Agenda item 2 is an evidence session on the supplementary legislative consent memorandum on the Anti-social Behaviour, Crime and Policing Bill. This follows our evidence session a couple of weeks ago with the Crown Office and Procurator Fiscal Service, Police Scotland and Scottish Women’s Aid groups on the forced marriage provisions in the bill. Members will see that we received a letter from the minister on Friday, copies of which are in front of them. The letter explains that the Government now intends the maximum sentence for forcing someone to marry to be seven years rather than two, so the LCM has been revised accordingly.
The LCM introduces provisions criminalising forced marriage. The Forced Marriage etc (Protection and Jurisdiction) (Scotland) Act 2011 was a clear statement of our intention to work towards the eradication of forced marriage by making a breach of a forced marriage protection order an offence. We have kept in view developments in the United Kingdom and internationally in relation to the response to forced marriage. In June 2012, the UK Government became a signatory to the Istanbul convention, article 37 of which requires forced marriage to be a criminal offence. We understand that the existing legislation in Scotland does not wholly meet the relevant article.
Thank you, minister. I am not prejudging, but I have a feeling that the only particularly controversial proposal is to do with the criminalisation of forced marriage. It would be useful to deal with that first and then we can deal with the other provisions. Are committee members content to take that approach?
Right. Questions now—Sandra White first and then Margaret Mitchell, as they were both on the committee that dealt with the civil legislation on forced marriage.
Minister, we heard from Lily Greenan from Scottish Women’s Aid, from Shakti Women’s Aid and from others about the difficulties that they feel we would have here in Scotland with regard to the forced marriage legislation. Basically, they feel that the current legislation fits the bill, as you might say—it fits the Istanbul convention. However, from your earlier comments, it seems that you disagree with that view. Can you expand on why you believe that the legislation as it stands—Margaret Mitchell may come forward with more information on that—does not fit the bill, whereas Women’s Aid and other groups have said that it does?
We clearly disagree with those groups on that point, which is an unusual position because usually we agree with them on most things. However, we do not agree on this issue. Our advice is clear—we believe that forced marriage has to be made a criminal offence in order to comply with the Istanbul convention. That is our clear understanding.
The committee appreciates that the civil and criminal legislation will be side by side. However, the criminal offence may destroy—as my colleague is saying—the good work that is being done under the civil legislation. We recognise that both will exist.
We believe that making forced marriage a criminal offence is the right thing to do, because of the repugnant nature of forced marriage. We should ask ourselves the question, given that there is criminal law in many other aspects that would apply to family members, why forced marriage should be any different. Domestic violence or sexual abuse, for example, can involve family members committing criminal acts, so why should forced marriage be different under the criminal law?
On the civil process, organisations such as Scottish Women’s Aid, Shakti and others believe that forced marriage is a cultural issue. You mentioned that the processes will work side by side. When we are acting on incidents of forced marriage, do we go through the civil process before the criminal process kicks in?
In essence, the person will be able to choose whether to use a civil remedy. If prosecutors wanted to use criminal law for reasons of public interest, it would be up to them. We do not need the victim’s consent to go down that route, but the civil remedies will still be available to the victim.
The minister is absolutely right to say that both remedies will be in place. A number of different factors will need to be taken into account in each case to decide which route one would go down. The amount of evidence that is available would be one of those factors, because the civil test of evidence is a lesser test than the criminal test of evidence.
Why is article 37 of the Istanbul convention being breached as the law currently stands?
Our interpretation of the Istanbul convention is that it requires forced marriage to be made a criminal offence. I know that others disagree with that, and although the Law Society of Scotland might have concerns about the LCM route, as I understand it, its interpretation is similarly that the Istanbul convention requires forced marriage to be a criminal offence.
I am not sure that I understand the view that it is possible to perceive existing Scottish legislation as delivering on the commitment on the Istanbul convention. Certain conduct that might be involved in forcing someone to marry might well be criminal if it involves physical violence, abduction and so on, but there is no existing offence of forcing someone into a marriage. The fact that a criminal offence will result if someone breaches a protection order under the 2011 act is not sufficient to meet the requirements of the Istanbul convention. Obviously not all circumstances will involve an order being in existence under the 2011 act.
