On the previous group of amendments, the noble Baroness, Lady Smith of Basildon, called very sensibly for clarity. The challenge in this matter is not just the law but the practice itself. The figures that the noble Baroness, Lady Meacher, quoted are appalling: 100,000 victims in the UK; and 25,000 under the age of 15 at risk every year, perhaps even more. These figures are horrendous, but they are meaningless without prosecutions —that is, police and prosecuting authorities taking action. That is what is lacking. We have listened to them and they hope for prosecutions, but there has not been a single prosecution for female genital mutilation.

I looked at the figures for West Midlands Police. This is one of the areas where you would expect them to take a great deal of interest, but in 2011 they investigated eight cases. In 2012, that went up to 25, and in 2013 it was 41. They are getting better but very slowly. That speaks to the fact that this is a very difficult area for prosecution authorities. The noble Lord, Lord Lester of Herne Hill, spoke to that.

Given the current law and without a single perpetrator having been brought to justice, my fear is that this amendment with its vagueness would be counterproductive and make life more difficult for the prosecution authorities. My fear is that more law, no matter how well intentioned, that is too loose to be effective in practice—the practice is important—will create only more problems in enforcement rather than bring justice to those many innocent children. I applaud the intention of this amendment, but I caution about its outcome.

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Baroness Benjamin: My Lords, the NSPCC asked me to speak to this amendment because it believes that it will be beneficial to many young girls. I am pleased that this is being discussed. As this House recognises continually, FGM is child abuse and we should do all we can to tackle this cruel and painful practice. It is important that legislation is clear on this, but we have to be realistic on FGM that the law can only do so much, as has been said time and time again today. Until the social norms in which FGM operates are challenged, it will be difficult for members of communities to come forward to share their concerns about children who are vulnerable to FGM.

The NSPCC has stated that the amendment proposed is to be welcomed, given that it would create a specific offence and make it easier to bring cases against those who support FGM, even indirectly, whether they reside in or are just visiting the UK. This would help to support the excellent work being done to tackle the practice in communities—work that can be hampered when community leaders, family members and others continue to promote and encourage the practice of FGM.

I am aware that, as we heard on the previous amendment, there are existing FGM laws in place, but I believe that this amendment is probing what further can be done to stop this barbaric practice. We must always have children’s well-being at the top of our priorities. Young girls suffering the horrors of FGM need to know that not just laws but members of society will protect them from the suffering that many young girls are going through today.

Baroness Smith of Basildon: My Lords, first I congratulate the noble Baroness, Lady Meacher, on bringing this forward. We debated this in Committee and have looked at it before. I have had discussions with the noble Baroness, and indeed with the same lawyers to whom she has been speaking. We have to try to find a way forward on this issue.

I agree very much with the noble Lord, Lord Dobbs, on the issue of clarity and on the need for prosecutions. In the previous debate on FGM protection orders, we heard that the right for victims to be anonymous will help to bring some of those cases forward. However, a telling point was made by both the noble Baroness, Lady Meacher, and the noble and learned Baroness, Lady Butler-Sloss, when they said that the purpose of the amendment is as a deterrent. It seems to me that in some of the laws we bring forward we fail when we have to prosecute. The very purpose of the law is that we should not have to prosecute because the law is what stops an offence taking place.

This is a difficult area. We had these discussions in Committee, but I can see exactly what the noble Baroness, Lady Meacher, is trying to do in protecting girls and women from female genital mutilation. It is about those who would persuade, not just by suggesting that it is a good idea but by encouragement and advocacy, while knowing that they have to avoid a charge of incitement. They would not instruct someone to commit an offence but encourage and lead them to believe that it is the right thing to do. I am sympathetic to and

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supportive of the need to address the problem. The NSPCC has made the point and the Local Government Association has brought forward its concerns as well.

It strikes me—indeed, I am convinced—that, if we are to wipe out FGM within the UK, we have to address the specific issue of encouragement, promotion and advocacy. We know that some of the best persuasion is subtle. There are those families who believe in the practice not through somebody within that family or the community saying, “You must have your daughter cut”, or have FGM, but through comments, persuasion, advocacy and encouragement that can lead families to be fearful if they do not proceed with the process.

Obviously, we do not want to go down the road of criminalising people for the comments they make. I wonder whether the noble Lord, Lord Dobbs, has read the clause in its entirety. He talked about tribal customs or something, but the proposed clause refers specifically to female genital mutilation and that is the only offence in this context.

I acknowledge that this amendment has been tabled only recently and we have not had a full opportunity to distil the detail, and I understand that the Minister will say that the Bill team does not believe that this will address the problem. However, I hope that that is because the noble Baroness realises that there is a serious problem. Young girls in this country are undergoing this barbaric process and procedure because somebody in their community thinks it is the right thing to do. It is shocking that mothers and grandmothers, as mentioned by the noble Baroness, Lady Tonge, having gone through the process themselves, inflict it on their children and grandchildren. Unless we break that cycle and persuade mothers and grandmothers that it is wrong, we will not be able to stop children in this country going through it. That is the point the amendment is trying to make.

We need to break that link—that cycle—of people saying, “This is the right thing to do. You must do this. Your child must be clean”. We have to break the cycle so that we do not have the encouragement, advocacy and pressure that children should undergo FGM. That is the only way we can wipe it out in this country.

5.45 pm

Baroness Tonge: I thank the noble Baroness so much for making that point. The encouragement frequently comes from within the family, as it does for male circumcision. It becomes the law of the family; that is what has to be done. It is not just the grandmothers who perpetrate it. The children themselves are led to believe that it is being done for their good, just as male circumcision is sold to older boys. Therefore, they somehow comply and they certainly do not want to take action against their own parents because it is happening within an otherwise loving family. It is a very difficult and delicate process. The noble Lord, Lord Dobbs, is so right to say that what we need is not more legislation—although I welcome it tremendously and thank the Government for it—but some prosecutions.

Lord Bates: Just to clarify, the Companion states that further interventions should be for clarification purposes only rather than further conclusions.

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Baroness Smith of Basildon: It could be argued that that was a considerable clarification. I am grateful to the noble Baroness.

If the Minister’s Bill team does not believe that this addresses the problem, and we in your Lordships’ House all understand what the problem is, can we look at it again? The Minister has been very good and I greatly appreciate her co-operation. We can have discussions before Third Reading and full debates in the other place as well. This is the only opportunity, as we will not have another Bill on this in the short term. We have an opportunity here to get it right. We would welcome discussions with the noble Baroness, Lady Meacher, and the noble and learned Baroness, Lady Butler-Sloss, as well as the lawyers who have tried to find a way through on this without encroaching on the kinds of issues that the noble Lord, Lord Dobbs, rightly addressed, or on issues of free speech. We can find a way through and this is the only chance we have. If we are to wipe this out in the UK, we have to address it.

Baroness Williams of Trafford: Again, this has been a further excellent debate on the role of the criminal law in helping to put a stop to the practice of FGM in this country. I am grateful for the constructive approach that the noble Baroness, Lady Meacher, and others have adopted in both debates and in the discussions we have had outside and inside the Chamber.

As many noble Lords have said, we are aiming to get to the same end. It is slightly unfortunate that the amendment was tabled quite late and that there is a difference of opinion in terms of what the amendment seeks to achieve. My noble friend Lady Hamwee rightly pointed out, on the point about “other or others”, that the amendment does not seek to achieve what was sought in the original amendment, if that makes sense.

I also thank my noble friend Lady Tonge and the noble Baroness, Lady Meacher, for pointing out quite strongly that this is not a religious matter. There is nothing in any religious text that points to FGM being something that should be carried out on young girls. It is a specific cultural practice that exists in certain communities in the world and has found its way to this country. Legislation alone cannot eradicate a practice that is so deeply ingrained in the culture and traditions of those who practise it and have been doing so for centuries, but I agree that the law is a very important part of our response to the abhorrent practice of female genital mutilation, and it is right that we should change it where necessary.

We believe that the new offence that we have just debated of failing to protect a girl from risk of genital mutilation gets to the heart of the issue. The Government’s new offence focuses on those who allow this dreadful abuse to be perpetrated on their daughters rather than on those who may only encourage them to do so. That is not to suggest that encouraging female genital mutilation, or indeed any crime, is in any way acceptable.

I take the point made by the noble Baroness, Lady Hamwee, that such behaviour also constitutes an offence under the provisions of Part 2 of the Serious Crime Act 2007, which contains inchoate offences of: intentionally encouraging or assisting an offence; encouraging or assisting an offence believing it will be

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committed; and encouraging or assisting offences believing one or more will be committed. As the noble Baroness observed, the revised wording of the proposed new offence follows closely the wording of the existing inchoate offences. That is both its strength and, dare I say, its weakness. As a result, it would not cover behaviour that is not already covered by the existing 2007 Act offences.

We are not persuaded that creating a specific offence of encouraging FGM is necessary or appropriate. The provisions in Part 2 of the Serious Crime Act 2007 apply to all criminal offences precisely so that it is not necessary to create specific encouraging or assisting offences for every crime. We agree that the behaviours now referred to in the noble Baroness’s revised amendment should be criminalised, but that is already the case. This amendment would not advance the criminal law in this area—I suspect this is where we are going to have a further conversation.

We believe that changing the culture and attitudes that allow female genital mutilation to persist will be better achieved through the awareness raising and community engagement that the Government have already embarked upon, rather than through the creation of another, arguably unnecessary, inchoate offence.

I wholeheartedly commend the aims of the noble Baroness, Lady Meacher, and others in tabling her amendment. As I have said, this House is united in its desire to eradicate FGM, even though we may differ on how best to achieve that end. I hope the noble Baroness will agree that the government amendments that we have just debated represent a substantial package of measures to strengthen the civil and criminal law to tackle FGM. I firmly believe that they offer a better way forward, and on that basis I ask the noble Baroness not to press her amendment.

Baroness Meacher: I thank the Minister for her constructive response and all noble Lords who have spoken very constructively in this debate. I particularly thank my noble and learned friend Lady Butler-Sloss for her very important point that this amendment, unlike any other, would achieve deterrence, and that is what we want to do. We want to deter this dreadful act. We do not want just to prosecute after the event, although it is difficult ever to achieve a prosecution. If we can deter, we have really got to the goal that is now clearly shared across all sides of the House, which is to change the culture on FGM. We therefore need to change the way the leaders operate and the way they encourage people to indulge in this terrible act.

I also thank the noble Baroness, Lady Smith, for her very helpful support. We must try to find a form of words that the government lawyers, our lawyers and all other lawyers agree will achieve this incredibly important objective. On that basis, I beg leave to withdraw the amendment.

Amendment 45A withdrawn.

Amendment 46

Moved by Lord Harris of Haringey

46: After Clause 66, insert the following new Clause—

“Protection of children from sexual communications

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(1) A person (“A”) commits an offence where A intentionally communicates with another person (“B”) in the following circumstances—

(a) A is aged 18 or over,

(b) either—

(i) B is under 16 and A does not reasonably believe that B is 16 or over, or

(ii) B is under 13,

(c) the content of the communication is sexual or intended to elicit a response that is sexual, and

(d) subject to subsection (3) below, A’s purpose in sending the communication or seeking a response is sexual.

(2) The communication may be in any form including verbal, written or pictorial (which may include still or moving images) and may be conveyed by any means whatever.

(3) A does not commit the offence in subsection (1) above where the purpose of the communication is for the protection of the child to which the communication is sent.

(4) For the purposes of subsection (3), a person acts for the protection of a child if he acts for the purpose of—

(a) protecting the child from sexually transmitted infection,

(b) protecting the physical safety of the child,

(c) preventing the child from becoming pregnant, or

(d) promoting the child’s emotional well-being by the giving of advice, and not for a sexual purpose.”

Lord Harris of Haringey (Lab): My Lords, the purpose of this amendment is to create an offence where an adult engages in a sexual communication with a child or—this is very important—seeks to elicit from that child a sexual communication in response.

The amendment covers verbal, written or pictorial communication. It includes video communication and it covers all forms of communication whether by telephone, the internet, instant messaging and even gaming systems, such as the Xbox. This brings the law in this part of the United Kingdom into line with the law in Scotland, so this is not new territory. I am grateful to the NSPCC for the discussions and briefings I have had, and I know it has had discussions with a number of other noble Lords on this matter. I note that on Friday it launched an online petition on precisely this issue and that by last night it had already achieved 20,000 signatures, so there is a degree of interest and of belief that this is necessary. Indeed, if you speak to many parents, you come across the argument time and time again about why this is important and their concerns for their teenage and younger children.

The reality is that the current law that purports to cover these issues is fragmented and confused. It makes it hard for the police to bring suitable cases against perpetrators and what legislation there is by and large pre-dates the widespread use of the internet and social networking sites. In practice, the current law fails to recognise the nature of grooming. In grooming the perpetrator is not trying to be offensive to the child, to frighten the child or to intimidate the child. The abuser is trying to flatter the child and to persuade the child that they are the person who matters and the only person who cares for them and, as part of that, to persuade the child to respond to them sexually and send them sexual or indecent communications.

