Anti-social Behaviour, Crime and Policing Bill
The next item of business is a debate on motion S4M-08797, in the name of Shona Robison, on the Anti-social Behaviour, Crime and Policing Bill, which is United Kingdom legislation.
17:00
Forced marriage is, thankfully, not an issue that affects the majority of people in Scotland. However, it is a blight on those communities where it still happens and it can have a devastating effect on the lives of victims. I am sure that, whatever our views on this matter, we can all agree that everyone in Scotland who is eligible to marry or enter into a civil partnership has a right to do so freely and without coercion. Forcing someone to marry against their will is an abuse of their human rights. It disenfranchises victims by removing from them the opportunities that should rightly be available to all.
The Forced Marriage etc (Protection and Jurisdiction) (Scotland) Act 2011 introduced forced marriage protection orders, and criminalised the breach of those orders. The act is working well, and seven FMPOs have been granted.
As members know, we are now seeking to go further in the protections that are available for victims by creating a new criminal offence of forced marriage through this legislative consent motion on the Anti-social Behaviour, Crime and Policing Bill, which is currently going through Westminster. The Justice Committee has taken evidence on the legislative consent memorandum, and I am grateful to the committee and, in particular, its convener for their close and thoughtful consideration of this sensitive issue.
This LCM has been controversial. I fully acknowledge that. There are valid concerns on the part of some stakeholders, which they ably explained in their written and oral evidence to the committee. Committee members themselves have reservations, which I am sure they will raise in their speeches during this debate.
I believe that those concerns focus on several issues: the lack of consultation by the Government; whether existing criminal law provides sufficient protection; the chosen route of an LCM on a Westminster bill, rather than stand-alone Scottish legislation; and whether criminalisation might make victims less willing to seek help.
It has also been questioned why we have taken this step at this time, given that our own act on the issue is comparatively new. We have done so because the UK Government became a signatory to the Istanbul convention on preventing and combating violence against women and domestic violence. Article 37 of that convention requires forced marriage to be a criminal offence. It is our view that existing criminal offences in Scotland are not adequate to meet the requirements of article 37, and I note that that view was backed by the Justice Committee.
Is it not the case that the UK Government has signed but not ratified the convention, and that it becomes legally binding only when ratified? If the minister thinks that it is legally binding now, is she not also going to have to take action in relation to articles 7, 8, 10, 11, 17, 22 and 25, as we are not at present compliant with any of them?
We are clear that, in order to ratify the convention, forced marriage requires to become a criminal offence.
The Istanbul convention was, in effect, a game changer. We know that violence against women stakeholders are keen for the Istanbul convention to be ratified, and we want Scotland to be compliant. Criminalising forced marriage is necessary to achieving that.
The LCM offered the opportunity to enable Scotland to continue to be at the forefront of social justice issues. In an ideal world, we would have wished to have had a longer timescale and period of engagement. Indeed, the committee questioned whether it would be practicable for the Government to take forward its own legislation in this area. I wish to assure Parliament that that was central to our initial considerations on whether to pursue an LCM. However, in considering how best to take the issue forward in Scotland, we came to the view that, as our goal was to ensure early ratification of the convention, our preferred legislative framework would be no different from that proposed under the UK bill.
A further disadvantage that would arise if we did not follow this route is the gap that would open up between protections in Scotland and those in the rest of the UK. That period could extend to 18 months or more, and we believe that it is simply unacceptable for victims in Scotland to be denied protection for such a period. We would, quite rightly, attract serious criticism for allowing that to happen.
I turn now to the view that criminalisation will prohibit victims from coming forward. The same argument was made when we criminalised breach of an FMPO in the 2011 act. However, at this point in time, we have no evidence that that would happen. It could equally be argued that the knowledge that perpetrators would face a significant sanction could be empowering to victims, it could encourage them to seek help by sending out a very clear public message, and it could act as a deterrent to those who might consider assisting a forced marriage to take place. That is certainly the view of some stakeholders.
In its written submission to the Justice Committee on 29 November 2013, NHS Lanarkshire ending violence and abuse services stated:
“The symbolism of having such behaviour criminalised could act as an inspiration to women and children living with or in fear of forced marriage ... as well as a deterrent to potential perpetrators.”
Forced marriage is already a criminal offence in a number of European countries and there does not seem to be evidence that reporting has decreased.