Would it be possible to extend forced marriage protection orders to apply to people who are seeking to extricate themselves from a forced marriage, and make breach of such an order a criminal offence? We heard in evidence that some partners are not even aware that they are in a forced marriage.
Breach of an order carries a maximum sentence of two years, I think—Stuart Foubister is confirming that. Breach of an order is already a criminal offence—
Yes, prior to the marriage, but I am talking about someone who is already in a forced marriage. Can a forced marriage protection order be extended to cover someone who is trying to extricate themselves from a forced marriage, such that only at that point would the breach be a criminal offence?
Under section 1(1) of the 2011 act, a protection order can be made in respect of someone
We must get this right and put in place the best law, which will encourage people to come forward. We know that there are cultural issues. We heard in evidence that criminalising forced marriage per se will mean that people are not inclined to come forward. Could not the way forward that I suggested be considered?
As more countries criminalise forced marriage, more evidence will emerge; so far, Norway, Denmark, Germany, Austria, Malta, Belgium and Cyprus have criminalised forced marriage, and since Denmark did so in 2008 a Copenhagen-based organisation, LOKK, has reported an increase in young people coming forward. Grass-roots organisations in other countries that have criminalised forced marriage have reported a 50 per cent increase in the reporting of forced marriage.
That is correct.
There is, therefore, evidence that criminalising forced marriage appears to increase reporting, whereas under our current civil legislation no one has come forward during the past two years to annul a forced marriage. The evidence, albeit limited, seems to come down on the side of the criminalisation of forced marriage encouraging reporting.
Why is that the case? Why would people who are reluctant to come forward when forced marriage is a civil matter be more enthusiastic about coming forward when it is a criminal matter? It seems to me that the opposite would be the case. I think that the committee is quite sceptical about the view that what works in one country will necessarily work in the culture and legal framework of another.
I accept that, convener, but my reading of the evidence from other countries is that because forced marriage is a criminal offence, the reporting of it—not necessarily by the victim—has increased.
That is a very different thing, if someone who is not the victim reports the forced marriage. What were victims’ positions, according to the data that you have?
The data that we have is fairly top line, but we can provide the committee with more detail. Although the evidence that we have is limited, there is certainly not evidence to say that the criminalisation of forced marriage stops people reporting it or others reporting it on behalf of the person concerned.
That is the key—others reporting it. We are concerned about the people who are in the middle of the maelstrom reporting forced marriage.
Given the complexity of the issue and the conflicting evidence that we have heard about, should not there be more consultation? Indeed, should not there have been more consultation?
As you are aware, the UK Government consulted. That consultation found that people were very much in favour of the criminalising of forced marriage. Because of the timeframes involved, a specific Scottish consultation has not been possible, but the evidence from the UK consultation would tend to suggest that there is support for the criminalisation of forced marriage.
I think that it is strange that, given our distinct Scottish system of criminal justice, we should rely on consultation in England, where the approach is different. In 2011, we looked at that approach. We fully understood the position in the UK and moved forward with a solution that we thought was better. It seems to me that we should not be rushing this—it is more important that we get it right.
Since then, we have had the Istanbul convention. In order for a country to be a signatory to that, it is necessary for forced marriage to be a criminal offence. The women’s organisations that gave evidence to the committee wanted us to be a signatory to the Istanbul convention. The disagreement is about what is required in order to be a signatory to it. We are clear—as is the UK Government—that, for a country to be a signatory to the convention, forced marriage requires to be a criminal offence. If you boil it all down, fundamentally, that is where the disagreement lies. Everyone agrees that we all want to be signatories to, and to ratify, the Istanbul convention. We and the UK Government are clear that, for us to do that, forced marriage must be a criminal offence.
Why should we not introduce our own legislation?
We could have done that. We debated the options at length and considered whether there were other vehicles that we could use, such as introducing our own legislation. The judgment was made that that would take much longer to achieve. If we believe that forced marriage should be a criminal offence—as I do—in my view it is better to make it so and, through the seven-year penalty that comes with that, to send out an extremely strong message that Scotland takes a very hard line on the issue.