This is a widespread problem. Last year, ChildLine reported an increase of 168% in contacts of this nature. ChildLine is receiving reports daily of large

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numbers of these cases. For example, a 15 year-old girl was groomed by someone who she thought was 17. In fact, he was 44. She met him through a social networking site, and they chatted online most nights. In his guise as a 17 year-old boy, he said that he was in love with her. He started talking about more sexual things. At first she was not too worried as her friends told her that this was just what boys did. She then sent him a picture of herself naked. He had elicited that picture. At this point, he admitted that in fact he was 44 but said that age did not matter and that he really loved her. When the girl said that she was going to stop the contact, he threatened to share her images on the internet and tell all her friends what she had done. That is a real case from ChildLine of the sort of thing that happens. It would have been quite difficult to take the man concerned to court, as I understand it, on the existing basis.

By contrast, there is a case study from Scotland. It concerns a Mr James Sinclair who was 25. He gave a 14 year-old girl a mobile phone and sent her a series of sexual text messages. The girl’s family found the messages and contacted the police to report the matter. The family had reportedly tried for some time to stop the victim having any contact with the accused, but those efforts proved unsuccessful. Police officers examined her mobile phone and traced and detained the offender. Sinclair was put on the sexual offenders register. Under the current law in England, Wales and Northern Ireland, he could not have been prosecuted because he could have mounted a defence that he did not intend to cause distress or anxiety as the child seemed willingly to engage in the sexualised conversation. That is the context in which we are talking here. The current law is inadequate.

6 pm

I do not know what is in the Minister’s brief but my experience of Home Office briefings on these matters is that they almost always say, “Ah no, there is an existing offence that covers that”. I am not sure I agree. Existing legislation simply is not clear enough and in many cases the defence could argue that the threshold required for the communication to be covered by the offence had not been met. For example, the Sexual Offences Act 2003 covers only situations where it can be proved that the adult intends to meet the child. Increasingly, abusers online have no intention of meeting the child and abusing them physically. This is all about online grooming. They want to extract the sexualised pictures or whatever else it might be. The Sexual Offences Act does not cover that. Perhaps the Minister is going to talk about the Malicious Communications Act 1988. Under that legislation there must be an,

“intent to cause distress or anxiety”.

However, as I have already said, abusers operate in the exact opposite way. They flatter the child. They make the child feel special in order to build up the child’s trust. Importantly, anyone, even if convicted of this offence, would not be subject to sexual offender registration and notification requirements.

It may also be that the Minister will be relying on the Communications Act 2003. The defence there could argue that the threshold of,

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“a message … that is grossly offensive or of an indecent, obscene or menacing character”

has not been met. Again, importantly, anyone so convicted would not be subject to sex offender registration and notification requirements but there the focus is on the message sent by the perpetrator to the child and it needing to be grossly offensive or indecent, obscene or menacing. In most of these instances the message sent to the child is flattering; it is persuasive. It is encouraging the child. It is not grossly offensive; it does not need to be as it is trying to persuade the child to send an image of themselves. It does not have to be obscene or menacing because this is about flattery and persuasion.

I believe that the current law is inadequate in protecting children from online abuse and that the standalone offence in this amendment is needed to ensure that the law is clear. It makes it clear that intentionally sending a sexual communication to a child is illegal and there are definitions in the amendment as to what constitutes an adult and what constitutes a child. Moreover, it would make it illegal to seek to elicit a sexual response from a child by means of a communication. I believe that this will help prevent abuse from escalating and protect children from sexual material in this way. I beg to move.

Baroness Howe of Idlicote (CB): My Lords, I support Amendment 46, which relates to the protection of children from sexual communication. As the noble Lord, Lord Harris, said, his amendment is supported by the NSPCC. It proposes a new offence so that it is always illegal for an adult intentionally to send a sexual message to a child.

In recent years children’s internet usage has grown exponentially. As your Lordships know, children between the ages of eight and 15 now spend far more time online than they do watching television. They are also keen users of social networks, with many engaging in risky online behaviour, including being in contact with people via social networks who are not directly known to them, sharing personal information, which makes them vulnerable to abuse, and sharing indecent pictures. We have heard about that from the noble Lord, Lord Harris.

Indeed some people behave in very different ways online to offline, apparently. Police interviews with sex offenders show that the majority differentiate the real world from cyberspace believing that their behaviour is acceptable because what is happening is not real or tangible. One offender said that masturbating on a webcam in front of a teenager seemed like “Fun at the time”. He stated that he would not behave that way offline. Consequently, young people are experiencing all sorts of abuse on a scale that we have never seen before. Last year, Childline, as the noble Lord, Lord Harris, said, had an amazing 168% increase in contacts from children relating to online sexual abuse.

The law needs to be changed better to protect children from adults who send these sorts of sexual messages to them. The noble Lord, Lord Harris, suggested that existing laws cover online grooming but the NSPCC and others who support this campaign do not believe that is true. The Sexual Offences Act 2003 was referred to. But, increasingly, abusers online have no intention to meet and abuse the individual child physically.

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Therefore, the Act apparently does not cover online grooming. There is a similar situation with the Malicious Communications Act 1988. Finally, if the Crown attempted to prosecute an offence under the Communications Act 2003, the defence could argue that the threshold of,

“a message … that is grossly offensive or of an indecent, obscene or menacing character”

had not been met. The Act also does not cover the use of private networks to communicate.

Current laws mean that police can be powerless to act until a child has been coerced into sharing an indecent image, lured to a meeting offline or, in the worst cases, sexually abused. The confusing nature of the law in this area means far more needs to be done to enable the police to take early action to prevent abuse escalating, reducing the risk to children and young people and helping them to keep safe online.

The amendment of the noble Lord, Lord Harris, seeks to close this gap in the law better to protect children online and would enable action to be taken against offenders at an earlier stage of the grooming process before an arrangement to meet had been made. It would help protect children from unwanted sexualised content online, potentially have a deterrent effect on offenders and put more responsibility on adults to ensure that who they are talking to online is indeed another adult. More than 75% of people believe it is already illegal for some aged over 18 to send a sexual message to a child under 16, while more than 80% of people have expressed support for such a change in the law. I very much hope that the Government will support the amendment of the noble Lord, Lord Harris.

Baroness Hamwee: My Lords, it always seems churlish to take up points in the text of an amendment when one supports the thrust of it but I am afraid I am going to. The action of grooming is hugely serious. On the noble Lord’s example, I wonder whether at least a part of that will be covered by the revenge porn amendment to the Criminal Justice and Courts Bill about the use of images, moved on Report. My noble friend Lady Grender, who put her name to it, arrived just after I had managed to find the text of that amendment. However, that is not my only point on this amendment.

The grooming which the noble Lord described often includes a lack of knowledge in either direction of the people taking part in e-mail exchanges. Therefore, I wonder whether it is appropriate to use the words, which I think have come from the 2003 Act, of A not reasonably believing that B is 16 or over, particularly as I suspect—I do not have detailed knowledge of this—that B, the child, may often claim to be older than she or he is. That is probably my major concern. There is also a reference to subsection (3) which sets out the circumstances in which no offence has been committed—but that only applies to paragraph (1)(d) where it must also apply to (1)(c), and it does not actually need stating in either case.

Perhaps I had better not go down the road of whether communications are written or oral—perhaps verbal is the word one should use there. More serious

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is the question of whether the list in proposed new subsection (4) is intended to be exhaustive. I would have thought not, but it reads that way. In proposed new subsection (4)(d) I query the reference to promotion of,

“emotional well-being by the giving of advice, and not for a sexual purpose”.

I am not sure whether those words correctly describe the difference between the sexual purpose of the perpetrator and the connection between emotional well-being, sexual advice and sexual well-being, which are inseparable.

Finally, might it not be better to go at this by trying to amend the Sexual Offences Act itself? That would lead to consequences, including the sex offenders register, to which the noble Lord quite rightly referred. Again, while I support the thrust of this, I am afraid that I could not support this particular amendment, which would take us in a direction that might be more difficult to untangle.

6.15 pm

Baroness Benjamin: My Lords, as we have already heard, the NSPCC supports the amendment and, as it always hold children’s best interests at heart, it is good that we are debating why it does so.

For children and young people, the internet is an exciting extension of their offline world, a source of information and communication and a way to expand their social lives and networks. However, along with the great benefits of the internet there is also a considerable amount of risk—a dark side, from which we need to protect children by putting measures in place.

As the noble Lord, Lord Harris, said, ChildLine last year had a 168% increase in contacts relating to online sexual abuse year. This is a most disturbing trend. Young people have told ChildLine that they are experiencing all sorts of new abuse on a scale never before seen, and many parents say that keeping their children safe online is a key concern for the welfare of their child.

The problem is that there is inadequate protection for children from adults who send obscene or disturbing material to them—in the majority of cases, over the internet. The current law in this area is fragmented and confused, making it hard for police to deal with sexual messaging appropriately. Existing legislation, such as the Sexual Offences Act 2003, predates the widespread use of the internet and the huge growth in the number of offenders targeting children online.

Evidence has shown that, increasingly, offenders have no intention of meeting the child because the internet gives them new ways to control and influence children without ever having to touch them. The end goal may now be to persuade, coerce or groom a child to get them to perform sexual acts via a webcam. This can sometimes leave children feeling mentally abused, with low self-esteem, and is often the start of self-harming.

Under the current law it is hard to tackle grooming behaviour at an early stage, meaning that intervention can often be made only when the abuse gets to a more serious and extreme level, such as when the child sends an image of themselves, or when arrangements are made to meet and abuse the child. There have been

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suggestions that there is adequate provision in existing law to cover online grooming. However, the NSPCC and other children’s charities do not agree. Under existing legislation, many of these offences would not be captured because the defence would argue that the threshold required for the communication to be covered by the offence had not been met. What is the solution? The NSPCC believes that this amendment would close a gap in the law, to better protect children online.

A YouGov poll found that three out of four adults believe that it is already illegal for someone over 18 to send a sexual message to a child under 16. The fact is that no such specific offence exists. Eight out of 10 people polled by YouGov said that they would support a change in the law. This simple and sensible change would have a number of positive effects in relation to protecting children from online abuse, primarily helping to protect children from unwanted and distressing sexual contact online and enabling action to be taken against offenders at an earlier stage of the grooming process, thereby helping to prevent abuse escalating. I hope that the Government will give full consideration to this amendment, to protect our children. I look forward to the Minister’s response.

Baroness Smith of Basildon: My Lords, my noble friend Lord Harris and the noble Baroness, Lady Howe, have undertaken a service to your Lordships’ House by tabling this amendment for debate today. There is no doubt that, alongside the advantages that modern technology brings, it also brings new dangers for children. Looking across your Lordships’ House, I suspect that when any of us went out to play as kids, our parents would tell us, “Careful how you cross the road, and don’t talk to strangers”.

If I am honest, my parents were happiest if they thought that I was safe upstairs in my bedroom with my friends, playing my music or pretending to do my homework. Nowadays, parents have those same fears while the child is at home in their bedroom, on their computer or mobile phone. It is very difficult for parents always to understand or put in the controls that need to be there. The danger has moved; it can now be in the home or in the child’s bedroom. The law has to keep pace with the changes that have come about. The technology has moved, and the law has to move too.

I am very grateful to the NSPCC for what I thought was a very helpful briefing. I also agree with the point that my noble friend Lord Harris made about the “slow burn” of these types of offences. I recall dealing with a case some time ago where there was a man in his 30s, who had a family, who was corresponding with an 11 year-old girl in another country, who thought that she was in contact with another 11 year-old girl. In that case, he was stopped before it went too far, but it is easy to see how over a period of time somebody can believe that the person they are in contact with is someone just like them. It is their friend, whether it is a boyfriend or someone of the same gender. This is the grooming that is referred to.

I will not go into the detail of the legislation, because my noble friend Lord Harris explained that, but I am sure that the Minister’s file covers this area. When he took up his post, he was kind enough to meet

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me. He thought that I had been a Home Office Minister. I was not; I was a Home Office PPS. Part of my duties as a PPS was to run two paces behind my Minister, clutching the file as he went into Committee. On every page, against an amendment put down by a member of the Opposition was a line which read, “Resist, it is covered by other legislation”. I expect that the noble Lord has a very similar file in front of him today.

I will give the Minister the benefit of my experience on this issue. This came up previously when we were debating the anti-social behaviour Bill in your Lordships’ House. I was brought a proposal from the Manchester police and crime commissioner about how to shut down more quickly premises that have been used for grooming young girls for sex. I was told “We do not have the powers”. I had a letter from Norman Baker, the Home Office Minister which said, “Of course you have the powers; this can be done; you can use the prostitution laws”. How could you use the prostitution laws with an 11 or 12 year-old girl? You could not. However, the advice from the Home Office in correspondence after correspondence was that it was already covered by existing law.

We often hear that it is covered by existing law, but our experience when we see offences being committed, but not being prosecuted, is that the existing law is inadequate. On that occasion we tabled an amendment. The noble Baroness, Lady Hamwee, had the same concerns then as she has expressed today about it not being the right kind of legislation and said that it should be in another Bill. Where there is a will, there is a way. If we really want to address some of these problems, we can. The noble Lord, Lord Taylor, was very helpful on that occasion. I withdrew my amendment. The Government came back with their amendment which we were delighted to support and were very grateful to do so.

