| Sexual Offences Bill [Lords]
|
|
Stephen Hesford (Wirral, West): I shall be obliged if the hon. Gentleman will help me with a matter. Clause 16(1)(a) states:
Does not that mean ''lawfully married'' within the laws of this country? What else can it mean? Mr. Grieve: Perhaps I have the wrong end of the argument, but we recognise the existence of foreign marriages in this country, including marriages that are transacted between a 40-year-old and a 13-year-old. Such marriages are still lawful marriage. Mr. Malins: The hon. Member for Wirral, West (Stephen Hesford) raised an interesting point, but the proof that this country recognises marriages from foreign jurisdictions is the fact that our divorce courts will take them on board in respect of a dissolution. Mr. Grieve: I want to give the hon. Member for Wirral, West the opportunity to intervene again. Stephen Hesford: Is that not the difficulty? If the couple are lawfully married for all other purposes and we accept, in civil jurisdiction, bipartisan recognition of marriages, I am not sure how far the hon. Gentleman can take his argument. We would be making exceptions and criminalising what, for civil purposes, we recognise to be lawful marriages. Mr. Grieve: I appreciate the hon. Gentleman's point, but I am not wholly persuaded by it. Last week we discussed, among other things, the desirable fact that non-consensual sexual intercourse within marriage is a criminal offence. For many years it was not; it was permissible for a husband to force himself on his wife, and it was accepted as a societal norm. We have decided to change that in respect of our laws. In some countries outside the United Kingdom, it is permissible for husbands to beat their wives. I am glad to say that that is prohibited in this country, although, from the available evidence, it happens far too Column Number: 177 frequently. Just because people might have transacted a marriage where they are allowed to beat their wives, it does not mean that when they come to Britain they are allowed to continue beating their wives as part of their domestic arrangements.I accept that sexual relations are a fundamental part of marriage, and normally the reason why marriage takes place. Sexual relations are a basic reason for the institution. I also accept that we are going much further if we say that we recognise a marriage as legal, but that the fundamental aspect of that relationship and the reason behind it, namely that the two people have sexual relations, must be prohibited until the party who is under age reaches 16. However, I do not think that that would be negating the existence of the legal relationship completely. We would be saying that the laws of this country provide that a person cannot get married under the age of 16, which is for the protection of one of the parties, and, in such circumstances, we will not accept or legitimise sexual relations with a wife who is under that age. That is wholly different from whether we prosecute anyone. I accept that the situation that I have described is always unsatisfactory, and we have been round the houses on that earlier. I worry about the principle because, as I said earlier, it will provide some fascinating opportunities for extremely undesirable behaviour, not just from people from foreign cultures who have a different way of life, but from paedophiles in this country who will be able to exploit a loophole. I wonder whether that is sensible. I shall listen carefully to the Solicitor-General. I am open-minded about the clause, but it troubles me. The purpose of my amendment is to make it clear that the conduct that took place outside the United Kingdom is none of our business, but that within the UK such conduct would not be legal. If other Committee members can think of a better formula or a halfway position that meets the anxieties that I have expressed, I would be only too delighted to hear it. We cannot allow this clause to pass without some consideration. Mrs. Brooke: I share the hon. Gentleman's concerns about clause 16 and several other clauses, but I am not entirely convinced by his amendment. Cultural and ethnic differences are certainly important, and we have debated at great length where loopholes might occur. This clause has the potential to create a dangerous loophole, which could be used by child abusers, who could convene a marriage under another jurisdiction. I see that as a possible outcome, and I ask the Solicitor-General whether it would be better to leave the clause out of the Bill and rely on discretion instead, as we have talked about doing for so many other difficult cases. If there was a marriage in which no abuse was going on, would not we argue that discretion should be used and there should be no prosecution? The thought that marriage could be used as a vehicle for abuse fills me with horror, and I have, in my non-legal way, the greatest concerns about the clause.