I bring to Parliament’s attention the fact that the UK Government is considering amending the bill to ensure that those who might try to take advantage of a person’s lack of capacity to consent to marriage will also be guilty of a criminal offence under the law of England and Wales. Members might be aware that the issue was raised via an Opposition amendment that was tabled by Baroness Thornton in the House of Lords during the bill’s report stage on 14 January. Lord Ahmad then undertook to consider the matter further in advance of the bill’s third reading, which is scheduled for 27 January.
If the UK Government decides to amend the bill to that end, we would be minded for similar amendments to be made in relation to Scotland, as we share the UK Government’s concerns in that regard. That links to the approach that we took in the 2011 legislation. Such a move would fall within the scope of the consent motion before us for approval today.
Concerns have also been raised about how the criminal charge and the civil protection orders will work together. For example, would a criminal case proceed if the victim changed their mind or did not want that to happen? A number of factors would be taken into account, but proceedings could be taken without the victim’s consent if it was deemed appropriate.
That is similar to how we have changed our practice in cases of domestic abuse. It used to be commonplace for the police to ask a victim whether she wanted the perpetrator to be charged. That placed her in a difficult position, having to seemingly take the responsibility for whether her partner was charged and taken to court. Many victims found that to be too heavy a burden and withdrew their statements. Practice has evolved now, however, and cases can be brought even if the victim withdraws her statement. The public interest test is applied, and the increased importance that is now given to domestic abuse throughout the criminal justice system means that the burden of responsibility is removed from the victim.
We have spoken to the Lord Advocate about the issue and he is considering prosecutorial guidance on forced marriage. That will deal with the position if someone who is affected by forced marriage does not want criminal proceedings to be brought. The Lord Advocate will consult key stakeholders on the development of the prosecutorial guidance, and I hope that that will be sufficient to reassure members.
As we will not know the impact of the legislation until it has been implemented, I give a strong assurance to Parliament that we will keep it under review in the medium and longer term. We will, of course, work closely with stakeholders throughout, as we have always done. Those working directly with the communities concerned are in the best position to give us the evidence we need, and we will provide resources for training and awareness raising, just as we did for the 2011 act.
I make it clear that I see criminalising forced marriage as sending the strongest possible message that we will not tolerate such behaviour in Scotland.
I move,
That the Parliament agrees that the relevant provisions of the Anti-social Behaviour, Crime and Policing Bill, introduced in the House of Commons on 9 May 2013, relating to the criminalisation of forcing a person to marry, cross-border application of the new Sexual Harm Prevention and Sexual Risk Orders and in respect of a new firearms offence, so far as these matters fall within the legislative competence of the Scottish Parliament or alter the functions of the Scottish Ministers, should be considered by the UK Parliament.
17:09
Only one part of the legislative consent memorandum is contentious and that is the proposals on forced marriage.
In starting, I think that it is important to make the distinction between arranged and forced marriage. I am sure that every member of Parliament is appalled by forced marriage, and wishes the law in Scotland to be effective in preventing forced marriages from taking place, and in bringing justice to women and men who have been subjected to it in the past.
Members of the Justice Committee took evidence from a range of witnesses, all of whom shared the desire that legislation should act both as a deterrent and as an avenue to justice for victims. However, they did not all share the same views on the LCM.
Members have been contacted by Scottish Women’s Aid, Hemat Gryffe Women’s Aid and Shakti Women’s Aid, which have outlined their concerns over the LCM’s content. As we have heard, as recently as 2011, the Scottish Government attempted to address the problem through the Forced Marriage etc (Protection and Jurisdiction) (Scotland) Act 2011. That introduced civil forced marriage protection orders which, if breached, can result in a criminal proceeding and prosecution carries a maximum sentence of two years.
The Istanbul convention, which the UK Government signed in 2012, requires that forced marriage be a criminal offence. The situation is different from that in England and Wales, where breach is not criminalised. The three organisations that I mentioned have argued that the difference in Scotland meant that our legislation was compliant with the Istanbul convention and the LCM was not necessary here. Obviously, given the nature of the organisations involved, that was not because they wished in any way to excuse forced marriage but because they were concerned that the threat of criminal prosecution on report would deter victims from coming forward. It is often the families of victims who have forced marriage on the victims, and victims may be very reluctant to report family members who then become exposed to criminal procedure. Amina—the Muslim Women’s Resource Centre raised concerns in written evidence to the committee that victims might be less likely to seek an annulment if that could result in their families facing criminal charges.