There is an opportunity here. The wording may not be perfect; I am sure that the Minister has his note saying, “resist”; but there is an issue here that has to be addressed. Failure to address it now will mean that we lose the opportunity until the next Home Office Bill. I know that they are like double-decker buses sometimes, but we have an opportunity here to bring the law up to date. The law exists in Scotland and is used for prosecutions in Scotland when other laws fail. So here is an opportunity. I hope that the Minister can just put his file to one side and not resist, just until Third Reading, to see whether there is a way forward to address what is becoming a pretty serious problem.

Lord Bates: I am tempted by the Baroness’s offer to put my file aside, but I will stick with it a little because, as we have seen through this whole process of discussion in Committee, which she has been following right from the beginning, it is not the case that “resist” is there because it is something that someone just does not want to consider. All the way through, we have seen the openness of officials to have meetings with groups and with Back-Bench Peers. The genuine government amendments that have been brought forward, and the responses, not least today and on other matters, show that we are all very much on the same side on all of the issues, whether it is FGM, mandatory reporting, or indeed this one.

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However, there are genuine differences between people in some NGOs about the best way of achieving this. Officials are using their knowledge and expertise of the system to ask whether this is actually something which is going to strengthen our hand. A great forecast was made by the noble Lord, Lord Harris, of what was actually in my speech. I can assure him that I shall not disappoint him in referring to those specific Acts. One reason why I shall not disappoint him is that the Ministry of Justice has met with the NSPCC, as you would expect, and talked to it about its concerns in this area. It has shared its thoughts on the amendment.

I will try to be as helpful as I can, but I need to get some remarks on the record. If the House could bear with me in my responses, I will come back to the specific issues raised. I share the noble Lord’s objective, which is to ensure that we have a robust body of criminal law to tackle predatory sexual behaviour by adults against vulnerable children. The House remains united in its condemnation of the sexual abuse of children, and it is through the work of noble Lords across all parties and none that we have some of the strongest and most respected criminal laws in the world to deal with this dreadful offending.

I thank the National Society for the Prevention of Cruelty to Children, which has proposed this new offence and brought its concerns to this debate. Its efforts, and those of its supporters, have helped to create a tough range of criminal sanctions and provided support to help to protect children. I also thank the NSPCC for engaging in constructive talks with my officials about this new clause. I also mention ChildLine in this context.

The new clause would create a new criminal offence prohibiting an adult from communicating with someone under 16 who they do not reasonably believe to be over 16, or someone who is in fact under 13 years of age, where that communication is sexual or intended to elicit a response that is sexual. The person’s purpose in sending the communication or seeking a response would need to be sexual.

As I said, we have some of the strongest and most robust laws in the world to deal with sexual offences against children. Although we are examining this issue, our preliminary view is that the behaviour targeted by this amendment is already captured under existing law.

I hope that noble Lords will bear with me while I outline some of the existing relevant provisions. If a message is sent by means of a public electronic communications network—that would include the internet—and its content is grossly offensive, indecent, obscene or menacing, it will fall foul of the offence in Section 127 of the Communications Act 2003. Those convicted of this offence who pose a risk of serious sexual harm to the public can be made subject to a sexual offences prevention order. The noble Lord, Lord Harris, mentioned that the situation in Scotland was much better, but in this regard the Communications Act 2003 does not apply to Scotland. It does apply in England and Wales, and there have been 1,314 prosecutions under Section 127 of the Communications Act in 2013 alone. This will cover a range of issues, not the specific

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ones that he is concerned about, but it is certainly not something that the police feel that they have no opportunity to prosecute under the Communications Act 2003.

I realise that this offence would not apply to non-electronic communication or perhaps private communications networks, but our other laws here are broad enough to capture sexual messages to children in this manner. If the messages, including any sent images, are indecent or grossly offensive, sending them may fall foul of Section 1 of the Malicious Communications Act 1988. I readily acknowledge the point made by my noble friend Lady Benjamin, who talked about 1988 certainly predating the world-wide web in that context, but some of the laws that are in place for offensive materials and activities relating to other media are still relevant to the new media, and we should not just disregard them. They fall foul of the Act provided that they are sent with the purpose of causing distress or anxiety to a person to whom the material is communicated, or intended to be communicated.

6.30 pm

Lord Harris of Haringey: I shall try not to intervene too often, given that we are on Report, but I would be grateful for this clarification. The Minister has referred to Section 127 of the Communications Act, which requires the message from the perpetrator to be,

“grossly offensive or of an indecent, obscene or menacing character”.

He also referred to Section 1 of the Malicious Communications Act where the offence is,

“with intent to cause distress or anxiety”.

In the sorts of cases that I have been talking about, there is no intent to cause distress or anxiety. There is no need to be,

“grossly offensive … indecent, obscene or menacing”,

because this is about coaxing the young person through flattery to send a naked image of themselves. Clearly, if it falls into these categories, there is no question that the Act covers it, but these are communications of a different nature.

Lord Bates: I accept that—and this may not endear me to the noble Lord, but I am only halfway through my speech. I will go through some other laws that could catch that particular matter. If it is not the case, I shall certainly come back and address the specific one that he deals with.

It has been pointed out that the Section 1 offence in the Malicious Communications Act is not suitable because it is a summary one and subject to a six-month time limitation on prosecutions. I assure the House that the Criminal Justice and Courts Bill includes an amendment to the 1988 Act, making that offence triable either way, which would have the effect of removing the six-month time limit. The material, depending on the content, could also be caught under the Obscene Publications Act 1959. There was a recent conviction under the Act which captured a paedophilic sexual discussion being held in a private e-mail conversation between paedophiles. This significant conviction demonstrates that the offence can be made out by a publication to one person.

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If the contact or messaging involves the creation of indecent photographs of children under the age of 18, legislation such as the Protection of Children Act 1978 could be used against those circulating such images if, for example, an adult is inciting a child to self-produce indecent images. That was a specific issue that the noble Lord focused on. Section 160 of the Criminal Justice Act 1988 covers the simple possession of these images. There are a range of offences under the Sexual Offences Act 2003, including laws on attempting these offences, which would very likely cover this behaviour, its consequences or intended consequences. I shall spare the House a list of all the offences in the 2003 Act that might be engaged, but let me offer one example. Under Section 10 of the 2003 Act it is an offence for a person over 18 to cause or incite a child to engage in sexual activity. This carries a maximum 14-year sentence. Depending on the individual circumstances, this offence would very likely come into play when sexual communications were exchanged with children, or when they were coaxed, or when non-sexual communications were intended to elicit a sexual response.

There are other offences to deal with exploiting children through involvement in pornography and prostitution. I take the point that the noble Baroness took from the example in Manchester. But this is something that is constantly under review, and has to be, as part of wider efforts to tackle this issue. We have had conversations with the Crown Prosecution Service, which does not feel that there is a gap in the law at present. We have had conversations with the national policing lead, who also does not feel that there is a gap at present. These discussions are ongoing, and I will be very happy to include noble Lords—and specifically the noble Lord, Lord Harris, in the context of this amendment, as well as the noble Baronesses, Lady Howe and Lady Benjamin, in some of the discussions with the CPS and the police to see what needs to be done and whether the provisions are sufficiently robust to deal with the specific examples and case studies that they have given.

Even if the messages are not themselves illegal, if their distribution or sending to a child is carried out as part of a course of conduct that alarms the child or causes distress—something raised by a number of noble Lords—this could amount to a criminal offence under the Protection from Harassment Act 1997. On the face of it, therefore, it would appear to be the case that the current law, if applied properly, already does what the amendment seeks to do. We should be very wary of adding new offences to the statute book if to do so would result in an unnecessary and undesirable duplication of the existing criminal law. However, the Government are always open to suggestions that could strengthen the law in this difficult and sensitive area.

I agree with this amendment to the extent that we want to be absolutely sure that offenders who communicate sexual messages to children or elicit sexual replies are appropriately dealt with by the criminal law. We are therefore investigating with the Crown Prosecution Service and the police to ensure that there are no such gaps that could let those who offend against our young people in this manner escape justice. I am very happy to include noble Lords in that discussion.

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As part of our ongoing consideration of this issue, I have extended that invitation to discuss. I trust therefore that the noble Lord might accept that, in this regard, it is not a “resist” but that the Government are considering carefully what is being proposed, in the light of the existing legislation and to continue that discussion. In the mean time, I ask him to consider withdrawing his amendment.

Lord Harris of Haringey: My Lords, I am grateful for the support that this amendment has had from the noble Baronesses, Lady Howe and Lady Benjamin, as well as my noble friend Lady Smith. The Minister said clearly that he shared its objectives. I have the advantage of seeing his colleagues behind him and I noticed that not only did quite a number of them seem to share the objectives but they were also not entirely convinced by some of his suggestions that these offences were met by the Bill.

I shall deal quickly with the noble Baroness, Lady Hamwee. She did not disappoint us in that she made her usual series of very precise and small points on the amendment. I am clear that this is not a professionally drafted amendment or one that would meet all the best requirements of those who sit in garrets in the Home Office or the Ministry of Justice producing these things. My hope was that the Minister would say that there were sufficient points here that he would come back to us at Third Reading with a beautifully professionally drafted amendment. However, I am not sure that the points that the noble Baroness, Lady Hamwee, made were terribly helpful. She talked about the recent amendment on revenge porn. The issue there was publishing material that had been shared in a private capacity more widely because the relationship had broken up. This does not apply in this instance; this is about eliciting an image from a child, not necessarily to share—although that might happen—but simply to obtain the image. So I am not sure that that change necessarily helps us on this issue. I am sure that we could all struggle with defining age and knowledge of age and we could no doubt find ways in which this proposal could be improved. I hope that the Government can accept that there are at least some points here that need to be looked at.

The Minister then went through, as predicted, some of the various sections that we talked about. Most of them require an intent to cause distress or anxiety, or that the matter is grossly offensive, or of an indecent, obscene or menacing character. As I have said repeatedly—I do not think that the Minister has addressed this issue—those are not the circumstances in which such messages are sent. They are sent not to cause offence to the child concerned, but to make children feel sufficiently comfortable to be able to share naked pictures of themselves.

The Minister referred to the Sexual Offences Act 2003, and causing or inciting a child to engage in sexual activity. I appreciate that there is a fine line to be drawn here, but I wonder whether it would be sufficient to achieve a conviction under Section 10 of that Act if all that the perpetrator has done is to persuade the child to stand naked in front of a webcam. No sexual activity is taking place there, so there are some issues around that.

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The provision in the Protection from Harassment Act 1997 depends on whether the sender knows or ought to know that what is happening amounts to harassment of another. Harassment includes alarming a person or causing a person distress—but the child concerned may not be alarmed or distressed at the point when the actions take place. The child may only realise many years later what they have done, and what the implications are. Again, I am simply not convinced that this is covered. Scotland has legislation covering this point; there is a gap in England, Wales and Northern Ireland.

I am disappointed in the Minister’s reply. I take his offer for further consultation at face value, but I am conscious that Third Reading is only just over a week away, and I hope we can make some progress before then. Without that, I would feel that we need to return to these issues at that stage. However, on the basis of the promised discussions, I beg leave to withdraw the amendment.

Amendment 46 withdrawn.

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

Amendment 46A

Moved by Lord Bates

46A: Clause 67, page 50, line 18, at end insert—

“( ) after section 4 insert—

“4A Anonymity of victims

Schedule 1 provides for the anonymity of persons against whom a female genital mutilation offence (as defined in that Schedule) is alleged to have been committed.”;”

Amendment 46A agreed.

Amendment 46B

Moved by Lord Bates

46B: Clause 67, page 50, line 21, at end insert—

“(1A) Insert as Schedule 1 to that Act the following Schedule—

Schedule 1Anonymity of victimsProhibition on the identification of victims in publications

1 (1) This paragraph applies where an allegation has been made that a female genital mutilation offence has been committed against a person.

(2) No matter likely to lead members of the public to identify the person, as the person against whom the offence is alleged to have been committed, may be included in any publication during the person’s lifetime.

(3) For the purposes of this Schedule, any consent of the person to an act giving rise to the alleged offence is not to be taken as preventing that person from being regarded as a person against whom the alleged offence was committed.

(4) In any criminal proceedings before a court, the court may direct that the restriction imposed by sub-paragraph (2) is not to apply (whether at all in England and Wales and Northern Ireland, or to the extent specified in the direction) if the court is satisfied that either of the following conditions is met.

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(5) The first condition is that the conduct of a person’s defence at a trial of a female genital mutilation offence would be substantially prejudiced if the direction is not given.

(6) The second condition is that—

(a) the effect of sub-paragraph (2) is to impose a substantial and unreasonable restriction on the reporting of the proceedings, and

(b) it is in the public interest to remove or relax the restriction.

(7) A direction under sub-paragraph (4) does not affect the operation of sub-paragraph (2) at any time before the direction is given.

(8) In this paragraph “the court” means—

(a) in England and Wales, a magistrates’ court or the Crown Court;

(b) in Northern Ireland, a magistrates’ court, a county court or the Crown Court.

Penalty for breaching prohibition imposed by paragraph 1(2)

2 (1) If anything is included in a publication in contravention of the prohibition imposed by paragraph 1(2), each of the persons responsible for the publication is guilty of an offence.

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

(a) on summary conviction in England and Wales, to a fine;

(b) on summary conviction in Northern Ireland, to a fine not exceeding level 5 on the standard scale.