9.45 amMr. Malins: This is an important clause, as my hon. Friend the Member for Beaconsfield said. There are Column Number: 178 those, including the Law Society, who take the view that the clause is wrong in principle. The Law Society feels strongly that all children in the UK jurisdiction should have the same protection, no matter what their social or immigration status or personal history. It worries me that the provision could be a loophole that allows child abusers impunity by virtue of marriage to a child in another jurisdiction.This is an interesting clause that raises a few questions, which my hon. Friend has mentioned. The key words are ''lawfully married''. When I looked at the explanatory notes, I found the following sentence on the clause:
That, of courses, raises the question of what marriage means. We all deal with immigration and asylum cases in our surgeries. Hon. Members might be surprised to hear that in my constituency of Woking there is a large and settled population originating in Pakistan. Many asylum and immigration cases come my way. Quite often, one deals with other communities, too. An applicant for settlement in this country may rely on a marriage to secure that settlement. Members of the Committee know that quite often it is difficult to establish a marriage. What do we mean by a marriage? There are so many different cultures and societies to which the contract of marriage into which we enter in this country is, in a sense, not so relevant. There are countries where the marriage ceremony is no more than a function—by that I mean it is, in effect, a get-together for a meal, but that is regarded as a marriage. Equally, there are countries where divorce is, or used to be, obtained quite simply by the husband or wife—in the past it was the husband—simply saying three times to the spouse: ''I divorce thee'', and that was the end of it. I just wanted to raise the issue of what we would call marriages taking place in a foreign jurisdiction. Will the Solicitor-General explain the term ''lawfully married''? Does she mean lawfully married under the laws of this country? If so, perhaps we face fewer difficulties. Does the term also mean lawfully married according to the customs or traditions of a different country? That is an interesting point because, as I said to my hon. Friend the Member for Beaconsfield a few moments ago, unless I am grievously mistaken, we in this country recognise foreign marriages to the extent that we are prepared to accept jurisdiction over divorces. The Solicitor-General might talk to us about the age of consent for marriage in different countries, and she will be right to do so. For example, the European Union's position on ages of consent is comprehensible to us—we talked about that in relation to sexual activity between young people—and I am sure that in some EU countries marriage can be contracted at a different age than in our country. However, I hope that the Government will take the following point on board. About 30 million people—including refugees—are on the move in the world, and more of them than ever before are entering European jurisdictions. Marriage ceremonies that are entirely lawful in the countries from which they come might not be Column Number: 179 recognised as lawful by us. I have not even mentioned bigamous marriages.The clause could present difficulties, not least evidentially. If cases relating to it were to come to court, the defence could say, ''The couple were lawfully married in country X.'' It might be very difficult for a judge or jury to get a handle on that because we simply do not know what may or may not be a lawful marriage in a particular part of the world. Therefore, once that issue is raised, there might be difficulties. I will say no more, as I am merely echoing what my hon. Friend said. However, I have raised a few questions, which I hope the Solicitor-General can deal with. My main point goes straight back to the issue of whether or not ''lawfully married'' means lawfully married according to the law of our country. Vera Baird (Redcar): I too am concerned about the clause, and I wish to echo—but not to repeat—the concerns that have been raised by Committee members. I am opposed to the clause in principle. We are against sex with children. We are against eroding the age of consent. If we think that a girl cannot lawfully consent to sex under the age of 16—let alone under the age of 13—it is difficult to see how we can at the same time acknowledge that she has the capacity to marry. As the hon. Member for Beaconsfield has said, sex is part and parcel of marriage and it is frequently—although, perhaps, not often—its primary purpose. It worries me that we will be licensing a person to do what anyone else would risk suffering a 14-year penalty for doing because he happens to have entered into some form of marriage contract. It is wrong in principle to say that because he has married a young person—one who, according to our assessment of what true consent is, would have difficulty consenting—she belongs to him and the rules against underage sex do not apply. That comes very near to reversing R v. R, and to saying, ''It is not all right to have underage sex with someone, but if you marry them it is fine because you own them and you can do what you want with them.'' I do not decline to acknowledge the cultural sympathy that has motivated this provision, but it raises huge concerns in my mind. I do not think that cultural sympathy is so important that it ought to lead to us authorise non-consensual sex with children, which the exception inevitably will do. I know that there is an argument that because the current offence refers to unlawful sexual intercourse, someone who is lawfully married might not be committing an offence at present—that there might currently be an exception. I appreciate that point, but it comes back to the issue of what a lawful marriage is—and, probably, to what a lawful marriage should be. I am concerned about the clause, and I want the Government to think about it again.
|
| |
| ©Parliamentary copyright 2003 | Prepared 16 September 2003 |
