Clause 14 - Internet service provider duty (protection of children)

New Clause 16 - Offence of abuduction of child by other person

Elfyn Llwyd (Plaid Cymru, Dwyfor Meirionnydd)

I beg to move, That the clause be read a Second time.

Katy Clark (Labour, North Ayrshire and Arran)

With this it will be convenient to discuss the following:

New clause 21—Child abduction warning notice—

‘In the Child Abduction Act 1984, after section 2 (offence of abduction of child by other person) insert—

“2A Power to issue a child abduction warning notice

(1) A member of a police force not below the rank of superintendent (“the authorising officer”) may issue a child abduction warning notice (“a CAWN”) under this section.

(2) A CAWN may be issued to a person (“A”) aged 18 years or over if the authorising officer has reasonable grounds for believing that—

(a) A has without lawful authority or reasonable excuse been found in the company of a child (“C”); and

(b) C is reported missing and is found on two or more occasions to be in the company of A; or

(c) there is reason to suspect that C’s behaviour is, by reason of association with the defendant, giving significant cause for concern.

(3) Before issuing a CAWN, the authorising officer must, in particular, consider—

(a) any representations made by the person with lawful authority for C; and

(b) any representations made by A as to the issuing of the CAWN.

(4) The authorising officer must take reasonable steps to discover the opinions mentioned in subsection (3).

(5) A CAWN must prohibit A from being in the company of C.

2B Contents and service of a child abduction warning notice

‘(1) A CAWN must state—

(a) the grounds on which it has been issued;

(b) that a constable may arrest A without warrant if the constable has reasonable grounds for believing that A is in breach of the CAWN;

(c) that an application for a child abduction warning order under section 2D will be heard within 48 hours of the time of service of the CAWN and a notice of the hearing will be given to A;

(d) that the CAWN continues in effect until that application has been determined; and

(e) the provision that a magistrates’ court may include in a child abduction warning order.

(2) A CAWN must be in writing and must be served on A personally by a constable.

(3) On serving A with a CAWN, the constable must ask A for an address for the purposes of being given the notice of the hearing of the application for the child abduction warning order.

2C Breach of a child abduction warning notice

‘(1) A person arrested by virtue of section 2B(1)(b) for a breach of a CAWN must be held in custody and brought before the magistrates’ court which will hear the application for the CAWO under section 2D—

(a) before the end of the period of 24 hours beginning with the time of the arrest; or

(b) if earlier, at the hearing of that application.

(2) If the person is brought before the court by virtue of subsection (1)(a), the court may remand the person.

(3) If the court adjourns the hearing of the application by virtue of subsection 2D(8), the court may remand the person.

(4) In calculating when the period of 24 hours mentioned in subsection (1)(a) ends, Christmas Day, Good Friday, any Sunday and any day which is a bank holiday in England and Wales under the Banking and Financial Dealings Act 1971 are to be disregarded.

2D Application for a child abduction warning order

‘(1) If a CAWN has been issued, a constable must apply for a child abduction warning order (“a CAWO”).

(2) The application must be made by complaint to a magistrates’ court.

(3) The application must be heard by the magistrates’ court no later than 48 hours after the CAWN was served pursuant to section 2B(2).

(4) In calculating when the period of 48 hours mentioned in subsection (3) ends, Christmas Day, Good Friday, any Sunday and any day which is a bank holiday in England and Wales under the Banking and Financial Dealings Act 1971 are to be disregarded.

(5) A notice of the hearing of the application must be given to A.

(6) The notice is deemed given if it has been left at the address given by A under section 2B(3).

(7) But if the notice has not been given because no address was given by A under section 2B(3), the court may hear the application for the CAWO if the court is satisfied that the constable applying for the CAWO has made reasonable efforts to give A the notice.

(8) The magistrates’ court may adjourn the hearing of the application.

(9) If the court adjourns the hearing, the CAWN continues in effect until the application has been determined.

(10) On the hearing of an application of a CAWO, section 97 of the Magistrates’ Court Act 1980 (summons to witness and warrant for his arrest) does not apply in relation to a person for whose protection the CAWO would be made, except where the person has given oral or written evidence at the hearing.

2E Conditions for and contents of a child abduction warning order

‘(1) The court may make a CAWO if two conditions are met.

(2) The first condition is that the court is satisfied on the balance of probabilities that the conditions set out in section 3(2) are satisfied.