(3) The persons responsible for a publication are as follows—

Type of publicationPersons responsible

Newspaper or other periodical

Any person who is a proprietor, editor or publisher of the newspaper or periodical.

Relevant programme

Any person who—is a body corporate engaged in providing the programme service in which the programme is included, or has functions in relation to the programme corresponding to those of an editor of a newspaper.

Any other kind of publication

Any person who publishes the publication.

(4) If an offence under this paragraph is proved to have been committed with the consent or connivance of, or to be attributable to any neglect on the part of—

(a) a senior officer of a body corporate, or

(b) a person purporting to act in such a capacity,

the senior officer or person (as well as the body corporate) is guilty of the offence and liable to be proceeded against and punished accordingly.

(5) “Senior officer”, in relation to a body corporate, means a director, manager, secretary or other similar officer of the body corporate; and for this purpose “director”, in relation to a body corporate whose affairs are managed by its members, means a member of the body corporate.

(6) Proceedings for an offence under this paragraph—

(a) if alleged to have been committed in England and Wales, may not be instituted except by, or with the consent of, the Attorney General;

(b) if alleged to have been committed in Northern Ireland, may not be instituted except by, or with the consent of, the Director of Public Prosecutions for Northern Ireland.

Offence under paragraph 2: defences

3 (1) This paragraph applies where a person (“the defendant”) is charged with an offence under paragraph 2 as a result of the inclusion of any matter in a publication.

(2) It is a defence for the defendant to prove that at the time of the alleged offence, the defendant was not aware, and did not suspect or have reason to suspect, that—

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(a) the publication included the matter in question, or

(b) the allegation in question had been made.

(3) It is a defence for the defendant to prove that the publication in which the matter appeared was one in respect of which the victim had given written consent to the appearance of matter of that description.

(4) The defence in sub-paragraph (3) is not available if—

(a) the victim was under the age of 16 at the time when her consent was given, or

(b) a person interfered unreasonably with the peace and comfort of the victim with a view to obtaining her consent.

(5) In this paragraph “the victim” means the person against whom the female genital mutilation offence in question is alleged to have been committed.

Special rules for providers of information society services

4 (1) Paragraph 2 applies to a domestic service provider who, in the course of providing information society services, publishes prohibited matter in an EEA state other than the United Kingdom (as well as to a person, of any description, who publishes prohibited matter in England and Wales or Northern Ireland).

(2) Proceedings for an offence under paragraph 2, as it applies to a domestic service provider by virtue of sub-paragraph (1), may be taken at any place in England and Wales or Northern Ireland.

(3) The offence may for all incidental purposes be treated as having been committed at any place in England and Wales or Northern Ireland.

(4) Nothing in this paragraph affects the operation of any of paragraphs 6 to 8.

5 (1) Proceedings for an offence under paragraph 2 may not be taken against a non-UK service provider in respect of anything done in the course of the provision of information society services unless the derogation condition is met.

(2) The derogation condition is that taking proceedings—

(a) is necessary for the purposes of the public interest objective,

(b) relates to an information society service that prejudices that objective or presents a serious and grave risk of prejudice to that objective, and

(c) is proportionate to that objective.

(3) “The public interest objective” means the pursuit of public policy.

6 (1) A service provider does not commit an offence under paragraph 2 by providing access to a communication network or by transmitting, in a communication network, information provided by a recipient of the service, if the service provider does not—

(a) initiate the transmission,

(b) select the recipient of the transmission, or

(c) select or modify the information contained in the transmission.

(2) For the purposes of sub-paragraph (1)—

(a) providing access to a communication network, and

(b) transmitting information in a communication network,

include the automatic, intermediate and transient storage of the information transmitted so far as the storage is solely for the purpose of carrying out the transmission in the network.

(3) Sub-paragraph (2) does not apply if the information is stored for longer than is reasonably necessary for the transmission.

7 (1) A service provider does not commit an offence under paragraph 2 by storing information provided by a recipient of the service for transmission in a communication network if the first and second conditions are met.

(2) The first condition is that the storage of the information—

(a) is automatic, intermediate and temporary, and

(b) is solely for the purpose of making more efficient the onward transmission of the information to other recipients of the service at their request.

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(3) The second condition is that the service provider—

(a) does not modify the information,

(b) complies with any conditions attached to having access to the information, and

(c) if sub-paragraph (4) applies, promptly removes the information or disables access to it.

(4) This sub-paragraph applies if the service provider obtains actual knowledge that—

(a) the information at the initial source of the transmission has been removed from the network,

(b) access to it has been disabled, or

(c) a court or administrative authority has ordered the removal from the network of, or the disablement of access to, the information.

8 (1) A service provider does not commit an offence under paragraph 2 by storing information provided by a recipient of the service if—

(a) the service provider had no actual knowledge when the information was provided that it was, or contained, a prohibited publication, or

(b) on obtaining actual knowledge that the information was, or contained, a prohibited publication, the service provider promptly removed the information or disabled access to it.

(2) Sub-paragraph (1) does not apply if the recipient of the service is acting under the authority or control of the service provider.

Interpretation

9 (1) In this Schedule—

“domestic service provider” means a service provider established in England and Wales or Northern Ireland;

“the E-Commerce Directive” means Directive 2000/31/EC of the European Parliament and of the Council of 8 June 2000 on certain legal aspects of information society services, in particular electronic commerce, in the Internal Market (Directive on electronic commerce);

“female genital mutilation offence” means—

(a) an offence under section 1, 2, 3 or 3A;

(b) an offence of attempt or conspiracy to commit any such offence;

(c) an offence under Part 2 of the Serious Crime Act 2007 (encouraging or assisting crime) in relation to any such offence;

“information society services”—

(a) has the meaning given in Article 2(a) of the E-Commerce Directive (which refers to Article 1(2) of Directive 98/34/EC of the European Parliament and of the Council of 22 June 1998 laying down a procedure for the provision of information in the field of technical standards and regulations), and

(b) is summarised in recital 17 of the E-Commerce Directive as covering “any service normally provided for remuneration, at a distance, by means of electronic equipment for the processing (including digital compression) and storage of data, and at the individual request of a recipient of a service”;

“non-UK service provider” means a service provider established in an EEA state other than the United Kingdom;

“programme service” has the same meaning as in the Broadcasting Act 1990 (see section 201(1) of that Act);

“prohibited material” means any material the publication of which contravenes paragraph 1(2);

“publication” includes any speech, writing, relevant programme or other communication (in whatever form) which is addressed to, or is accessible by, the public at large or any section of the public;

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“recipient”, in relation to a service, means a person who, for professional ends or otherwise, uses an information society service, in particular for the purposes of seeking information or making it accessible;

“relevant programme” means a programme included in a programme service;

“service provider” means a person providing an information society service.

(2) For the purposes of the definition of “publication” in sub-paragraph (1)—

(a) an indictment or other document prepared for use in particular legal proceedings is not to be taken as coming within the definition;

(b) every relevant programme is to be taken as addressed to the public at large or to a section of the public.

(3) For the purposes of the definitions of “domestic service provider” and “non-UK service provider” in sub-paragraph (1)—

(a) a service provider is established in a particular part of the United Kingdom, or in a particular EEA state, if the service provider—

(i) effectively pursues an economic activity using a fixed establishment in that part of the United Kingdom, or that EEA state, for an indefinite period, and

(ii) is a national of an EEA state or a company or firm mentioned in Article 54 of the Treaty on the Functioning of the European Union;

(b) the presence or use in a particular place of equipment or other technical means of providing an information society service does not, of itself, constitute the establishment of a service provider;

(c) where it cannot be determined from which of a number of establishments a given information society service is provided, that service is to be regarded as provided from the establishment at the centre of the service provider’s activities relating to that service.””

Amendments 46C and 46D (to Amendment 46B) not moved.

Amendment 46B agreed.

Amendment 46E

Moved by Lord Bates

46E: After Clause 67, insert the following new Clause—

“Offence of failing to protect girl from risk of genital mutilation

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

(2) After section 3 insert—

“3A Offence of failing to protect girl from risk of genital mutilation

(1) If a genital mutilation offence 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.

(2) This is subject to subsection (5).

(3) For the purposes of this section a person is “responsible” for a girl in the following two cases.

(4) The first case is where the person—

(a) has parental responsibility for the girl, and

(b) has frequent contact with her.

(5) The second case is where the person—

(a) is aged 18 or over, and

(b) has assumed (and not relinquished) responsibility for caring for the girl in the manner of a parent.

(6) It is a defence for the defendant to show that—

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(a) at the relevant time, the defendant did not think that there was a significant risk of a genital mutilation offence being committed against the girl, and could not reasonably have been expected to be aware that there was any such risk, or

(b) 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 a genital mutilation offence.

(7) A person is taken to have shown the fact mentioned in subsection (5)(a) or (b) if—

(a) sufficient evidence of the fact is adduced to raise an issue with respect to it, and

(b) the contrary is not proved beyond reasonable doubt.

(8) For the purposes of subsection (3)(b), where a person has frequent contact with a girl which is interrupted by her going to stay somewhere temporarily, that contact is treated as continuing during her stay there.

(9) In this section—

“genital mutilation offence” means an offence under section 1, 2 or 3 (and for the purposes of subsection (1) the prosecution does not have to prove which section it is);

“parental responsibility”—

(a) in England Wales, has the same meaning as in the Children Act 1989;

(b) in Northern Ireland, has the same meaning as in the Children (Northern Ireland) Order 1995 (S.I. 1995/755 (N.I. 2));

“the relevant time” means the time when the mutilation takes place.”

(3) In section 4 (extension of sections 1 to 3 to extra-territorial acts)—

(a) in the heading, for “3” substitute “3A” and after “acts” insert “or omissions”;

(b) after subsection (1) insert—

“(1A) An offence under section 3A can be committed wholly or partly outside the United Kingdom by a person who is a United Kingdom national or a United Kingdom resident.”

(4) In section 5 (penalties for offences)—

(a) for “A person guilty of an offence under this Act” substitute—

“(1) A person guilty of an offence under section 1, 2 or 3”;

(b) at the end insert—

“(2) A person guilty of an offence under section 3A is liable—

(a) on conviction on indictment, to imprisonment for a term not exceeding seven years or a fine (or both),

(b) on summary conviction in England and Wales, to imprisonment for a term not exceeding 12 months or a fine (or both),

(c) on summary conviction in Northern Ireland, to imprisonment for a term not exceeding 6 months or a fine not exceeding the statutory maximum (or both).””

Amendment 46F (to Amendment 46E) not moved.

Amendment 46E agreed.

Amendment 46G

Moved by Lord Bates

46G: After Clause 67, insert the following new Clause—

“Female genital mutilation protection orders

(1) After section 5 of the Female Genital Mutilation Act 2003 insert—

“5A Female genital mutilation protection orders

(1) Schedule 2 provides for the making of female genital mutilation protection orders.

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(2) In that Schedule—

(a) Part 1 makes provision about powers of courts in England and Wales to make female genital mutilation protection orders;

(b) Part 2 makes provision about powers of courts in Northern Ireland to make such orders.”

(2) After Schedule 1 to that Act (inserted by section 67(1A)) insert—

Schedule 2Female genital mutilation protection ordersPart 1England and WalesPower to make FGM protection order

1 (1) The court in England and Wales may make an order (an “FGM protection order”) for the purposes of—

(a) protecting a girl against the commission of a genital mutilation offence, or

(b) protecting a girl against whom any such offence has been committed.

(2) In deciding whether to exercise its powers under this paragraph and, if so, in what manner, the court must have regard to all the circumstances, including the need to secure the health, safety and well-being of the girl to be protected.

(3) An FGM protection order may contain—

(a) such prohibitions, restrictions or requirements, and

(b) such other terms,

as the court considers appropriate for the purposes of the order.

(4) The terms of an FGM protection order may, in particular, relate to—

(a) conduct outside England and Wales as well as (or instead of) conduct within England and Wales;

(b) respondents who are, or may become, involved in other respects as well as (or instead of) respondents who commit or attempt to commit, or may commit or attempt to commit, a genital mutilation offence against a girl;

(c) other persons who are, or may become, involved in other respects as well as respondents of any kind.

(5) For the purposes of sub-paragraph (4) examples of involvement in other respects are—

(a) aiding, abetting, counselling, procuring, encouraging or assisting another person to commit, or attempt to commit, a genital mutilation offence against a girl;

(b) conspiring to commit, or to attempt to commit, such an offence.

(6) An FGM protection order may be made for a specified period or until varied or discharged (see paragraph 6).

Applications and other occasions for making orders

2 (1) The court may make an FGM protection order—

(a) on an application being made to it, or

(b) without an application being made to it but in the circumstances mentioned in sub-paragraph (6).

(2) An application may be made by—

(a) the girl who is to be protected by the order, or

(b) a relevant third party.

(3) An application may be made by any other person with the leave of the court.

(4) In deciding whether to grant leave, the court must have regard to all the circumstances including—

(a) the applicant’s connection with the girl to be protected;

(b) the applicant’s knowledge of the circumstances of the girl.

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(5) An application under this paragraph may be made in other family proceedings or without any other family proceedings being instituted.