The committee’s position is not that we do not think that it would be appropriate to make forced marriage a criminal offence at some point; it is that we probably feel that we are moving forward quite quickly when the civil legislation has bedded in for only a year. I presume that if separate legislation were to be introduced in Scotland to criminalise forced marriage, the fact that the intention to do so was there would show that we were not in breach of anything; it would simply be the case that we wanted to take our time and to have a proper and thorough consultation.
I wonder when it was first realised that there was a problem with the Istanbul convention. The convention was signed in 2011 and the Forced Marriage etc (Protection and Jurisdiction) (Scotland) Bill was passed in 2011, so when did the Government become aware that there was a problem with the legislation that had just been passed?
The UK signed the Istanbul convention in June 2012, so that was some time after the passing of the Forced Marriage etc (Protection and Jurisdiction) (Scotland) Bill. The UK Government, in common with many other Governments, signed the convention and then had to look at the process of ratification and what that would involve. At that point, there was consultation with officials around the UK about whether we were already compliant with the convention. It was agreed that we were not compliant either in Scotland or in England and Wales because we had not criminalised forced marriage.
The minister now says that she believes that that is the right thing to do, so why was it not the right thing to do two years ago? We could have criminalised forced marriage two years ago.
As Lesley Irving has explained, when the UK Government signed the Istanbul convention it became clear that ratification required forced marriage to become a criminal offence. I do not think that that was apparent back in 2011, so it is since then that that legal position has been established.
That is fair.
The minister said that it is the right thing to do. Surely that would have been the case two years ago when we passed the legislation, whether or not it was in contravention of the Istanbul convention.
I think that the minister is saying that the position is that it is now mandatory.
My question is about the relationship between the existing civil legislation and the current proposal. Is it your position that a conjoining of the existing civil and criminal law in Scotland is insufficient to meet the terms of the proposal? Would a breach of the civil legislation being a criminal offence, plus the existence of all the other crimes such as abduction and assault, not be enough?
No. The only part that is a criminal offence under the existing legislation is the breach of an order. We are very clear that that does not constitute what is required to ratify the Istanbul convention. The UK Government is similarly clear about that.
Not even when taken in line with, as was referred to earlier, the law on abduction, assault, rape or whatever?
No, but I will let Stuart Foubister elaborate on that.
The shortfall is basically that the 2011 act will cover only circumstances in which an application has been made and an order has been put in place. Under existing law, someone will commit the offence of forced marriage only if they have been pre-warned by an order not to do a specific thing. However, that cannot be enough to criminalise forced marriage as such.
Are there transitional arrangements that could be put in place?
Not if we are to put ourselves in the position whereby the UK can ratify the Istanbul convention.
Okay. The process that we have gone through seems very accelerated for something that would bring about a seven-year period of imprisonment. The process seems very speedy and there has not been the consultation that we would normally expect for something of such gravity.
I accept that it is an accelerated timeframe. However, I believe that the matter is of great importance in ensuring that we in Scotland have the most robust legislation on forced marriage. I believe that that is the right thing to do, given the direction of travel by the rest of the UK and other European countries. We have a vehicle in the here and now to do that—whether we do so becomes a judgment on whether that is the right thing to do. In order to overcome some of the concerns, we are planning—it would not just be the legislation—an awareness-raising and information campaign.
Has any assessment been done of the potential damage to relationships, given that the people who are involved directly day to day have clearly indicated no support for the proposal?
It is not quite true to say that there is no support. Saheliya, which is an Edinburgh-based organisation, is supportive of the legislation. Leslie Irving will say a little bit more about its position.
Saheliya is a minority ethnic women’s organisation that does a lot of important support work with women from many of the communities that are affected by forced marriage and others forms of honour-based violence. Its view is that it is important for the Government to adhere to the letter, as well as the spirit, of the Istanbul convention, so it is supportive of the need to criminalise the behaviour in order to comply with the convention. It believes that the legislation will strengthen support and preventative work, and that forced marriage should be in line with other abusive practices in the family, such as domestic violence and sexual abuse, as the minister mentioned.