(3) The second condition is that the court thinks that making the CAWO is necessary to protect C from harm as a result of association with A.

(4) A CAWO must state that a constable may arrest A without warrant if the constable has reasonable grounds for believing A is in breach of the CAWO.

(5) A CAWO may be in force for—

(a) no fewer than 14 days beginning with the day on which it is made; and

(b) until the date of the 16th birthday of C.

(6) A CAWO must state the period for which it is to be in force.

2F Breach of a child abduction warning order

‘(1) A person arrested by virtue of section 2E(4) for a breach of a CAWO must be held in custody and brought before a magistrates’ court within the period of 24 hours beginning with the time of the arrest.

(2) If the matter is not disposed of when the person is brought before the court, the court may remand the person.

(3) In calculating when the period of 24 hours mentioned in subsection (1) ends, Christmas Day, Good Friday, any Sunday and any day which is a bank holiday in England and Wales under the Banking and Financial Dealings Act 1971 are to be disregarded.

2G Further provision about remand

‘(1) This section applies for the purposes of the remand of a person by a magistrates’ court under section 2C(2) or (3) or 2F(2).

(2) In the application of section 128(6) of the Magistrates’ Court Act 1980 for those purposes, the reference to the “other party” is to be read—

(a) in the case of a remand prior to the hearing of an application for a CAWO, as a reference to the authorising officer; and

(b) in any other case, as a reference to the constable who applied for the CAWO.

(3) If the court has reason to suspect that a medical report will be required, the power to remand a person may be exercised for the purpose of enabling a medical examination to take place and a report to be made.

(4) If the person is remanded in custody for that purpose, the adjournment may not be for more than three weeks at a time.

(5) If the person is remanded on bail for that purpose, the adjournment may not be for more than four weeks at a time.

(6) If the court has reason to suspect that the person is suffering from a mental disorder within the meaning of the Mental Health Act 1983, the court has the same power to make an order under section 35 of that Act (remand to hospital for medical report) as it has under that section in the case of an accused person (within the meaning of that section).

(7) The court may, when remanding the person on bail, require the person to comply before release on bail or later, with such requirements as appear to the court to be necessary to secure that the person does not interfere with witnesses or otherwise obstruct the course of justice.

2H Guidance

‘(1) The Secretary of State may issue guidance relating to the exercise by a constable of functions under sections 2A to 2F.

(2) A constable must have regard to any guidance issued under subsection (1) when exercising a function to which the guidance relates.

(3) Before issuing guidance under this section, the Secretary of State must consult—

(a) the Association of Chief Police Officers;

(b) the National Crime Agency; and

(c) such other persons as the Secretary of State thinks fit.”’

Elfyn Llwyd (Plaid Cymru, Dwyfor Meirionnydd)

I tabled new clause 16 in conjunction with amendment 40, which we debated last week. Amendment 40 would have raised the age in the definition of a child to those under 18 years of age. The latter amendment was tabled to tackle the fact that at present, 16 and 17-year-olds are not afforded the same legal protection when they suffer cruelty at the hands of an adult. New clause 16 was tabled in the same spirit: that 16 and 17-year-olds should also be protected by legislation covering child abduction, and that police should be able to issue child abduction warning notices for their protection, in the same way that they can for their younger counterparts.

Members will no doubt be aware that child abduction warning notices are tools that the police can use to intervene in cases where they are concerned about an inappropriate relationship between a child and an adult. The police can use such notices to prevent an adult from approaching or abducting a child whom they believe is at risk. The notices can be used in court to support evidence of potential child sexual exploitation, among other crimes. At present, however, police can issue child abduction warning notices only for children under age 16. My new clause would raise that age to 18.

In 2013, Parents and Abducted Children Together and the Child Exploitation and Online Protection Centre published a joint report entitled “Taken”, which considered the problem of child abduction in the UK. The report pointed out:

“There is no single, comprehensive definition of child abduction in the UK. Different laws in different parts of the UK criminalise various acts which involve the taking of a child”,

including

“parental abduction (often resulting in a child being taken overseas); abduction by a stranger; abduction resulting from exploitation, revenge or financial gain.”

The authors of the report lamented the fact that an

“offence of ‘child abduction’, as defined by the Child Abduction Act 1984, can only be recorded for victims under the age of 16.”