Scottish organisations also felt that they had not had the opportunity to contribute to consultation on the issue other than to the committee, unlike sister organisations in England and Wales that had taken part in the UK consultation. It is interesting that the majority of those organisations agreed with the proposals in the LCM.
As the key argument was initially about whether Scotland was compliant with the Istanbul Convention, a legal opinion was sought by the committee. I assume that committees are not bound by the ministerial convention on legal advice, so I disclose that the opinion received was that Scottish legislation is not compliant. The Law Society of Scotland, despite many reservations about the LCM, also agrees that the Scottish Government is obliged to take steps to ensure compliance. Therefore, we require a change in our legislation, too.
That leaves us with two options. One is to sign up to the LCM; the other is to pass our own legislation. The committee has asked the minister to consider whether it would be practicable for the Government to introduce its own legislation. As we have heard, if we do the latter, that will take longer, so would it be a problem if we are not compliant within the rest of the UK’s timescale? I think—I do not quite remember where I got this information from—that the idea is that ratification will take place in 2015.
It is a dilemma. We have concerns about how the proposals might work in practice. All witnesses to the committee stressed the need for cultural change and education, citing, for example, the route by which domestic abuse became recognised for the abhorrent crime that it is. Will the legislation act as a deterrent, or will it make victims less keen to come forward in case relatives face criminal charges?
We have been told that the civil process will continue to run in tandem with the criminal process but that it does not have to be the victim who reports the criminal offence. However, what will happen if the victim wants to go down the civil forced marriage protection order route but someone else reports the forced marriage as a criminal offence? I would be interested to hear more about what the Lord Advocate has in mind to ensure that the wishes of the victim take precedence. However, I am reassured to hear that the Lord Advocate is looking into the matter.
The other major change is that the maximum sentence for the criminal offence will be seven years instead of the current two years. That change is being introduced in Scotland without consultation.
The alternative would be for us to introduce our own legislation. I initially thought that that could be done using the emergency procedure, and I was quite attracted to that option. However, on thinking about that further, I am not convinced that the end result be very different from what is proposed in the LCM. Moreover, our experience of emergency legislation is that we often do not quite get it right in the long term and subsequent legislation is required to rectify the deficiencies. Furthermore, would the emergency route enable the consultation to take place that witnesses felt had not taken place with the LCM? The likelihood is that we would either adopt very similar proposals to those contained in the LCM or take the risk of passing different legislation through the emergency route only to repent and amend at a later date.
The other problem is that, if our legislation appears to be more lax than that in the rest of the UK, what message would that send about Scotland’s attitude to forced marriage? How would that affect the cultural change in Scotland that we all agree is required? Therefore, it is with some considerable reservations that Labour will support the motion on the LCM.
Thank you for your brevity.
17:15
The Justice Committee report on the Anti-social Behaviour, Crime and Policing Bill legislative consent memorandum did not make a recommendation on the provisions on forced marriage that are contained in the LCM. I will outline the background to that.
After in-depth consideration, the Scottish Parliament took the decision not to criminalise forced marriage. It did so after receiving evidence that criminalising forced marriage could drive the problem further underground, as victims would be less likely to come forward if the consequence of doing so would be a criminal record for their family.
Instead, the Parliament introduced its own legislation in 2011. It considered that the Forced Marriage etc (Protection and Jurisdiction) (Scotland) Act 2011 struck the right balance. Instead of criminalising the act itself, a civil remedy was introduced that allowed individuals or authorities to apply for forced marriage prevention orders. Crucially, only at the point at which a breach of such an order occurred would the matter become a criminal offence.
The Anti-social Behaviour, Crime and Policing Bill introduces a new criminal offence of using violence, threats or any other form of coercion for the purpose of causing another person to enter into marriage without their free and full consent. Therefore, forced marriage is to become a criminal offence that will carry a custodial sentence of up to seven years.
The Scottish Government’s position is that criminalisation is necessary for the Istanbul convention, to which the UK is signed up, to be ratified. However, the committee heard conflicting evidence on whether the criminalisation of the act was necessary. In addition, the Scottish Government’s decision to ask for an LCM seems to be heavily based on the need to conform with the convention. In other words, there is some dubiety about whether it is necessary to agree to the LCM forced marriage provisions to comply with the convention.