(6) The circumstances in which the court may make an order without an application being made are where—

(a) any other family proceedings are before the court (“the current proceedings”),

(b) the court considers that an FGM protection order should be made to protect a girl (whether or not a party to the proceedings), and

(c) a person who would be a respondent to any proceedings for an FGM protection order is a party to the current proceedings.

(7) In this paragraph—

“family proceedings” has the same meaning as in Part 4 of the Family Law Act 1996 (see section 63(1) and (2) of that Act), but also includes—

(a) proceedings under the inherent jurisdiction of the High Court in relation to adults,

(b) proceedings in which the court has made an emergency protection order under section 44 of the Children Act 1989 which includes an exclusion requirement (as defined in section 44A(3) of that Act), and

(c) proceedings in which the court has made an order under section 50 of the Children Act 1989 (recovery of abducted children etc);

“relevant third party” means a person specified, or falling within a description of persons specified, by regulations made by the Lord Chancellor (and such regulations may, in particular, specify the Secretary of State).

(8) Regulations under sub-paragraph (7) are to be made by statutory instrument, and any such instrument is subject to annulment in pursuance of a resolution of either House of Parliament.

Power to make order in criminal proceedings

3 The court before which there are criminal proceedings in England and Wales for a genital mutilation offence may make an FGM protection order (without an application being made to it) if—

(a) the court considers that an FGM protection order should be made to protect a girl (whether or not the victim of the offence in relation to the criminal proceedings), and

(b) a person who would be a respondent to any proceedings for an FGM protection order is a defendant in the criminal proceedings.

Offence of breaching order

4 (1) A person who without reasonable excuse does anything that the person is prohibited from doing by an FGM protection order is guilty of an offence.

(2) In the case of an FGM protection order made by virtue of paragraph 5(1), a person can be guilty of an offence under this paragraph only in respect of conduct engaged in at a time when the person was aware of the existence of the order.

(3) Where a person is convicted of an offence under this paragraph in respect of any conduct, the conduct is not punishable as a contempt of court.

(4) A person cannot be convicted of an offence under this paragraph in respect of any conduct which has been punished as a contempt of court.

(5) A person guilty of an offence under this paragraph is liable—

(a) on conviction on indictment, to imprisonment for a term not exceeding five years, or a fine, or both;

(b) on summary conviction, to imprisonment for a term not exceeding 12 months, or a fine, or both.

(6) A reference in any enactment to proceedings under this Part of this Schedule, or to an order under this Part of this

28 Oct 2014 : Column 1129

Schedule, does not include a reference to proceedings for an offence under this paragraph or to an order made in proceedings for such an offence.

(7) “Enactment” includes an enactment contained in subordinate legislation within the meaning of the Interpretation Act 1978.

Ex parte orders

5 (1) The court may, in any case where it is just and convenient to do so, make an FGM protection order even though the respondent has not been given such notice of the proceedings as would otherwise be required by rules of court.

(2) In deciding whether to exercise its powers under sub-paragraph (1), the court must have regard to all the circumstances including—

(a) the risk to the girl, or to another person, of becoming a victim of a genital mutilation offence if the order is not made immediately,

(b) whether it is likely that an applicant will be deterred or prevented from pursuing an application if an order is not made immediately, and

(c) whether there is reason to believe that—

(i) the respondent is aware of the proceedings but is deliberately evading service, and

(ii) the delay involved in effecting substituted service will cause serious prejudice to the girl to be protected or (if different) an applicant.

(3) The court must give the respondent an opportunity to make representations about an order made by virtue of sub-paragraph (1).

(4) The opportunity must be—

(a) as soon as just and convenient, and

(b) at a hearing of which notice has been given to all the parties in accordance with rules of court.

Variation and discharge of orders

6 (1) The court may vary or discharge an FGM protection order on an application by—

(a) any party to the proceedings for the order,

(b) the girl being protected by the order (if not a party to the proceedings for the order), or

(c) any person affected by the order.

(2) In the case of an order made in criminal proceedings under paragraph 3, the reference in sub-paragraph (1)(a) to a party to the proceedings for the order is to be read as a reference to the prosecution and the defendant.

(3) In addition, the court may vary or discharge an FGM protection order made by virtue of paragraph 2(1)(b) or 3 even though no application under sub-paragraph (1) above has been made to the court.

(4) Paragraph 5 applies to a variation of an FGM protection order as it applies to the making of such an order (and references in that paragraph to the making of an FGM protection order are to be read accordingly).

Arrest under warrant

7 (1) An interested party may apply to the relevant judge for the issue of a warrant for the arrest of a person if the interested party considers that the person has failed to comply with an FGM protection order or is otherwise in contempt of court in relation to such an order.

(2) The relevant judge must not issue a warrant on an application under sub-paragraph (1) unless—

(a) the application is substantiated on oath, and

(b) the relevant judge has reasonable grounds for believing that the person to be arrested has failed to comply with the order or is otherwise in contempt of court in relation to the order.

(3) In this paragraph “interested party”, in relation to an FGM protection order, means—

(a) the girl being protected by the order,

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(b) (if a different person) the person who applied for the order, or

(c) any other person;

but no application may be made under sub-paragraph (1) by a person falling within paragraph (c) without leave of the relevant judge.

Remand: general

8 (1) The court before which an arrested person is brought by virtue of a warrant under paragraph 7 may, if the matter is not then disposed of immediately, remand the person concerned.

(2) Paragraphs 9 to 14 contain further provision about the powers of a court to remand under this paragraph.

(3) Sub-paragraph (4) applies if a person remanded under this paragraph is granted bail under paragraphs 10 to 14.

(4) The person may be required by the relevant judge to comply, before release on bail or later, with such requirements as appear to the judge to be necessary to secure that the person does not interfere with witnesses or otherwise obstruct the course of justice.

Remand: medical examination and report

9 (1) Any power to remand a person under paragraph 8(1) may be exercised for the purpose of enabling a medical examination and report to be made if the relevant judge has reason to consider that a medical report will be required.

(2) If such a power is so exercised, the adjournment must not be for more than four weeks at a time unless the relevant judge remands the accused in custody.

(3) If the relevant judge remands the accused in custody, the adjournment must not be for more than three weeks at a time.

(4) Sub-paragraph (5) applies if there is reason to suspect that a person who has been arrested under a warrant issued on an application under paragraph 7(1) is suffering from mental disorder within the meaning of the Mental Health Act 1983.

(5) The relevant judge has the same power to make an order under section 35 of the Mental Health Act 1983 (remand for report on accused’s mental condition) as the Crown Court has under section 35 of that Act in the case of an accused person within the meaning of that section.

Remand: further provision

10 (1) Where a court has power to remand a person under paragraph 8, the court may remand the person in custody or on bail.

(2) If remanded in custody, the person is to be committed to custody to be brought before the court—

(a) at the end of the period of remand, or

(b) at such earlier time as the court may require.

(3) The court may remand a person on bail—

(a) by taking from the person a recognizance (with or without sureties) conditioned as provided in paragraph 11, or

(b) by fixing the amount of the recognizances with a view to their being taken subsequently in accordance with paragraph 14 and, in the meantime, committing the person to custody as mentioned in sub-paragraph (2) above.

(4) Where a person is brought before the court after remand the court may further remand the person.

(5) In this paragraph and in paragraphs 11 to 14, references to “the court” includes a reference to a judge of the court or, in the case of proceedings in a magistrates’ court, a justice of the peace.

11 (1) Where a person is remanded on bail, the court may direct that the person’s recognizance be conditioned for his or her appearance—

(a) before the court at the end of the period of remand, or

(b) at every time and place to which during the course of the proceedings the hearing may from time to time be adjourned.

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(2) Where a recognizance is conditioned for a person’s appearance as mentioned in sub-paragraph (1), the fixing of any time for the person next to appear is to be treated as a remand.

(3) Nothing in this paragraph deprives the court of power at any subsequent hearing to remand a person afresh.

12 (1) The court may not remand a person for a period exceeding 8 clear days unless—

(a) the court adjourns a case under paragraph 9(1), or

(b) the person is remanded on bail and both that person and the other party to the proceedings (or, in the case of criminal proceedings, the prosecution) consent.

(2) If sub-paragraph (1)(a) applies, the person may be remanded for the period of the adjournment.

(3) Where the court has power to remand a person in custody, the person may be committed to the custody of a constable if the remand is for a period not exceeding 3 clear days.

13 (1) If the court is satisfied that a person who has been remanded is unable by reason of illness or accident to appear before the court at the end of the period of remand, the court may further remand the person in his or her absence.

(2) The power in sub-paragraph (1) may, in the case of a person who was remanded on bail, be exercised by enlarging the person’s recognizance and those of any sureties to a later time.

(3) Where a person remanded on bail is bound to appear before the court at any time and the court has no power to remand the person under sub-paragraph (1), the court may, in the person’s absence, enlarge the person’s recognizance and those of any sureties for the person to a later time.

(4) The enlargement of a person’s recognizance is to be treated as a further remand.

(5) Paragraph 12(1) (limit of remand) does not apply to the exercise of the powers conferred by this paragraph.

14 (1) This paragraph applies where under paragraph 10(3)(b) the court fixes the amount in which the principal and the sureties (if any) are to be bound.

(2) The recognizance may afterwards be taken by a person prescribed by rules of court (with the same consequences as if it had been entered into before the court).

Contempt proceedings

15 The powers of the court in relation to contempt of court arising out of a person’s failure to comply with an FGM protection order, or otherwise in connection with such an order, may be exercised by the relevant judge.

Other protection or assistance against female genital mutilation

16 (1) Nothing in this Part of this Schedule affects any other protection or assistance available to a girl who is or may become the victim of a genital mutilation offence.

(2) In particular, it does not affect—

(a) the inherent jurisdiction of the High Court;

(b) any criminal liability;

(c) any civil remedies under the Protection from Harassment Act 1997;

(d) any right to an occupation order or a non-molestation order under Part 4 of the Family Law Act 1996;

(e) any right to a forced marriage protection order under Part 4A of that Act;

(f) any protection or assistance under the Children Act 1989;

(g) any claim in tort.

Interpretation

17 (1) In this Part of this Schedule—

“the court”, except as provided in sub-paragraph (2), means the High Court, or the family court, in England and Wales;

“FGM protection order” means an order under paragraph 1;

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“genital mutilation offence” means an offence under section 1, 2 or 3;

“the relevant judge”, in relation to an FGM protection order, means—

(a) where the order was made by the High Court, a judge of that court;

(b) where the order was made by the family court, a judge of that court;

(c) where the order was made by a court in criminal proceedings under paragraph 3—

(i) a judge of that court, or

(ii) a judge of the High Court or of the family court.

(2) Where the power to make an FGM protection order is exercisable by a court in criminal proceedings under paragraph 3, references in this Part of this Schedule to “the court” (other than in paragraph 2) are to be read as references to that court.

(3) In paragraph (c)(i) of the definition of “relevant judge” in sub-paragraph (1), the reference to a judge of the court that made the order includes, in the case of criminal proceedings in a magistrates’ court, a reference to a justice of the peace.

Part 2Northern IrelandPower to make FGM protection order

18 (1) The court in Northern Ireland may make an order (an “FGM protection order”) for the purposes of—

(a) protecting a girl against the commission of a genital mutilation offence, or

(b) protecting a girl against whom any such offence has been committed.

(2) In deciding whether to exercise its powers under this paragraph and, if so, in what manner, the court must have regard to all the circumstances, including the need to secure the health, safety and well-being of the girl to be protected.

(3) An FGM protection order may contain—

(a) such prohibitions, restrictions or requirements, and

(b) such other terms,

as the court considers appropriate for the purposes of the order.

(4) The terms of an FGM protection order may, in particular, relate to—

(a) conduct outside Northern Ireland as well as (or instead of) conduct within Northern Ireland;

(b) respondents who are, or may become, involved in other respects as well as (or instead of) respondents who commit or attempt to commit, or may commit or attempt to commit, a genital mutilation offence against a girl;

(c) other persons who are, or may become, involved in other respects as well as respondents of any kind.

(5) For the purposes of sub-paragraph (4) examples of involvement in other respects are—

(a) aiding, abetting, counselling, procuring, encouraging or assisting another person to commit, or attempt to commit, a genital mutilation offence against a girl;

(b) conspiring to commit, or to attempt to commit, such an offence.

(6) An FGM protection order may be made for a specified period or until varied or discharged (see paragraph 23).

Applications and other occasions for making orders

19 (1) The court may make an FGM protection order—

(a) on an application being made to it, or

(b) without an application being made to it but in the circumstances mentioned in sub-paragraph (6).

(2) An application may be made by—

(a) the girl who is to be protected by the order, or

(b) a relevant third party.

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(3) An application may be made by any other person with the leave of the court.

(4) In deciding whether to grant leave, the court must have regard to all the circumstances including—

(a) the applicant’s connection with the girl to be protected;

(b) the applicant’s knowledge of the circumstances of the girl.

(5) An application under this paragraph may be made in family proceedings or without any family proceedings being instituted.

(6) The circumstances in which the court may make an order without an application being made are where—

(a) any family proceedings are before the court (“the current proceedings”),

(b) the court considers that an FGM protection order should be made to protect a girl (whether or not a party to the proceedings), and

(c) a person who would be a respondent to any proceedings for an FGM protection order is a party to the current proceedings.