The report also criticised the lack of a uniform definition of child abduction, resulting in an inability to distinguish serious crimes such as murder or rape which involve abduction from those that do not. It bemoans the fact that no single source of data on child abduction in the UK currently operates, as different types of abduction come under different umbrellas. That is further complicated by the fact that only those under 16 are captured in police data relating to child abduction cases.

The report recommends that a national child abduction hub should be set up to develop policy, and that one of its first functions should be to agree a UK-wide definition of child abduction. Another key recommendation is that an evaluation should be conducted into the effectiveness of child abduction warning notices.

Interestingly, a few minutes ago, the Solicitor-General prayed in aid the recent report by the Children’s Commissioner for England regarding the context of the last debate. It might please the Committee to hear that in that report, the Children’s Commissioner asked the Government to consider

“whether there should be an extension to the age limit from 16 years to 18 years within the provisions of the Child Abduction Act 1984 regarding the abduction warnings process and that these should be issued with or without parental consent, if deemed necessary.”

In April 2014, Barnardo’s published a report following a parliamentary inquiry into child sexual exploitation and trafficking, which recommended that child abduction warning notices should be strengthened and that the notices should be placed on a statutory footing, thus creating an offence of breaching the conditions of a notice.

Each of those organisations is evidently concerned about the relative ineffectiveness of child abduction warning notices in deterring perpetrators from abducting children. It stands to reason that if the notices are to be reviewed, the Government should consider extending their application to all children under 18. I should also point out that both Greater Manchester and Cheshire police have argued that they would find it useful to be able to issue notices to protect 16 and 17-year-olds, as well as younger children. It is true that in some cases involving sexual abuse, police will be able to use sexual risk orders and sexual harm prevention orders, but those will not be applicable in cases that do not centre on sexual abuse.

I hope that the Minister will give due consideration to my points and, most importantly, the amendment of the Child Abduction Act 1984 accordingly.

Sarah Champion (Labour, Rotherham)

I will speak first in support of new clause 16 and then to my new clause 21.

Another of the recommendations that came out of the inquiry that I did with Barnardo’s was the disparity between a child living at home, for whom child abduction warning notices finish at 16, and children in care, for whom they finish at 18. I accept that children in care are disproportionately likely to be victims of child sexual exploitation, but the Committee must recognise that the vast majority of children are still living at home.

I am not sure whether other Members have had similar experiences, but a mother came into my surgery at her wit’s end. She knew that her 17-year-old was hanging around with the wrong people, who she suspected were grooming her, and would not stay at home. The police and social services could not intervene because the girl was 17. The mother was literally trying to lock the girl in her bedroom, but she was breaking out and climbing out of the window. Such an example is, unfortunately, very common. A lot of us might have thought that that girl was an unruly teenager, but in this day and age I hope that we would now think, “Maybe something more significant is going on.” At the moment, the situation is one that child abduction warning notices do not cover. Personally, I think it is unacceptable for young people to get different protections dependent on whether they are living with their parents or are a ward of the state. The law should be consistent and have a consistent position regardless of the legal status of the child.

New clause 21 is also to do with abduction warning notices. I have spoken in the Chamber on this subject and I know that it was raised in the other place, but I will briefly go through the main arguments again. Basically, new clause 21 would make an important change to help in the fight against child sexual exploitation. Child abduction warning notices are a useful tool for the police and are used mainly for gathering evidence and for building a case around someone who intends to go on to groom and abuse a child. If we could put the notices on a statutory basis, however, breaching them would be an offence in its own right. As a result, well before the grooming and the abuse happened, the police could do something to protect the child.

At the moment, the police are extremely limited in what action they may take if a child abduction warning notice is ignored. The cross-party parliamentary inquiry that I chaired—many members of the Committee, including my hon. Friend the Member for Stockport, participated—was told time and again by police that placing the notices on a statutory basis would better help them to protect children from exploitation. The existing situation can put vulnerable children at risk, as police need the more serious offence of abduction to be committed before they may intervene. The police have described how perpetrators have ignored the conditions in a notice, but they have been powerless to act because the high requirement of the abduction offence has not been met. The inability to act also damages people’s faith in the police and their protection, with potentially serious implications for whether young people or their parents will seek help from the criminal justice system in future.