The key phrase that you used was
The figure was 54 per cent.
Yes—54 per cent agreed with criminalising the behaviour and 37 per cent were against, but the percentages depend on who responds.
We are carrying out that research anyway—we need more research whether or not the bill is passed. All I am saying is that, as we proceed with the bill, the research will help us see whether the position in Scotland mirrors that in some other European countries. We want to monitor whether reporting is increasing, to understand better why that is the case and to assess whether it would be the case in Scotland as well. We think that it is prudent to have that research in place alongside the legislation. We want to understand why no one has come forward to use civil legislation to annul a forced marriage. We maybe need research on that as well.
I think that we have been saying that we need to find that out first.
It was remiss of me to suggest that there was total opposition. I was more interested in your relationship with the organisations that do not support the proposal and with which you would seek to engage.
As part of taking forward this legislation, we will certainly want to make sure that all our front-line staff are well trained and informed, particularly about how the civil legislation and the criminal legislation sit beside each other. We also want to make sure that we raise awareness within communities. I suppose that the short answer to your question is yes.
Could we have corroboration, minister?
—I wonder whether the women’s organisations would take a different view. I do not know. They would obviously have to answer that for themselves.
As I understand it, the bill makes it a criminal offence, among other things, for a person to use
I entirely agree with that. I think that it is in line with what I said earlier. Certain conduct that might emerge when someone is being forced into a marriage will be criminal under existing law, but I do not see how one can possibly say that all conduct that would constitute forcing someone into marriage is a criminal offence at present.
To that extent, if we agree to this LCM, we will be providing a more comprehensive response.
Yes, and delivering the needs of the Istanbul convention.
Given the purposes of the existing forced marriage legislation, it is not possible to amend it. I do not have the purposes in front of me.
The difficulty with the present legislation is that it all depends on applications being made to set up an order in order to produce a criminal situation.
So if we wanted something else in Scotland—I am not saying that we do—we would have to have a separate piece of legislation.
Yes.
That is fine.
Yes. I will bring in others in a minute, but my understanding is that the position in relation to people under 16 will not change. If a disclosure is made by a young person, the relevant child protection procedures would be activated, as they are at present.
But would children report it if they thought that what they were doing was reporting parents, aunties or uncles for a criminal offence? That is my point. It is difficult for them now. Would it be more difficult for them?
If they did it now, child protection procedures would be enacted. If they do it once the legislation has been introduced, child protection procedures will be enacted.
Yes, but will children do it? At the moment, they know that if they do it, it is a civil offence.
I am not sure that children really know the difference between civil and criminal.
That is a fair point. If they are going to report, they will report and, in either case, the child protection procedures will be enacted.
Can I just dispute with my colleague here? If we are going to do the education and tell people all about it, I think that among some children—remember, children up to 16—in communities there will be an awareness of the facts and that forced marriage is a criminal offence. I raised that issue with you because I think that it is difficult for children to report it anyway.
Sure, but if we consider other criminal offences that might take place within the family environment, we are always encouraging children to speak out and tell us what is happening. Why should forced marriage be any different? I know that it is difficult for children, but the criminal law exists, whether we are talking about disclosing domestic violence or sexual abuse.
Yes, but this is a big cultural thing. It has ramifications within a community. It is something quite different. What if it is not an individual but a community that is to be criminalised? What if it was a group of people within an extended family and the community beyond who were party to an action such as this and who would be criminal under the legislation? It is very different from dealing with domestic violence situations that a child might report.
The support of the community will be very important in ensuring that, where a crime has been committed involving forced marriage, that crime is reported. Whether it is civil or criminal legislation, we need to ensure that the community feels supported in order either that people are encouraged to report that a forced marriage has taken place if they are directly affected or that third parties report it.
But it may be the community that is being criminalised. That is the difference here. Whatever we describe community as—whether it is an extended family or even a larger community—the community itself will be tinged with criminality. That is my point. It is different in this particular circumstance.