(7) In this paragraph—

“family proceedings” has the same meaning as in the Family Homes and Domestic Violence (Northern Ireland) Order 1998 (S.I. 1998/1071 (N.I. 6)) (see Article 2(2) and (3) of that Order), but also includes—

(a) proceedings under the inherent jurisdiction of the High Court in relation to adults,

(b) proceedings in which the court has made an emergency protection order under Article 63 of the Children (Northern Ireland) Order 1995 (S.I. 1995/755 (N.I. 2)) which includes an exclusion requirement (as defined in Article 63A of that Order), and

(c) proceedings in which the court has made an order under Article 69 of the 1995 Order (recovery of abducted children etc);

“relevant third party” means a person specified, or falling within a description of persons specified, by order made by the Department of Finance and Personnel (and any such order may, in particular, specify that Department).

Power to make order in criminal proceedings

20 The court before which there are criminal proceedings in Northern Ireland for a genital mutilation offence may make an FGM protection order (without an application being made to it) if—

(a) the court considers that an FGM protection order should be made to protect a girl (whether or not the victim of the offence in relation to the criminal proceedings), and

(b) a person who would be a respondent to any proceedings for an FGM protection order is a defendant in the criminal proceedings.

Offence of breaching order

21 (1) A person who without reasonable excuse does anything that the person is prohibited from doing by an FGM protection order is guilty of an offence.

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

(a) on conviction on indictment, to imprisonment for a term not exceeding five years, or a fine, or both;

(b) on summary conviction, to imprisonment for a term not exceeding 6 months, or a fine not exceeding the statutory maximum, or both.

Ex parte orders

22 (1) The court may, in any case where it is just and convenient to do so, make an FGM protection order even though the respondent has not been given such notice of the proceedings as would otherwise be required by rules of court.

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(2) In deciding whether to exercise its powers under sub-paragraph (1), the court must have regard to all the circumstances including—

(a) the risk to the girl, or to another person, of becoming a victim of a genital mutilation offence if the order is not made immediately,

(b) whether it is likely that an applicant will be deterred or prevented from pursuing an application if an order is not made immediately, and

(c) whether there is reason to believe that—

(i) the respondent is aware of the proceedings but is deliberately evading service, and

(ii) the delay involved in effecting substituted service will cause serious prejudice to the girl to be protected or (if different) an applicant.

(3) If the court makes an order by virtue of sub-paragraph (1), it must specify a date for a full hearing.

(4) In sub-paragraph (3), “full hearing” means a hearing of which notice has been given to all the parties in accordance with rules of court.

Variation and discharge of orders

23 (1) The court may vary or discharge an FGM protection order on an application by—

(a) any party to the proceedings for the order,

(b) the girl being protected by the order (if not a party to the proceedings for the order), or

(c) any person affected by the order.

(2) In the case of an order made in criminal proceedings under paragraph 20, the reference in sub-paragraph (1)(a) to a party to the proceedings for the order is to be read as a reference to the prosecution and the defendant.

(3) In addition, the court may vary or discharge an FGM protection order made by virtue of paragraph 19(1)(b) or 20 even though no application under sub-paragraph (1) above has been made to the court.

(4) Paragraph 22 applies to a variation of an FGM protection order as it applies to the making of such an order (and references in that paragraph to the making of an FGM protection order are to be read accordingly).

Jurisdiction of courts

24 (1) For the purposes of this Part of this Schedule, “the court” means the High Court, or a county court, in Northern Ireland.

(2) Sub-paragraph (1) is subject to—

(a) sub-paragraph (3), and

(b) any provision made by virtue of sub-paragraph (4) or (5).

(3) Where the power to make an FGM protection order is exercisable by a court in criminal proceedings under paragraph 20, references in this Part of this Schedule to “the court” (other than in paragraph 19) are to be read as references to that court.

(4) Article 34(3) to (10) of the Family Homes and Domestic Violence (Northern Ireland) Order 1998 (S.I. 1998/1071 (N.I. 6)) (allocation of proceedings to courts etc) applies for the purposes of this Part of this Schedule as it applies for the purposes of that Order but as if the following modification were made.

(5) The modification is that Article 34(8) is to be read as if there were substituted for it—

“(8) For the purposes of paragraphs (3), (4) and (5), there are two levels of court—

(a) the High Court; and

(b) a county court.”

Power to extend jurisdiction to courts of summary jurisdiction

25 (1) The Department of Justice in Northern Ireland may, after consulting the Lord Chief Justice, by order provide for courts of summary jurisdiction to be included among the courts who may hear proceedings under this Part of this Schedule.

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(2) An order under sub-paragraph (1) may, in particular, make any provision in relation to courts of summary jurisdiction which corresponds to provision made in relation to such courts by or under the Family Homes and Domestic Violence (Northern Ireland) Order 1998 (S.I. 1998/1071 (N.I. 6)).

(3) Any power to make an order under this paragraph (including the power as extended by paragraph 29(1)) may, in particular, be exercised by amending, repealing, revoking or otherwise modifying any provision made by or under this Part of this Schedule or any other enactment.

(4) In sub-paragraph (3) “enactment” includes Northern Ireland legislation.

(5) The Lord Chief Justice may nominate any of the following to exercise the Lord Chief Justice’s functions under this Part of this Schedule—

(a) the holder of one of the offices listed in Schedule 1 to the Justice (Northern Ireland) Act 2002;

(b) a Lord Justice of Appeal (as defined by section 88 of that Act).

Contempt proceedings

26 The powers of the court in relation to contempt of court arising out of a person’s failure to comply with an FGM protection order, or otherwise in connection with such an order, may be exercised by the relevant judge.

Appeals from county courts

27 (1) An appeal lies to the High Court against—

(a) the making by a county court of any order under this Part of this Schedule, or

(b) any refusal by a county court to make such an order,

as if the decision had been made in the exercise of the jurisdiction conferred by Part 3 of the County Courts (Northern Ireland) Order 1980 (S.I. 1980/397 (N.I. 3)) (original civil jurisdiction) and the appeal were brought under Article 60 of that Order (ordinary appeals in civil cases).

(2) But an appeal does not lie to the High Court under sub-paragraph (1) where the county court is a divorce county court exercising jurisdiction under the Matrimonial Causes (Northern Ireland) Order 1978 (S.I. 1978/1045 (N.I. 15)) in the same proceedings.

(3) Provision must be made by rules of court for an appeal to lie (upon a point of law, a question of fact or the admission or rejection of any evidence) to the Court of Appeal against—

(a) the making of any order under this Part of this Schedule, or

(b) any refusal to make such an order,

by a county court of the type referred to in sub-paragraph (2).

(4) Sub-paragraph (3) is without prejudice to Article 61 of the County Courts (Northern Ireland) Order 1980 (S.I. 1980/397 (N.I. 3)) (cases stated).

(5) On an appeal under sub-paragraph (1), the High Court may make such orders as may be necessary to give effect to its determination of the appeal.

(6) Where an order is made under sub-paragraph (5), the High Court may also make such incidental or consequential orders as appear to it to be just.

(7) Any order of the High Court made on an appeal under sub-paragraph (1) (other than one directing that an application be re-heard by the county court) is to be treated, for the purposes of—

(a) the enforcement of the order, and

(b) any power to vary, revive or discharge orders,

as if it were an order of the county court from which the appeal was brought and not an order of the High Court.

(8) This paragraph is subject to paragraph 28.

Appeals: transfers and proposed transfers

28 (1) The Department of Justice in Northern Ireland may, after consulting the Lord Chief Justice, by order make provision as to the circumstances in which appeals may be made against

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decisions taken by courts on questions arising in connection with the transfer, or proposed transfer, of proceedings by virtue of an order made under Article 34(5) of the Family Homes and Domestic Violence (Northern Ireland) Order 1998 (S.I. 1998/1071 (N.I. 6)) as applied by paragraph 24(4) and (5) above.

(2) Except so far as provided for in any order made under sub-paragraph (1), no appeal may be made against any decision of a kind mentioned in that sub-paragraph.

(3) The Lord Chief Justice may nominate any of the following to exercise the Lord Chief Justice’s functions under this paragraph—

(a) the holder of one of the offices listed in Schedule 1 to the Justice (Northern Ireland) Act 2002;

(b) a Lord Justice of Appeal (as defined in section 88 of that Act).

Orders

29 (1) An order made under or by virtue of paragraph 19(7), 24(4) and (5), 25(1) or 28(1)—

(a) may make different provision for different purposes;

(b) may contain incidental, supplemental, consequential, transitional, transitory or saving provision;

(c) is to be made by statutory rule for the purposes of the Statutory Rules (Northern Ireland) Order 1979 (S.I. 1979/1573 (N.I. 12)).

(2) An order made under or by virtue of paragraph 19(7), 24(4) and (5) or 28(1) is subject to negative resolution (within the meaning of section 41(6) of the Interpretation Act (Northern Ireland) 1954 (c. 33 (N.I))).

(3) An order under paragraph 25(1) may not be made unless a draft of the order has been laid before, and approved by a resolution of, the Northern Ireland Assembly.

(4) Section 41(3) of the Interpretation Act (Northern Ireland) 1954 (c. 33 (N.I.)) applies for the purposes of sub-paragraph (3) in relation to the laying of a draft as it applies in relation to the laying of a statutory document under an enactment.

Other protection or assistance against female genital mutilation

30 (1) Nothing in this Part of this Schedule affects any other protection or assistance available to a girl who is or may become the victim of a genital mutilation offence.

(2) In particular, it does not affect—

(a) the inherent jurisdiction of the High Court;

(b) any criminal liability;

(c) any right to an occupation order or a non-molestation order under the Family Homes and Domestic Violence (Northern Ireland) Order 1998 (S.I. 1998/1071 (N.I. 6));

(d) any civil remedies under the Protection from Harassment (Northern Ireland) Order 1997 (S.I. 1997/1180 (N.I. 9));

(e) any protection or assistance under the Children (Northern Ireland) Order 1995 (S.I. 1995/755 (N.I. 2));

(f) any right to a forced marriage protection order under Schedule 1 to the Forced Marriage (Civil Protection) Act 2007;

(g) any claim in tort.

Interpretation

31 In this Part of this Schedule—

“the court” is to be read in accordance with paragraph 24;

“FGM protection order” means an order under paragraph 18;

“genital mutilation offence” means an offence under section 1, 2 or 3;

“the relevant judge”, in relation to an FGM protection order, means—

(a) where the order was made by the High Court, a judge of that court;

(b) where the order was made by a county court, a judge or district judge of that or any other county court;

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(c) where the order was made by a court in criminal proceedings under paragraph 20—

(i) a judge of that court, or

(ii) a judge of the High Court or a judge or district judge of a county court.””

Amendment 46G agreed.

Amendment 47

Moved by Lord Harris of Haringey

47: After Clause 67, insert the following new Clause—

“Protection of children: duty on internet service providers

(1) Internet service providers which provide third parties with any means or mechanisms to store digital content on the internet or other location remote from the third party must consider whether and to what extent the services they provide might be open to abuse by such third parties to store or transmit indecent images of children, contrary to section 1 of the Protection of Children Act 1978 (indecent photographs of children).

(2) Where an internet service provider considers that there is a material risk that their network or other facilities could be misused as set out in subsection (1), they must take such reasonable steps as might mitigate, reduce, eliminate or other disrupt said behaviour or restrict access to such images.

(3) In this section, “internet service provider” has the same meaning as in section 124N of the Communication Act 2003 (interpretation).”

6.45 pm

Lord Harris of Haringey: I am grateful to the Lord Chairman for allowing me to collect my thoughts on this amendment while he was going through those other amendments. The purpose of this amendment, which is rather different from that of the previous one, is to create a requirement for an internet service provider that provides a facility for the storage of digital content to consider—no more than that—whether and to what extent that facility might be open to abuse by the storage of indecent images of children. Where the service provider,

“considers that there is a material risk … they must take such reasonable steps as might mitigate, reduce, eliminate or … disrupt”,

such actions.

The context of the amendment is the fact that there are tools available to internet service providers to find out whether such indecent material is contained on their systems. As I am sure noble Lords are aware, images are reduced to digital content as a series of zeroes and ones, so even a very complex image, whether pornographic or otherwise, is simply reduced to a series of zeroes and ones. Most abuse photographs are circulated and recirculated. Many of them are known to the law enforcement authorities, and it is possible for those authorities to search for identical images, so that they know whether a particular image has appeared before, and in what circumstances.

However, I am told that increasingly, abusers are making tiny changes to images—sometimes no more than one pixel—so that the images are not identical, and are not picked up in the same way by those methods. However, I understand that Microsoft has developed a system called PhotoDNA, which it is making available free to providers. This converts images into greyscale and breaks the greyscale image down

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into a grid. Then each individual square on the grid is given what is called a histogram of intensity gradients; essentially, that decides how grey each square is. The signature based on those values provides a hash value, as they call it, which is unique to that particular image—I appreciate that these are technical terms, and until I started looking into this I did not know about them either. This technique allows people to identify images that are essentially the same.

