Joint Committee On Human Rights Eighth Report


Female Genital Mutilation Bill

40. The Female Genital Mutilation Bill,[50] introduced by Ann Clwyd MP, with Explanatory Notes prepared by the Home Office, would re-enact sections 1 and 2 of the Prohibition of Female Circumcision Act 1985, under which it is an offence to excise, infibulate or otherwise mutilate the whole or any part of a woman's or girl's labia majora, labia minora or clitoris save for medically therapeutic purposes, or to aid, abet, counsel or procure such an act. In addition, the Bill would give some extra-territorial effect to the crime. It would be an offence to aid, abet, counsel or procure an act of female genital mutilation outside the UK done by a person who is not a national of, or permanently resident in, the UK (clause 3). It would also become an offence for someone who is a national of, or permanently resident in, the UK to do any of the acts prohibited by clauses 1 to 3 when he or she is outside the UK.

41. The primary object of the Bill is to protect girls against being pressurized into undergoing what is sometimes called 'female circumcision' for reasons of social custom or ritual. While allowing medical procedures to be undertaken by medical practitioners for necessary therapeutic purposes, including safeguarding mental health (clause 1(2)(a)), the Bill (like the 1985 Act) would require practitioners to disregard whether the patient or anyone else believes that the operation is required as a matter or custom or ritual (clause 1(5)).

42. The Bill's primary object is consistent with children's human rights, including the right to bodily integrity (protected by ECHR Article 3), and the right to autonomy and self-determination (protected by ECHR Article 8). To the extent that it advances the welfare and rights of children, the Bill seems to us to be a welcome development in terms of human rights.

43. However, the Bill is not limited to children. Clause 6(1) defines 'girl' as including 'woman'. The right of mentally competent adults to make and give effect to choices about the treatment of their bodies is protected as an aspect of the right to respect for private life under ECHR Article 8.1. Any interference with it must be justifiable in terms of Article 8.2: it must be in accordance with the law, and necessary in a democratic society (that is serving a pressing social need in a manner proportionate to the need) for one of the purposes listed in Article 8.2. The 1985 Act and the Bill meet the 'in accordance with the law' requirement, and their objectives fall within the legitimate aims of protecting rights and health. But is there is a pressing social need to impose such protection on competent adults, and are the means adopted in the Bill proportionate to such a need in the case of competent adult women?

44. There may be circumstances in which the State is entitled, under ECHR Article 8.2, to prevent people from letting other people treat them in ways that society regards as damaging. Even if people want to suffer an injury or death, it may be legitimate for the State to make it unlawful for the injury or death to be inflicted on them. For this reason, English criminal law does not violate ECHR Article 8 by making consent to sado-masochistic acts irrelevant to a charge of assault occasioning actual bodily harm arising out of a sado-masochistic encounter.[51] Similarly, the law does not violate Article 8 by making it a criminal offence to aid and abet a suicide.[52] In the same way, it may be legitimate for the State to prohibit even consensual genital infibulation, and so forth. It is certainly legitimate, in our view, in order to protect children, and adults with a mental disorder or disability. The question is whether there is a pressing social need to prevent mentally competent adults from electing to undergo such procedures, and, if there is, whether the extent of the prohibition is proportionate to its aim.

45. We consider that there is a serious risk that women might be put under social pressure to consent to genital excision, infibulation or mutilation. While fully aware of the fundamental importance of personal autonomy, we conclude, on balance, that the special evil of women being pressurized into undergoing such procedures could justify a total ban on carrying them out, even on competent consenting adults, for non-therapeutic purposes. We therefore do not believe that the Bill would pose a serious threat to Convention rights.

Bill drawn to the attention of each House

46. We consider that one Private Member's Bill, the Greenbelt Protection Bill, requires to be drawn to the attention of each House on human rights grounds.


50   House of Commons Bill 21 Back

51   R. v. Brown (Anthony) [1994] 1 AC 212, HL; Laskey, Jaggard and Brown v. United Kingdom, App. Nos 21627/93, 21826/93 and 21974/93, RJD 1997-I, 24 EHRR 39, Eur. Ct. H.R. Back

52   R. (Pretty) v. Director of Public Prosecutions (Secretary of State for the Home Department intervening) [2001] 3 WLR 1598, HL; Pretty v. United Kingdom, Eur. Ct. H.R., App. No. 2346/02, judgment of 29 April 2002 Back


 
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Prepared 11 April 2003