The main issue is the fact that no Scottish consultation has been carried out. Instead, the consultation that was carried out was conducted in other parts of the UK, and it has been relied on. It showed that a significant minority were opposed to criminalisation. The consideration of the issue has been hurried. Apart from the committee’s brief evidence session, stakeholders in Scotland have not been given the opportunity to comment on the forced marriage provisions in the LCM. Therefore, the fact that the situation north of the border is different from that in the rest of the UK, as regards the likely prevalence of the issue and the make-up of the communities in which it exists, does not appear to have been fully considered.
In those circumstances, it has been mooted that the forced marriage element should be withdrawn from the LCM and that some additional time and effort should be given to exploring the possibility of a Scottish solution. The committee was content with the other two provisions in the LCM. If a Justice Committee amendment that set out the position had been lodged, it would have helped to clarify the issue. However, I look forward to hearing other members’ comments during the course of the debate.
We move to the open debate. If members could speak for not too long, that would be helpful.
17:18
Thank you, Presiding Officer. I will try to keep my speech as short as possible.
As a member of the Justice Committee, to which consideration of the LCM fell, and of the committee that was involved in considering the Forced Marriage etc (Protection and Jurisdiction) (Scotland) Bill, I know only too well what effects forced marriage can have on an individual and their family.
I thank my fellow members of the Justice Committee for their scrutiny of the LCM and for their comments, which have all been made in the interests of the victims of forced marriage. I also thank the minister for her speech and her assurances that stakeholders will be consulted on the guidelines that are to be developed and that awareness-raising campaigns will be carried out in communities.
With regard to Elaine Murray’s point about those who have recommended that the UK ratify the convention, I should point out that they included a group of violence against women stakeholders, which was very much in favour of the UK’s becoming a signatory, and the Scottish representatives on the UK joint committee on women, who have recommended that the UK Government pick up on that point.
The fundamental and overriding issue is article 37 of the Istanbul convention on tackling violence against women, which requires forced marriage to become a criminal offence. Unfortunately, existing legislation does not meet the requirement in article 37; the legal advice that the Justice Committee received confirms as much. That is one of the most important aspects of the issue. I believe that by agreeing to the LCM we will not only meet our international obligations but retain our own forced marriage protection orders under civil legislation. I firmly believe that those orders, which will not be removed, will provide an additional safeguard to protect those who are at risk. Victims will still be able to choose between going down the civil route or going to the police.
As my time has been cut short, I will conclude by pointing out that a black and minority ethnic women’s support organisation that is based in Edinburgh has made it clear that we should
“adhere to the letter as well as the spirit of the Istanbul Convention”
because doing so will strengthen support and preventative work. It was also felt that the approach to forced marriage should be in line with approaches to other abusive practices within the family, such as domestic violence and sexual abuse.
Mark Ballard, head of policy at Barnardo’s Scotland, has said:
“We believe that creating an offence under Scots law of forcing someone into marriage would be the right step to take in order to tackle this very serious issue.”
17:21
The LCM’s proposals on forced marriage proved very contentious. The shortcomings of the process were such that the committee decided not to recommend support for that part of the LCM. Shakti, Hemat Gryffe and Scottish Women’s Aid expressed doubts about whether criminalisation would have any significant impact on either awareness or the strength of the message that forced marriage was not acceptable. They also questioned whether there was any need for such a legislative change on the ground that it could be counterproductive to create a criminal offence that deters reporting in a way that the current civil provision for forced marriage protection orders does not. Victims could be put off seeking protection orders and annulments because of their reluctance to see their families criminalised. Indeed, that was the conclusion that was reached when the matter was considered previously. However, despite such reservations, a strong case was made to support the LCM on the grounds of international obligations and consistency of approach with the rest of the UK.
On consistency, I have to say that opinion on sentencing was divided. Originally, a maximum sentence of two years was specified, which is in line with sentences for similar offences under Scots law. However, in December, the minister revised that to seven years, to match sentencing in England and Wales.
One problem that we had was the lack of evidence. The minister and Scottish Government officials acknowledged the clear need for more research and said that they would undertake research on the effectiveness of criminalisation. Unfortunately, the fact that that will be done retrospectively leaves them open to suspicions that it will be used to justify their actions. What will ministers do to guarantee the independence of such research?
The availability of both civil and criminal remedies creates other complications. Victims who have instigated civil proceedings might find that they are suspended if criminal charges are brought. The Scottish Government needs to address the interaction of civil and criminal proceedings and to ensure that the best interests of victims are central to such considerations.