Until now, the way to identify which images are essentially the same is that some poor police officer or analyst has had to look at all the images concerned. But it is now possible to do that automatically. Because the technology can operate in a robust fashion, it can identify what images are appearing, and whether they are essentially the same. It is not possible to recreate the image concerned from that PhotoDNA signature; it is only possible to scan systems or databases for signature matches. What is more, because the data for each signature are so small, the technology can scan a large volume of images extremely quickly. Apparently there is a 98% recognition rate.

I have gone through that in some detail simply to illustrate that there are such techniques available. I believe that Google is working on something—which would, of course, have to be bigger and more complex than what has been produced by Microsoft—which will do the same for videos. It will then be possible to identify similar videos in the same fashion.

The benefit of these techniques is that they make it possible for ISPs to trawl their entire database—to trawl what people are storing online and to identify whether some of the previously known indecent images are in the system. They will then be able to see whether there is a package, or a pattern, and whether particular users are storing more than others. That then gives them the opportunity to raise that issue with law enforcement officials or take disruptive action, perhaps by withdrawing service from that user.

The benefits of the specific technology are that humans do not have to scan the individual images. A number of noble Lords have seen the suites used by CEOP or New Scotland Yard whereby a row of police officers sit viewing indecent images of child pornography, which is distressing for those officers and possibly harmful to them in the long term. That does not need to happen in this case. The service providers do not have to store the images that they are matching to carry out this exercise because all they are storing are the DNA hash values of the images concerned, and they are therefore not exposing themselves to potential charges as far as that is concerned. The technology makes this comparatively easy and simple to do and does not involve a great deal of data. It also means that the service providers are not interfering in any way with the privacy of their users other than to check, in this anonymised way where they do not view the images, that no images contained there are of known child pornography.

The purpose of this amendment is to place an obligation on service providers to make use of these technologies as they are developed. Some providers already do this and are willing to do this. I think that Facebook has quite a good record as far as this is

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concerned. However, the amendment would place an obligation on all of them to consider whether they should use these techniques. As I say, in this instance Microsoft is making the technology and the system available free to providers.

Before the noble Baroness, Lady Hamwee, goes through whatever drafting faults the amendment may contain, I should point out why I think it is important. In our discussions just three months ago on the DRIPA legislation it was suggested that one of the reasons why the relevant changes were being made was to provide service providers with legal cover against legal challenge in other countries in which people asked why they were allowing law enforcement officials to do these things. The amendment would provide some legal cover for those service providers—in exactly the same way as the DRIPA legislation does—against challenges that this measure somehow infringes the freedom of speech of people who want to store pornographic images of children. The purpose of this amendment is to require service providers to consider whether or not they might be at risk of this misuse and then to take appropriate reasonable steps using the best available techniques to,

“mitigate, reduce, eliminate or … disrupt”,

it. I beg to move.

Baroness Howe of Idlicote: My Lords, I rise briefly to speak in support of Amendment 47 of the noble Lord, Lord Harris. Some may take the view that internet service providers cannot be held responsible for information that people use them to hold. Although, in my view, ISPs certainly do not have responsibility for generating content, they do, however, play a very important role in facilitating it: first, in the sense that storage protects the material in question and thereby helps to guarantee its continued existence; and, secondly, in the sense of providing a basis from which the said material may be transmitted. In so doing, they have a responsibility actively to take all reasonable steps to ensure, on an ongoing basis, that they are not facilitating the storage and/or transmission of material of the kind set out in subsection (1) of the clause proposed in the amendment.

For myself, I would also like ISPs to have to demonstrate that these active steps have indeed been taken, and are being taken, on an ongoing basis. We must foster a legislative framework that exhibits zero tolerance of all aspects of child sex abuse images, including ISPs facilitating the storage and/or transmission of such images. I very much look forward to listening to what the Minister has to say in his response to this important amendment.

Baroness Hamwee: My Lords, I hate to disappoint the noble Lord, Lord Harris, but I fear that I am going to, as I simply have a question for him. I speak from a basis of almost no technological knowledge, but I would have thought that, presumably, all the services are open to abuse. Can I just ask what consultation there has been on this? The noble Lord talked about the responsible, innovative and exciting—if you are that way inclined—work being done by some of the ISPs. Like him, I have found the big players to be very responsible and wanting to be seen to be responsible.

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However, the proposed provision would obviously put an obligation on them. I would be interested to know how they have responded to it, if the noble Lord has had the opportunity to ascertain that.

Baroness Smith of Basildon: My Lords, I rise to speak briefly on this issue. During the Recess we had a meeting with Microsoft to discuss how it approached this matter. I was grateful for that because I probably share only one thing with the noble Baroness, Lady Hamwee, and that is that I have no technical knowledge or expertise and felt quite at a loss when looking at these issues. Microsoft officials gave us an understanding of the comments made by the noble Lord, Lord Harris, about the codes used to identify photographs and the hash code it used and they discussed whether it was an offence to store the coded photograph itself. Microsoft has developed its PhotoDNA technology that enables it to identify minor changes that abusers make in trying to slide past any checks and balances in the system, so it is carrying out impressive work to try to address this issue.

In listening to the presentation, I was particularly shocked by the sheer number of photographs and images, and the numbers of people involved, worldwide. At the beginning of his comments, the right relevant Prelate the Bishop of Derby, I think, referred to a recent case in Southend. That is close to where I live, so noble Lords can imagine that my local papers had a tremendous amount of coverage of that and I had commented on it. The case involved the head teacher of a local private school, who was interviewed by the police following the fact that his name came to light in an investigation carried out originally in Toronto. His name was passed to the UK, but it took far too long—well over a year—for him to be interviewed, following delays at CEOP and the police. When he was finally interviewed, he was found dead the following day. The amount of information that was found on his computer was staggering. Time will tell us the outcome of this as the investigations progress, but presumably that head teacher must have had links with people in other parts of the country and elsewhere in the world, and photographs may have been exchanged; certainly, he obtained photographs from others.

The scale of that activity is phenomenal and it is a tall order to expect the police to visit every single person involved in it. Having said that, I am critical of the fact that so few people, who we know have committed these abuse offences and have inappropriate images of children, have been visited by the police. I think that we could do far better in that regard and the delays are a cause for concern. However, we are talking about a massive number of people, so if technology is available that can block these photographs or allow the police to identify people more quickly, we should take every available opportunity to use it.

As I say, I was very impressed by the efforts being taken both by Microsoft, which briefed us, and by others to ensure that they can identify photographs, code them and pass on information. As I think the noble Baroness, Lady Hamwee, said, the amendment of the noble Lord, Lord Harris, does not place an obligation on internet service providers but allows

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them to take action. It basically says that they should consider the issue and, if there is a material risk, they should look at what they can do and take reasonable steps that might,

“mitigate, reduce, eliminate or other disrupt said behaviour”.

There are no sanctions or penalties for failing to do so, but it allows the internet service providers to take some action—action that we would want them to take and, I think, they would want to take.

The noble Lord, Lord Harris, has already said that he does not feel that he has a monopoly on being the world’s greatest drafter and is prepared to accept that there occasionally may be things that could be improved. He has, however, hit on something here. It is an issue to be addressed. I hope that the Government are having urgent meetings with the ISPs to see how they can work together on this. This amendment provides an opportunity to do so, and I would be interested to know what discussions the Government are having with internet service providers. It is an issue that we need to address. If we can deal with it at source and identify those who are responsible early on, it seems to me that would be a huge step forward in protecting children from this kind of abuse.

7 pm

Lord Bates: My Lords, the noble Baroness is absolutely right again, in the sense that technology is the problem and therefore technology needs to offer the solution. Simply put, the numbers and the scale—of course, she has had those briefings and I have had them, too—are both distressing and mind-blowing in terms of their reach. As the technology is not limited to, and does not respect, geographies or jurisdictions, the matter is a global one. Therefore, we need to work very closely with the industry to ensure that this can be done.

I want to cover some of the issues that are being addressed at present which noble Lords may not be aware of. We recognise the concerns that the noble Lord has raised about the use of the internet to store and circulate indecent images of children. We fully accept that more needs to be done to address this issue, but I hope to be able to persuade the noble Lord that legislation is not required at this point, although we continue to keep that option under review.

We believe that the internet industry operating in the UK has taken significant steps, on a self-regulatory basis, to tackle the availability of indecent images online. The internet industry in the UK has worked closely for many years with the Internet Watch Foundation and the Child Exploitation and Online Protection command of the National Crime Agency to tackle illegal images. We recognise the support that responsible internet service providers have given to the Internet Watch Foundation, both financially and through taking action on the Internet Watch Foundation’s list of web pages identified as containing illegal images by either taking down such sites, if they are hosted in the UK, or blocking access to them if they are overseas.

The public and businesses can report images to the Internet Watch Foundation, which assesses them and determines whether they are illegal. Indeed, the Internet Watch Foundation took more than 51,000 reports

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from all sources last year. If the site containing the image is hosted in the UK, the details will be passed to law enforcement agencies, and the ISP will be asked to take down the web page using the “notice and take down” process. In 2013, the Internet Watch Foundation found that 47% of UK child abuse web pages were removed within 60 minutes. Thanks to the work of the Internet Watch Foundation, and the internet industry, less than 1% of the global total of indecent images of children is hosted in the UK.

However, we are not complacent, and we recognise the need to adapt to changing uses of technology by paedophiles. As the Prime Minister made clear in his speech to the NSPCC in July last year, we need to do more to eradicate these images from the internet and, in particular, ensure that the internet industry plays its full part in doing so. We have been working closely with the industry, and with its support we believe that significant steps have been taken towards removing these images. We have asked internet search engine providers such as Google—which was referred to by the noble Baroness and also by the noble Lord—and Microsoft to make changes to their search mechanisms, and these measures have been effective in preventing access to child abuse images.

We are also creating a new child abuse image database, using much of the same technology that the noble Lord, Lord Harris, referred to in setting out and introducing his amendment. This will enable the police to identify known images more quickly on suspects’ computers and will improve their ability to identify and safeguard victims from the images. A key part of this is not just about lining up prosecutions by identifying these images or getting the images taken down; it is about realising that the children behind them are vulnerable victims and need to be protected and get the help and support that they need.

Not only do we want the industry to remove such images, we want it to use its technical skills and capability to help develop the technical solutions to prevent the dissemination of these images online. The Home Office and the US Department of Justice have created a taskforce that provides a platform for industry to develop technical solutions to online child sexual exploitation. This work is ongoing under the chairmanship of my noble friend Lady Shields.

The UK will host a summit in December on online child exploitation. We have invited representatives of key partner Governments and organisations, including the internet industry, to participate in the summit, which will focus on protecting the victims of online child abuse and examine how we can work internationally to prevent children being exploited online.

The Government are very clear that those who provide services online, particularly those where images can be stored—a point that the noble Baroness, Lady Howe, made—have a responsibility to take action to prevent those services being used for the purposes of storing and sharing indecent images of children. In that regard, as she rightly said, we should have zero tolerance. We believe that internet service providers operating in the UK have a good record in this respect, both through their support for the Internet Watch Foundation and through the actions that they are taking to support the Prime Minister’s call for action.

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Against this background of good co-operation and progress at present, we believe that the current system of self-regulation has been effective, and we are not persuaded at this time that more would be achieved by placing a legal requirement on these companies. In that regard I hope that, having heard the progress that has been made and our undertaking to keep this under review, the noble Lord will feel sufficiently reassured to consider withdrawing his amendment.

Lord Harris of Haringey: My Lords, I am grateful to the noble Baroness, Lady Howe, and my noble friend Lady Smith for the support that they have given to this amendment. To the noble Baroness, Lady Hamwee, I say that, as I am not doing this on behalf of the Government or anyone else, I am not engaged in a lengthy process of consultation with internet service providers, but I would make the point that this is a very soft change. It is simply asking them to consider and, where they think there is a material risk, to take reasonable steps. It is difficult to imagine any internet service provider, unless it wants to provide a service for expressly illicit purposes, finding this difficult.

I am of course encouraged by what the Minister has described. Most of it does not in fact apply to the issues that I have raised, because this is about images stored for private purposes rather than public purposes. The web page stuff and the work of the Internet Watch Foundation, with which I am very familiar—I think I am an ambassador or a champion; I cannot quite recall what the certificate says—are clearly about public-facing material which people may access. All that work is extremely good. I accept that many internet service providers are extremely responsible and are operating as one would hope in a self-regulatory way. I think this would have helped encourage those that are not being quite so public-spirited or sensitive to these issues to be more so in the future.

However, in the light of the Minister’s undertakings that this is something that will continue to be looked at, I beg leave to withdraw the amendment.

Amendment 47 withdrawn.

Amendment 48

Moved by Baroness Williams of Trafford

48: Before Clause 68, insert the following new Clause—

“Knives and offensive weapons in prisons

After section 40C of the Prison Act 1952 insert—

“40CA Unauthorised possession in prison of knife or offensive weapon

(1) A person who, without authorisation, is in possession of an article specified in subsection (2) inside a prison is guilty of an offence.

(2) The articles referred to in subsection (1) are—

(a) any article that has a blade or is sharply pointed;

(b) any other offensive weapon (as defined in section 1(9) of the Police and Criminal Evidence Act 1984).

(3) In proceedings for an offence under this section it is a defence for the accused to show that—

(a) he reasonably believed that he had authorisation to be in possession of the article in question, or

(b) in all the circumstances there was an overriding public interest which justified his being in possession of the article.

