Female Genital Mutilation Bill
40. The Female Genital Mutilation Bill,
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
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.
Similarly, the law does not violate Article 8 by making it a criminal
offence to aid and abet a suicide.
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
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
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
R. v. Brown (Anthony)  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
R. (Pretty) v. Director of Public Prosecutions (Secretary
of State for the Home Department intervening)  3 WLR
1598, HL; Pretty v. United Kingdom, Eur. Ct. H.R., App.
No. 2346/02, judgment of 29 April 2002 Back