Such shortcomings highlight the folly of bringing forward legislation in this area without proper consultation. It would have been better for the Scottish Government to instigate research and consultation earlier, instead of being dragged along on the shirt tails of UK legislation, and to develop and introduce properly researched Scottish legislation after full consultation.
However, that did not happen and now the LCM, despite its lack of credibility, seems to be the only option on offer if we are to meet our international obligations. Given the importance of those obligations, I will support the motion, but for the reasons that I have outlined I will do so with reluctance.
17:24
The Justice Committee requested time for the debate, and I thank the Parliamentary Bureau for allowing us to have it. All members of the committee were concerned about the lack of opportunity to take evidence, which comes from the extremely flawed process of dealing with LCMs on substantive measures that come to the Parliament. That is not the Government’s fault; that is the LCM process. I think that the Government was put between a rock and a hard place, but the committee, representing the Parliament’s scrutiny of the LCM, was also put between a rock and a hard place.
The LCM follows a previous LCM on the Anti-social Behaviour, Crime and Policing Bill, which is a bill for England and Wales. The LCM is an addition to something that went before. Most LCMs are not contentious. That included this one, but sometimes we come across something that is under the radar, and the forced marriage part in the LCM was under the radar. Substantial examination was needed to give parties affected in Scotland a chance to have their say. We now hear that a further amendment is coming by way of an LCM on vulnerable parties. The process is most unsatisfactory. The committee has put down a marker.
We asked the witnesses to come before us in a very short timeframe. Those who work on the ground in Shakti Women’s Aid and in Scottish Women’s Aid told us that people need to be reassured before they make a formal statement that the protection that they seek—we have protection orders available—can be obtained in the family courts, so their families will not be prosecuted.
Our concern is that the approach in the LCM might be counterproductive. We have good legislation—legislation that does not apply in England and Wales and which is civil but which has a criminal penalty for breach of orders—that has been bedded in for only one year. Seven forced marriage protection orders have already been put in place, which is good news. We felt that the approach in the LCM came too fast on the scene.
As I have said, the problem is that the Scottish Parliament is not in control of the timetable. However, we are where we are. We hear members express reluctance around the chamber. We all want to get to the same place, but are we going about that in the right way? If we have learned one thing in here, it is that legislating in haste means litigating and repenting at leisure. There is also the law of unintended consequences, which we certainly do not want to see.
One concern is that, if a civil action is in process and a criminal action is then brought forward, the prosecution will take precedence, generally speaking. I hear what the minister says about prosecutorial guidance, but that will have to make things very clear, as it is not the victim or the person who reports the situation who is in charge of the process; it is the Crown Office. I think that the views of parties who might use civil process, if they find that the way that they want to go, should be listened to before the criminal process is embarked on.
17:28
In 2005, I introduced a consultation on forced marriage and listened to the views of violence against women organisations, such as Scottish Women’s Aid, Hemat Gryffe Women’s Aid and Shakti Women’s Aid. As co-convener of the cross-party group on men’s violence against women and children, I feel strongly that the Scottish Government should listen to their views and concerns now about consultation and other matters. I know that the deputy convener of that group, Claudia Beamish, shares those views; she asked me to make that clear.
The point that I made in my intervention is that the UK Government has signed the Istanbul convention and expressed its intention to ratify it, but it has not yet done so. It is with ratification that the treaty becomes legally binding for the state that has ratified it, which means that the UK and Scottish Governments will be required to bring the provisions into force through domestic policy and legislation. However, the obligations in the convention derive from the ratification of the treaty, not from the signing of it.
I hope that the minister will clarify the Scottish Government’s point of view on that issue. From what she said in her opening speech, it seems that she believes that the Scottish Government must criminalise forced marriage in order to comply with the convention before it has been ratified. If that is the case, she will have to take action on a lot of other areas, which was the second point that I made in my intervention. Why is she picking one particular area and saying that such action is required under the convention? Engender has made it clear that articles 7, 8, 10, 11, 17, 22 and 25 would all require to be acted on once the convention has been ratified. I would like the minister to clarify the Government’s position on that in her winding-up speech. I think that it would be far better to proceed slowly on the matter, as the Justice Committee has recommended.
We move to the closing speeches. I call Margaret Mitchell—four minutes, please.
17:30
This debate, which is an unusual one, was triggered by the Justice Committee’s decision not to make a recommendation on the inclusion of forced marriage within the LCM. The UK Government is absolutely committed to doing all that it can to tackle forced marriage, which the Prime Minister has described as
“little more than modern-day slavery.”