The parallel with work on domestic abuse is a good one to draw, and particularly domestic abuse as it affects minority ethnic communities, where other family members are often involved. That is a key cultural difference. It is often the female members of the family who are involved—the mother-in-law, the aunties-in-law and so on—as well as the male partner. If someone discloses domestic abuse in that context, they are potentially criminalising a larger group of people. The same applies in relation to female genital mutilation—which is also a criminal offence, of course—where it involves family members such as mothers, aunts and so on. Again, disclosure potentially criminalises large numbers of people. We have said that, in those instances, it is important to have a powerful message to victims that what is being done to them is a very, very bad thing and that society is not prepared to stand by and support it. There are a number of parallels that suggest that what is proposed is the right way forward.
I have found this evidence session very useful and I have been persuaded by what the minister has said. In speaking strongly in defence of the proposals, she has identified clearly that there is a weakness in the civil system in that it needs people to self-refer, so it cannot absolutely meet the Istanbul convention.
That is a good question. We will continue the discussions with the organisations that we work closely with. We want to ensure that we support people to the maximum—particularly victims, but also communities—because ultimately we want to eradicate forced marriage, and we want to use the law as one part of the toolbox to do that. The rest of the toolbox is about the support organisations on the ground that work with potential victims. We will continue to have those discussions and, if they require additional support to carry out that job, that is something that we will want to take forward.
Sorry—I was half listening to that and half listening to the clerk. Having raised the issue of speed, I would like to get an idea of the timetable. I have been advised that the committee has to report by mid-January. If the Parliament agrees to the bill, when will commencement be?
The arrangements under the UK bill as it stands are that Scottish ministers will be responsible for a commencement order to bring the forced marriage provisions into force.
What is the thought process about a commencement order? You talked about doing research. Can you give us an idea of what you are thinking about?
My only concern is that we do not want it to be too far off the timeframe for the commencement of legislation south of the border, because we are keen that there is not a perception that Scotland does not have the same robust legislation to deal with forced marriage. Do we know when commencement south of the border will be?
I do not, I am afraid. The bill is still going through at Westminster.
It is in the House of Lords.
It is likely to be into the middle of next year, I would have thought.
I would not have thought that it would be any earlier than that.
So it will probably be the middle of next year, although as you know it is always hard to be precise with processes south of the border. We would say that it will be well into next year before the bill is likely to be enacted.
That is helpful. It gives us an idea.
I want clarification on Alison McInnes’s point. She is convinced that the bill requires people to self-refer. My understanding—although I could be wrong—was that forced marriage protection orders do not require self-referral: the police and other parties can do it.
There is an ability for local authorities or the Lord Advocate on behalf of the Crown to seek protection orders, but there must be knowledge on the part of those parties.
The person would have had to have reported to someone who would then—
Is that the case? Would the person have to report it?
The case would not necessarily have had to come to the Lord Advocate or local authorities from the individual who was being forced into marriage, but those parties must be aware of the situation before they would think of going to court.
That is my understanding too.
It is unlikely that those parties would be aware unless the person themselves had had that discussion. That would be the most logical way that a third party would have found out.
Similarly, if we passed what the minister is suggesting, it would be the same route: that party would still have to have knowledge. I do not see that there is any difference between the two.
The prosecuting authorities would have to know; they would have to have evidence.
I do not know whether it is for the Scottish Parliament information centre or the ministerial team to give us more information about what has happened in the other European countries that the minister referred to; whether the people who referred were in fact the victims or third parties, and the consequences thereof. I am making a presumption because, again, I do not know. Do those countries also have civil legislation in place that runs in parallel? If the ministerial team does not know, SPICe will have to find out for us. It would be very useful for the committee to know that for when reference is made to the practice elsewhere.
I wanted to raise another point on the change in sentencing.
It is gone.
Before we move on to the next item of business, which is to take further evidence on the Criminal Justice (Scotland) Bill, just for the record, are members content with the other orders that are covered by the LCM? They will provide for the cross-border enforcement of certain orders.
Members are content. That is nice.