My parliamentary inquiry recommended that child abduction warning notices therefore be made statutory, so that if someone breaches a condition in the notice there will be clear consequences and the police may take swift action. An additional advantage of such an approach would be much less reliance on the victim giving evidence, which is particularly important in such cases. Children might be reluctant to co-operate because of the manipulation and grooming that they have been subjected to.

I am grateful to my hon. Friends for their support for new clause 21 and to the Minister who, on Second Reading, committed to work with me on this and give the proposal a thorough consideration. That followed earlier commitments from the Government in the House of Lords to consider what Barnardo’s and I are proposing. In the other place, there were concerns that statutory warning notices would not have sufficient judicial oversight and would give the police unchecked power to effectively issue restraining orders without applying to the courts. There were also subsequent concerns that introducing such judicial oversight would complicate and slow down a process which is currently strengthened by its simplicity and speed.

New clause 21 addresses those concerns, following further consultation by Barnardo’s with the police. It draws heavily on existing legislation—the Crime and Security Act 2010—which created domestic violence prevention notices and domestic violence prevention orders. It is therefore based on an established process and legislative provision. The new clause would mean that courts could oversee the use of statutory child abduction warning notices, while the police would still be able to issue a notice without delay. Crucially, it would finally give child abduction warning notices the strength they need to disrupt the grooming cycle before a child becomes the victim of a more serious offence.

Prevention of sexual exploitation and its devastating impact on children must be a priority and we must give the police the tools they need. I therefore ask the Solicitor-General and the Committee to look favourably on the new clause.

Robert Buckland (Conservative, South Swindon)

May I deal first with the new clauses tabled by the right hon. Member for Dwyfor Meirionnydd and the hon. Member for Rotherham? New clauses 16 and 22 seek to raise the age threshold for the child abduction offence in section 2 of the Child Abduction Act 1984 from 16 to 18 years. That would bring it into line with the summary offence in section 49 of the Children Act 1989 of abducting a child in care. Both new clauses try to create consistency by removing references to 16 years and replacing them with 18 years.

The section 2 child abduction offence is based on taking or detaining a child without the consent of a parent or person who has parental responsibility. The consent of the person taken or detained is therefore not relevant. In cases where a person is taken or detained without their consent, an offence of kidnapping or false imprisonment might have been committed, irrespective of the victim’s age. It is important to remember that in the context of this offence.

Children in care are particularly vulnerable. That is why the Children Act 1989 makes it an offence to take any child who is in care, including a 16 or 17-year-old, away from the person responsible for them without “lawful authority” or “reasonable excuse”. We come back again to the necessary inconsistency when bearing in mind the context in which a child or young person finds themselves.

While I recognise the arguments made by the right hon. Member for Dwyfor Meirionnydd for consistency between the two offences, the new clauses raise contrary arguments and difficult issues. It is right that I remind the Committee of what we spoke about when debating amendment 40. Many young people aged 16 and 17 can and do live independently of their parents. In many respects, they are able to make their own decisions about how they live their lives, including in relation to sexual relationships.

In recognition of those complex circumstances, the offence in section 2 of the 1984 Act applies only where the child is under 16. The 1980 Hague convention on the civil aspects of international child abduction ceases to operate when the child reaches the age of 16. The criminal law is therefore compliant and consistent with that important international criterion.

New clauses 16 and 22 would have significant wider implications. The Government’s concern is that we might not get the correct balance between additional protection and recognition of relevant rights and responsibilities. For those reasons and with respect, I am not persuaded of the case for this particular change.

In new clause 21, the hon. Member for Rotherham puts forward a strong case for child abduction warning notices to be placed on a statutory footing. I recognise the value of such notices in protecting children who are at risk of abuse. The key question to ask is whether the police have the necessary powers to place restrictions and prohibitions on people who pose a risk to vulnerable children. The Government are determined to do all we can to protect the public from sexual offenders.

The hon. Lady is absolutely right to refer to the comments made on Second Reading, because we have looked at the matter since then, as the result of what she said, very closely indeed. We looked, in particular, at what is already there. We can see that the sorts of powers that she wants are already on the statute book and I have some important news about their implementation, which I hope will give her a lot of reassurance. In particular, we are very soon, before the end of the Parliament, going to be implementing the new sexual risk orders that were introduced by the Anti-social Behaviour, Crime and Policing Act 2014. It is a different means, but it will achieve the very same ends that she has recommended.