The Scottish Parliament agrees that everything possible should be done to tackle that abhorrent practice. However, that does not mean that there is only one solution to the problem.
In seeking to fall in line with the UK proposal on forced marriage, the Scottish Government has put forward two main arguments. In the first place, the Government states that there is a need to fill the gap and legislate to ensure consistency across the UK. That is not a convincing argument in relation to forced marriage, as the law here and the law south of the border have never been consistent on that. Indeed, in Scotland it was considered that, with the introduction of the Forced Marriage etc (Protection and Jurisdiction) (Scotland) Act 2011 and the balance that was struck in the approach to criminalise only when an FMPO was breached, the law here offered a better solution to tackle the abhorrent problem.
Secondly, while giving evidence to the Justice Committee, the Minister for Commonwealth Games and Sport, Shona Robison, stated that the Scottish Government was keen to conduct research on the effect of criminalisation, admitting that
“at this stage in our knowledge, we do not know what the effect of the legislation would be”.—[Official Report, Justice Committee, 10 December; c 3946.]
As John Pentland pointed out, the minister went on to promise that research would be forthcoming but that it would be done alongside adopting the UK Government legislation. However, surely the point is that, in order to gauge the effect of changing the law in Scotland, a thorough consultation requires to be carried out here, and the research that the minister promised would ideally be undertaken before a decision is made to adopt the UK approach.
Christine Grahame emphasised that the Scottish legislation has had a very limited time to bed in. That, coupled with the conflicting evidence that the committee heard on whether the current approach to forced marriage in Scotland satisfied the requirements under the Istanbul convention, would have made it not unreasonable to take some time to look at this important issue again, especially in view of Malcolm Chisholm’s comments in the debate about ratification.
Disappointingly, the Government has made it clear that it will support the LCM this evening, so the political reality is that the LCM is guaranteed to be approved. Further, in the absence of any amendment from the Justice Committee, this debate has served only to highlight the Justice Committee members’ concerns and the concerns of those working in the third and voluntary sectors who represent the victims of forced marriage. I believe that to be profoundly depressing.
17:33
A number of important points have been brought out in this very brief debate. Sandra White made the point about the need to treat forced marriage as we do other abusive practices within the family. The LCM is obviously intended to bring the deterrent of a significant maximum sentence. I agree very much with the concerns that have been expressed that there was virtually no consultation on the increase of the sentence from two to seven years.
The committee was advised about the slow process of domestic abuse being recognised as a serious offence and the role that legislation and prosecution can play in effecting cultural change. Of course, the current legislation will send out a message about the unacceptability of forced marriage. As was mentioned in the debate, evidence from Police Scotland indicated that there have been seven forced marriage protection orders, and I note that most of those cases came to light through child protection procedures. However, support organisations will have received considerably more inquiries about help that did not result in formal FMPOs. It is therefore difficult to assess the impact of the current legislation, which has been in force only for a couple of years. The minister advised the committee that evidence from other countries shows that, where forced marriage is a criminal offence, it results in increased reporting, but we do not know what will happen in Scotland.
John Pentland stressed the need to comply with the international obligations and the need for consistency. I recognise Margaret Mitchell’s point that many aspects of Scots law are different from the law in England and Wales. However, theoretically at least, where members of an extended family live in different parts of the UK, a legislative framework that was perceived to be less stringent in respect of forced marriage could result in family members in Scotland becoming the instigators of forced marriage because the penalties were less.
Christine Grahame mentioned the problems with the LCM process. I think that we were all frustrated by that, and indeed by the number of amendments that kept coming up. Returning to a point that she made, I note that the problem is the way in which the civil and criminal systems work in tandem. That will have to be resolved in the UK as well as in Scotland if we are required by the Istanbul convention to make forced marriage a criminal offence, so we need to concentrate on how the problem can be resolved in practice.
If a legislative route is required, the Criminal Justice (Scotland) Bill is nearing completion of stage 1 in the Parliament and the Cabinet Secretary for Justice has signalled that he will lodge amendments to end automatic early release for some crimes, for example. I would think that, if required, there is an opportunity to amend the bill further to ensure that we take account of victims’ rights to have their desires prioritised when it comes to whether cases go through the civil or the criminal process.