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

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(a) on conviction on indictment, to imprisonment for a term not exceeding four years or to a fine (or both);

(b) on summary conviction, to imprisonment for a term not exceeding 12 months or to a fine (or both).

(5) In this section “authorisation” means authorisation given for the purposes of this section; and subsections (1) to (3) of section 40E apply in relation to authorisations so given as they apply to authorisations given for the purposes of section 40D.””

Baroness Williams of Trafford: My Lords, the violent use of knives and offensive weapons in prison poses a real threat to the safety of prison staff and prisoners. Only earlier this month we saw reports that an officer at Swaleside prison in Kent was attacked with a blade. I am sure that the whole House would agree that the possession of weapons in prison is unacceptable—and yet, unlike in public places and schools, possession of such weapons in prison is not currently a criminal offence. This new clause will put that right.

Amendment 48 would insert new Section 40CA into the Prison Act 1952 to create a new offence for persons in prison to possess any article that has a blade or is sharply pointed, or any other offensive weapon, without authorisation. This will include weapons manufactured by prisoners from everyday items, which are the types most commonly used.

While possession of such items is a criminal offence in a public place and in schools, it is not currently a criminal offence in prison. This has led to a disparity between the penalties available to tackle this sort of crime in the community and those available within prison establishments. This disparity must be addressed. Assaults and violence are a long-standing problem within prisons. If left unchecked, they can quickly destabilise a prison and threaten the safety of both staff and prisoners. While assaults without weapons are more common, assaults with weapons are not infrequent and can inflict life-changing injuries.

The new offence will add to the existing criminal offences in the Prison Act that make it an offence for a person to convey certain items—including firearms, explosives and other offensive weapons—in or out of prison without authorisation, or to be in possession of a camera, sound recording device, mobile phone or other similar device in prison. Possession of weapons by prisoners is currently dealt with through the prison adjudication system. The maximum penalty for a disciplinary offence under the internal adjudication system is 42 added days served in prison compared with the four years’ custodial maximum for the equivalent offence committed in the community.

Criminalisation will ensure that the more serious weapon possession offences can be punished through the criminal justice system rather than the prison adjudication system, as appropriate. The maximum penalty for the new offence will mirror the maximum penalty for the offence in the community: a four-year maximum sentence on conviction on indictment or a fine, or both; or, on summary conviction, a maximum six-month sentence or a fine or both.

There are of course legitimate circumstances in which persons in prison, including prisoners, may need to have sharp items or other articles in their possession. For example, a prisoner may need to use a bladed tool in a carpentry session, or may use kitchen

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knives when preparing meals. The authorisations framework in the Prison Act recognises this reality. Subsection (5) of the new clause therefore applies the existing authorisations framework to the new offence. Authorisations may be given administratively by the Secretary of State or by the Prison Rules in relation to all prisons or prisons of a specified description. Authorisations may also be given administratively by the Secretary of State, the governor or director of the prison, or by a person authorised by the governor or director in relation to particular prisons.

Amendments 58 and 65 are consequential on the lead amendment. All three amendments will ensure that the current maximum sentence for the offence of possession of a knife in the community is also available in prisons. This will act as a more effective deterrent and ensure that tougher punishments are available to tackle the problem of weapons and violence in prisons. The message to prisoners who want to possess offensive weapons is clear: we do not tolerate it in the community and we will not tolerate it in prisons. I beg to move.

Amendment 48 agreed.

Amendment 49

Moved by Lord Wigley

49: After Clause 69, insert the following new Clause—

“Domestic violence as a serious crime

For the purposes of this Act, domestic violence is deemed to be a serious crime.”

Lord Wigley (PC): My Lords, I have tabled the amendment in order to enable this House to have a debate concerning bringing domestic violence within the scope of the Bill. I also welcome Amendment 49C, which is grouped with mine and goes further in a direction with which I concur, although I none the less feel it would be useful to have the words of my amendment in the Bill.

The amendment was tabled partly in anticipation of the fact that Members of the other place are likely to table amendments on domestic violence during the Bill’s later stages and it was thought that, as a result, this place too should have an opportunity to debate this serious offence. The amendment is therefore an enabling amendment and seeks to argue that changes to the law on domestic violence should be within the scope of the Bill.

Last February, my colleague, Elfyn Llwyd MP, introduced a ten-minute rule Bill in another place to criminalise all aspects of domestic violence, including coercive control in a domestic abusive situation. That Bill had all-party support, including MPs from five parties, such as Cheryl Gillan, Robert Buckland, Sandra Osborne, John McDonnell, Bob Russell, Caroline Lucas and Hywel Williams. The objectives of that ten-minute rule Bill have been supported by more than 100 MPs in Early Day Motions that called for coercive control to be an offence in its own right.

7.15 pm

Domestic violence is without doubt a serious crime. A principal aim of the amendment would be to encourage more victims of domestic violence to come forward and report the crime, as well as to secure more thorough

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investigations by the police, and therefore more successful prosecutions. The purpose of Elfyn Llwyd’s Bill was to place a statutory framework around domestic violence since, at present, there is no specific law covering this offence. Indeed, the fact that coercive control is not an offence is a contributory factor to the low rates of reporting, of arrests, charging and of convictions. According to Women’s Aid, less than 7% of domestic violence incidents reported to the police lead to a conviction. Currently, 25% of domestic violence cases passed on to the Crown Prosecution Service result in no action being taken.

Elfyn Llwyd’s Bill followed on from the highly successful campaign during 2011-12 for the introduction of stalking laws in England and Wales, which was spearheaded by Elfyn Llwyd, and advised by Laura Richards, a leading criminal behaviour psychologist, and Harry Fletcher, then of Napo. Under the terms of that Bill, a person convicted of coercive control could face up to 14 years’ imprisonment. The Bill placed statutory responsibilities on the police to develop and implement domestic violence policies, to provide written policies that encourage the arrest and charge of a perpetrator, and to make investigation of complaints a priority. The Bill also created domestic violence orders, which would prevent further contact that could in itself amount to domestic violence, prohibit the perpetrator from engaging in certain activities, including contact with the victim or children of the victim, and exclude the perpetrator from the victim’s home.

In addition, the Bill would have prevented a victim from having to disclose details of their address or whereabouts in open court, thereby preventing the perpetrator from having this information. Members of this House will be concerned to learn that, this time last year, a victim of abuse who was in a place of safety was required by a judge in the north of England to disclose where she was living, despite the fact that her abuser was present in court. That cannot be allowed to continue. The Bill also gives the court the power to undertake a risk assessment on the impact of domestic violence on the victim and, importantly, on their children.

Probation staff have been concerned for years about the extent of domestic abuse, low reporting rates and how few convictions result from reported incidents. The Probation Service provides victim liaison, women’s safety officers and perpetrator programmes. All of these services are under threat from privatisation and cuts. Plaid Cymru’s leader, Leanne Wood AM, previously served as a probation officer. I would like to draw to the House’s attention a highly relevant comment she made recently on this issue. She said:

“In my many years’ experience as a probation officer and a women’s aid support worker, I worked with countless women and their children who had been severely damaged by domestic abuse. Even though there is wider awareness today and a range of support services, instances of domestic abuse do not appear to be diminishing. In my work, I often came across professional people in various organisations who made assumptions about emotional abuse not being as serious as other forms of abuse, especially violence. It’s difficult to compare years of put-downs and public humiliations or being told you have a mental illness when you don’t, to individual physical assault. All forms of abuse can have long-lasting and deep consequences and recognition of that is vital if we are to make sure that victims and survivors get the justice and the services they need to recover”.

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Similarly, Harry Fletcher, who was involved in drafting Elfyn Llwyd’s Bill, and who is now director of the Digital Trust, a new organisation committed to fighting online abuse, which is frequently seen in cases involving coercive control, has said:

“It is outrageous that so few women have confidence to report domestic violence to the police and that the number of convictions as a percentage of all violence is so low”.

He has also commented that the original Bill was based on the successful experience of naming domestic violence as a crime in the United States. Emulating this experience from the United States would go a long way towards protecting vulnerable women.

In the UK there are scores of domestic violence-related homicides or incidents of serious harm every year. Last year 7% of women, according to the Home Office, reported having experience of domestic abuse, which is equivalent to 1.2 million women a year. Two out of three incidents were experienced by repeat victims. The Home Office also reports that two women are killed by a partner, ex-partner or lover every week.

By contrast, the situation in the United States, where specific laws exist, is quite startling. Since laws were introduced at various times over the past 20 years, reporting has increased by nearly 50% and incidents of violence have decreased by over one-third. Plaid Cymru MPs are currently conducting research into how the laws covering domestic violence operate across the United States and I am sure that there is much that we could learn from their experience.

It is essential that domestic violence is perceived as a serious crime. If the Government are presented with an opportunity to strengthen the law, they must surely seize that opportunity. I hope that Members of this House will signal their support for such a change in the law. I beg to move.

Baroness Howe of Idlicote: My Lords, I am pleased to support the amendment of the noble Lord, Lord Wigley. In my remarks, I shall focus on the experience of a specific victim of domestic violence—Laura, as she is called—to illustrate why, because of the shocking treatment that she has received not just from her abuser but from the authorities, all the changes that are being proposed are so important.

Laura’s case highlights why the law must change, to take account of all forms of domestic violence, emotional as well as physical, as the noble Lord, Lord Wigley, said. Her case also serves to show why police and prosecutors should look at the patterns of behaviour in these crimes.

I will quote Laura’s own words. She said:

“I was made to feel worthless—made to feel that the way I was treated was normal. I was punched, kicked, slapped, strangled, thrown around, spat at and emotionally mocked ... I was locked in and outside my house if I went out or did something without his permission. I was watched by him on a daily basis by cameras that were put up in our home by him”.

The abuse to which the victim was subjected continued over a three-year period. In that period there were numerous witnesses to the abuse, including local builders, members of the public and even a bank teller, who recorded him physically assaulting the victim. Laura has also spoken of the factors that inhibited her from

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leaving her home. It is important that these are also put on the record, since in many instances people who have not been subject to domestic violence cannot understand why the victim would not leave the perpetrator. It is this precise ignorance among some police and prosecutors that leads to victims not being taken seriously when they finally reach the end of their tether and report the crime.

Laura has spoken about how her abuser threatened to cut himself out of the lives of their children or indeed to harm her, leaving her children without a mother. It is also telling that she said:

“I left on a number of occasions, but he kept stalking and harassing me. In the end I just thought … I may as well return to a controlled situation where I knew what to expect. Also, his side of the family pressured me and made me believe that, every time, he had changed and how unfair I was being on my daughter by taking her dad away”.

Laura eventually went to the police, but she said:

“I was very afraid, so at times I didn’t want to give statements as I knew it was his word against mine. The police were always called by other people, but he was always let off, even when there was strong evidence. The final time I left and never went back I moved to an address I kept secret. I was harassed constantly via the phone, sent death threats, stalked, chased in my car. When he did find out where I was living he tried to break into my house and then when he finally saw me he threatened to burn my house down with me and my daughter in it. Again there were witnesses. People told him to leave and in the end he left … I reported this all to the police. This was the final straw. I did make a statement about the offences he had committed where there were witnesses ... but it turned out that there were no laws in place to protect me at all ... he was let off”.

Laura has spoken about how disappointed she felt at the treatment that she had received from the police. She has spoken about how the police did not always give due credence to how distressing coercive and controlling behaviour can be. For instance, she says that to this day, 14 months after she reported the crime, she is still waiting for the police to take her phone and download abusive messages that the perpetrator left for her.

That is why the training of police and prosecutors must be improved, to take account of all methods of domestic abusive behaviour and to have regard of the impact that this debilitating crime can have on its victims. To make matters worse, this victim was also told that because the perpetrator had left the country for six months, the time limit on his crimes had elapsed and he could not be prosecuted. That is why many campaigners believe that domestic violence cases should not be subject to time limits. I certainly agree on that point.

It is clear that the current law is not working for victims. Laura’s message to those in power is:

“Please recognise the need for change. We need to ensure new laws are brought in ... We need harsher punishment for perpetrators. We need to ensure that we are doing all we can to support victims and to charge the offenders ... The whole background of the relationship needs to be taken into consideration and indeed … the perpetrator’s whole background in general. Information on past relationships where similar incidents were reported, even if no charge was brought forward, must not be ignored. This is an issue that needs to be dealt with”.

I commend Amendment 49 to the House and to the Government.

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7.30 pm

Lord Rosser: My Lords, the purpose of our amendment, apart from giving an opportunity to debate the law relating to domestic abuse, is to provide for the Secretary of State to consult on ways of strengthening the law in relation to domestic abuse, which is perpetrated overwhelmingly against women, with that consultation taking place within six months of this Act coming into force. Our amendment also sets out some of the issues that the consultation would consider, without it being an exhaustive list.

Those issues are: should a specific offence or offences criminalising coercive and controlling behaviour, or a pattern or acts of behaviour within an intimate relationship, be created? Should the violent and sexual offenders register include serial stalkers and domestic violence perpetrators and be managed through the multiagency public protection arrangements? Should a new civil order be created to place positive obligations on serial stalkers and domestic violence perpetrators? Should the breach of domestic violence protection notices and orders be a criminal offence? Should domestic violence protection notices and orders extend across European boundaries?