The police are going to be able to apply to the courts for these orders where an individual poses a risk of sexual harm, either here in the UK or abroad, even if they have never been convicted of a criminal offence. Were we to put child abduction warning notices on a statutory footing, we would run a very real risk of duplicating sexual risk orders. The context here—the prism through which we are looking at child abduction—is the sexual motive, which is the one that I know concerns the hon. Lady and all of us. Although the nomenclature of these orders is clearly different, we are satisfied that they will deliver the very policy outcome that the hon. Lady seeks.

It may help the Committee if I say a little more about how sexual risk orders will operate. A sexual risk order may be made by the magistrates court for a minimum period of two years, on application by the police or the National Crime Agency. The test for making an order is that the court must be satisfied that the individual has committed an act of a sexual nature as a result of which it is necessary to make the order to protect the public in the UK, or children or vulnerable adults overseas, from harm caused by the individual. Significantly, breach of the order will be a criminal offence punishable by up to five years of imprisonment.

Sarah Champion (Labour, Rotherham)

Will the Minister repeat that? I think he said it would apply when the perpetrator had committed an act, whereas the abduction warning notice is when it is believed that someone has the intention of carrying out an act. It is a slightly different emphasis.

Robert Buckland (Conservative, South Swindon)

That is a very proper point to make and I will address it immediately. I will give an example that I hope will give the hon. Lady some reassurance. If there was evidence that the taking of preliminary steps of a grooming nature was intended as a precursor to a sexual act, those preliminary steps could constitute an “act of a sexual nature” for the purpose of the legislation. The act of meeting a child could, of itself, be an “act of a sexual nature” when judged in its full context on the facts of an individual case—for example, if there was evidence of grooming-type communication on the internet immediately before or after the meeting, in light of an individual’s behaviour at the meeting and the nature of what took place at the meeting, and the nature of an individual’s intention when meeting the child.

This is not about fully completed sexual acts, it is about the sort of gateway, preliminary or preparatory conduct that I know the hon. Lady has campaigned so assiduously on. It is just the sort of conduct where a child abduction warning notice might be used. We believe that these orders will cover those scenarios. The Sexual Offences Act 2003, as amended, also makes provision for interim sexual risk orders, which can be made when the court considers it necessary to protect the public during any period between the making of an application for a full order and its determination. Any interim order may last for a specified fixed period and may contain any prohibition which the court considers necessary for protecting the public in the United Kingdom, or children or vulnerable adults abroad, from sexual harm.

The purpose of interim orders is to ensure that the police are able to use their knowledge and discretion to identify and manage risks immediately. This gives the public full protection even prior to the final determination of the issue. The introduction of sexual risk orders complements the effectiveness of the current system of child abduction warning notices, which provide for a simple and non-bureaucratic process. The combination of the non-statutory warning notices and the statutory sexual risk orders and interim orders will produce the optimum result. The police can, as now, continue to issue a child abduction warning notice quickly and then move to apply for an interim sexual risk order or a full sexual risk order if the particular circumstances demand. In other words, we are offering a thorough degree of protection that strikes the right balance in securing protection while providing robust safeguards for those who may be subject to an order. Statutory guidance accompanying the implementation of sexual risk orders will also follow, on the time scale I have indicated.

Following the implementation of the new orders we will work with the police to review their effectiveness. We will include the context of how child abduction warning notices are used in that review.

I appreciate that the hon. Lady might want to reflect on what I have said so as to understand further how sexual risk orders can address the gap in the law that she highlighted. I am happy to meet her to go through the issue in more detail before Report. For now I hope that she, the right hon. Member for Dwyfor Meirionnydd and other hon. Members will be content not to press their measures.

Seema Malhotra (Labour, Feltham and Heston)

I will spare the Committee the short speech I had prepared—and it was short—and will simply make the point that I have heard what the Minister has said and we will look at the matter more closely. In suggesting raising the threshold to 18 to equalise protection from abduction for children in care and not in care our key concern was that the test should be vulnerability. We will look closely at his remarks and decide whether to come back with a further measure at a later stage.

Elfyn Llwyd (Plaid Cymru, Dwyfor Meirionnydd)

With the Committee’s permission, I seek to withdraw new clause 16. I need to think a bit more about what has been said, as the detail flew over my head. It must be getting late—well, it is only half-past 5, but it feels a bit later. I will think further about the issue and beg to ask leave to withdraw the motion.

New Clause 28 - Offence of encouragement of female genital mutilation