I was interested in Malcolm Chisholm’s points on ratification. Interestingly, none of them was raised in evidence to the committee. The issues came up today, in this debate. I am not absolutely clear whether the legislation is required to be in place prior to ratification or whether it would be appropriate to consider it after ratification, so I, too, will be interested to learn the minister’s view on that issue.
This has not been a particularly happy experience. I do not think that any member of any party has been particularly happy about the way in which the LCM has proceeded but, to use a phrase that I do not particularly like, we are where we are. We are possibly now at a stage at which the only way forward is to agree to the LCM but to take the necessary advice on what safeguards must be put in place thereafter to ensure that victims’ wishes are always respected.
17:38
I thank everyone for their contributions to the debate. Although we might not all agree on the details, I have a strong feeling of the commitment that members have to ensuring that the right protection is available for victims of forced marriage, which we all agree is a serious abuse of human rights and should not happen in a modern, socially just Scotland. I listened carefully to the thoughtful points that members raised and I will address as many of them as I can in the time that is available.
Before I do that, I want to elaborate on a point that I made in my opening speech. I said that I wanted to assure members that we will keep the legislation under review and regularly engage with stakeholders, and that in addition we will commission research to establish what is happening in communities, what the barriers are that prevent reporting whether in relation to civil remedies or criminalisation, how effective existing legislation has been, and what would help victims to take action. I reassure John Pentland that the research will, of course, be independent. We want good-quality research to help us to take the issue forward.
The research will be useful because it will help us to identify what further action we may need to take in relation to policy or practice in the future. We know that legislation is only part of the answer and will not eradicate forced marriage by itself. Guidance, training, education and awareness raising are vital, too. We will continue to work with stakeholders such as Scottish Women’s Aid, Shakti, Amina and Saheliya on such matters. We will ensure that resources are adequate to do that.
I will respond to some points that were made. I welcome Elaine Murray’s support, albeit with reservations, for the LCM. A number of points have been made about ratification, which I will discuss when I come on to Malcolm Chisholm’s point.
Margaret Mitchell mentioned some views in the third sector, but third sector organisations have expressed other views. For example, the head of policy at Barnardo’s Scotland, Mark Ballard, said:
“We believe that creating an offence under Scots law of forcing someone into marriage would be the right step to take in order to tackle this very serious issue.”
Alison Davis, the manager of Saheliya, said that it is important to
“adhere to the letter as well as the spirit of the Istanbul Convention”.
I accept that views are mixed, but they are mixed—they are not just on one side of the debate. What is important is to agree that the organisations that have those different views will be very much involved in taking forward the measures.
The point is that there is time, especially given the information that Malcolm Chisholm supplied, to look again and see whether a Scottish solution can be found that complies with the convention.
I find that comment slightly ironic, given the UK Government’s clear position. As for Malcolm Chisholm’s point about ratification, the UK cannot ratify the convention until the provisions of domestic law are compatible with the convention. That is a chicken and egg situation. We must be compatible in order to ratify the convention, which the Prime Minister has said that he wants to do as quickly as possible. Given that he is from Margaret Mitchell’s party, I would hope that she agrees that this place should also seek to act as quickly as possible.
There is disagreement on the legal advice, because that is not the legal advice that Scottish Women’s Aid has received. However, if the minister takes that view, what is the Scottish Government’s response to my other point—that action will have to be taken on at least seven other articles of the convention?
We are looking at forced marriage today. We are clear that, to ratify the convention, we require to criminalise forced marriage. The other articles are another issue. The LCM provides an opportunity to do something about forced marriage. I believe strongly that that is the right thing to do, not least because of the public message that it sends—that we will not tolerate forced marriage in Scotland. Making that a criminal offence sends a clear message.
I turn to other points that were made. It is important to recognise the role of the organisations concerned. I again make the commitment to work with Scottish Women’s Aid and others to raise awareness among communities. As other members have said, we are talking not just about legislation but about how to take the message to the public. I give reassurance on that point.
The relationship between civil and criminal procedures has been discussed a lot. Both procedures will be open to people, but we should bear in mind the important point that the criminal law looks at the criminal offence that has occurred, whereas the civil remedy looks at issues that might arise. A forced marriage protection order provides protection from something that might happen. People must understand that distinction.
As I said in my opening speech, the Lord Advocate has agreed to look at the issues and at the public interest test. We must keep victims at the centre of considerations and keep victims and potential victims at the heart of the legislation, its implementation and the awareness raising in our communities.